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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> LW, R (On the Application Of) v London Borough of Islington [2025] EWHC 703 (Admin) (24 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/703.html Cite as: [2025] EWHC 703 (Admin)

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IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT

		24/03/2025

This judgment was handed down remotely at 10.30am on 24^th March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. .............................

Kate Grange KC sitting as a Deputy Judge of the High Court:

Introduction

1. This is an application for judicial review, brought on behalf of LW by her litigation friend, challenging the lawfulness of an Education and Health Care Plan ('EHC Plan') dated 6 August 2024 issued by the London Borough of Islington ("the Defendant"), and seeking other mandatory orders and declarations.
2. The Claimant is a young person with complex needs. For several years her special educational needs have been specified in EHC Plans maintained by the Defendant. In these judicial review proceedings, she contends that the latest EHC Plan issued on 6 August 2024 is unlawful, and she seeks various additional orders including some in relation to an earlier EHC Plan dated 18 July 2022. This was a rolled up hearing following the order of Tom Little KC, sitting as a Deputy Judge of the High Court, dated 18 November 2024; he was unable to determine the application for permission for judicial review on the papers, and ordered that the question of permission should be determined at an oral hearing, with the substantive judicial review to proceed immediately thereafter if permission was granted.
3. In the oral hearing which took place before me, the Claimant relied upon three grounds of challenge:

i) A failure to conduct a lawful re-assessment of the Claimant's special educational needs, in accordance with ss. 36 and 44 of the Children and Families Act 2014 ('the 2014 Act'), prior to the issuing of the EHC Plan dated 6 August 2024;

ii) A failure to hold an annual review of the EHC Plan dated 18 July 2022;

iii) A failure to comply with Regulation 7 of the Special Educational Needs and Disability Regulations 2014 ('the 2014 Regulations') and/or irrationality when preparing the 6 August 2024 EHC Plan, in failing to consider expert reports available to the Defendant.

4. The Claimant indicated during the hearing that the original Ground 4, which had concerned an alleged failure to comply with s.42 of the 2014 Act in relation to the 18 July 2022 EHC Plan, was no longer pursued.
5. The Defendant submits that permission for judicial review should be refused, principally on the basis that the Claimant has an effective alternative remedy, namely an ongoing appeal to the First Tier Tribunal Special Educational Needs and Disability ('FTT'). It is not in dispute that an appeal against the 6 August 2024 EHC Plan has been brought by LW's mother and that that appeal is being actively case managed by the FTT pursuant to the Tribunal Procedure (First-Tier Tribunal) (Health and Educational and Social Care) Rules 2008. Included in the bundles for the hearing before me was a set of detailed case directions made by the FTT on 13 December 2024 which provide for a substantive appeal hearing on 10 December 2025 and consequential directions prior to that, including the filing of a Local Authority Response to the appeal, directions for evidence (including professional and expert reports) and a case management review. Accordingly, the Defendant submits that this application for judicial review is misconceived, in circumstances where the FTT tribunal will be considering an appeal of the EHC Plan dated 6 August 2024 later this year. The Defendant also submits that aspects of this claim are academic and out of time.

