AY, R (on the application of) v Vale of Glamorgan County Borough County [2025] EWCA Civ 671

[2025] EWCA Civ 671Case No CA-2024-001713
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (ADMINISTRATIVE COURT IN WALES)
HHJ KEYSER KC
AC-2024-CDE-000033
Venue Cardiff Civil Justice Centre
2 Park Street,
Venue Cardiff CF10 1ETDate 22 May 2025
Before
LORD JUSTICE NEWEYLORD JUSTICE PHILLIPSLORD JUSTICE LEWIS
Between
THE KING (on the application of AY)AppellantVALE OF GLAMORGAN COUNTY BOROUGH COUNTYRespondent
David Wolfe KC and Charlotte Hadfield (instructed by Sinclairslaw) for AppellantChristian Howells (instructed by Vale of Glamorgan Legal Services) for RespondentHearing Hearing date: 8 May 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 22 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This case l concerns the process by which a local authority in Wales conducts a review of an individual development plan (“IDP”) which it maintains for a child who has additional learning needs. In particular, it concerns the question of whether a parent of a child has a right to have a solicitor present at a meeting which the local authority arranges as part of the process of reviewing an IDP.[2]The background to the dispute is that AY is a child with additional learning needs. An educational tribunal determined that the appropriate school for AY was the ASD Resource Base at Whitmore School (“the Base”). An updated IDP was provided specifying that school, and describing the additional learning provision to be provided for AY. The IDP said that AY required small class sizes. AY began attending at the Base. AY wished to attend some mainstream classes and the school agreed. AY’s mother did not agree as the mainstream classes would not be small classes. Attempts to resolve the disagreement were unsuccessful. AY, through his mother as his litigation friend, brought a claim for judicial review contending that the respondent, the Vale of Glamorgan Council, was in breach of its duty under section 14(10) of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 (“the Act”) to secure the additional learning provision set out in the IDP.[3]A local authority is under a duty to review an IDP. The respondent began the task of reviewing the IDP. It wished to arrange a meeting attended by representatives of the authority, staff from the school, educational professionals, and AY’s mother and father. AY’s mother wished the solicitor who was conducting the judicial review proceedings in which she was the litigation friend for AY to attend the meeting. The respondent refused. AY (acting through his mother as litigation friend) applied to amend the claim form to contend that the refusal to allow the solicitor to attend the review meeting was unlawful. Permission to apply for judicial review was refused. Permission to apply for judicial review was granted by Lewison LJ on the following two grounds: Ground 1. Parents of children with additional learning needs have a right under the Act and the Code to be accompanied by by an advocate of their own choosing at an IDP review (or that it was ultra vires for the respondent to refuse to allow them to be so accompanied); Ground 2. Alternatively, if the respondent had a discretion, its refusal to allow the parents to be accompanied by their chosen advocate in the present case was Wednesbury unreasonable.[4]In his reasons, Lewison LJ said that the claim raised an important issue about whether a parent is entitled to be accompanied by a solicitor or other advocate when attending a review meeting. He was troubled about whether the claim was academic as a new IDP had been produced and there was a right of appeal against that IDP. He considered that, as an IDP had to be reviewed annually, determining the claim had a useful function. He noted that ground 2 was more fact-specific than ground 1, but did not limit the claim to ground 1. Lewison LJ ordered that the claim be heard in the Court of Appeal as the matter had already been considered in the High Court. Following the hearing, the respondent sent a note and a witness statement concerning its arrangements under section 68 of the Act. Given the lateness of the submissions and evidence, we have not had any regard to them. THE LEGAL FRAMEWORK The Act

