AI, R (on the application of) v London Borough of Wandsworth

Section 42 CAFA imposes a duty on the relevant local authority to secure special educational and health care provision in accordance with the EHCP. It provides relevantly:

Thus section 42 CAFA imposes an obligation on responsible local authorities to secure special educational provision in the EHCPs for which they are responsible. It has been described as part of a scheme for achieving the “best possible educational and other outcomes” for children and young people with special educational needs and disabilities.

As succinctly set out in ZK v Redbridge LBC [2020] WL 07029301 (2020) the legal framework governing special educational needs is as follows:

Regulations governing the form of an EHCP, the Special Educational Needs and Disability Regulations 2014, provide by regulation 12(1) for separate identification in the EHC plan of inter alia the following:

The duty is not merely a ‘best endeavours’ obligation but an absolute duty; see N v North Tyneside Borough Council [2010] EWCA Civ 135, a case on the predecessor section in the Education Act 1996.

It was also not in dispute that the effect of the authorities is that:

The PSED comprises three limbs, as set out in section 149(1) of the 2010 Act:

The Claimant relies here on section 149(1)(a), and section 149(1)(b). Section 149(1) applies where an underlying prohibition is engaged under a section of the Act; (see section 149(8) the 2010 Act, R (Hottak and another) v Secretary of State for Foreign and Commonwealth Affairs and another [2015] IRLR 827, at paragraphs [24] and [57]-[60], and Turani v Secretary of State for the Home Department [2019] EWHC 1586 (Admin) at paragraph [128]). The Claimant also relied on the duty not to discriminate in the discharge of public functions imposed by section 29(6) of the 2010 Act.

Section 149(3) elaborates on what it means to have “due regard to the need to advance equality of opportunity” explaining that:

It has been established that the PSED:

This analysis of the obligations imposed (for which I draw upon the Claimant’s clear exposition of the law) was not in contention. Indeed, recently in ZK v Redbridge LBC at paragraph (84), the Court of Appeal proceeded on the basis that section 42 CAFA was a relevant function for the purposes of the PSED.

It is thus accepted that the first two limbs of the PSED require a public authority to keep the duties under review and also, where required, to gather information relevant to its duty to have due regard to the need to eliminate discrimination including by taking the positive steps set out in section 149(3).

The Claimant expresses this as a statutory duty which reflects and complements the common law duty set out in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 (the ‘Tameside duty’) for a public body to take reasonable steps to inform itself before exercising its public functions.

The Claimant points also to the guidance issued by the Equality and Human Rights Commission (‘EHRC’) (the ‘Technical Guidance’).

The Claimant emphasises that Chapter 5 of the Technical Guidance underlines the need for a sound base of ‘equality evidence’ when discharging the general duty under section 149 (reference is made to paragraphs 5.15, 5.16, 5.18, 5.21, 5.25, 5.37 and 5.40).

For the section 149(1)(a) duty, the Technical Guidance states:

It says with regard to section 149(1)(b), it is for public bodies to consider whether they have:

The Claimant asserts here an obligation to monitor whether transgender children can effectively participate in education of young people and can access special educational provision in their EHCPs, referring to section 149(3)(b) requiring due regard to be paid to differences in the needs of people with different protected characteristics.

In the course of oral submissions Ms Braganza KC relied particularly on the document labelled ‘The SSA Equality, Impact and Needs Analysis’. It was approved on 20 September 2020 by the Policy and Review Manager for the Defendant, within the Children’s Service Area of Special Educational Needs and Disabilities names the Directorate involved as “Children’s Services”, and the Service Area as “SEND”. The “Service/policy/function being assessed” is “Special Educational Needs and Disabilities”.

Wandsworth describes how the EINA was made in order to create a strategic plan for SEND going forward. Under a section headed “2. Analysis of need and impact” the strategy for children and young people from ages 0 to 25 years is considered. It names almost 45,000 pupils in Wandsworth schools of which 4,500 approximately have SEND support. The document reflects that the number of pupils classified has increased nationally and that Wandsworth has a higher than national average number of pupils so qualifying. Those details are listed under “Disability”. Over the last four years, the number of EHCPs in the borough has increased by 73%.