The factual background

6. In this section of my judgment I have summarised the relevant factual background to these proceedings. I have been provided with extensive bundles of documents including a core bundle of around 300 pages and a supplementary bundle of over 2000 pages. That is a reflection of the complexity of LW's needs and the long history of her special educational assessments and provision. I now identify the most salient parts of the factual background which are relevant to this judicial review, including the recent history of her EHC Plans.
7. LW is now aged 14. She has a complex profile of medical conditions including a rare form of cerebral visual impairment ('CVI') combined with complex sensory integration issues including hyperacusis (a disorder in loudness perception), and auditory processing difficulties. LW also has Down Syndrome and associated immunological insufficiency, low muscle tone and hypermobility in some joints. She has subglottic stenosis (narrow airways), dysphonia (disorder of the voice), dysarthria (a motor speech disorder) and secondary social communication difficulties arising from the CVI. She has multiple allergies and restricted growth, chronic kidney disease, musculoskeletal pain and joint restrictions in a complex rheumatological presentation which has required investigations over many years. She has also been diagnosed with significant mental health difficulties including a generalised anxiety disorder, severe problems arising from a traumatic experience during her secondary transition at a particular school (discussed at paragraph 12 below) including auditory hallucinations, tinnitus, PTSD and thoughts of suicide. An unusual feature of LW is the fact that she has better than expected cognitive ability for a child with Down Syndrome - she has average cognitive ability – and her verbal intellectual ability is in the high average range.
8. I have been provided with three witness statements from LW's mother (dated 1 October 2024, 20 December 2024 and 28 February 2025), a witness statement from Ms Foxcroft, Special Educational Needs and Disability Operations Manager for the Defendant dated 9 December 2024, and a witness statement from Mr David Swanson, Head Teacher at St Vincent's School. These statements set out the background to the issues which arise in these proceedings.
9. The Defendant has responsibility for meeting LW's special educational needs which have previously been met by an 'Education Otherwise Than In School' ('EOTIS') package which is permitted when a local authority takes the view that education cannot be delivered in school or other institution and so it becomes necessary to deliver it elsewhere. According to Ms Foxcroft, an EOTIS programme started for LW in around 2019 and was supported by a substantial personal budget agreement to fund the necessary special educational provision for LW.
10. On 2 December 2021 an EHC Plan was prepared by the Defendant in respect of LW. On 17 February 2022 an appeal to the FTT was made by LW's parents which challenged a number of sections of that plan. At that time the parents wanted New College Worcester (NCW) to be named in the EHC Plan as the place where she would attend school. This was a special residential school for children and young people between 11-19 who are blind or vision impaired. During the appeal process LW's parents submitted a number of professional reports which they had directly commissioned and on which they relied as identifying LW's needs. According to Ms Foxcroft there were no local authority professionals available to provide evidence on LW's needs at this time because the local authority had not been permitted to assess LW for some time.
11. Discussions took place between the Defendant and NCW and on 8 April 2022 NCW confirmed it was able to meet LW's needs. During the school year 2021-2022 LW attended NCW with her father for one day a fortnight. At that time, it was understood by the Defendant that a placement at the school was a strong parental preference. The Defendant agreed to name NCW in Section I of the EHC Plan (which is the section of the plan which deals with 'Placement') and the Defendant also agreed to include all of the provision which had been requested by the parents in Section F of the plan (which identifies the 'Special Educational Provision') which NCW suggested it could provide. Ms Foxcroft has explained in her statement that the Defendant had some concerns about these amendments to Section F as suggested by the parents because this made the plan overly long (67 pages) and at times repetitive and difficult to follow, but these amendments were agreed on a pragmatic basis by the Defendant. In that regard I note that the parents' position is that these amendments were important ones based on the professional medical reports they had obtained and the special educational needs which LW had.
12. On 18 July 2022 the EHC Plan was finalised. It named NCW as the place where LW would attend secondary school from September 2022. That transition commenced in September 2022, but unfortunately LW's placement at the school broke down within a few weeks. According to Ms Foxcroft, NCW expressed concern in early October 2022 that the detail within the EHC Plan was not deliverable within a school and on 25 October 2022 NCW wrote to LW's parents giving notice of the termination of the placement. In that correspondence the Principal of NCW stated that the EHC Plan was "very lengthy and contains a lot of repetition" but "most importantly" contains "provision in Section F which this College cannot provide". I note that LW's mother considers that LW's transition to the school was "utterly chaotic" and that LW was exposed to multiple experiences at the school which were known to be dangerous to her. She has explained in her first witness statement how these experiences at the school led to LW suffering serious mental health distress, some symptoms of which continue to this day.
13. NCW called for a meeting of relevant professionals (which took place in November 2022) and an annual review of the July 2022 EHC Plan. NCW also submitted a letter to the FTT objecting to being named in the EHC Plan. The annual review of the July 2022 plan took place on 18 January 2023. The purpose of this was to discuss a change of placement following the breakdown of the placement at NCW. Thereafter the Defendant and the parents engaged in the 'Working Document' procedure in the FTT whereby annotations were made to the EHC Plan setting out the parties' respective positions. According to Ms Foxcroft, there remained fundamental disagreements between the Defendant and the parents prior to the final hearing in the FTT on 19 April 2023. At the final hearing the parents indicated that they wanted the EHC Plan to reflect a transition to a new school, the St Vincent's School in Liverpool, which is a specialist school for children with sensory impairments. However that was a totally new case which the FTT indicated it was not able to deal with without an adjournment and, in the event, the parents were given permission to withdraw their appeal to the FTT. That is reflected in the Withdrawal Order from the FTT dated 19 April 2023.
14. As explained in Ms Foxcroft's statement, thereafter the Defendant's view was that it was not appropriate for the July 2022 EHC Plan to continue and the Defendant decided to start a statutory re-assessment process of LW's special educational needs. Ms Foxcroft explains the reasons for the re-assessment at §§29-30 of her statement which included that the existing (July 2022) plan named a school setting (i.e. NCW) which had broken down, there were significant areas of duplication in the plan, it did not properly detail what was required in terms of EOTIS, the plan was not specific about what was required for a successful transition to a school setting and there was concern about whether the plan could be delivered in any school setting.
15. When conducting the re-assessment the Defendant commissioned a Qualified Teacher of Children with Visual Impairment (QTVI) with CVI experience from outside Islington and a number of professionals were asked for advice including Dr Laura Kelly, Educational Psychologist. Those professionals consulted with LW's family and on 6 November 2023 Dr Claire Arnold, a Clinical Psychologist commissioned by the family sent a letter to Dr Kelly and the QTVI specialist stating her view that "at the present time any direct assessment or observation [of LW] (especially if this has not been very carefully planned and prepared for), has the potential to be severely detrimental to [LW's] mental health and would not be in her best interests." Thereafter it is clear that there was engagement between these professionals and LW's family which culminated in Dr Kelly being sent a significant number of documents (a list of 55 in total) which the parents considered were important for Dr Kelly to take into account. However, in accordance with the advice of Dr Arnold, no direct assessments of LW were carried out by the Defendant's appointed professionals.
16. On 12 December 2023 the Defendant wrote to LW's parents explaining that it had applied an exemption to the normal time limit (20 weeks) for the Education, Health and Care assessment of LW's needs in line with the 2014 Regulations. This was because of the exceptional personal circumstances affecting LW during the assessment period, especially due to the many professionals involved with LW's needs. The Defendant also explained that a Multi-Disciplinary Team (MDT) meeting was due to take place in January 2024, after which the Defendant was hoping to conclude the rest of the assessment process.
17. The MDT meeting took place on 17 January 2024 which included the local authority professionals and LW's parents. The minutes of the meeting dated 18 January 2024 were distributed after the meeting. As explained by Ms Foxcroft, during the assessment process it was not possible for the Defendant itself to obtain advice about LW's needs from NHS speech and language therapists, occupational therapists or physiotherapists, nor was it possible to obtain habilitation advice, due to LW being unfit to be assessed directly by professionals appointed by the Defendant and therefore the Defendant decided to include within the new EHC Plan the recommendations which had been made in those areas from the family's commissioned reports to ensure that provision would be made for LW's identified needs.
18. On 5 July 2024 a draft EHC Plan was issued to LW's parents and on 6 August 2024 the final EHC Plan was sent to the parents and professionals. That plan is 40 pages long. No school placement is named at Section I, but on 9 September 2024 the Defendant consulted with St Vincent's school in line with the parental preference. On 17 September 2024 St Vincent's responded indicating that they would consider offering LW a place based on the July 2022 EHC Plan as part of a hybrid arrangement alongside the EOTIS approach, but did not feel it appropriate on the basis of the August 2024 EHC Plan due to LW's complex CVI and other needs which required a highly-individual, cautious approach. I understand however that LW has been attending St Vincent's School part-time for some time for one night every fortnight – which gives her one and a half days in school per fortnight – and she continues to do that at the present time. That attendance at the school is privately funded by LW's parents.
19. On 3 December 2024 an appeal against the August 2024 EHC Plan was commenced in the FTT by LW's parents. As set out at paragraph 5 above, directions have been set for a final hearing on 10 December 2025. In that appeal the parents are seeking various changes to the identification of special educational needs and the provisions in Sections B, C, D, F, G and H of the plan and are contending that St Vincent's School should be specified in Section I. It is the Defendant's understanding that St Vincent's does not support being named in the plan. In the context of the appeal, the Defendant has provided a working document and has indicated it is willing to discuss amendments to the plan with the parents.
20. The Defendant continues to explore options for a school placement for LW and an assessment at Linden Lodge School, in South London, has recently been offered. In response to that offer LW's mother has said in her third witness statement dated 28 February 2025 that Linden Lodge is a school which the parents previously deemed unsuitable for LW due to the noisy environment and lack of peer group, but she is liaising with the school about a possible date for another visit.