THE LEGAL FRAMEWORK

[5]As is usual with primary legislation enacted by the Senedd, or Welsh Parliament, section 1 of the Act provides an overview. For present purposes the material parts of section 1 provide:
“1 Overview of this Act (1) Part 2 of this Act establishes the statutory system in Wales for meeting the additional learning needs of children and young people; it contains 5 chapters. (2) Chapter 1 (sections 2 to 9)— (a) gives the meaning of the key terms "additional learning needs" and "additional learning provision" (sections 2 and 3); (b) provides for a code of practice on additional learning needs (sections 4 and 5); (c) makes provision about participation by children, their parents and young people in decisions ….. (sections 6 to 9).” ….. (3) Chapter 2 (sections 10 to 46) provides for individual development plans for children and young people with additional learning needs. ….. (7) Chapter 3 (sections 47 to 67) makes further provision for and in connection with functions related to meeting additional learning needs, including— (a) a duty on local authorities to favour education in mainstream maintained schools for children with additional learning needs (section 51); ….. (8) Chapter 4 (sections 68 to 81) makes provision about avoiding and resolving disagreements; it provides for— (a) local authority arrangements for the avoidance and resolution of disagreements (section 68); (b) independent advocacy services (section 69); (c) rights of appeal to the Education Tribunal for Wales in respect of decisions as to whether or not a child or young person has additional learning needs, the contents of individual development plans and other decisions relating to plans (sections 70 and 72).” (a) gives the meaning of the key terms "additional learning needs" and "additional learning provision" (sections 2 and 3); (b) provides for a code of practice on additional learning needs (sections 4 and 5); (c) makes provision about participation by children, their parents and young people in decisions ….. (sections 6 to 9).” ….. (a) local authority arrangements for the avoidance and resolution of disagreements (section 68); (c) rights of appeal to the Education Tribunal for Wales in respect of decisions as to whether or not a child or young person has additional learning needs, the contents of individual development plans and other decisions relating to plans (sections 70 and 72).”
[6]Chapter 1 of Part 2 of the Act deals with the definition of key terms, the provision of a Code of Additional Learning Needs (“the Code”), and participation. A person has additional learning needs if he or she has a learning difficulty or disability (whether arising from a medical condition or otherwise) which calls for additional learning provision (see section 2 of the Act). Additional learning provision means educational or training provision that is additional to, or different from, that made generally for others of the same age in mainstream schools or places at which nursery education is provided (see section 3 of the Act).[7]Section 4 deals with the issuing of a Code and provides, so far as material, that: “(1) The Welsh Ministers must issue, and may from time to time revise, a code on additional learning needs ("the code"). (2) The code may include guidance about the exercise of functions under this Part and about any other matter connected with identifying and meeting additional learning needs. (3) The following persons must, when exercising functions under this Part, have regard to any relevant guidance contained in the code— (a) a local authority in Wales or England; ….. (5) The code may impose requirements— (a) on a local authority in respect of arrangements it must make under sections 9 (advice and information), 68 (avoidance and resolution of disagreements) and 69 (independent advocacy services); …..” (a) on a local authority in respect of arrangements it must make under sections 9 (advice and information), 68 (avoidance and resolution of disagreements) and 69 (independent advocacy services);[8]Section 6 of the Act imposes a duty to involve and support children, their parents and young people. It provides that:
“A person exercising functions under this Part in relation to a child or young person must have regard— (a) to the views, wishes and feelings of the child and the child's parent or the young person, (b) to the importance of the child and the child's parent or the young person participating as fully as possible in decisions relating to the exercise of the function concerned, and (c) to the importance of the child and the child's parent or the young person being provided with the information and support necessary to enable participation in those decisions.” (a) to the views, wishes and feelings of the child and the child's parent or the young person, (b) to the importance of the child and the child's parent or the young person participating as fully as possible in decisions relating to the exercise of the function concerned, and (c) to the importance of the child and the child's parent or the young person being provided with the information and support necessary to enable participation in those decisions.”
[9]Chapter 2 of Part 2 of the Act deals with IDPs. An IDP is a document that describes a person’s additional learning needs and the additional learning provision which is called for by the person’s learning difficulty or disability (see section 10 of the Act). Section 14 of the Act imposes duties on a local education authority who had decided that a child has additional learning needs. For present purposes, the material parts of section 14 are: (2) The local authority must—(a) prepare and maintain an individual development plan for that child or young person, or(b) if the child or young person is, or is to be, a registered pupil at a maintained school in Wales and the authority considers it appropriate— (i) prepare an individual development plan and direct the governing body of the school to maintain the plan, or (ii) direct the governing body of the school to prepare and maintain a plan. ….. (10) Where a local authority maintains an individual development plan for a child or a young person, the authority must— (a) secure the additional learning provision described in the plan …..” (a) secure the additional learning provision described in the plan[10]Section 23 of the Act provides for IDPs to be reviewed annually. Section 23(1) provides that:
“(1) A governing body or a local authority required to maintain an individual development plan must review it before the end of each review period.”
[11]Chapter 4 of Part 1 of the Act deals with avoiding and resolving disagreements. Section 68 provides so far as material: “(1) A local authority must make arrangements with a view both to avoiding and to resolving disagreements between—(a) education bodies, and(b) children or young people for whom the authority is responsible, or in the case of such children, their parents, about the exercise by education bodies of their functions under this Part. ….. (6) In this section, an "education body" means any of the following— (a) the governing body of a maintained school; (b) the governing body of an institution in the further education sector;(c) a local authority.” (b) children or young people for whom the authority is responsible, or in the case of such children, their parents, (b) the governing body of an institution in the further education sector;[12]Section 69 provides for the provision of independent advocacy services. It provides that: “(1) A local authority must—(a) make arrangements for the provision of independent advocacy services for the children and young people for whom it is responsible;(b) refer any child or young person for whom it is responsible who requests independent advocacy services to an independent advocacy service provider;(c) refer any person who is a case friend for a child for whom it is responsible and who requests independent advocacy services to an independent advocacy service provider. (2) In this section "independent advocacy services" means advice and assistance (by way of representation or otherwise) to a child, a young person or a case friend— (a) making, or intending to make, an appeal to the Education Tribunal for Wales under this Part, (b) considering whether to appeal to the Tribunal, or (c) taking part in or intending to take part in arrangements made under section 68. (3) In making arrangements under this section, a local authority must have regard to the principle that any services provided under the arrangements must be independent of any person who is— (a) the subject of an appeal to the Tribunal, or (b) involved in investigating or adjudicating on such an appeal. (4) The arrangements may include provision for the local authority to make payments to, or in relation to, any person carrying out functions in accordance with the arrangements made under this section. (a) make arrangements for the provision of independent advocacy services for the children and young people for whom it is responsible; (b) refer any child or young person for whom it is responsible who requests independent advocacy services to an independent advocacy service provider; (c) refer any person who is a case friend for a child for whom it is responsible and who requests independent advocacy services to an independent advocacy service provider. (a) making, or intending to make, an appeal to the Education Tribunal for Wales under this Part, (c) taking part in or intending to take part in arrangements made under section 68. (b) involved in investigating or adjudicating on such an appeal.[13]Section 70 provides a right of appeal to children, their parents, and young persons in certain matters, including appeals against an IDP.

