What’s the law when a council says it can’t comply because of resource issues, though it’s “trying its best”

Comments from the High Court on a local authority’s claim they could not comply with the law because of resource issues – R (W) v Hertfordshire County Council

The news is once again filled with local authorities going bust and attempts to blame financial woes on (amongst other things) an increase in requests for special educational support.

On the ground, the reality of this is that, again and again, I see local authorities failing to meet their statutory duties under the Children and Families Act 2014. When they receive a legal letter challenging this, the response is often that they are “trying” but resourcing issues are the problem.

At the end of 2023, the decision of R (W) v Hertfordshire County Council [2023] EWHC 3138 (Admin) was handed down. It contains helpful observations about the way local authorities should (and should not) behave when they are in clear breach of their statutory obligations.

Background to the case

The case concerned a challenge to a local authority, Hertfordshire County Council’s (“the Council’s”) delay in carrying out an EHC needs assessment for the Claimant, “W”. As set out in regulation 13(2) of the Special Educational Needs and Disability Regulations 2014, if a local authority decides, following an EHC needs assessment, to issue an EHC plan, it must issue the finalised EHCP, “as soon as practicable, and in any event within 20 weeks of the local authority receiving a request for an EHC needs assessment”. There are some exceptions recognised in regulation 10(4)(a) to (d), but these are very limited.

The Council was very late in carrying out an EHC needs assessment for W. It did not deny this. Its excuse for failing to comply with the statutory timescale – as recorded in the judgment – was all too familiar:

The Local Authority relies on the fact that the number of requests for EHC assessments has risen by 185% in the years since the 2014 Act was implemented, although the majority of that growth was in the early years and the growth last year was at 5%. They say, and I accept, there is a national shortage of educational psychologists to undertake the assessments and it is therefore very difficult to complete the assessments within the time periods specified in the Regulations. (para 17)

para 17 of Judgement

Breach of duty and resource issues

The Court’s response was clear:

Whilst I accept that the Regulations place onerous obligations on local authorities, these are not duties to use “best endeavours” to complete assessments within defined periods but hard edged legal duties…. the Local Authority will be acting unlawfully each time that it fails to complete an assessment and prepare the EHC plan within the time period specified in the Regulations.” (para 17)

para 17 of Judgement

That is, it is no defence for a local authority to say they tried their best to comply with the legal timescales. The legal duty is clear cut: they must comply with the timescales, unless one of the narrow exceptions set out in the Regulations applies. None of the exceptions applied in this case.

All of this is orthodox. I should take a moment to make clear that although it’s no defence to a breach of a hard-edged statutory duty that there are resource issues or a lack of therapists, the court might consider these points in deciding what relief to grant. This means, a court that decides a local authority is in breach of a legal duty still has to decide whether it will order the local authority to comply with that duty. A court is not going to order a local authority to do something that’s impossible. For example, it might be impossible for an assessment to be completed within one week of the court making its decision, so the court might instead give the local authority a bit more time. In this way, resourcing issues can still be relevant. But it would be a rare case where a court would not make any order at all. Further and importantly, it will be for the local authority to provide good evidence as to why it should not be ordered to comply with the law promptly. That evidence should be specific; it won’t be good enough to turn up to court with general statements about a lack of money and therapists.

How local authorities should (and should not) behave

The Judge, however, went further in this case. He made some observations about how the Council had responded to pre-action legal letters [sent by the parents/their representatives] and then to the claim when it was issued.

The Judge took issue with the lack of urgency on the Council’s part to remedy their breach of duty. In response to the pre-action legal letter, the Council accepted (and apologised for) the considerable delay in the EHC needs assessment. The Council explained that W was on the waiting list to see an educational psychologist employed by the Council “but due to the overwhelming demand for their service at the present time, they cannot confirm when this will be. The local authority is investigating the possibility of outsourcing this assessment but this is not able to happen [for another two months].” (para 18)

The Judge observed:

It seems to me that this letter accepted the fact of the breach but then appeared to accord relatively little priority to the Local Authority taking action to remedy the breach. The approach demonstrated in this letter is not consistent with a public authority that recognised the seriousness of having breached its legal obligations and was determined to remedy them as quickly as possible. (para 19)

This is a really helpful judicial statement. Too often I see responses from local authorities stating that resourcing issues and therapist availability mean they can’t comply with statutory timescales, or they can’t put in place therapy specified in a child’s EHCP, despite being under a statutory duty to do so. This judgment underlines that where there is a breach of statutory duty, local authorities should be acting with a sense of urgency to remedy this.

Issuing a judicial review

As the matter was not resolved through pre-action correspondence, W’s father issued a judicial review claim on her behalf. The Council responded that they would contest the claim in full and said they, “at all times acted with regard to the applicable terms of the Children and Families Act (2014) and the Special Educational Disability Regulations (2014), Protocol 1 (Article 2) of the European Convention on Human Rights and indeed any other applicable legislation/regulations”. (para 28)

The Judge was highly critical of this. He noted that in the Administrative Court Guide to Judicial Review, it states:

Defendants… must not oppose permission reflexively or unthinkingly. In appropriate cases, they can and should assist the Court by indicating in the Acknowledgement of Service that permission is not opposed. (para 8.3.5 of the Guide cited at para 27 of the Judgment)

Administrative Court Guide to Judicial Review

To unpack what this means, in a claim for judicial review, a Claimant needs to get permission from the Court to proceed with the claim to a full hearing. Before the Court decides whether to grant permission, the Defendant has an opportunity to put in arguments about why permission should not be granted. What the guide here is saying is that Defendants should not resist permission in every case.

The Judge in this case criticised the Council for resisting permission:

It would have been far better if the Local Authority had accepted that it had not complied with its statutory obligations. (para 28)

The duty on a public authority is to act in accordance with its statutory obligations or, if it has not done so, to make this clear. It cannot be right that the response of a public body to a judicial review claim is to say that it has “[at all] times acted with regard to” its legal obligations when, in fact, it knows that it has acted in breach of those obligations. The lack of candid position by the Local Authority is, to say the least, unfortunate and is not consistent with its duties to the court. (para 29)

Judgement, para 29

Those of us familiar with how judges speak can confirm that is a strong criticism of the conduct of the Council in this case. The Judge went on to characterise the Council as advancing “belligerent” arguments to resist the claim (para 30) and making other arguments that were without merit (para 32).

These are important observations. Again, too often I see local authorities arguing that permission should not be granted for a judicial review claim to proceed where they are in clear breach of their statutory duties. This judgment makes clear that in these circumstances, local authorities should not be raising spurious arguments in an attempt to block a claim from proceeding to a full hearing. Local authorities should be candid with the court. If there is no valid defence, they should admit they have broken the law.

What are the implications of this judgement?

While this judgment doesn’t change the law in terms of the legal duties local authorities owe to children and young people with special educational needs, it does provide useful ammunition in responding to local authorities who are shirking those duties. It is very welcome to see a Judge criticise a local authority for their lack of urgency and their unreasonable resistance to a legal claim when they were bang to rights.

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Dr Alice Irving, Public Law Barrister
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