High Court decides against ordering Devon County Council to provide interim placement for social interaction

RJ, R v Devon County Council [2023] shows that a breach to provide suitable education does not necessarily mean that a court will grant all of parents’ requests. If you can make a case that the most appropriate interim education differs from that which is being requested by parents, evidence will be considered with a forward-looking outlook.

Brief background

This Judicial Review Hearing, held on 2 March 2023, related to a First Tier Tribunal (FTT) decision in September 2022 for an 11-year-old child (RJ). RJ had ASD, anxiety, hyper-mobility, dyspraxia and sensory processing difficulties.

Due to non-attendance at a mainstream junior school, the Local Authority organised a bespoke package which included a two day a week placement at Tubers Academy for professional video production and digital media lessons. Following a review, a final EHC Plan was produced in October 2022 which named Marland Primary School (a community school). Concurrently, the funding for the previous junior school and Tubers Academy abruptly stopped.

Parents had requested EOTIS whilst the Local Authority submitted that Marland School could meet RJ’s needs. The FTT found Maryland School unsuitable to meet RJ’s needs and EOTIS overly restrictive as to academic, social and emotional development. As such, the FTT ruled that a specialist setting be named in Section I of the EHC Plan.

Judicial Review Hearing

Due to uncertainty as to the family’s living arrangements, the Tribunal did not have a named school. The claimant requested a mandatory order which included that the Local Authority be made to place RJ at Tubers Academy for the interim period. There was evidence that Tubers Academy would be able to admit RJ and provide him with the social group he requires.

However, the Local Authority argued against this on the basis that this could increase RJ’s reluctance to attend a new specialist school. RJ was unwilling to attend Maryland School, albeit later found unsuitable, because of his belief that this was the reason that Tubers Academy was taken away from him. A return would likely exacerbate difficulties as Tubers Academy would be taken away again.

The High Court granted the claimant’s requested order save for an interim placement at Tubers Academy. It was of the view that this was not the only justifiable response. Evidence showed that RJ could interact with peers at the setting where SALT provision was to be received which was sufficient to fulfil the requirements of social interaction within the EHC Plan.

Practical Points

The case is a helpful reminder that a child or young person’s SEN and SEP may not only be fulfilled by an interim placement – indeed, nor may it be appropriate. A child or young person’s unwillingness to engage in a school setting should be taken into consideration for suitable arrangements. Whilst the Judge acknowledged that the LA’s abrupt ending of the Tubers Academy placement likely contributed to RJ’s disengagement with school settings, the High Court focused on a realistic response which could address the resulting issues.