The Code

[14]The current Code was published in 2021. It should be considered in full. The parts to which the Court was specifically referred included the following. First, chapter 3 of the Code deals with principles.

(a) provides:

“The principles underpinning the ALN system are: (a) A rights-based approach where the views, wishes and feelings of the child, child’s parent or young person are central to the planning and provision of support; and the child, child’s parent or young person is enabled to participate as fully as possible in the decision making processes and has effective rights to challenge decisions about ALN, ALP and related matters …..”
[15]Chapter 4 of the Code explains the duty under section 6 of the Act to involve and support children, their parents and young people. Paragraph 4.4 sets out the duty under section 6. The chapter then deals with the duty in practice and provides, so far as material and with footnotes omitted:
“The duty in practice 4.9. In order to satisfy the duty, local authorities, maintained schools and FEIs should, when making decisions about a child or young person’s ALN, ALP or other matters related to an IDP (including whether one is necessary): (a) seek the child, their parent or young person’s views on how they wish to participate in the decisions ahead of those decisions being made; (b) provide information relevant to the decision to the child, their parent or young person in a way which enables that child, their parent or young person to understand it; (c) encourage the child, their parent or young person to participate fully in the process; (d) use the child, their parent or young person’s views to inform the decisions; (e) ensure the child, their parent or young person has access to information and advice about ALN and the ALN system. 4.10. When and how this is done will depend upon what is appropriate in the particular circumstances. A school, FEI or local authority should do these things at an early stage in the process for making such decisions and continue to do them during that process as may be necessary to enable the child, their parent or the young person to be fully involved in the process.” (a) seek the child, their parent or young person’s views on how they wish to participate in the decisions ahead of those decisions being made; (b) provide information relevant to the decision to the child, their parent or young person in a way which enables that child, their parent or young person to understand it; (c) encourage the child, their parent or young person to participate fully in the process; (d) use the child, their parent or young person’s views to inform the decisions; (e) ensure the child, their parent or young person has access to information and advice about ALN and the ALN system. 4.10. When and how this is done will depend upon what is appropriate in the particular circumstances. A school, FEI or local authority should do these things at an early stage in the process for making such decisions and continue to do them during that process as may be necessary to enable the child, their parent or the young person to be fully involved in the process.”
[16]Chapter 22 deals specifically with meetings about additional learning needs and IDPs. Under the heading “Good practice principles for meetings”, the Code says the following (footnotes omitted):
“22.6. A maintained school, FEI or local authority holding a meeting with a child, their parent or a young person should: (a) run the meeting(s) following person-centred practice approaches, and (b) take a person-centred practice approach to the gathering and presentation of information (where relevant). 22.7. Person-centred practice puts the child, child’s parent or young person at the centre of decisions. The Welsh Government has published a number of guidance documents on person-centred practice, which are available online. 22.8. As the key principle for meetings is to take a person-centred practice approach, the preparation for, format and conduct of any meeting and the number of meetings held will depend upon the particular circumstances of the case. Any policies or processes of schools, FEIs or local authorities relating to meetings will need to be sufficiently flexible to allow for an approach that is appropriate in the individual circumstances of any case. 22.9. To give effect to person centred-practice, meetings should involve the child or young person and, in the case of a child, their parent attending. However, this might not always be appropriate or possible. 22.10. Meetings can be intimidating for children, their parents and young people, particularly if there are a large number of professionals in attendance. The maintained school, FEI or local authority organising a meeting should consider whether there are measures it could take which would better facilitate the participation of the child or young person, and in the case of a child, their parent in the meeting itself, or in the wider decision-making process. In doing this, it should take into account the child, their parent or the young person’s views and any preferences they have previously expressed. Such measures could include the following: (a) a separate meeting or meetings with a child, their parent or young person and just one or two professionals. This could be a meeting with the child, their parent or young person to elicit their views in advance of a larger meeting with all the necessary professionals. There could also be a separate meeting afterwards to get the child, their parent or young person’s feedback on views reached at the larger meeting. It might also be appropriate for the person organising a meeting with a large number of professionals to ask some of them to leave during the meeting if that would better enable the child, their parent or young person to give their views. (b) a child or young person only attending part of the meeting; (c) designing the layout of the room to suit the child, their parent or the young person; (d) holding the meeting in a room with which the child, their parent or young person is familiar or in which they are comfortable; (e) having a teaching staff member present who the child or young person trusts or communicates well with to help explain matters and gauge whether the child or young person seems to have understood. The involvement of a person who is well-known to the child or young person may prompt greater confidence amongst the child, their parent or the young person; (f) preparing a child, their parent or a young person for the meeting by explaining what will happen, how many people will be there, who will sit where, the questions they are likely to be asked and the issues likely to be discussed; (g) enabling the child or young person to participate virtually, provided they are able to participate effectively (see paragraph 22.4).” (a) run the meeting(s) following person-centred practice approaches, and (b) take a person-centred practice approach to the gathering and presentation of information (where relevant). (a) a separate meeting or meetings with a child, their parent or young person and just one or two professionals. This could be a meeting with the child, their parent or young person to elicit their views in advance of a larger meeting with all the necessary professionals. There could also be a separate meeting afterwards to get the child, their parent or young person’s feedback on views reached at the larger meeting. It might also be appropriate for the person organising a