The introduction of EHC plans for some 16-25 year olds was one of the most important changes to SEN in the Children and Families Act 2014. Under the previous regime, a special educational needs statement could not provide for a young person to attend further education or higher education. Even if the child remained in a school setting post-16, the statement would lapse (if the local authority had not already ceased to maintain it) when the young person turned 19, although the local authority could choose to maintain it until the end of that academic year. Young people with learning difficulties and/or disabilities who were moving into further education, training or higher education received instead a learning difficulties assessment. This assessment would result in a written report of their educational and training needs and the provision required to meet them (“the LDA”). Any challenge to an LDA was by way of judicial review (as, in contrast to the position for challenges to the contents of SEN statements, there was no statutory right of appeal to the tribunal). That is all changing, with the introduction of EHC plans, which can continue until the young person reaches the age of 25, which can include further education provision (but still not higher education) and which can be appealed to the tribunal. Whilst EHC plans were introduced on 1 September 2014, there is a fairly lengthy transition period and so LDAs will be with us for a little longer yet.
Neil Cameron QC has considered LDAs in R (Smieja by her father & litigation friend Smieja) v Bexley LBC  EWHC 4113 (Admin) (judgment available on Lawtel). The young person was 19 and therefore her placement at a residential school was coming to an end. She was assessed and the LDA recommended a placement at the Fortune Centre of Riding Therapy. However, a subsequent placement approval panel meeting decided not to make this placement because of concerns that she would not be able to transfer skills learned at an out-of-borough residential placement. Instead, the panel made the decision that an individualised programme would be funded which would include 3 (or 4) days on an accredited course at White Rocks Farm with the additional days offered at Adult Education College and/or Twofold (if the young person and her family wanted a 5 day provision); this would be supported by provision of up to 55 hours of Personal Assistance Support; Social Care would source Supported Living Accommodation where the young person could be assisted via The Reablement Team to gain independent living skills; and consideration for Travel Training would also be given.
The issue in these judicial review proceedings was whether the young person could enforce the provision in the LDA and get a placement at the Fortune School of Riding Therapy. It is of course possible to enforce the provision in a SEN statement, because section 324(5) of the Education Act 1996 imposes an obligation on the local authority to arrange the special educational provision specified in the statement (unless the child’s parent has made suitable arrangements). However, there is no equivalent duty on local authorities to arrange the provision set out in an LDA. Paragraph 17.2 of the statutory guidance states: “Once the student’s education and training needs have been
clearly identified the placement decisions should be taken in the light of the overall budget available.”
The claimant’s judicial review grounds were that:
- The decision made by the Defendant to fund a placement other than that contained in the LDA was in breach of statute or unreasonable;
- The provision made by a local authority must match the LDA;
- If the Defendant was to make provision other than in accordance with the assessment contained in the LDA, the LDA should have been reviewed before such a decision was made;
- The decision was procedurally unfair;
- The Defendant failed to take into account the fact that the placement/s it agreed to fund was more expensive than the placement which the Claimant had asked it to fund; and
- In formulating the programme, the Defendant acted in breach of the provisions of Article 8 and Article 14 of the European Convention on Human Rights (“ECHR”).
The High Court rejected all of these grounds of appeal.
On the first issue, it was common ground that there was no statutory duty (equivalent to section 324(5) of the Education Act 1996) and the statutory guidance did not require the local authority to make the placement recommended in the LDA. Whilst section 15ZA of the 1996 Act states that local authorities must secure that enough suitable education and training is provided to meet the reasonable needs of persons in their area who are aged 19 or over but under 25 and are subject to learning difficulty assessment, this does not require them to make the particular provision in the LDA. Further, the local authority’s placement decision was not Wednesbury unreasonable on the evidence and the local authority had taken into account the relevant matters (including comparative cost). On the facts, the parents had been consulted and there was no procedural unfairness. There was no breach of human rights where a local authority was meeting the young person’s training and education needs (albeit not by making the placement that the family had requested).
There is nothing particularly surprising in this decision, but it does highlight that a young person with an LDA has significantly weaker legal rights than if they had a SEN statement. That will change as more young people get EHC plans, with enforceable education and health provision and also rights of appeal to the tribunal.
Rachel Kamm, 11KBW