John Friel succeeds for residential school after SEN Tribunal ruling and law changes

9th April 2024

3PB's education law barrister John FrielJohn FrielCall: 1974 recently successfully acted in Re: Case No. 2024 EWHC 584 (Admin), The King (on the Application of LS) v The London Borough of Merton and The Residential School, before Mr Justice Freedman. The case is significant and changes the law on SEN provision in schools and local authorities' responsibilities.

In the SEN Tribunal, John's residential school client won its case and saw recommendations for its school to be supported by social care during the holidays. There were 3 key points in the case:

1. Whether the Tribunal ordered in fact a 52-week placement covering the whole of the year;
2. If not, whether the local authority’s rejection of the recommendations of the Tribunal were lawful; and
3. Whether the local authority’s drafting of the EHC plan, where it covered social care, was lawful.

John's client succeeded on points (2) and (3). Point (3) is a change in the law because, in practice, EHC plans have not been specific despite statutory indications that they should be, and there is an Upper Tribunal case indicating the opposite.

In relation to point (2), Mr Justice Freedman made it clear that local authorities could not simply apply policy to these decisions. First of all, they must look at the individual factors in the case, while balancing those factors against their policy, and secondly, reach a final conclusion, having gone through that exercise. There was very substantial evidence which the local authority ignored, including the Tribunal’s decision to take into account all the evidence before it, notably about the individual child LS who was violent at home, regressing and out of control. Mr Justice Freeman's analysis of how local authorities should go about making decisions of this nature is exceptionally detailed.

Lastly, although John's client did not succeed on point (1), the judge decided that practitioners would have to be clear as to whether a 38, 44 week or full-time 52 week placement was required. This has considerable significance for the legal profession because it means that lawyers dealing with residential schools must specify whether they want a termly place, more than a termly place, or a full year place.

Commenting on LS v The London Borough of Merton and the Residential School, John Friel said: This case moves the law forward in a very helpful manner, particularly for individuals, and has important implications for all education lawyers. It also has the potential of opening a new avenue for judicial review where local authorities, having rejected the Tribunal’s recommendations, do not amend the plan. Firstly, in accordance with the recommendation but secondly, where plans as issued in final form are in breach of the statute and regulations in specificity of health and social care issues. That is not an appealable to the Tribunal, but a judicial review issue."

To contact John, please email him at [email protected]. To instruct him - or see about his availability - please contact either of his Gemma Faulkner or Tom Cox on [email protected] or [email protected] or by calling 020 7583 8055.