meeting with a large number of professionals to ask some of them to leave during the meeting if that would better enable the child, their parent or young person to give their views. (b) a child or young person only attending part of the meeting; (c) designing the layout of the room to suit the child, their parent or the young person; (d) holding the meeting in a room with which the child, their parent or young person is familiar or in which they are comfortable; (e) having a teaching staff member present who the child or young person trusts or communicates well with to help explain matters and gauge whether the child or young person seems to have understood. The involvement of a person who is well-known to the child or young person may prompt greater confidence amongst the child, their parent or the young person; (f) preparing a child, their parent or a young person for the meeting by explaining what will happen, how many people will be there, who will sit where, the questions they are likely to be asked and the issues likely to be discussed; (g) enabling the child or young person to participate virtually, provided they are able to participate effectively (see paragraph 22.4).”
[17]Chapter 22 specifically deals with meetings to review and revise an IDP and provides:
“22.31. Where a meeting is held to review an IDP, the maintained school, FEI or local authority responsible for the review should in advance of the meeting seek input from all those agencies and professionals whose input, it considers, may be required to conduct an effective review. This would include those already engaged in the delivery of ALP described in the IDP. However, to ensure the effective and efficient use of agencies and professionals, their input need only be sought if their continued involvement is likely to be useful in identifying or delivering future ALP for the child or young person, or otherwise inform the contents of the IDP. Therefore meetings may not always include all those who were involved in the preparation of the original IDP. 22.32. The maintained school, FEI or local authority responsible for the review should provide a report to the child or young person and, in the case of a child, their parent on the child or young person’s progress in sufficient time for them to consider it and enable them to participate as fully as possible in discussions at the meeting. Where advice/reports have been supplied by agencies or professionals in advance of a review meeting, these should be shared with the child or young person and, in the case of a child, their parent, for their consideration. 22.33. When seeking input from agencies or professionals, the maintained school, FEI or local authority responsible for maintaining the IDP, should indicate to those whose input is being sought, that the review will have a focus on transition and/or preparation for adulthood where this is the case (see Chapter 27). Where the review does have a focus on next steps such as leaving school or preparing for adulthood, different professionals might also be involved, such as career specialists. 22.34. A review meeting will require those contributing to the review to consider whether the ALP which has been delivered has led to the outcomes set out in the IDP being achieved. This is a key difference between review meetings and meetings to decide whether a child or young person has ALN and if so, to prepare the IDP (where usually, there is no recent IDP to consider). 22.35. It would not usually be necessary to repeat or reconsider background information or evidence unless a change has occurred which affects the matters under consideration. 22.36. Chapter 25 sets out the matters which it is the purpose of a review to consider. Maintained schools, FEIs and local authorities should use review meetings to gather and analyse any new information or evidence that has come to light which affects those matters and in light of that information and evidence, consider whether to, and if so how to, revise the IDP. 22.37. During and after meetings, the person leading it should offer an opportunity to the child or young person and, in the case of a child, their parent to discuss the information and advice gathered. 22.38. To aid in the evaluation and assessment of the effectiveness of the child or young person’s ALP, impact monitoring is a useful tool. Interim short term targets can help to indicate whether ALP is contributing effectively towards meeting the outcomes or whether particular ALP is no longer required and/or not having its desired effect.”
[18]Chapter 25 of the Code deals specifically with reviews and revisions of IDPs. It describes the purpose of a review in the following terms:
“25.29. The purpose of a review is to consider: (a) the child or young person’s progress towards achieving the intended outcomes; (b) whether the child or young person still has ALN and, if so, whether their needs have changed and if so, what those needs now are; (c) the continued suitability of the outcomes and, if appropriate, decide new or revised outcomes; (d) whether the ALP and any other provision (namely, a place at a particular institution; board and lodging) to meet the child or young person’s reasonable needs for ALP is still appropriate and whether additional or different ALP is called for; (e) whether the child or young person might need to receive the ALP at a particular school or other institution and whether board and lodging may be needed; (f) consider any other matters related to the child or young person’s education or training which affect the IDP (for instance a forthcoming transition, or in the case of a young person not at a maintained school or FEI, whether it is necessary to maintain the IDP to meet the young person’s reasonable needs for education or training (see Chapter 17)).”
[19]Paragraph 25.47 of the Code provides what happens following a review. The child, and the child’s parent, or the young person must be provided with a revised IDP (or told that the IDP is not to be revised). They must be given specified information including “details of the responsible local authority’s arrangements for the avoidance and resolution of disagreements and its independent advocacy services” (paragraph 25.47(d)).[20]Chapter 32 of the Code deals with avoiding and resolving disagreements and independent advocacy services. That is a reference to the arrangements that a local authority must make under section 68 of the Act. Paragraphs 32.16 to 32.20 deal with arrangements to avoid disputes. They state that the process of developing an IDP, and the duty under section 6 of the Act, are intended to help overcome concerns at an early stage and prevent disagreements from arising. There are sections commenting on the arrangements to resolve disagreements, and on other matters such as the interrelationship between the arrangements and rights of appeal to the education tribunal and other means of challenge. There is then a section dealing with independent advocacy services as defined in section 69 of the Act. Paragraph 32.58 provides that:
“Other advisory or advocacy services may also be available to support a child or young person more generally, such as to help them to make informed decisions about their ALP. Informal advocates, or advocacy services provided by a third party may be useful when attending an IDP review meeting or planning for transition (see Chapter 27 for information on planning for and supporting transition).”
THE FACTS The Initial IDP and the Appeal