The relevant statutory framework

21. Pursuant to section 36(1) of the 2014 Act a local authority can be requested to secure an "EHC needs assessment" of a child e.g. by the child's parents. An EHC needs assessment is an assessment of the educational, health care and social care needs of a child or young person (s.36(2)). When a request is made, the local authority must determine whether it may be necessary for "special educational provision" to be made for a child or young person in accordance with an EHC Plan (s.36(3)). The definition of "special educational provision" appears in section 21 of the 2014 Act which states as follows:

"(1) "Special educational provision", for a child aged two or more or a young person, means educational or training provision that is additional to, or different from, that made generally for others of the same age in—

(a) mainstream schools in England, …

…

(3) "Health care provision" means the provision of health care services as part of the comprehensive health service in England continued under section 1(1) of the National Health Service Act 2006.

(4) "Social care provision" means the provision made by a local authority in the exercise of its social services functions.

(5) Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision)…"

22. Regulation 6 of the 2014 Regulations makes provision for what information and advice has to be obtained by the local authority when it is conducting EHC needs assessments under s.36 of the 2014 Act. It provides, so far as material, as follows:

"(1) Where the local authority secures an EHC needs assessment for a child or young person, it must seek the following advice and information, on the needs of the child or young person, and what provision may be required to meet such needs and the outcomes that are intended to be achieved by the child or young person receiving that provision—

(a) advice and information from the child's parent or the young person;

(b) educational advice and information—

(i) from the head teacher or principal of the school or post-16 or other institution that the child or young person is attending, or

(ii) where this is not available, from a person who the local authority is satisfied has experience of teaching children or young people with special educational needs, or knowledge of the differing provision which may be called for in different cases to meet those needs, or

(iii) if the child or young person is not currently attending a school or post-16 or other institution and advice cannot be obtained under sub-paragraph (ii), from a person responsible for educational provision for the child or young person, and

(c) medical advice and information from a health care professional identified by the responsible commissioning body;

(d) psychological advice and information from an educational psychologist;

(e) advice and information in relation to social care;

(f) advice and information from any other person the local authority thinks is appropriate;

(g) where the child or young person is in or beyond year 9, advice and information in relation to provision to assist the child or young person in preparation for adulthood and independent living; and

(h) advice and information from any person the child's parent or young person reasonably requests that the local authority seek advice from.

(2) Where it appears to the authority, in consequence of medical advice or otherwise, that the child or young person in question is either or both—

(a) hearing impaired;

(b) visually impaired,

and any person from whom advice and information is sought as provided in paragraph (1)(b) is not qualified to teach children or young people who are so impaired, then the advice sought shall be advice given after consultation with a person who is so qualified.

(4) The local authority must not seek any of the advice referred to in paragraphs (1)(b) to (h) if such advice has previously been provided for any purpose and the person providing that advice, the local authority and the child's parent or the young person are satisfied that it is sufficient for the purposes of an EHC needs assessment."

23. Regulation 7 of the 2014 Regulations sets out the matters which are to be taken into account in securing an EHC needs assessment. It states:

"When securing an EHC needs assessment a local authority must—

(a) consult the child and the child's parent, or the young person and take into account their views, wishes and feelings;

(b) consider any information provided to the local authority by or at the request of the child, the child's parent or the young person;

(c) consider the information and advice obtained in accordance with regulation 6(1);

(d) engage the child and the child's parent, or the young person and ensure they are able to participate in decisions; and

(e) minimise disruption for the child, the child's parent, the young person and their family."

24. Section 37 of the 2014 Act deals with EHC Plans. Where, in light of an assessment under s.36, it is necessary for special educational provision to be made for a child the local authority must ensure that a plan is prepared for the child (s.37(1)(a)) and once the plan has been prepared, it must be maintained. Pursuant to s.37(2) an EHC Plan is a plan specifying:

"(a) the child's or young person's special educational needs;

(b) the outcomes sought for him or her;

(c) the special educational provision required by him or her;

(d) any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs;

(e) in the case of a child or a young person aged under 18, any social care provision which must be made for him or her by the local authority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970[...] 1 ;

(f) any social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs, to the extent that the provision is not already specified in the plan under paragraph (e)."

25. S.37(3) states:

"(3) An EHC plan may also specify other health care and social care provision reasonably required by the child or young person."

26. Pursuant to s.42 of the 2014 Act, where a local authority maintains an EHC Plan for a child, there is a duty upon a local authority to secure the specified special educational provision for the child (s.42(2)), however if the plan specifies health care provision, it is the responsible commissioning body which must arrange that specified health care provision for the child (s. 42(3)) and the responsible commissioning body means the body that is under a duty to arrange health care provision of that kind in respect of the child (s.42(4)).
27. Section 44 of the 2014 Act addresses reviews and re-assessments of EHC Plans. It provides, so far as material, as follows:

"(1) A local authority must review an EHC plan that it maintains—

(a) in the period of 12 months starting with the date on which the plan was first made, and

(b) in each subsequent period of 12 months starting with the date on which the plan was last reviewed under this section.