Various other characteristics are listed, for example in respect of gender, the indication of the split is given. As to certain others, namely “gender reassignment” and “marriage or civil partnership” or “pregnancy and maternity”, no details are inserted. Under the latter two it says, “not applicable” but under “gender reassignment” it says, “not known”. The Claimant places particular emphasis on the “not known” entry for “gender reassignment”.

The EINA concluded that there were no significant adverse outcomes for individuals or groups under the protected characteristics. They state an intention to monitor protected characteristics in order to target action if it is shown there is an increase among children with SEND provision.

In a box in the EINA headed “Data gap(s)” it is indicated that data on protected characteristics of those with sexual orientation, gender reassignment will be addressed:

The Claimant relies on this “data gap” which he says shows insufficient enquiry and a lack of engagement. There was a failure he says to comply with their duty once Wandsworth had identified a data gap. The absence of subsequent evidence of review or active monitoring demonstrated inadequate engagement and fell short of what was required under the local authority’s duties.

Wandsworth defend their position on the grounds that there was no evidence before the Defendant at the time of carrying out the EINA into its SEND strategy indicating that the Claimant, or indeed any other transgender child or young person with an EHCP, might be subject to discriminatory barriers in accessing their educational provision so as to trigger any obligation to monitor and/or otherwise collect information on this issue. Furthermore, they submitted, the position has not changed. There is no evidence that the Claimant or any other child or young person with an EHCP issued by the Defendant has been subject to systematic discrimination, whether by misgendering or otherwise, in educational settings contrary to the Claimant’s Grounds. Nor is there any evidence that transgender children or young persons with EHCPs are more likely than other children with EHCPs to have their placements break down.

Wandsworth argue that the case made against them appears to require that the Council had in place separate policies, procedures and guidance on gender reassignment for children and young people with an EHCP, and specific protection against gender reassignment discrimination. A breach is also alleged by way of a failure to have in place a monitoring system to alert to discrimination, especially gender reassignment discrimination, taking place within schools or colleges but Wandsworth have not been able to find any other authority who has such a system - whether generally or for those with an EHCP in place, which in their submission reflects the strength of their approach to this issue in the borough.

The Claimant submits that the local authority were aware of misgendering as an issue because it was specified in AI’s EHCP. Ms Braganza KC refers to the entries in the plan dated 4 March 2020, reviewed with AI during a meeting of 16 December 2020. It is the Defendant’s case that it is this very process, or developing, giving effect to and reviewing the EHCP that fulfils their obligations under the 2010 Act: necessarily where there are issues or potential issues, the provision they are obliged to make must be tailor-made to the recipient of the EHCP.

The Claimant’s EHCP annual review, a document in standard form, lists under “Attainment and progress” that AI was at the end of his first term in his first year at college on a life and work skills course. He went to Lambeth College between September and December 2020, having been at Roots and Shoots from September 2019 to April 2020. The review records that he started the year well but his attendance in person dropped off and he stopped in October. He had explained this was due to him becoming officially homeless and he had become more anxious about Covid. He had started online lessons but then dropped out. His attendance was below 40%. It was noted that he had found it hard to articulate his concerns and became frustrated, leading to avoiding dealing with issues. When expectations were put on him to complete work, he would actively avoid lessons. He had not been engaging in cognition and learning, he had not attended any of the maths online classes.