THE FACTS

[21]AY is a child with additional learning difficulties. An IDP was issued in December 2022 whilst AY was still at primary school. His mother appealed against the IDP to the education tribunal which allowed the appeal in part. It gave its decision on 17 July 2023 and it was, it seems, sent to the parties on 23 July 2023. One of the issues was the appropriate placement for AY as he was due to start secondary school in September 2023. The education tribunal concluded that the Base would be the appropriate placement for AY. The tribunal recorded the evidence it had received about the Base. It had 18 pupils and there would be five more (six if AY went there) in September 2023. In terms of the possibility of a child being taught in a mainstream class, the tribunal recorded that some children are likely to remain in the Base and never go into a mainstream class. Some children may go from the Base to a mainstream class (at that date, less than five children did). The tribunal said it “cannot predict whether [AY] will be able to get to the point of going from the base into a mainstream class but the potential for him to do so is a significant makeweight in our assessment of Whitmore as a suitable placement”. AY’s mother was refused permission to appeal against the decision of the education tribunal.[22]Following the appeal, a revised IDP was produced by the respondent in September 2023. In two places, dealing with the additional provision to be provided, the IDP referred to AY needing small classes.

The dispute about the additional learning provision

[23]Shortly after AY began attending the Base, there was disagreement between his mother and the respondent as to whether the respondent was providing all the additional learning provision specified in the IDP. It is not necessary to describe the details of the disagreement. Two of the strands of disagreement appear to be as follows. Firstly, there was a concern as to whether it was adequate for lessons to be determined by professional teaching staff and delivered in the Base by teaching assistants or whether the teaching staff had to deliver the teaching in the Base. Secondly, it seems that AY wished to attend some classes in the mainstream school. The respondent was prepared to arrange for this. AY’s mother considered that this would mean that he was not being taught in small classes as required by the IDP as the mainstream classes were not small classes. There was correspondence between the respondent and solicitors instructed by the mother which, ultimately, culminated in the issuing of judicial review proceedings by AY (with his mother acting as litigation friend) in February 2024. The claim for judicial review[24]The judicial review claim form identified the matter under challenge as the respondent’s “breach of its statutory duty under section 14(10 of [the Act] by failing to deliver the Additional Learning Provision specified in section 2B of [AY’s] Individual Development Plan”.[25]HHJ Jarman KC considered the application for permission to apply for judicial review. On 10 April 2024, he ordered that the application be re-submitted to the court and served on the parties by 4 p.m on 17 May 2024. Under the heading “Observations”, the judge observed that the review of the claimant’s i.e. AY’s, IDP was expected in a few days’ time. The judge said it was appropriate for the “parties to focus upon that review rather than upon this claim”. He encouraged the parties to work together with a view to securing and delivering an appropriate plan for AY. He observed that, if necessary, the application for permission could be re-submitted but he expressed the hope that that would not be necessary.

The review of the IDP

[26]At about this time, the teacher in charge of the Base began to make arrangements for conducting a review of AY’s IDP. On 4 March 2024, the parents were sent an invitation to a meeting and a form to record the parents’ views. AY’s mother sent an e-mail on 18 March 2024 confirming that she and AY’s father would attend the meeting and returning a form recording AY’s views and stating that she was still working on her document. She subsequently provided a written document setting out her views.[27]On 28 March 2024, the respondent’s lead officer for additional learning needs wrote to AY’s mother. First, the letter indicated that although the mother did not want the local authority representative to attend, the representative was in fact entitled to attend. Secondly, the writer of the letter said that “the IDP review meeting is separate to the ongoing litigation and therefore as a result your Solicitor is not invited to this meeting “.[28]On 8 April 2024, the teacher wrote to AY’s mother setting out the list of attendees for the review meeting which was scheduled to be held on 12 April 2024. The list of attendees included AY’s mother and father, two teachers from the Base, a school additional learning needs co-ordinator, an occupational therapist and a representative of the respondent. On 8 April AY’s mother replied saying that they (who I take to be the mother and father) were awaiting confirmation of an advocate to attend the meeting with them.[29]There was further correspondence between the solicitors instructed by the mother and the respondent’s lawyer dealing with whether the mother was entitled, or should be allowed, to have a solicitor attend the review meeting. By way of example, on 10 April 2024, solicitors for the mother wrote stating that the mother “cannot meaningfully contribute to the review meeting without legal representation”. Other letters indicate, on one reading, that the solicitor instructed by the mother considered that the review meeting could be used “to resolve/reduce the issues that were raised within the Claimant’s application for judicial review”.[30]The respondent decided that it would not allow the mother to be accompanied by a solicitor at the meeting. In an e-mail of 11 April 2024, the respondent’s lawyer stated that the respondent’s position was that the review meeting “is neither a part of the litigation nor dispute resolution”. It said that “we are also concerned that the attendance of lawyers may make the meeting unnecessarily adversarial when the meeting is simply a forum for people to put forward their views”. The respondent offered to arrange for the mother and father to be accompanied by an independent advocate from SNAP Cymru. The issue was discussed again at a meeting between the respondent’s head of the additional learning needs service and the principal educational psychologist where they considered the Act, the Code and Welsh government guidance. It was thought that the presence of a legal representative would alter the ethos of the meeting and would pose a risk to the child-centred approach of the meeting. It was thought that there might be resources implications if the respondent were to instruct its own legal representative to attend. It was considered that SNAP Cymru had skilled, knowledgeable and appropriately trained staff who would be able to advise and support parents effectively and ensure that the parents could fully participate in the meeting and ensure a good understanding of the IDP process. The decision not to invite the solicitor instructed by the mother was unchanged.[31]The meeting took place on 8 May 2024. AY’s mother and father attended the meeting. AY’s mother did not feel able to contribute orally to the meeting (as is recorded in the minutes) but had sent in the document setting out her views. The amendments to

