JSH, R (on the application of) v Westmorland and Furness Council

A local authority’s duty under section 42 of the Children and Families Act 2014 to secure the special educational provision specified in an education, health and care plan is absolute. Breach is a binary question: provision has either been secured or it has not. Describing a breach as material or technical does not qualify the duty, although practical difficulties may affect relief.

Following a continuing breach, the ordinary position is that a remedy should be granted. The court must consider contingency planning, prior notice, the claimant’s needs, remedial steps and unfairness to others. A mandatory order was appropriate where the authority had reacted slowly and the claimant’s needs were pressing.

The claimant, a 17-year-old young person with profound autism, communication delay, severe learning difficulties and sensory processing disorder, had received continuous special educational provision at a special school under successive education, health and care plans.

The school terminated his placement at the end of the summer term 2024. Despite an amended plan, no educational provision was secured from the commencement of the September term. The Council proposed education otherwise than at school at a supported living home, but that provision was still being arranged.

The claimant sought judicial review, a declaration of breach and a mandatory order requiring the Council to secure the provision in section F of the plan. The central issues were whether section 42 had been breached and whether mandatory relief should be granted.

1. Permission and breach. Permission was granted because it was clearly arguable that the Council had breached its statutory duty. The duty under section 42 of the Children and Families Act 2014 is absolute and is not a best-endeavours duty. The Council accepted that the claimant had not received the provision specified in his EHCP from the beginning of the autumn term.
2. The question of breach is binary. There is no qualification of the answer by describing a breach as material or technical. Any practical difficulty goes to the discretionary question of relief. The breach began in September 2024 and remained continuing.
3. The Council’s failure to direct the former school to provide temporary education was justified on the facts. However, once notice of termination had been given, the Council should have acted with due expedition, anticipated the need for alternative provision and investigated available options more thoroughly. It had been on notice of the claimant’s complex needs and had several months to prepare.
4. Following R (Imam) v Croydon London Borough Council [2023] UKSC 45, the ordinary position after an established breach is that a remedy should be granted. The court must determine objectively whether the authority had taken all reasonable steps and must consider contingency planning, prior notice, the impact on the claimant, steps taken to remedy the position and unfairness to others. The claimant’s serious deterioration and pressing need weighed heavily in favour of mandatory relief.
5. The claim succeeded. The court declared that the Council had been in breach from the commencement of the September 2024 term and that the breach was continuing. A mandatory order required the Council to provide the special educational provision in the current EHCP within five weeks.