It is also recorded, and the Claimant relies on this, that he attended one lesson with the drama teacher at Lambeth and during the lesson he was misgendered in a conversation, and he left the class. The plan states:

The review notes also recorded that he did not mix with other students and spent time on his own. He had not wished for any parent or carer to be involved in the review and he lived independently. He said when asked that he was finding coming to college too much pressure as he was homeless. He said at this point in the document that he would like to come back to the course at Lambeth College but he needed time off college to get his life sorted out, and he was happy to withdraw for the year and reapply in April 2021 to start in September. He reported becoming anxious about Covid and not travelling out in the community and not feeling confident to come into college. He had not taken up the offer of online lessons. AI also said the following under the heading, “views on his/her progress and what he/she would like to achieve next”:

The professionals involved with him indicated that he was not using public transport; he did not use trains because people and noise give him anxiety. He would get a panic attack and would get off the bus. AI had been referred for further support and had met up once.

Under each of the long and short term outcomes which were monitored under Part 3 of the form, in almost every case they were not met. The comments include that he had been out of education since December 2020. He had not been able to follow a range of straightforward instructions from trusted, familiar college staff, he does not feel that he understands his autism but can express his needs to key people, for example Brian. He does not have any strategies for anxiety and anger, does not follow his safety plans that are given, nor those from the mental health team. There are numerous comments concerning the fact that he finds it difficult to leave the house alone or do things without another. He had key relationships with B, K and J and thinks he could build a relationship with the teachers because he knows them. The comment is expressed as “[AI] thinks she [sic] could build a relationship with the teachers at Merton College because he knows them [sic].” He relies on this as an indication of the Defendant’s hurtful and also unlawful approach.

The Claimant relied on a document known as “the Toolkit” which had been produced by Wandsworth and posted on their website for a time but was withdrawn after being posted in error. He relied on the Toolkit as evidence that Wandsworth knew they had to do more, and it was not open to them to deny there was an issue, or to say that what they had done was adequate and lawful. It represented a breach of the duty of candour too since the document was not disclosed at the time the claim was brought – it came to light only later - though a simple search would have found it. Wandsworth deny any breach stating the information came to light after a further review in preparation for drafting the witness statement, which is why it did not feature in the previous correspondence or documents.

Wandsworth had developed the document based on a similar Toolkit produced by Brighton and Hove City Council. They explained it was formed in conjunction with a number of local and national organisations and services. The guidance was withdrawn because of controversy at the time about the legal status of similar guidance. The Toolkit was developed in order to be made available to schools on a case-by-case basis to provide schools with advice for individual children, it was not as a blanket Council policy. The document was not signed off as approved but was published in error on the Council’s webpages in about March 2020. It remained there until January 2022. They point out it says nothing about EHCPs and transgender – which reflects there was not thought to be an issue or a particular problem in that area.

The draft before the Court, the “Trans Inclusion Toolkit for Schools – Draft Three” (Wandsworth did not know which version had appeared later on their website), was evidenced as sent in one instance to a pupil referral unit in 2017. This had been after a discussion between the personnel there and the Deputy Head of Education and Inclusion and Participation Service who later sent weblinks and information for the pupil in question, and visited the school. AI was at the unit at the time said Wandsworth. AI argued that the absence of a Toolkit was a very strong indicator of the section 149 duty not having been complied with and underlined the importance of gathering information: it was not enough Wandsworth had a developed education policy on bullying and transgender persons.

A recent Brighton Toolkit is exhibited by AI. It is headed “Trans Inclusion Schools Toolkit 2021 A guide to supporting trans children and young people in education settings” with a Brighton and Hove City Council logo on the front. It was introduced with the words:

AI relied on the fact that it contained passages dealing particularly with SEND including:

Ms Maffre, Head of Special Needs Assessment Section (SNAS), explained that OFSTED has responsibility for ensuring schools fulfil their statutory duties under the Equality Act, and ensuring schools promote equality of opportunity within an inclusive environment. This includes assessing whether schools have effective anti-bullying polices, and gender issues had been dealt with by them as part of the anti-bullying initiative. She emphasised the Toolkit had been used for individuals, and submitted the Toolkit was:

The Defendant’s evidence as to its approach to these issues was as follows:

The Defendant said in its Defence:

Put shortly, the Defendant’s case is that there has been no policy change or other trigger which ought to have caused them to anticipate a possible impact on one or other group of people identified by reference to any protected characteristic such as required further investigation. Nor, absent any actual evidence of systemic or repeated problems is there a trigger requiring an investigation. The contemporaneous evidence does not support either repeated or systemic issues.

