RJ, R (on the application of) v Devon County Council

A local authority’s duty to provide suitable education and secure provision specified in an education, health and care plan does not necessarily require the interim placement preferred by the child or parent.

Where a mandatory order is sought, the question is whether the requested placement is the sole justifiable response open to the authority. The court must consider the child’s educational and social needs, the evidence concerning available provision, transition arrangements and any risk that the requested interim placement would prejudice engagement with a suitable specialist placement. An alternative arrangement may satisfy the statutory duties if it can provide the required education and social interaction.

This was a judicial review claim by an 11-year-old child against Devon County Council. The claimant alleged breaches of the authority’s duties under section 19 of the Education Act 1996 and section 42 of the Children and Families Act 2014.

The parties agreed that the claim should be allowed, declarations of breach should be made, and occupational therapy and speech and language therapy should be arranged. The remaining dispute concerned whether the authority should be ordered to place the claimant at Tubers Academy pending a suitable specialist placement. The central issue was whether that placement was the sole justifiable response.

1. The claim was allowed by agreement. The defendant was declared to be in breach of its duties under section 19 of the Education Act 1996 and section 42 of the Children and Families Act 2014. The defendant was also required, within 14 days, to arrange suitably qualified occupational therapy and speech and language therapy support required by the claimant’s EHCP.

2. The parties agreed that the applicable test for a mandatory order requiring Tubers Academy as interim provision was whether that placement was the sole justifiable response open to the local authority, following R (on the application of Raja) v London Borough of Redbridge [2020] EWHC 1456 (Admin).

3. The claimant plainly required education, including the social interaction identified in the EHCP, while transition to specialist education was arranged. However, the identification of a specialist school was only the beginning of a transition process requiring careful planning.

4. The authority’s evidence-based concern that renewed attendance at Tubers Academy would make the claimant less willing to engage with the specialist placement was a real and material consideration. The court was not persuaded that Tubers Academy was the sole justifiable response.

5. The court accepted that the speech and language therapist at On Track could organise a group involving suitable peers and thereby help meet the EHCP’s social-interaction requirements. The agreed order was therefore made, with the proposed requirement for placement at Tubers Academy removed.

The judgment records that the claimant’s mother had appealed to the Special Educational Needs and Disability Tribunal against an earlier EHCP. The Tribunal’s decision dated 21 September 2022 rejected both the proposed Marland School placement and the request for education otherwise than at school, and directed that a specialist setting be identified. This judicial review was then brought against the local authority’s provision.