W, R (on the application of) v Hertfordshire County Council

A local authority must apply the low statutory threshold when deciding whether to secure an EHC needs assessment. It must complete the assessment and finalised EHC plan within the applicable statutory period, calculated from the original request rather than any later agreement to assess. These are hard-edged duties, subject only to limited regulatory exceptions. Failure to comply is not appealable to the First-tier Tribunal where the authority has accepted that an assessment should be undertaken. Judicial review is therefore available where no adequate alternative remedy exists.

The claimant challenged Hertfordshire County Council’s handling of his daughter’s request for an EHC needs assessment under the Children and Families Act 2014. The authority initially refused the request, later conceded before the First-tier Tribunal, and failed to complete the assessment and finalised EHC plan within 20 weeks of the original request. The claimant also indicated a wider systemic challenge concerning the authority’s decision-making and delays. The central issues were the calculation of the statutory deadline, the Tribunal’s jurisdiction and the appropriate relief.

1. The authority acted unlawfully by failing to complete the assessment and finalised EHC plan within 20 weeks of the request made on 30 December 2022. The period did not restart when the authority agreed to assess on 5 April 2023. The duty was hard-edged, not a best-endeavours obligation, subject only to the limited exceptions in Regulation 10(4) of the Special Educational Needs and Disability Regulations 2014.
2. Section 36 of the Children and Families Act 2014 requires the authority to address whether the child may have special educational needs. This is a low threshold. A refusal must give reasons addressing and justifying the conclusion that the threshold is not met. The fact that needs may be met through ordinary adjustments or teaching does not necessarily mean that the child has no special educational needs.
3. The First-tier Tribunal’s statutory jurisdiction covered a decision not to secure an assessment, but not a failure to complete an accepted assessment and finalised plan within the statutory period. Judicial review was therefore available.
4. The court did not determine the proposed systemic challenge. It required a clear amended claim, a response from the authority and disclosure explaining how initial decisions were made and why so many were later reversed. The possible systemic inquiry was referred to by reference to R (A) v Secretary of State for the Home Department [2021] UKSC 37 and R (BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38.
5. A declaration of unlawfulness was granted. The remainder of the judicial review was adjourned for 28 days. Any damages claim was to be transferred to the Watford County Court after the public law issues concluded, unless resolved by agreement.