Daniel Henderson has succeeded in obtaining declaratory and mandatory relief on an interim basis against a local authority who refused to conclude an EHCP Annual Review, depriving the young person of a right of appeal against its contents.
The young person in question has severe special educational needs, including diagnoses of Autism Spectrum Disorder, sensory processing difficulties, and extreme anxiety. He attended a local mainstream school for a number of years but became a school refuser, as he was unable to cope with a mainstream environment.
The local authority purported to conduct two Annual Reviews, and a further emergency review. On each occasion, the school indicated that they could no longer meet need. The school and the young person’s parent proposed extensive reviews to the EHCP on each occasion. Despite all of this, the local authority failed to take any action at all following each review.
Some months later, following a pre-action protocol letter, the local authority reverted with a draft EHCP making only very minor amendments, and refusing to alter the young person’s placement. The parent and the school responded, suggesting a series of more substantial amendments. Once more, no substantive response was ever received from the local authority.
Daniel was then instructed, and a judicial review claim was launched, challenging the local authority’s unlawful failure to conclude an Annual Review within the relevant timeframe, and failure to conduct a lawful ‘review’ within the meaning of section 44 of the Children and Families Act 2014, as well as other grounds of challenge. Interim relief was also sought, in the form of a mandatory order compelling the local authority to finalise the EHCP.
The High Court has now granted those applications, and taken the unusual step of issuing a mandatory injunction as part of a permission decision on the papers. The High Court has also issued declarations confirming the local authority’s unlawful failure to comply with Regulation 22 of the Special Educational Needs and Disability Regulations 2024, and with section 44 of the 2014 Act.
The local authority has now complied with that order and issued a revised EHCP, which includes a confirmed place for the young person at a special educational institution to start later in the year, and significant funding for tutoring in the interim.
Daniel was very ably instructed and assisted by Catherine Wilkinson of SEN Support Solicitors. Daniel has a busy Education Law practice, and is regularly instructed in judicial review applications and appeals before the First-tier Tribunal, on behalf both of claimants/appellants and local authorities. He can be instructed in any such matters through his clerks at publicno5.com.