The claim for judicial review

[32]On about 3 May 2024, AY (acting by his mother as litigation friend) applied to amend the claim for judicial review to include a challenge that the respondent’s “failure to allow the Claimant’s parents to be accompanied by an advocate of their own choosing at an IDP review meeting is unlawful and/or Wednesbury unreasonable”. On about 24 May 2024, the respondent filed summary grounds of resistance.[33]By order dated 12 June 2024, HHJ Jarman KC granted permission to file amended grounds of claim but refused permission to apply for judicial review.

The revised IDP

[34]In the meantime, on 3 June 2024, the respondent provided AY’s mother and father with a revised IDP. That removed the reference to small class sizes. It included amendments requiring the provision of support throughout the day by what was described as an emotionally available adult who was suitably trained and experienced in supporting learners with ASD. The accompanying letter referred to the opportunity for the parents to send a response form raising any concerns if they disagreed with the revised IDP. It also referred to the fact that there was a disagreement resolution service available to resolve issues.[35]On 13 June 2024, the mother wrote objecting to the IDP and requested dispute resolution. On 8 July 2024, she returned the response form. A dispute resolution meeting was held at which both the mother and the respondent were legally represented. Changes to the IDP were discussed and agreed. A revised IDP was issued by the respondent on 18 September 2024.[36]In her sixth witness statement, AY’s mother explains that she appealed against the IDP to the education tribunal. She explains that the respondent conceded that AY’s needs could not be met in a mainstream school and a different, specialist, school was proposed. A consent order was concluded (which we assume named the specialist school as the appropriate placement). AY began transitioning to that school and was due to attend on a full-time basis after the Easter break in 2025.

The judicial review proceedings

[37]In the meantime, an application was made for the refusal of permission to apply for judicial review to be reconsidered at an oral hearing. That was held before HHJ Keyser KC on 19 July 2024. There were essentially two grounds. One concerned the alleged breach of section 14(10) of the Act in failing to provide the additional learning provision specified in the IDP. The second ground concerned the refusal of the respondent to allow the claimant’s, AY’s, mother to be accompanied at the review meeting by a solicitor of her choosing.[38]HHJ Keyser KC dealt first with the second ground. He held that it was not arguable that sections 68 and 69 of the Act applied in the present case. He considered that the review meeting was part of the review procedure held under section 23 and was not part of arrangements made under section 68. He held that section 6 of the Act did not confer an entitlement to have a solicitor attend but required the respondent to have regard to the views of the child and his parents and the importance of their being able fully to participate in decisions. He held that the Code went no further than observing that attendance by an advocate might be helpful. He accepted that it might be helpful in certain circumstances but considered that, in the context of a statutory review, the presence of a party’s lawyers might be unhelpful. He held that it was not arguable that the respondent was not entitled to take the view that it did that the presence of the claimant’s solicitor would detract from the person-centred nature of the review meeting and statutory process and would risk making it adversarial or counterproductive. He held that ground 1 (the alleged breach of section 14(10) of the Act) therefore fell away but, in any event, he considered it unarguable.[39]As indicated, AY sought permission to appeal. The issue to which the appeal was directed was the fact that the parent was not able to be accompanied by the solicitor of their choosing at the review meeting on 8 May 2024. That was divided into two grounds, as indicated at paragraph 3 above, namely whether there was a right under the Act or the Code to have a solicitor attend the meeting and, if there was no such right, was the refusal by the respondent to allow the solicitor to attend irrational in the sense in which that term is used in public law.

