LB (R on the application of) v SURREY COUNTY COUNCIL

A local authority’s duty under Education Act 1996, section 19 is a mandatory duty to arrange suitable education, not merely to attempt to do so. The provision must be assessed objectively by asking whether education is available, possible and accessible to the child, having regard to reasonable practicability.

Duties to secure specified special educational provision, provide accommodation, review care plans and assess children’s and parent carers’ needs are continuing or mandatory duties. Practical difficulty is not a defence, although the court will not order the impossible and may allow a reasonable period for compliance.

The claimant was a looked-after child with complex health, educational and behavioural needs. Her residential placements ended, and she returned to live with her mother while the defendant sought alternative accommodation and educational provision.

The claimant sought judicial review declarations and mandatory orders concerning interim education, her education, health and care plan, accommodation, assessments of her and her mother’s needs, and review of her care plans. The defendant conceded breaches of several statutory duties and disputed the remaining issues, including whether its steps to arrange education and assessments were sufficient and whether relief should be refused.

1. Education. The duty under section 19(1) of the Education Act 1996 is a duty to arrange suitable education, not a duty merely to attempt to make arrangements. The relevant question is whether provision is available, possible and accessible to the child. The defendant failed to make suitable arrangements between 17 October 2021 and 8 February 2022. The claimant therefore succeeded on ground 1 (paras 69–85).
2. EHC plan. The defendant conceded, and the court confirmed, breaches of the duties under sections 42(2) and 44 of the Children and Families Act 2014 to secure specified special educational provision and review the EHC plan (paras 86–88).
3. Accommodation. The defendant accepted that placing the claimant in her mother’s home did not discharge the duty under section 20 of the Children Act 1989. Under section 22C, placement with a parent is not required where it would be inconsistent with the child’s welfare or would not be reasonably practicable (paras 89–91).
4. Assessments and care plans. The section 17 duty under the Children Act 1989 is continuing. Material changes in circumstances required the defendant to review or reassess the claimant’s needs and care plans. The defendant also breached regulation 6(1) of the Care Planning, Placement and Case Review (England) Regulations 2010 by failing to keep the care plans under review (paras 101–102).
5. The duty under section 17ZD of the Children Act 1989 to assess a parent carer’s support needs is mandatory once the statutory conditions are met. It must be performed within a reasonable period, assessed in light of all the circumstances. Waiting approximately three months after the claimant returned home was unreasonable (paras 102–107).
6. Relief was not refused under section 31(2A) of the Senior Courts Act 1981. The unlawful conduct could have made a substantially different outcome likely, and the relief sought had practical utility. Declarations and mandatory orders were made, with compliance generally required within 30 days. The defendant was given liberty to apply before expiry of the periods if compliance proved impossible (paras 108–117).