LW, by her litigation friend, R (on the application of) v London Borough of Islington

Judicial review is ordinarily a remedy of last resort. Where Parliament has provided an appeal to a specialist tribunal with broad powers to reconsider the dispute and grant effective relief, the Administrative Court should intervene only in exceptional circumstances, usually involving a serious abuse of power or conduct in defiance of the rule of law.

In an EHC-plan dispute, the local authority must consider relevant information and advice, but need not adopt every expert recommendation or reproduce it in the plan. A statutory reassessment may make a contemporaneous annual review unnecessary where the review would be duplicative and achieve nothing distinct. Disputes about the content and classification of educational, health and social-care provision are ordinarily for the First-tier Tribunal.

The claimant, a young person with complex educational, medical and mental-health needs, sought judicial review of an EHC Plan issued by the London Borough of Islington on 6 August 2024. She alleged that the authority had failed to conduct a lawful reassessment, had failed to hold an annual review of an earlier plan dated 18 July 2022, and had failed to consider expert reports or had acted irrationally when preparing the new plan.

The claimant’s parents had also appealed against the August 2024 plan to the First-tier Tribunal, which was actively case managing the appeal and had listed a substantive hearing. The central issue was whether judicial review should proceed despite that statutory appeal and, if so, whether any of the three grounds was arguable.

1. Outcome. Permission for judicial review was refused and the claim was dismissed. None of the three grounds was arguable.
2. Alternative remedy. Judicial review is a remedy of last resort. The First-tier Tribunal had specialist expertise and broad powers, including power to reconsider the plan, order an assessment or reassessment, and substitute educational provision or placement. The claim therefore fell within the ordinary rule that judicial review should not duplicate an available statutory appeal. Delay, distress and the claimant’s difficult circumstances did not constitute the exceptional circumstances required for intervention. [2017] EWCA Civ 1719; [2013] EWHC 3052 (Admin); [2016] EWCA Civ 154.
3. Reassessment. Sections 36 and 44 of the Children and Families Act 2014, read with regulation 6 of the Special Educational Needs and Disability Regulations 2014, did not require fresh advice in each of the four disputed professional areas. The authority could rely on previously available advice and on reports commissioned by the family. It had included provision addressing each area. Any dispute about whether the provision accurately reflected the evidence was for the Tribunal.
4. Annual review. An emergency review had taken place in January 2023, so the next annual review was not due until January 2024. By then, a full reassessment had begun. On the facts, a further review would have been duplicative and disproportionate. The challenge was also academic, out of time, and incapable of affecting the lawfulness of the later plan. [2022] EWHC 493 (Admin) was distinguishable because it did not concern a reassessment already undertaken.
5. Expert evidence and plan content. Regulation 7 required the authority to consider information supplied by the parents and advice obtained under regulation 6; it did not require the authority to accept or reproduce all of it. The evidence showed that the material had been considered and that mental-health and other provision had not simply been ignored. Questions concerning the content of special educational provision, and whether particular mental-health provision was educational or health provision, were matters for the specialist Tribunal. [2016] UKUT 528 (AAC); [2024] EWHC 584 (Admin).