LS, R (on the application of) v The London Borough of Merton

A local authority may depart from a specialist tribunal’s non-binding social-care recommendation, but it must give cogent reasons and undertake a lawful rational decision-making process. It must assess, weigh, calibrate and balance the tribunal’s findings and the evidence against any countervailing factors it relies upon. General considerations, such as preserving family relationships, do not replace that case-specific balancing exercise.

An extended-day educational curriculum is distinct from a 52-week placement. Where a 52-week placement is recommended as social-care provision in sections H1 and H2 of an EHC plan, it is not a mandatory educational provision in section F. Failure to undertake the required evaluative process renders the decision unlawful, although the court should quash and remit rather than substitute its own outcome.

LS, a 15-year-old with severe autism, complex mental-health needs and significant behavioural regression, attended a specialist residential school during term time. The First-tier Tribunal ordered amendments to sections B, F and I of his EHC plan and recommended social-care amendments in sections D, H1 and H2, including consideration of a 52-week residential placement.

The London Borough of Merton decided that the 52-week placement was social-care provision and declined to follow the recommendation. It offered holiday support instead. LS sought judicial review on three grounds: whether the Tribunal had ordered 52-week educational provision; whether the local authority’s decision was irrational or procedurally unlawful; and whether the plan sufficiently specified therapeutic provision.

1. Ground 1. The Tribunal’s order required educational provision, including an extended-day curriculum, to be recorded in section F. The 52-week placement was recommended as social-care provision in sections H1 and H2. It was therefore not a mandatory educational provision, and permission was refused on this ground.
2. An extended-day curriculum is distinct from a 52-week curriculum. The former concerns education and training before and after the normal school day, including the generalisation of skills. The latter concerns provision during school holidays and may fall within social care.
3. Ground 2. Under regulation 7 of the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017, the local authority was entitled to reject the recommendation but had to give reasons. In the circumstances, cogent reasons were required because the recommendation came from a specialist tribunal which had considered detailed evidence.
4. The applicable Wednesbury challenge principally concerned the decision-making process. The authority was not required to reach the Tribunal’s conclusion, and the court could not substitute its own view. It was, however, required to evaluate, calibrate and balance the factors it relied upon against the evidence before the Tribunal, including LS’s regression, violence, the effect on family members, difficulties with transitions, the professional evidence and the parents’ stated inability to cope.
5. The letters of 9 and 28 November 2023 emphasised family relationships, a positive home visit and the need to try further support. They did not adequately engage with or balance the substantial countervailing evidence. The decision therefore failed to take relevant considerations into account and was unlawful.
6. The decision of 9 November 2023 was quashed and remitted for reconsideration. The local authority was required to make a fresh decision after undertaking the necessary assessment, calibration and balancing exercise. The court declined to order the authority to adopt the Tribunal’s recommendation.
7. Ground 3. Permission was granted. The court found insufficient specificity in the EHC plan concerning therapeutic provision, although the question of additional relief was left for the parties to consider in light of the quashing order.

First-instance judicial review in the Administrative Court. Ground 1 failed. Permission was granted on Grounds 2 and 3. The local authority’s decision dated 9 November 2023 was quashed and the matter was remitted for reconsideration.