As indicated, for those with EHCPs, where there is a placement breakdown, the Defendant is involved in review meetings for pupils and students with EHCPs. It is thus aware of the reasons for such breakdowns. There was just no evidential basis on which it could form a view that misgendering/gender reassignment discrimination might play a significant role in such breakdowns so as to require further investigation to be undertaken. Here there was no evidence that there ever had been a breakdown on gender grounds with this cohort - namely EHCP recipients with a gender reassignment characteristic. In the present case Wandsworth say in any event in this case, the evidence here does not support the contention that it was gender reassignment issues/misgendering that caused placement breakdown.

The policy background within Wandsworth was further described by Ms Maffre, Head of SNAS, for the Defendant. She produced a document entitled “Wandsworth Strategy for Children and Young People with Special Educational Needs and Disabilities aged 0 – 25 2020 – 2024”. Wandsworth’s strategy and provision was produced following public consultation with parents, carers, professionals and young people and the feedback was incorporated into it. It sets out the aims of partners within E, H and C after data collection from groups in the relevant demographic, such as the number of those with an EHCP, the placement types, the ethnic origins etc. It also covers statistics on vulnerabilities within those groups; education, training and employment etc. No specific feedback was received suggesting there was a particular need regarding gender reassignment, or that further data regarding gender reassignment needed to be collected and fed into the impact needs assessment. No issues were identified that would have impacted on the action plan that followed. To the best of her knowledge, no areas of concern had otherwise been raised indicating the need to isolate this protected characteristic. The information was limited. There had been no reason to begin equality monitoring for discrimination against transgender students either generally, or, as is alleged here, for those with EHCPs.

She expressed it in terms that “information is limited on the transgender population in the borough in relation to the EHCP population” and that “Census information does not collate this data” but that the SEND strategy was subject to extensive public consultation and that neither the responses to that consultation nor anything else which came to the attention of the Council indicated that the strategy might have any particular implications for gender reassignment equality. There was no evidence before the Defendant which indicated at the time of carrying out the EIA that the Claimant or any other transgender child or young person with an EHCP might be subject to “discriminatory barriers” in accessing their educational provision and “no reason to instigate/commence equality monitoring to monitor discrimination against transgender students generally, or with EHCPs”. This has remained the case.

The Head of SNAS was aware that certain local authorities had produced guidance to promote transgender inclusion in schools. Several had been produced by Brighton and Hove in the areas of safeguarding, equality and anti-bullying policies. The advice was for trans inclusion work to be applied within the equalities framework preventing gender stereotyping and sexism. Other authorities have produced guidance for schools, for example in May 2020 Oxfordshire County Council were challenged following production of their own trans inclusion Toolkit. Oxfordshire did not proceed with their Toolkit in light of the challenge, and Wandsworth withdrew theirs.

The Claimant submitted that at other colleges he was misgendered and discriminated against. In one of the pre-action protocol letters he stated:

Although he does not suggest that he raised this incident with the Defendant, he says Wandsworth were aware of a report that the Claimant had been misgendered while at Roots and Shoots by a fellow student who had a learning disability. The evidence from Wandsworth showed that this latter incident had resulted in a reminder to all Roots and Shoots staff about the Claimant’s name and gender. By contrast, there was no previous mention to the Defendant (or to Roots and Shoots), about any claimed misgendering by a member of staff.