PRELIMINARY MATTERS

[40]The grounds of appeal concern two matters. Ground 1 concerns an issue of interpretation, namely whether the Act, or the Code, confers a right for a parent to be accompanied by a solicitor of their choice at a meeting held as part of a review of an IDP. The second concerns the issue of whether, on the particular facts of this case, the particular decision taken by the respondent in March 2024 not to allow the solicitor instructed by AY’s mother to attend was irrational or unreasonable in the sense that those terms are used in public law.[41]One underlying issue is whether the dispute is now academic between the parties. In one sense, the dispute between AY and the respondent is academic as there is not any current, live issue between the parties to the judicial review. The process of review of the IDP has been completed and the IDP was subject to an appeal which was resolved by a consent order. AY is now going to attend a different school not the school named in the IDP that was in place at the time that the judicial review claim was issued. To that extent, matters have moved on even since Lewison LJ granted permission.[42]In relation to ground 1, it is not necessary to reach a final decision on whether that issue is academic. That ground concerns the interpretation of the Act and the Code. It arises against a background of actual, not hypothetical, facts. It is likely that the issue of interpretation may arise in future in other cases, and, potentially, as between the present parties. Lewison LJ considered that ground 1 should be resolved and the parties were prepared to and did argue the issue. In those circumstances, I consider that this Court should deal with ground 1. That is in accordance with the approach taken by this Court in R (L) v Devon County Council [2021] EWCA Civ 358. There an issue arose as to the time within which local authorities in England had to issue an amended education and health care plan following a review for a child for whom special educational needs provision had to be made. By the time the matter came to court, the amended plans had been issued. Whether the issue was academic or not, the Court of Appeal considered that the issue should be decided. The issue was purely one of statutory interpretation which potentially affected many children and young persons who had educational and health care plans, and their parents and local authorities and could, conceivably, arise as between the parties in future (per Elisabeth Laing LJ, with whose reasons Haddon-Cave and Peter Jackson LJJ agreed).[43]The position in relation to ground 2 is different. There is no doubt that there is no live issue between the parties in relation to ground 2. The particular decision that the mother could not be accompanied at a particular review meeting by a solicitor is no longer a live issue. The review meeting has taken place (on 8 May 2024). The IDP was revised. There was an appeal against the revised IDP which was resolved by a consent order. AY is attending another school. Further, the issue turns on the particular facts of this case, which would be likely to require a detailed analysis of the particular factual circumstances including the way in which the dispute arose, the reasons why the mother wished the solicitor to attend, the reasons why the respondent considered that the presence of a solicitor would be unlikely to be helpful and could distract from the process and possibly other matters. Given the intensely fact-specific nature of this aspect of the appeal, it is unlikely that any decision we reached would be of real practical assistance in future cases. In my judgment, therefore, it is neither necessary nor appropriate to consider ground 2.[44]The position is akin to that in R (Brooks) v Islington London Borough Council [2015] EWHC 2657 (Admin), [2016] PTSR 389. There, the High Court had two grounds, or issues, to consider in a case which had become academic as there was no live issue between the parties. One concerned a question of statutory interpretation (the meaning of section 188 of the Housing Act 1996) and a second which concerned whether the local authority had acted unreasonably on the facts of that case by not giving the claimant time to reconsider her refusal of an offer of temporary accommodation. The High Court exercised its discretion and dealt with the first issue, but declined to answer the second, noting that that issue turned on the facts of the particular case, that the courts did not generally regard it as appropriate to consider academic issues which turned on the facts of a particular case and any decision on those facts was unlikely to be assistance in future cases (see paragraph 27). That approach is appropriate here. It is appropriate to determine ground 1 but not ground 2. GROUND 1 – RIGHT TO BE ACCOMPANIED BY A SOLICITOR AT A REVIEW MEETING Submissions

GROUND 1 – RIGHT TO BE ACCOMPANIED BY A SOLICITOR AT A REVIEW MEETING

[45]Mr Wolfe KC, with Ms Hadfield, for AY, submitted that section 6 of the Act recognises the importance of the child and the child’s parents participating as fully as possible in the exercise of functions. Further, he submitted that a meeting considering a review of an IDP was part of the arrangements for avoiding disagreements made under section 68 of the Act. As such, it was recognised that advocacy services would need to be provided by the local education authority under section 69 of the Act. Whilst that did not extend to paying for a solicitor instructed by a parent, there was no basis for considering that there was any power on the part of the respondent to prevent a parent from being accompanied by a solicitor of their choosing and at their expense. That was supported by paragraph 32.16 of the Code which recognised that the inclusive process of developing an IDP was intended to help overcome concerns and prevent disagreements arising. Further, paragraph 32.58 of the Code recognised that other informal advocates or advocacy services, which could include solicitors, provided by third parties may be useful when attending an IDP review meeting. Reading the Act and the Code in that way, there was nothing which enabled a local education authority to refuse to allow a parent to be accompanied by an advocate, such as a solicitor, of the parent’s choosing. Mr Wolfe also relied upon the decision in R (Kumar) v Hillingdon London Borough Council [2020] 2 EWHC 3326 (Admin), [2021] PTSR 686 which held that where a person was entitled to bring an advocate or supporter to mediation, there was nothing to indicate that the local authority could exclude certain persons, such as lawyers, from attending.[46]Mr Howells, for the respondent, submitted that there was no right for a parent to be accompanied by a solicitor at a review meeting. Section 6 of the Act imposed a duty on the respondent to have regard to the need to provide information and support necessary for the parent and child to participate fully. So long as the respondent has had regard to that matter, it was for the decision-maker to determine what weight should be given to that factor and other factors. Paragraph 32.58 was a general observation that other advisory or advocacy services (i.e. not ones provided under section 69 of the Act) may be useful and that fell far short of an entitlement to have a solicitor attend a review meeting.

