Special Needs Child failed by Hillingdon BC

At the heart of this case is a child with special educational needs (SEN).

Every month in that child’s life matters, yet his mother had to persist for months to get her local authority to do its duty by him.

Hillingdon London Borough failed in its duty to that special needs’ boy: Pushpa Latha Adaikala Kumar v London Borough of Hillingdon [2020] EWHC 3326 (Admin) Mrs Justice Collins Rice.

The child had in place an Educational Health Care Plan subject to annual review.

Ms K’s son’s annual review on 5 June 2019 identified a need for changes to his plan.

The report was sent to Hillingdon in July 2019.

The Local Authority was required to issue a revised plan within four weeks.  It did not do so.

There were months of delay.  Ms K issued judicial review proceedings.

A draft revised plan was eventually produced on 4 March 2020.  Ms K was not satisfied it properly reflected the report’s recommendations.

There was some correspondence.  Hillingdon issued the plan in final form on 30 April 2020 and advised Ms K of her rights.

On 7 May Ms K opted for mediation, contacted the mediation service on 8 May and said she wanted her lawyer with her.

An already bad situation deteriorated.  The mediation service said unless both parties agreed to the attendance of legal representatives, they would be unable to facilitate the meeting.

On 28 May Ms K issued a letter before action challenging Hillingdon’s position.  She asserted her right to bring a lawyer under Regulation 38(1) of the Special Educational Needs and Disability Regulations 2014.

The mediation service issued an unreserved apology on 1 June and confirmed they would immediately revise their policy.

Not so for Hillingdon.  On 11 June it maintained its position.

The learned judge observed that nowhere in the scheme was there any suggestion that a local authority was entitled to control whom a parent wished to bring to an independent mediation for support.

The Act made local authorities an important part of the solution to the needs of families with vulnerable children.

It required them to be mindful of the inevitable risk that they became, or were seen to become, part of the problem.

Local authorities had huge powers over the lives of families with children who had special needs.  They were able to make decisions with potentially lifelong consequences.

Where parents were unhappy with those decisions, there was a fundamental and frightening inequality of power.

That is why there was a legal right of appeal and a legal right to independent mediation.

There was also a right to have someone there for moral support in whatever way a parent wished – emotional strength, help with understanding what was going on, or help with articulating what they wanted to get across.

Parenting a child with special needs was demanding enough.  Disputing with a local authority was daunting for the most confident and best-equipped parent.

The right to have a supporter was just that.  It did not matter who they were, lawyer or not.  It was none of the local authority’s business.

Ms K was entitled to bring along any supporter she wished.

In refusing to accommodate her choice, and in refusing to arrange and participate in mediation, Hillingdon was in breach of its statutory duties.

The case for getting this mediation back on foot and resolving Ms K’s son’s ECHP was pressing, and Hillingdon must now do so.

What was so very difficult here?

Rather than allow Ms K to have a representative of her choice, as the law required, Hillingdon preferred to spend public money defending judicial review proceedings?

For what?  To avoid its legal responsibility? To deprive the parent of a special needs’ child to be accompanied by the person of her choice?

Or is this another public body who just wished to make a point, no matter what were their obligations, no matter what the cost, no matter whether a special needs’ child was the ultimate sufferer?