(2) A local authority must secure a re-assessment of the educational, health care and social care needs of a child or young person for whom it maintains an EHC plan if a request is made to it by—

(a) the child's parent or the young person, or

(b) the governing body, proprietor or principal of the school, post-16 institution or other institution which the child or young person attends.

(3) A local authority may also secure a re-assessment of those needs at any other time if it thinks it necessary. …

(5) In reviewing an EHC plan maintained for a young person aged over 18, or deciding whether to secure a re-assessment of the needs of such a young person, a local authority must have regard to whether the educational or training outcomes specified in the plan have been achieved.

(6) During a review or re-assessment, a local authority must consult the parent of the child, or the young person, for whom it maintains the EHC plan."

28. Section 51 of the 2014 Act provides for appeals. Where an EHC Plan is maintained for the child an appeal can be brought in relation to the following matters (see s.51(2)(c)):

"the child's or young person's special educational needs as specified in the plan;

(ii) the special educational provision specified in the plan;

(iii) the school or other institution named in the plan, or the type of school or other institution specified in the plan;

(iv) if no school or other institution is named in the plan, that fact;"

29. Section 51(3) of the 2014 Act provides that such an appeal can be brought when an EHC Plan is first finalised or following amendment or replacement (s.51(3)) and s.51(4) provides that Regulations can make provision about those appeals including other matters relating to EHC Plans against which appeals may be brought and about making and determining appeals. Section 51(5) also provides that the Regulations can include provision conferring power on the FTT, upon determining any appeal, to make recommendations in respect of other matters. As a result the Regulations can provide for the FTT to have a recommendations jurisdiction in respect of matters such as health care or social care provision which fall outside the matters set out above in s.51(2)(c).
30. Regulation 12 of the 2014 Regulations addresses the form in which EHC Plans must be prepared, including the different sections of the plan. These include at section B the child's special educational needs and at section F the special educational provision required by the child.
31. Regulation 43 of the 2014 Regulations sets out the powers of the FTT in any appeal it hears. Those powers are extremely broad and they include the power to dismiss the appeal, order the local authority to undertake an assessment or re-assessment where the local authority has refused to do so, refer the case back to the local authority to determine the special educational provision following observations by the FTT, order the local authority to continue to maintain the plan in its existing form where the local authority has refused to do so, order the local authority to continue to maintain the plan with amendments and order the local authority to substitute within the plan the school or institution or the type of school or institution specified.

Alternative Remedy

32. As I have already noted above, the Defendant submits that I should refuse permission principally on the basis that the Claimant has an alternative remedy, which the Claimant has already accessed in this case, namely an appeal to the FTT. In that regard the Defendant drew my attention to a number of important authorities. I have summarised these at this point in my judgment because the principles to be applied were not in dispute by the Claimant.
33. It is trite law that judicial review is a remedy of last resort. In R (Glencore Energy UK Ltd) v HMRC [2017] EWCA Civ 1719 Sales LJ (as he then was) held as follows at §55 (and see also §58):

"In my view, the principle is based on the fact that judicial review in the High Court is ordinarily a remedy of last resort, to ensure that the rule of law is respected where no other procedure is suitable to achieve that objective. However, since it is a matter of discretion for the court, where it is clear that a public authority is acting in defiance of the rule of law the High Court will be prepared to exercise its jurisdiction then and there without waiting for some other remedial process to take its course. Also, in considering what should be taken to qualify as a suitable alternative remedy, the court should have regard to the provision which Parliament has made to cater for the usual sort of case in terms of the procedures and remedies which have been established to deal with it. If Parliament has made it clear by its legislation that a particular sort of procedure or remedy is in its view appropriate to deal with a standard case, the court should be slow to conclude in its discretion that the public interest is so pressing that it ought to intervene to exercise its judicial review function along with or instead of that statutory procedure. But of course it is possible that instances of unlawfulness will arise which are not of that standard description, in which case the availability of such a statutory procedure will be less significant as a factor."

34. Accordingly, there is a high bar where a Claimant seeks to persuade the court that it should exercise its judicial review jurisdiction despite Parliament having provided by statute appeal procedures which give the claimant an alternative remedy. In Glencore Sales LJ considered that conduct "in defiance of the rule of law" (at §55) or "abuse of power of a serious character" (at §58) would be necessary before a claimant could overcome that high bar.
35. In the case of R (Great Yarmouth Port Company Ltd) v Marine Management Organisation [2013] EWHC 3052 (Admin) Hickinbottom J (as he then was) reviewed the long line of authorities in which the courts had been slow to entertain judicial review of a decision in which there was a statutory appeal (including R v Inland Revenue ex parte Preston [1985] AC 835 per Lord Scarman), with particular reference to statutory tribunals. He noted a number of justifications for that approach including affording appropriate respect to the will of Parliament, as well as "good practical reasons" for the court to decline consideration of an administrative decision against which there was a statutory appeal (see §53), which included the inadequacy of the Administrative Court to conduct fact-finding exercises, and the flexibility of the constitution of the specialist tribunal (at §53). In addition, tribunals had wide powers of relief and their own specialist experience and expertise, both in the underlying subject matter and in the relevant statutory scheme (see §§54-55). At §52 he noted:

"In the case of tribunals set up under the Tribunals, Court and Enforcement Act 2007, there is of course a sophisticated and comprehensive system of appeals designed and approved by Parliament, after comprehensive consideration and full consultation, to determine all issues of fact and law. The intention of Parliament – that, usually, where a route of appeal is available through a first-tier and second-tier tribunal, and thence to the Court of Appeal, that appeal route should be to the exclusion of judicial review – is clear."

