HXN, R (on the application of) v London Borough of Redbridge

A local authority’s duty to secure the special educational provision specified in an EHCP is absolute and non-delegable. Financial, recruitment and other practical difficulties do not excuse prolonged non-compliance. Parental conduct may be relevant to the exercise and form of the court’s remedial discretion, but it does not displace the authority’s duty. The authority must show what it is doing to overcome obstacles and why it can do no more. Where non-compliance is prolonged, materially affects the child, available solutions have not been pursued, and no credible compliance plan exists, a mandatory order may be appropriate. An overdue EHCP review does not ordinarily justify withholding relief for breach of the current plan.

The claimant, a 15-year-old child with substantial special educational needs, challenged the London Borough of Redbridge’s failure to deliver the special educational provision specified in his EHCP. The principal shortfall concerned full-time one-to-one support from a team of trained and experienced ABA tutors. There was also an admitted failure to include an educational psychologist in the multidisciplinary team responsible for reviewing his programme.

The Council argued that parental conduct had contributed to the recruitment difficulties, that suitable tutors were unavailable, and that an overdue EHCP review might alter the required provision. The central issues were whether relief should be granted despite those matters and whether the relief should include a mandatory order.

1. Statutory duty. The Council had failed for more than 12 months to secure the provision specified in the EHCP, contrary to its absolute and non-delegable duty under sections 37 and 42 of the Children and Families Act 2014. The provision delivered by a single tutor, who was not yet qualified as a registered behaviour technician, did not satisfy the EHCP requirement for a team of trained and experienced ABA tutors. The Council also failed to include an educational psychologist in the multidisciplinary team required by the EHCP.
2. Parental conduct. The parents’ conduct had contributed to the withdrawal of one tutor, but was not the predominant cause of the continuing breach. Even where parental conduct contributes causally to non-compliance, it does not necessarily prevent relief. The Council remained responsible for overcoming obstacles and could not simply give up.
3. Available alternatives. The Council had failed to investigate or pursue external ABA consultancies apparently able to provide the required package. It had improperly sought to delegate its statutory responsibility to the School. The overdue EHCP review did not justify withholding relief because the current breach continued and the eventual outcome of the review was uncertain.
4. Remedial discretion. Applying R (Imam) v London Borough of Croydon, remedies in public law are discretionary, but the ordinary position is that relief should be granted. A mandatory order should not require the impossible, but the Council had not shown impossibility, had been on notice of the problem, had no credible plan for compliance, and had available means of remedying the breach. The seriousness of the impact on H and the absence of any realistic prospect of voluntary compliance justified a mandatory order.
5. Disposition. The claim succeeded. The Council was ordered to bring the provision received by H into line with the full EHCP package within five weeks of judgment, including both the ABA tutor provision and the educational psychologist requirement. The Council was ordered to pay H’s costs on the standard basis.