The chronology of Roots and Shoots materials shows the following at the start of the placement:

Wandsworth note that the chronology has no reference to any incident or complaint, rather it details that the SEND Head at Roots and Shoots and the Claimant changed his EHCP sentence by sentence together – and it was finalised in March 2020. The subsequent chronology indicates his discussion about other courses but accommodation issues were predominating and a move to Croydon appeared to prohibit further attendance – but was resolved with extra finance in January 2020. The note records that the pandemic intervened stating in June 2020 that:

There was also no reference to a further incident in his Annual Review on 16 December 2020 when he attributed attendance failures at the college before October 2020 to becoming homeless – not to any lack of support by the College for LGBT young people:

The Roots and Shoots material also suggested good ongoing relations and that he kept in touch after he had left them for Lambeth College:

Wandsworth rely on the fact that there had been no previous mention to the Defendant, or to Roots and Shoots, as to what AI’s Witness Statement refers to as the act of misgendering by a member of staff at Roots and Shoots. They submit that in any event not all instances of misgendering are discrimination contrary to the 2010 Act, in particular, inadvertent misgendering, even deliberate misgendering by one student of another is unlikely to fall within the Act.

They state also that not all trans students have the protected characteristic of gender reassignment, and it is not arguable that the very limited instances of misgendering of which Wandsworth was aware alerted them to “discrimination suffered by the Claimant and therewith, inevitably, the risk to the Claimant, and other transgender young people with EHCPs”.

Wandsworth isolate some examples from the evidence which they say show that there is no connection between what is alleged and the failures in AI’s education:

They point to a number of external factors by which his access to education has been interrupted:

They rely on evidence from those who have had oversight of his EHCP and others and submit that the evidence the Claimant relies on as to his own personal treatment claimed to demonstrate the effect of the Defendant’s failure under the 2010 Act, is not accurate. The pleadings say:

Wandsworth refer to the allegation that:

The personal advisor asked that the Course Tutor “meet with Paul and address this matter so it can be stopped as [the Claimant] is very sensitive about this matter.” Less than 40 minutes later the Course Tutor replied saying Paul had referred to the Claimant as “she” and been corrected at the time, before the Claimant left the room, and then had “further conversations with [the Claimant] outside the class. I have also had further discussion with Paul after the lesson regarding this event.”

Wandsworth also indicate a note made by the Course Tutor in March 2022 indicating AI said the drama teacher had misgendered him twice in the lesson and that he did not want to return to the classroom, and that the Course Tutor had advised him that he would follow up with the drama teacher to make sure this did not happen again. The drama teacher had wanted to apologise to the Claimant and assured the Course Tutor that there would be no repeat but the Claimant did not wish to see the drama teacher again or to attend the course. The Course Tutor noted he was “not aware of any other times that this occurred”.

The Claimant responded (by Reply) to this that:

The instance of misgendering that occurred in the 19 October 2021 letter to AI was the subject of a specific apology. Wandsworth explained that the documentation had been sent out using AI’s former name and the electronic recording database had created a case file inputting his former name - which led to an autogenerated letter. The database had subsequently been amended; they stated they much regretted the human error.

The SNAS team had not been made aware of issues of misgendering and discrimination against AI at any of his placements save for the one incident at Lambeth College, with the drama teacher, which was brought to their attention once the placement had ended. Had they been told they would have contacted the provider to ensure appropriate action had been taken. The annual review report had noted the misgendering at Lambeth - which they had hoped to address – but, as described, he stopped attending.

AI raised no other concerns at his annual review meeting, nor about the College not supporting LBGT young people as a reason for not attending.

The authority rely on the fact that the EINA outcome revealed there were no significant adverse outcomes from the adopted SEND strategy under the protected characteristics. The schools and colleges themselves consider gender reassignment when looking at the PSED and in their letter dated 11 November 2021 in response to the PAP letter, explained steps they were taking to develop policy. They denied that AI had “repeatedly not had access to suitable education” and had experienced “multiple placement breakdowns … often … caused by incidences of misgendering” as he claimed.