Discussion and Conclusion

[47]Chapter 2 of Part 2 of the Act deals with IDPs. Section 23 of the Act imposes a duty on a local authority (or in some cases the governing body) to review an IDP annually. The carrying out of that duty involves the exercise of a function under Part 2 of the Act. As such section 6 of the Act applies to that function, i.e. the function of reviewing an IDP.[48]Section 6 of the Act provides that the person exercising the function “must have regard” to certain matters, including, in particular, “the importance of the child and the child’s parents, or the young person, participating as fully as possible in the decisions relating to the exercise of functions”.[49]On a natural reading of section 23 and section 6, the duty on the local authority is to carry out an annual review. In deciding how to carry out the process of review, it has to have regard to certain factors, including the importance of enabling children and their parents to participate fully. The language used in section 6 of the Act is consistent with such factors being mandatory considerations, that is, considerations which a local authority must take into account when deciding how to exercise its functions. Section 6 does not confer a right or entitlement to have a legal representative attend a meeting taking place as part of a review.[50]The local authority must also have regard to the guidance contained in the Code, including the guidance that reviews should include a meeting (paragraph 25.31 of the Code) and that the authority should consider whether there are measures which it could take which would better facilitate the participation of the child and their parent in the meeting (paragraph 22.10 of the Code). Those provisions of the Code do not confer a right to have a solicitor attend a review meeting. The local authority will also have regard to other considerations that are relevant, either ones arising out of the particular case or arising out of their general experience of carrying out reviews.[51]In the light of all those considerations, the local authority will determine how to exercise its function of carrying out a review, including how to support children and their parents in participating, and who should be invited to attend any meeting (or meetings) that are held as part of the review process. The decision of the local authority is subject to judicial review on the recognised principles of public law including whether its decision is irrational in public law terms.[52]Against that background, there is no statutory entitlement under the Act, or the Code, for the parent to be accompanied by a solicitor (or other lawyer) of the parent’s choosing. The arrangements for the conduct of the review, including who should attend a meeting held as part of the review, are matters for decision by the local authority. But, in exercising that discretion, and in reaching its decisions on how the review, and any meeting forming part of that review, should be conducted, it must have regard to the factors in section 6, any relevant guidance in the Code and any other relevant factors.[53]I do not consider that the arrangements for conducting a review of an IDP form part of the arrangement for avoiding or resolving disagreements made under section 68 of the Act. Section 23 is dealing with the duty on a local authority to review an IDP and the arrangements made to conduct that review are made in the exercise of the functions conferred by section 23. Section 68 is dealing with the obligation on an authority to “make arrangements with a view” to avoiding and resolving disagreements. That is a separate duty from the duty imposed by section 23 of the Act. The conduct of a review, therefore, is separate from, and does not form part of, the arrangements made under section 68 of the Act. That is further reflected in the fact that the two different obligations are to be found in separate parts of the Act. Section 23 is within Part 2 of Chapter 2 which concerns IDPs. Section 68 is part of Chapter 4 of Part 2 which is concerned with arrangements for avoiding and resolving disputes, including local authority arrangements and other matters such as appeals. The fact that an IDP review may help or result in local authorities and parents agreeing on the appropriate additional learning provision for a child does not mean that the review is provided as part of the arrangements made with a view to avoiding disagreements between education bodies and parents.[54]None of the provisions of the Code that are relied upon go so far as to amount to guidance, still less a requirement, that a parent may be accompanied by an advocate (assuming that includes a solicitor or other legal representative) of their choice. There is no express reference to such an entitlement in chapter 22 dealing with meetings about additional learning needs and IDPs, or chapter 25 which deals with reviews of IDPs. Paragraph 32.58 comes in part of the Code dealing with independent advocacy services provided by the local authority. It recognises that other advisory or advocacy services may be available and informal advocates or advocacy services provided by a third party “may be useful when attending an IDP review meeting or planning for transition”. I doubt whether that paragraph had lawyers specifically in mind. But, even assuming that the reference to advocacy services in that paragraph includes representation by a solicitor at the choice (and expense) of the parents, paragraph 32.58 does not provide an entitlement to be accompanied by such an advocate, simply that it may be useful. I have described above how the local authority should decide how to discharge its function of conducting a review.[55]Nor do I find the decision of the High Court in Kumar of assistance. That concerned different provisions of a different Act, namely the Children and Families Act 2014. Section 52 of that Act provided that a local authority had to arrange for mediation between it and the parent or young person when notified that the parent or young wished to pursue mediation. The mediation had to be conducted by an independent person. The relevant regulations provided that the “following parties may attend the mediation –(a) the parties to the mediation;(b) any advocate or other supporter that the child’s parent or the young person wishes to attend the mediation”. Collins Rice J. held that there was nothing in the relevant statute which indicated that the right of a parent to bring any advocate or supporter that the parent wished to attend the meeting was restricted so that a local authority could exclude a lawyer if that was the person the parent wished to attend the mediation. The wording and context of the relevant statutory provisions are different from those applicable in the present case.[56]I would therefore dismiss ground 1. Parents do not have a right under the Act or the Code to be accompanied by a solicitor of their own choosing at IDP review meeting.

CONCLUSION

[57]I would dismiss this claim for judicial review. In relation to ground 1, neither the Act nor the Code confer a right for a parent to be accompanied by a solicitor of their choosing at a meeting forming part of the process of a review of an IDP under section 23 of the Act. I would not exercise my discretion to consider ground 2, whether the decision in this particular case not to allow AY’s mother to be accompanied by a solicitor of her choosing was irrational or unreasonable. As that ground of claim has not succeeded, the claim will be dismissed on that ground also. LORD JUSTICE PHILLIPS[58]I agree. LORD JUSTICE NEWEY[59]I also agree.

Cited in 2 later judgments