36. As to the circumstances in which judicial review could be entertained despite these considerations, the judge concluded as follows at §§57-58:

"This court maintains its supervisory jurisdiction over administrative bodies; but, [in] the light of the above, it not surprising that it is a jurisdiction which is exercised parsimoniously. As I have indicated, where there is a statutory right of appeal the courts have stressed that it will only be in "exceptional circumstances" that a claim by way of judicial review will be allowed to proceed.

"Exceptional circumstances" is, of course, a term that defies precise definition; but the higher courts have given guidance. Their Lordships said in both Preston and Harley Development Inc that, whilst shutting no doors, usually such circumstances would involve something tantamount to an abuse of process by the relevant decision-maker… in Peachey Property Corporation Lord Denning still set a high bar. He said (at page 400) that prerogative remedies would only be available where alternative statutory course was "nowhere near so convenient, beneficial and effectual." With the evolution of tribunals over the intervening years, in my respectful view the bar is much higher yet."

37. I note that Hickinbottom J's "helpful and comprehensive summary of the relevant principles" was subsequently approved by the Court of Appeal in R (Watch Tower Bible & Tract Society of Britain & Others) v the Charity Commission [2016] EWCA Civ 154 per Lord Dyson MR at §19.
38. Mr Line on behalf of the Defendant submitted that the exceptionality of judicial review applied with considerable force in circumstances where the FTT is – particularly in this special educational needs context - highly specialist, and is afforded broad and flexible powers to deal with disputes between parties over the content of EHC Plans. I have already set out the broad nature of its powers at paragraph 31 above. Mr Line also drew my attention to a number of authorities which have emphasised the flexibility and breadth of those powers. Several authorities have made clear that the FTT in this context "stands in the shoes" of the local authority, effectively re-evaluating the available information, if necessary in order to re-cast the content of the plan (see Bromley LBC v Special Educational Needs Tribunal (No. 2) [1999] ELR 260). Essentially the FTT performs an inquisitorial function and re-makes the decision – it is free to form its own view on any matters covered by the decision (see DH and GH v Staffordshire County Council [2018] UKUT 49 (AAC) at §19 and §21). I note that the inquisitorial nature of the FTT's jurisdiction was recently explained by Upper Tribunal Judge Stout in Islington Borough Council v A Parent [2024] UKUT 252 (AAC) at §§21-28, including the fact that the tribunal does not apply any particular statutory test before allowing the appeal as part of its role to stand in the shoes of the local authority.
39. Importantly none of the principles set out above were disputed by Mr Friel on behalf of the Claimant. He accepted that he needed to demonstrate "exceptional circumstances" as to why a claim for judicial review could proceed despite the availability of the statutory appeal which the Claimant was actively pursuing. He also accepted that all of the complaints raised by the Claimant under Grounds 1 and 3 of the claim could be considered by the FTT as part of the Claimant's appeal. As I explain below, what he sought to do was persuade me that the circumstances were exceptional in this case such that this court should interfere to quash the August 2024 EHC Plan and order other relief.
40. I therefore turn to each ground of claim which was pursued by the Claimant.

Ground 1

41. On behalf of the Claimant Mr Friel submitted that the Defendant did not conduct a lawful assessment of LW's needs pursuant to section 36 and 44 of the 2014 Act. In this regard he draws attention to four passages in the August 2024 EHC Plan for the Claimant where the Defendant recorded that it was not possible for the Defendant itself to complete an assessment of LW's needs through the statutory assessment process due to concerns about LW's mental health. The four areas which he highlighted were in respect of Speech and Language Therapy, Habilitation, Occupational Therapy and Physiotherapy. Mr Friel submitted that, because these assessments by the Local Authority were not completed, the assessment which was done was incomplete and was thereby unlawful and not a proper assessment under section 36 of the 2014 Act.
42. On behalf of the Defendant, Mr Line accepted that the re-assessment which was done by the Defendant before it produced the August 2014 EHC Plan essentially mirrored the assessment process under section 36 of the 2014 Act. He submitted that the assessment was lawfully completed; a new EHC Plan was, in fact, produced in August 2024 and this new assessment addressed all of the matters required to be assessed under Regulation 6(1) of the 2014 Regulations which did not mandate that the Defendant had to obtain new evidence in all of the categories highlighted by the Claimant. He also submitted that the August 2014 EHC Plan did, in fact, make provision under each of these areas based on the reports LW's family had obtained on her behalf and was therefore not incomplete.
43. I accept the Defendant's submissions. There is no merit in the Claimant's suggestion that the assessment which was done was incomplete and thereby unlawful such that this court should quash the August 2024 EHC Plan. As the Defendant pointed out there is no requirement under section 36 (or section 44) of the 2014 Act or Regulation 6 of the 2014 Regulations for the Defendant to obtain advice in these four specific areas (it being the case that a local authority must comply with Regulation 6 of the 2014 Regulations when conducting a re-assessment – see section 26 of the 2014 Act). It is Regulation 6 which sets out the information and advice to be obtained as part of the assessment or reassessment process (see paragraph 22 above) and nowhere in that Regulation is there a requirement to obtain advice in these specific areas. Regulation 6(1)(f) enables the local authority to obtain advice from "any other person the local authority thinks is appropriate" and Regulation 6(1)(h) refers to advice from any person the child's parent "reasonably requests". It is also clear from Regulation 6(4) that it is not necessary to obtain further advice if it has previously been provided.
44. In addition, as a matter of fact, the Defendant did include provision under each of these topics in the August 2024 EHC Plan and there were good reasons why the Defendant did not obtain its own evidence in these areas, having been advised not to carry out direct assessments of LW by Dr Arnold (see paragraph 15 above). The Defendant did not merely state that it was unable to carry out direct assessments of LW in these areas, but it went on within the EHC Plan to identify the provision which LW appeared to require based on the reports which had been submitted by LW's parents to the Defendant. That can be seen on pages 28-40 of the August 2024 EHC Plan where detailed provision is identified under each of the four headings. As Ms Foxcroft has explained at paragraph 64 of her statement, the provision which was made in these parts of the EHC Plan was based on the recommendations made by professionals which had been engaged by LW's parents and can be traced back to those reports (namely the reports of Glynis Haines on speech and language therapy, the report of Munira Adenwalla on occupational therapy, the report of Kat Black on habilitation and the report of Hillary Rattue on physiotherapy).
45. While Mr Friel submitted that there was some variation between what these reports recommended and what had been included in the August EHC Plan, that is not an issue which is appropriate for judicial review in circumstances where there is a live appeal in the FTT in relation to the contents of the EHC Plan and where the FTT is the specialist tribunal in relation to these matters. As I have set out above, the scope for judicial review in those circumstances is extremely limited and there is certainly nothing which arises under Ground 1 which could justify this court exercising its jurisdiction which is one of last resort. I therefore conclude that Ground 1 has no merit.