The Claimant said on the contrary, there was a systemic and/or operational failure to protect children and young people with EHCPs from gender reassignment discrimination, and a failure to exercise a Tameside duty of inquiry in order for Wandsworth to equip itself with relevant information so as to discharge the PSED duty. As a corollary of this was the obligation to have monitoring systems in place for students with EHCPs who were especially vulnerable and “not necessarily in a position to report discrimination”. There were “operational and/or systemic failures”, and the Defendant was apparently oblivious that this played a part in the breakdown of placements. The correspondence went further, describing “… repeated misgendering from his drama teacher, who did not take heed of repeated attempts to correct them and continued to address the Claimant using the wrong pronoun.” The correspondence was “… riddled with incorrect pronouns and name”. (The example given is the mistake noted above in the EHCP of October 2021.)

Wandsworth submitted AI was well supported, provided with two key workers, and was accessing adult social services. Only two incidents had ever been reported, both advisors had been involved in the reported incident at Lambeth and the other at Roots and Shoots involved a student with learning difficulties. Assistance was offered, as reflected in the letter of 16 October 2018 from South West London CAMHS, recording AI’s diagnoses and difficulties. It records a brief crisis admission after he had phoned the Samaritans expressing a desire to self-harm and to harm others. He was attending appointments, including with the Tavistock. He had experienced several social stresses including a physical fight with his mother, losing his phone, struggling to adjust to his new supported accommodation and building relationships with the staff (they used the wrong gender pronouns), and feeling anxious about college. He described being overwhelmed with negative feelings. AI had attended a school meeting with his new teacher and learning support worker and his personal assistant. “He also struggled with peer relationships not understanding his gender dysphoria and managing his emotions, especially anger.” They had suggested facilitating another school meeting and a teaching session including on his gender dysphoria to the placement staff but he had declined it.

The Defendant, reviewing all the materials on his assessments, his medical diagnoses and his reports submitted that there was no reason to impose upon this a superadded duty to monitor. The Defendant stated that a number of safeguards were in place.

On the general position, Wandsworth denied that the fact of the draft Toolkit document was evidence of a problem. The evidence they had gathered was to the effect that no local authority of the 17 who had responded amongst the London boroughs to Wandsworth’s request for information, had produced any monitoring system to alert to discrimination, especially gender reassignment discrimination, taking place within schools or colleges. No borough had produced separate guidance to schools on transgender issues. None had any separate policy or procedure concerning gender reassignment for children and young people with an EHCP, nor a distinct policy relating to gender reassignment, no documents or indication that there had been any enquiry undertaken regarding gender reassignment and provision was made available.

A number of systems exist through which they would be made aware of any discrimination in schools or colleges. Wandsworth submitted detailed evidence of how the system worked. There were equality policies in place in boroughs, and EHCPs are processed for the individual recipient under the umbrella of the equality policy. London Safeguarding Children Procedures are applied in all settings against discrimination in all settings, including discrimination on this ground.

Similarly, as to monitoring the breakdown of placements for students with EHCPs, under CAFA the Council is responsible for ensuring service procedures are undertaken in what they describe as “a holistic and person-centred way”, so that all documentation is co-produced with parents or other carers and the young person as well as with Health and Social Care. The essential point is that the relationship of the Council with the school or educational setting means that any discrimination is brought to their attention and the Council may police it, given the obligations of the placement under the 2010 Act. The Defendant in particular has a number of actions that may be taken – using data to monitor schools’ performance which will indicate those requiring intervention and improvement, undertaking regular health checks with schools and colleges and recommending where necessary schools for the additional Support Programme, and also assistance to headteachers and governing bodies to take responsibility for their own improvement through the link inspector programme and other external validation.

A broken down placement will be examined and considered and any recommendations on annual review. Early review is recommended if a placement breaks down. This will take place at the Council’s instigation where a person has been excluded from school or is at risk of it.

The data on education arrangements for all children and young people with an EHCP is monitored by the SEND team. As of mid-2022 the SEND team had at least 70 requests for changes of placement through the annual review process. Individual schools which may not have complied with their various duties are challenged by the Council. None of the reasons to which placement breakdowns had been attributed concerned misgendering or other discrimination against trans pupils or students.

