George* has severe cerebral palsy as a result of negligent medical treatment at birth. This has led to severe physical disabilities, significant learning difficulties, communication difficulties and a total reliance on others.
Immediately following birth, George was placed in an incubator as he was not breathing. When he started breathing himself, he suffered numerous seizures. Until he was four years old, George suffered up to 40 seizures per day.
George spent nearly ten weeks in hospital following birth, slowly being removed from the special care unit. At the time of discharge, there was no mention that he may have suffered any harm or injury during birth.
George’s family moved from England for a brief period after his discharge from hospital. Whilst away, he was diagnosed with cerebral palsy and provided with high levels of physiotherapy and occupational therapy.
When George and his family returned to England, his parents brought a successful claim for medical negligence. After the claim, George’s mother was appointed as his financial deputy by the Court of Protection.
The local authority made a Statement of Special Educational Needs (SSEN) for George when he returned to England. He was placed in a maintained special school for children and young people with severe physical disabilities and learning difficulties.
Over the next twelve years, George made slow but steady progress. He was supported throughout with a Statement of Special Educational Needs in a special school. George made around two P-levels’ worth of progress in all areas during the twelve years of schooling. He acquired a number of communication skills and the ability to express himself through augmentative communication devices. He began to develop the ability to reliably express choices.
Statements of Special Educational Needs only provide support up to 19 years. When George reached the age of 19, his Statement of Special Educational Needs came to an end. In preparation for that, his parents asked the local authority to consider making an Education Health and Care Plan (EHCP) for him. George’s parents also asked that the local authority place him in a specialist College so that he may continue to develop his communication skills.
George left school in July after turning 19 years. It was not until October that the local authority wrote to his parents about the provision it proposed to make for him. The local authority’s letter set out;
“having considered [George’s] case fully, the panel have advised that there would be no significant benefit to [George’s] progress by him continuing in an educational placement, and that [George’s] needs could equally be met within provision made by Adult Services [social services]. On that basis [George’s] application for a specialist placement at [X] College has not been agreed and an Education, Health and Care assessment is not required. The Local Authority has decided to cease to maintain [George’s] statement of special educational needs as he has now left school”.
We have added the emphasis in the above quote to highlight the particularly concerning wording.
George’s parents came to see us. They were concerned that the local authority had ‘written off’ George. Their serious concern was that whilst the social care provision would care for George, it would not enable him to make any further progress.
We wrote to the local authority to highlight that the reasoning behind its decision was unlawful. We also raised concern that the local authority appeared to have ‘written off’ George.
The local authority did not engage. We lodged an appeal with the Special Educational Needs and Disability Tribunal (SENDIST). At the same time, we wrote to the local authority warning that if it continued to oppose the appeal, we would seek costs.
The local authority conceded the appeal in February and agreed to make an EHCP for George.
Before taking the decision that George did not need an EHCP, the local authority had not assessed his needs. We highlighted that George had been out of school for six months. We asked the local authority to seek advice from independent experts to speed up the process. The local authority did so.
In May, the local authority issued a draft Education Health and Care Plan for George. We helped George’s parents to make a response to the draft EHCP. We reiterated the request that the local authority place George in the independent specialist college.
The local authority failed to issue a final EHCP in time. It sought to consult with local mainstream colleges. Three colleges were approached. Two advised that they could not support George and the third failed to respond.
In June, we sent a pre-action protocol letter to the local authority. This was in contemplation of an application for Judicial Review. We asked the local authority to make a final EHCP naming the preferred specialist college.
In response to the pre-action protocol letter, the local authority agreed to make a final EHCP which named the independent specialist college. The costs of the placement are around £100,000 per year.
This case took nearly a year to resolve. It is a good result for George, in the end, because he has secured the specialist provision that he desperately requires. What, quite rightly, concerned George’s parents is that he has missed a year of education. In addition, the local authority’s starting position was that there was ‘no point’ to providing George with further support.
It is hoped, following Buckinghamshire v SJ, that cases like this should decline. However, any case where a local authority decides that there is ‘no point’ to making further provision must be carefully assessed.
*All names changed to protect client privacy.