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

The claimant, a transgender young person with complex special educational needs and disabilities (SEND) and an Education, Health and Care Plan (EHCP), challenged the defendant local authority for alleged failure to comply with the Public Sector Equality Duty (PSED) under section 149 of the Equality Act 2010 in how it secured or monitored special educational provision under section 42 of the Children and Families Act 2014. The court held that where a local authority is discharging an individualised, statutory duty under section 42 to secure special educational provision tailored to an individual, that process inherently addresses the equality consideration required by section 149 and it is not in every case necessary to conduct separate, wider monitoring or inquiries into every protected characteristic.

The court found no evidential basis for a systemic failure: the authority had recorded the claimant's gender reassignment in his EHCP, had investigated and taken steps when incidents were reported (for example at Lambeth College), and had produced a SEND Equality Impact and Needs Assessment (EINA) noting a data gap on gender reassignment. The claimant did not demonstrate that misgendering was a material cause of placement breakdowns or that it was irrational for the authority not to have instituted broader monitoring specific to transgender pupils with EHCPs.

Background and parties:

• The claimant (AI) is a transgender man with complex SEND and an EHCP maintained by the defendant, London Borough of Wandsworth. He sought judicial review alleging breach of the PSED and a failure to monitor and inquire (the Tameside duty) so as to identify and remedy transgender-related discrimination affecting access to special educational provision.
• The defendant resisted, submitting that section 42 CAFA imposes an absolute, individualised duty to secure the provision specified in an EHCP and that in that process the authority necessarily had due regard under section 149; alternatively, there was no evidence of systemic discrimination or of misgendering as a material cause of placement breakdowns.

• (i) The claimant sought a declaration that the defendant had failed to comply with the PSED by not equipping itself with information about barriers to transgender pupils with EHCPs, and by failing to monitor and investigate whether misgendering/gender reassignment discrimination contributed to placement breakdowns.
• (ii) The court framed the issues as whether the statutory section 42 function engaged the PSED in the claimant's favour, whether a duty to monitor or further inquiry was triggered by the contemporaneous material (including the EINA and a draft 'Toolkit'), and whether there was evidence of systemic or individual unlawful discrimination causing placement failures.

Court reasoning and decision:

• The court accepted that the PSED can in principle require inquiry and monitoring in context and that the Tameside duty may apply. However, where a public body is exercising a statutory function directed at the needs of a protected group (here the section 42 duty to secure EHCP provision), explicit separate PSED consideration may be unnecessary because the function itself is designed to address those needs (citing authority such as ZK v Redbridge and McDonald v Kensington and Chelsea).
• The evidence showed the defendant had recorded and considered the claimant's gender reassignment within the EHCP, had investigated reported incidents (for instance at Lambeth College), and had taken steps where practicable. The EINA had acknowledged a data gap but did not identify a demonstrated problem requiring the specific monitoring sought. The court found it would not have been irrational for the defendant not to institute the kind of monitoring the claimant proposed, given limited utility, privacy concerns and absence of evidence of systemic disadvantage in the EHCP cohort.
• The claimant’s additional evidence and surveys were not sufficient to establish that misgendering materially caused placement breakdowns or that there was a systemic failure requiring the remedies sought.

The claim is dismissed. The court held that in this case the section 42 Children and Families Act 2014 duty to secure individualised EHCP provision meant the authority had in substance had due regard to the Equality Act 2010 duties in relation to the claimant; there was no irrational failure to inquire or to monitor arising from the contemporaneous material, no evidence of systemic discrimination, and the claimant did not prove misgendering was a material cause of placement breakdowns.