The Council emphasised that AI’s gender reassignment needs were not considered to be distinct from the rest of his needs: they all interacted together and were considered social, emotional and mental health requirements. Where it is considered that detailed information on gender matters is necessary and required to be articulated in detail in a plan, that would be discussed in terms with the student in question.

The Claimant argues (and it is accepted) that the duty to monitor and/or seek information is a Tameside duty: R (Hurley and Moore) v SSBIS [2012] EWHC 201 (Admin), (at paragraph [25(8)]). The scope of the obligation is to make such inquiries or take such steps as are reasonable: R (Plantagenet Alliance Ltd) v SSJ [2014] EWHC 1662 (Admin), [2015] 3 All ER 26 (at paragraph [100(1)]) but Wandsworth emphasises it is unlawful for a public body not to undertake a particular inquiry only if it was irrational not to do so, also relying on Plantagenet Alliance (at paragraph [100(3)]), R (D) v Hackney LBC [2019] EWHC 943 (Admin), [2019] PTSR 1947 (at paragraph [83]).

Wandsworth take issue with the scope of the duty argued for by the Claimant. The PSED they say may impose a duty to monitor and/or otherwise collect information where necessary in order to fulfil the statutory duty and to pay “due regard” to the particular need, but it does not extend to a public authority gathering information relating to every protected characteristic in relation to everything that they do (see e.g. R (Bailey & Ors) v Brent London Borough Council [2011] EWCA Civ 1586, [2012] LGR 530).

In my judgement it is an unavoidable conclusion that in the present case, where the underlying statutory mechanism is designed to discharge a local authority’s education, health and social duties to an individual based upon that individual’s own particular personal needs and characteristics, including disabilities and diagnoses that render him the subject of particular protection and concern, and it has provided for them under that section it is impossible to argue that no due regard has been had under section 149 PSED in respect of that individual.

There was recognition in performance of the section 42 duty that there was an issue of gender reassignment in respect of this Claimant – indeed it was recorded in the EHCP. When there was an incident at Lambeth it was noted, investigated and remediated as far as was possible in the circumstances: likewise with the inadvertent and obviously hurtful misgendering that occurred in correspondence.

This is a case such as was described in ZK v Redbridge LBC (supra) per Simler LJ citing Lord Brown in McDonald v Kensington and Chelsea RLBC [2011] UKSC 33:

In the present case, it is clear from the materials and Wandsworth’s approach to their section 42 duty that the Defendant paid careful attention to AI’s requirements and responded to his experiences. This is similar also to the case of R (on the application of AD) v Hackney LBC [2019] P.T.S.R where Supperstone J held that the duty under section 149 of the 2010 Act to have “due regard” to the specified “needs”, including the need to advance equality of opportunity for disabled children, was the very matter which the authority's decisions had been addressing by its policy of meeting all the identified needs of children with special educational need.

Whether or not it is the case (as argued by Wandsworth) that there is no discretionary decision to be taken here where provision must be made for AI, this is in my judgement, a like case. The duties envisaged by the 2010 Act are subsumed within the section 42 obligations.

However, I do also accept the principal argument of Wandsworth that there is here, (unlike ZK concerning choice as to teaching provision), no overarching policy decision or discretionary choice made: section 42 imposes an obligation to provide what is set out in the EHCP – which provision may be challenged elsewhere.

In any event, and conclusively for AI’s personal case, even if I am wrong about those issues, the Claimant has not been able to substantiate the case he sought to make on the facts. The Defendant submitted that it was not arguable that the limited instances of misgendering of which the Defendant was aware had alerted Wandsworth to “discrimination suffered by the Claimant and therewith, inevitably, the risk to the Claimant and other transgender young people with EHCPs” as AI claimed in his Reply in these proceedings. I agree.