Ground 2

46. Mr Friel's second ground of challenge on behalf of the Claimant was an alleged failure to hold an annual review in respect of the July 2022 EHC Plan. He submitted that the Defendant failed to hold an annual review within 12 months of the review which took place in January 2023, which was in breach of section 44(1) of the 2014 Act. He submitted that it was not relevant that, by October 2023 the Defendant had decided to undertake a re-assessment of LW's educational, health care and social care needs as he contended that such reviews were mandatory and must take place, even if a re-assessment had begun. In this regard he sought to rely on the decision of Foster J in R (L & Others) v Devon County Council [2022] EWHC 493 (Admin) which emphasised the mandatory nature of annual reviews and that timescales have to be kept to. He also placed reliance on passages in the Special Educational Needs Code of Practice dated 2015 ('the Code') – where paragraphs 9.166-9.168 address reviews of EHC Plans.
47. On behalf of the Defendant, Mr Line submitted that an annual review of the July 2022 EHC Plan was held on an emergency basis in January 2023, following the breakdown of the placement at NCW, which meant that the next annual review was not due until January 2024 (applying section 44(1)(b) of the 2014 Act). By that time the Defendant had already indicated that it was conducting a re-assessment of LW's needs pursuant to section 44(3) of the 2014 Act and, in those circumstances, there was no necessity for an annual review of the July 2022 EHC Plan which would have been pointless and duplicative. He submitted that there was nothing which could have been achieved in an annual review of the July 2022 EHC Plan which could not have been achieved through the re-assessment process. He pointed out that there was no prejudice to the Claimant since the July 2022 EHC Plan applied until the new August 2024 EHC Plan was issued. He also identified two other fundamental problems with this ground of challenge namely the fact that it was academic now that the August 2024 EHC Plan had been issued and the claim was not made promptly, these proceedings for judicial review having been commenced in October 2024, some considerable time after January 2024 when, on the Claimant's case, an annual review should have been carried out.
48. I accept the submissions of the Defendant. It is clear that an annual review of the July 2022 EHC Plan did take place on an emergency basis in January 2023, following the breakdown of the school placement at NCW and that meant that the next review was not due until January 2024 applying section 44(1)(b) of the 2014 Act. But, by that time, the Defendant had embarked upon a full re-assessment of LW's needs and I have difficulty seeing what an annual review could have achieved which was not addressed in that re-assessment process. I cannot find anything in the language of section 44 or in the Regulations or the Code and nor was I pointed to any case law, which would support the proposition that a review of an EHC Plan had to take place in circumstances where the local authority had already embarked upon a re-assessment of the needs of the child. On the facts of this case, it would be extremely odd if the local authority was under an obligation to review the July 2022 EHC Plan in January 2024 in circumstances where the school placement named in that plan had broken down, the plan had been reviewed in January 2023 and the local authority had taken a decision to undertake a full re-assessment of LW's needs (such decision not having been challenged), including commissioning reports from a QTVI and from an educational psychologist (see paragraph 15 above) as part of producing a new plan. Apart from a potential appeal to the FTT (which I address below) Mr Friel could not point to any step which would have been taken in the annual review which was not already being taken as part of the reassessment process. All of the matters identified in paragraph 9.167 of the Code would be covered by that re-assessment process. As the Defendant pointed out, there was an MDT meeting in January 2024 (see paragraph 17 above) at which time the parents could provide feedback. They were also sent the new EHC Plan in draft in July 2024 so that they could provide representations on it. To require both the review and reassessment to take place at the same time would have been duplicative and disproportionate in this case.
49. While the decision of Foster J in R (L & Others) v Devon County Council emphasises the strict timeframes which have to be adhered to when amending a plan where amendments are necessary during the annual review, that case did not concern a situation in which a re-assessment had occurred and no consideration was given in the judgment to the interplay between the provisions on review and those addressing re-assessment.
50. Mr Friel submitted in oral argument that a review of the July 2022 EHC Plan in January 2024 might have led to an appeal in respect of the outcome of that review in the FTT (presumably under section 51(2)(e) of the 2014 Act), which would mean the Claimant had the opportunity to come before the FTT significantly earlier than she had done following the challenge to the August 2024 EHC Plan. He also submitted that that any review and appeal would have informed the reassessment, which could have continued under section 44(3) of the 2014 Act. But those submissions are entirely speculative and, in any event, I fail to see how an appeal to the FTT in respect of matters pertaining to a review of the July 2022 EHC Plan would have assisted the Claimant in circumstances where a re-assessment had already been commenced by the Defendant, as it was entitled to do under section 44(3) of the 2014 Act.
51. Further, even if I am wrong about the matters set out at paragraphs 48-50 above, there are a number of other fundamental problems with this aspect of the challenge.
52. First, the matters complained of are now academic given the August 2024 EHC Plan has been produced and given there is a live appeal to the FTT in respect of that plan. The alleged failure to carry out a review of the July 2022 EHC Plan has therefore been superseded by events which have subsequently occurred. Judicial review should be refused in circumstances where the issues between the parties are academic, unless there are good reasons in the public interest for doing otherwise – see R v Secretary of State for the Home Department ex parte Salem [1999] 1 AC 450. In this case I cannot see any good reason in the public interest for allowing this ground of challenge, particularly in circumstances where a new EHC Plan has been produced and the Claimant has a live appeal before the specialist tribunal in this area in respect of that plan.
53. Secondly, these judicial review proceedings were issued in October 2024, some 9 months after the time when the Claimant submits an annual review should have been carried out in January 2024. That means that this claim is significantly out of time. The consequence of that delay is that events have moved on and a new EHC Plan has been issued triggering a right of appeal to the FTT, which the Claimant is pursuing. Mr Friel could not identify any written correspondence in which the Claimant's parents had complained about the lack of an annual review (although I accept that a query was raised by LW's mother about whether LW was entitled to regular annual reviews at the MDT meeting in January 2024)) nor was any explanation provided which would justify the delay. This aspect of the claim is therefore out of time.
54. Thirdly, any declaration that there was a failure to carry out a review of the July 2022 EHC Plan in January 2024 cannot affect the lawfulness of the August 2024 EHC Plan which was completed and is now the subject of an appeal in the FTT. In those circumstances I fail to see how this ground of challenge assists the Claimant. Mr Friel has made plain that his central complaint is about the August 2024 EHC Plan which the Claimant contends is unlawful and irrational (as discussed further under Ground 3 below). It follows that no remedy this court could grant in relation to the annual review of the July 2022 EHC Plan would give him the relief he seeks which is the quashing of the August 2024 EHC Plan.
55. What the Claimant is inviting this court to do is to quash the August 2024 Plan and order an annual review of the July 2022 EHC Plan. That would be to unravel important events which have occurred since the placement named in the July 2022 EHC Plan broke down. It does not seem to me that there is any proper basis upon which this court could set the clock back in that way. The Claimant is actively pursuing an appeal against the August 2024 EHC Plan in the FTT and that is the appropriate remedy which should be pursued, not this challenge.
56. I therefore conclude that Ground 2 is not arguable.

