AI, R (on the application of) v London Borough of Wandsworth

A local authority’s duty under section 42 of the Children and Families Act 2014 to secure the provision specified in an individual EHCP is absolute and person-specific. Where the statutory scheme requires the authority to address the individual’s particular needs, the resulting exercise may itself satisfy the public sector equality duty under section 149 of the Equality Act 2010.

The duty of inquiry arising from the PSED and the Tameside duty is context-sensitive. Further investigation or monitoring is required only where reasonable and, in particular, where it would be irrational not to undertake it. The PSED does not require detailed investigation of a problem that has not been shown to exist. A systemic challenge requires evidence of an inherent defect or likelihood of non-compliance, rather than isolated operational failings.

The claimant, a transgender young person with complex special educational needs and disabilities, challenged the local authority’s discharge of its duties under section 42 of the Children and Families Act 2014 and section 149 of the Equality Act 2010. He alleged that misgendering and gender reassignment discrimination had contributed to repeated breakdowns of educational placements and that the authority had failed to investigate or monitor the position.

The authority argued that the EHCP process addressed the claimant’s individual needs, that its duty under section 42 was absolute, and that there was no evidence of systemic discrimination or a material connection between misgendering and placement breakdown. The central issues were whether separate PSED consideration was required in securing the specified provision, and whether further inquiry or monitoring was irrationally omitted.

1. Claim dismissed. The authority’s performance of its section 42 duty involved an individualised assessment of the claimant’s needs, including his disabilities, diagnoses and gender identity. In those circumstances, the equality considerations were subsumed within the section 42 exercise, and it was impossible to conclude that no due regard had been paid under section 149 of the Equality Act 2010 (paras [92]–[97], [125]–[127]).
2. The section 42 duty was absolute. It required the authority to secure the special educational provision specified in the EHCP and was not merely a best-endeavours obligation. The PSED could not add a separate requirement at the individual level where the EHCP process necessarily addressed the person’s particular needs (paras [17]–[21], [125]–[127]).
3. The Tameside duty of inquiry, read with the PSED, remained dependent on context. A public authority need take further steps only where they are reasonable and where it would be irrational not to undertake the particular inquiry. The authority was not required to investigate every protected characteristic or to monitor a problem that had not been demonstrated to exist. Its decision not to establish the proposed monitoring system was not irrational (paras [90]–[91], [102]–[108], [116]).
4. A systemic challenge required evidence of an inherent defect in the system or an inherent likelihood that the authority would fail to comply with its duties. Individual incidents of misgendering or other operational failings did not establish such a defect (paras [99]–[101], [128], [131]).
5. On the evidence, the limited incidents of misgendering known to the authority did not establish systematic discrimination, a requirement for further monitoring, or that gender-related failures caused or materially contributed to the claimant’s placement breakdowns. The EINA, the EHCP process and the authority’s responses to reported incidents showed that it had addressed the relevant issues. The existence or withdrawal of a draft toolkit did not alter that conclusion, and there was no failure of candour (paras [98], [109]–[124], [132]–[134]).