Ground 3

57. Ground 3 of the Claimant's challenge concerns the content of the EHC Plan of August 2024. Mr Friel submitted that the Defendant had failed to fully consider the available expert reports of the professionals working with LW and failed to reflect the recommendations of those reports in the plan which the Defendant produced. He submitted that this placed the Defendant in breach of Regulation 7(b) of the 2014 Regulations and/or demonstrated irrationality in the way the plan had been written.
58. More specifically Mr Friel submitted that the August 2024 EHC Plan removed the mental health provision which had been specified in the July 2022 EHC Plan on the basis of the evidence of the Clinical Psychologist, Dr Arnold including in the areas of Cognitive Behavioural Therapy (CBT) and counselling. He also submitted that the evidence of Dr Soppitt was ignored and that the Defendant removed some of the learning materials, technology and support provisions which had been identified in the earlier plan. Mr Friel contended that this evidence should have been reflected particularly in Section F of the August 2024 EHC Plan. In his written and oral submissions Mr Friel invited the court to undertake a comparison of the contents of the July 2022 EHC Plan with the August 2024 EHC Plan. He also drew attention to a number of other expert reports which had been obtained by LW's parents on behalf of LW which he said had not been properly taken into account in the August 2024 EHC Plan. He contended that a number of LW's mental health difficulties were, as a matter of law and fact, special educational needs, which should have been recorded more fully in the plan. He criticised a number of sections of the August 2024 EHC Plan for not properly identifying LW's mental health needs and not setting out the special educational provision which LW required to address those. He submitted that the Defendant had acted irrationally by failing to have regard to the expert evidence submitted by LW's parents and alternatively he said that the EHC Plan was so outrageous, both in respect of its mental health provision and its adaptation provisions for LW (particularly in Information and Communication Technologies 'ICT'), that this court should declare the plan to be unlawful. Finally, he submitted that it was irrational for the plan to state that all adults working with LW should follow the guidance of the CAMHS (Child and Adolescent Mental Health Service) health practitioner that was working with LW (at the bottom of page 33) because there had been no CAMHS referral for LW and no such practitioner was engaged with LW's case.
59. On behalf of the Defendant Mr Line submitted that Regulation 7(b) of the 2014 Regulations (see paragraph 23 above) only required the Defendant to take information into account when preparing the plan and did not require it to accept that evidence. As a matter of fact, he submitted that the Defendant did take the information identified by the Claimant (as listed at §20 of the Claimant's statement of facts and grounds) into account, as has been confirmed in the evidence of Ms Foxcroft. He submitted that many of the relevant expert reports were listed at section K of the August 2024 EHC Plan and any of relevance which were not referred to were seen and were referred to by Dr Kelly the Educational Psychologist which the Defendant appointed to carry out an assessment of LW. Mr Line submitted that the Defendant had rationally and reasonably taken the view that aspects of the Clinical Psychology evidence of Dr Arnold were health matters which did not have to be included in the EHC Plan. He disputed the suggestion that the Claimant's mental health was ignored, given Dr Kelly had made recommendations in relation to that aspect of LW's needs which were reflected in the August 2024 EHC Plan. He highlighted the fact that there was reference in section F of the plan to the need to follow QTVI advice, to the need for adults to understand the impact of CVI on LW's learning and for adaptations to be made to print and electronic materials. As to the reference to following the guidance of CAMHS Mr Line submitted that it was the responsibility of the relevant health body to address that, including a referral to CAMHS if that had not occurred given that section 42 of the 2014 Act placed such responsibility on the responsible health commissioning body, not on the Defendant.
60. The Defendant further submitted that, if and to the extent that the Claimant disagrees with the content of the August 2024 EHC Plan because it does not incorporate certain elements of the professional evidence obtained on behalf of LW, then that is precisely what the statutory appeal is designed to resolve because the appeal is against the content of the plan. The Defendant was entitled to take its own view of the evidence it reviewed and what was appropriate to include in the plan, subject to the outcome of the statutory appeal process.
61. In my judgment the Defendant is right that the fundamental problem with the Claimant's submissions on this ground is that it invites this court to take on the role of the FTT, but in circumstances where this court does not possess the wide and flexible powers Parliament has afforded to that specialist tribunal. Mr Friel accepted that all of the complaints which he raises under this ground (and under Ground 1) could be raised before the FTT in the ongoing appeal (save that he said that the Claimant could not appeal to the FTT on the basis that a statutory assessment under s.36 of the 2014 Act had been carried out unlawfully – see paragraph 41 above). What he sought to do was to persuade this court that the August 2024 EHC Plan was so irrational that this court should quash the plan at this time. But such a rationality challenge to the content of the 2024 EHC Plan is the paradigm situation in which this court should decline to exercise jurisdiction given the FTT has the power to stand in the Defendant's shoes and recast the EHC Plan, should it consider that to be appropriate with all the specialist expertise which it brings to these issues.
62. As I have set out at paragraphs 32-39 above, where there is an alternative remedy in the form of an appeal to a specialist tribunal, it will only be in exceptional circumstances that the courts will entertain judicial review and the types of cases where that might happen are usually akin to abuse of power of a serious character or conduct in defiance of the rule of law. Mr Friel accepted the exceptionality of the jurisdiction of this court in those circumstances. The complaints which are made fall a long way short of what would be required to satisfy that high bar.
63. Further, Regulation 7 of the 2014 Regulations is clear that the local authority only needs to "consider" any information provided to it by or at the request of the child's parents and any information or advice it obtains under Regulation 6(1) (see Regulation 7(b) and (c) of the 2014 Regulations). Accordingly, there is only an obligation to take the material into account, not an obligation to reflect all of the contents of that material in the final EHC Plan.
64. In addition, it is clear that the factual position is more nuanced than Mr Friel sought to present. As Ms Foxcroft has explained in her statement, the Defendant did take into account the expert reports which have been identified by the Claimant (see paragraphs 77-82 of her statement). Either the evidence relied upon by the Claimant was expressly listed in Section K of the August 2024 EHC Plan (at pages 38-39) or, where it was relevant, it was seen and taken into account by Dr Kelly when preparing her advice (or some of the expert evidence post-dated the production of the August EHC Plan or was superseded by other relevant evidence). It is apparent from Sections B and F of the August 2024 EHC Plan that LW's mental health issues were identified and some provision was made in respect of these matters including incorporating recommendations made by Dr Kelly in her detailed advice dated 22 March 2024 in relation to health and wellbeing which were reflected in the plan e.g. at the bottom of page 33. Based on the documents I have seen it is therefore not correct to say that LW's mental health needs were ignored in the August 2024 EHC Plan. Further, to the extent that it is submitted that the mental health provision which has been identified is not consistent with the expert evidence relied upon by LW, that is a matter which the FTT is best placed to determine and not the Administrative Court. In comparison with the appeal to the FTT judicial review is a blunt instrument which is ill-equipped to determine specialist factual and expert disputes relating to special educational needs provision.
65. It is also apparent that there is a dispute between LW's parents and the local authority about whether certain provision identified in the Clinical Psychology evidence of Dr Arnold is properly to be characterised as "special educational provision" (either directly under section 21(1) of the 2014 Act, or in a deemed sense under section 21(5) of the 2014 Act) or whether it is health provision where there is a discretion on the local authority as to whether it is included in the plan (see section 37(3) of the 2014 Act which states that an EHC Plan "may" also specify other healthcare provision reasonably required by the child). These distinctions were discussed in the cases of East Sussex v TW [2016] UKUT 528 (AAC) by Judge Edward Jacobs at §§15-25 and in R (LC) v Merton London Borough Council [2024] EWHC 584 (Admin) by Freedman J at §§36-53. As those cases clearly demonstrate these distinctions are matters which the FTT is in the best position to make an assessment of in circumstances where Parliament has provided for an appeal against the August 2024 EHC Plan. There is nothing exceptional about the conduct of the Defendant in taking the position it has about the Clinical Psychology evidence (see paragraphs 83-87 of Ms Foxcroft's statement) which could justify this court seeking to determine those matters in circumstances where they can be raised before the FTT.
66. As to the reference to recommendations from CAMHS in the August 2024 EHC Plan, I accept the Defendant's submissions that if there has been no referral to CAMHS, then this is a health matter, and not a matter for the Defendant, given the terms of section 42 of the 2014 Act.
67. When I pressed Mr Friel to identify what it was about the Claimant's case which made it exceptional such that the Administrative Court should intervene despite the availability of a statutory appeal to the specialist tribunal, the only factors he was able to identify were the delay which would occur before the final hearing in the FTT, which is due to take place in December this year, and the extreme circumstances of LW, including her mental health and the fact that she has been suicidal. While I recognise that delay and the predicament LW faces in finding a suitable specialist school placement are matters which must be causing real distress to her and her family, I cannot see how these factors are different from the position of many children and young people who have appeals pending before the FTT. In my judgment, those factors do not justify this court exercising its powers in circumstances where an alternative and specialist remedy exists. I also note that LW is continuing to attend St Vincent's school once a fortnight and it is clear that efforts continue to be made by the Defendant to identify a suitable placement for her. The tribunal process also provides important opportunities for dialogue between LW's parents and the Defendant over the content of the EHC Plan (including the working document process) which will no doubt take place over the following months. In those circumstances I do not accept that the Claimant is able to identify factors in this case which satisfy the high bar identified in the relevant authorities.
68. I therefore conclude that Ground 3 has no merit.

Conclusion

69. This was a rolled up hearing in which I heard full argument on the issues arising in this judicial review. However, having considered each of the three grounds of challenge, I have concluded that none of them is arguable and that permission for judicial review should be refused. The central difficulty with the claim is that the Claimant has an alternative remedy in the FTT which is the appropriate forum for the complaints made about the August 2024 EHC Plan to be ventilated and resolved. I therefore refuse to grant permission for judicial review and the claim is dismissed.