There is also no systemic case to be made out. What matters in a systemic challenge of this kind as ZK also highlighted, is to distinguish between individual examples of failings and unfairness which do not touch on a system's integrity, and an inherent failure in the system rather than just individual operational or other failure. It is recognised that that may be difficult to do in practice R (Woolcock) v Secretary of State for Communities and Local Government [2018] EWHC 17 (Admin), [2018] 4 WLR 49, Hickinbottom LJ at paragraph [68]; it involves asking whether the operation of the system entails any inherent likelihood that Wandsworth would fail to comply with its obligations.

Wandsworth, properly, accepted that a systemic approach or policy might have the effect that the authority placed itself in breach of the section 42 duty towards individual children or young people by rendering it incapable of complying with the duty to the individual. But here, they said, there just was not the evidence that transgender children or young people with EHCPs maintained by the Defendant are being subject to discrimination or disadvantage because of the characteristic so as to place an obligation on Wandsworth to monitor particularly in respect of transgender children and young persons with EHCPs. As was also endorsed by Lord Brown in Woolcock:

In the present case, appropriate regard was had, given the circumstances and the evidence before Wandsworth: it is clear that the borough had in mind clearly its obligations - it could in my view be confident, given the engagement demonstrated in their handling of AI’s case, that the cohort of persons with EHCPs would be protected: when matters were brought to Wandsworth’s attention, they acted. Their decision not to issue as official general policy (not a decision challenged here) a document such as Brighton’s Toolkit cannot be faulted. It did not, either, put them on notice of issues of which they were otherwise ignorant, nor was it Wednesbury unreasonable not to take matters further themselves.

As to a duty to monitor, accepting that in R (Hurley) v Secretary of State for Business, Innovation and Skills(supra), Elias LJ reflected a submission to the effect that:

Again, as Supperstone J said in AD it will depend on the circumstances. Importantly, he emphasised that the “duty of inquiry” is an application of the Tameside duty on a public body to take reasonable steps to acquaint itself with the relevant information necessary to enable it properly to perform the relevant function, thus it will only be unlawful for a public body not to undertake a particular inquiry if it was irrational for it not to do so. In my judgement it is impossible to say that the failure to canvass for further material or to establish a system of monitoring was irrational in the circumstances.

I respectfully adopt the approach of Davis LJ in rejecting the library closure appeal in Bailey v Brent (supra), albeit, of course, on its own facts:

That was a case where a policy decision was under challenge, unlike the present matter, and there was said to be a failure to consult. Wandsworth in the present case shared the characteristics of Brent which similarly, aware of the issues, had carefully reported and in its relevant dealings kept the 2010 Act requirements in mind. More was not required there, nor is it here.

More particularly, this is a case like R (SG & Ors) v SSHD [2016] EWHC 2639 (Admin), in which it was held at paragraph [333] that the PSED does:

Wandsworth in fact have principled objections to carrying out such an exercise. They put it compellingly thus:

The Claimant’s case for monitoring must be rejected.

As submitted by the Defendant this was not a case in which Wandsworth had ignored the question of gender reassignment. As recorded, there was no evidence at the time of carrying out the EINA into its SEND strategy that the Claimant, or indeed any other transgender child or young person with an EHCP might be subject to discriminatory barriers in accessing their educational provision. There was no trigger to an obligation to monitor and/or otherwise collect information on this issue.

Particularly, there was no evidence that the Claimant or any other child or young person with an EHCP issued by the Defendant has been subject to systematic discrimination.

The Claimant accepted that his case is not that a particular document is necessary in order for the conduct of a local authority to be lawful, it is a test of substance and not form. In my judgement the Claimant is not assisted by the form and content of the EINA, nor by the existence of the Toolkit document based on a Brighton and Hove model with which Wandsworth did not proceed. These documents do what they say Wandsworth should do - they evidence the fact that the Defendant turned its mind to the issue, and noted an absence of information in a particular category. However, it is also the case as stated by their witness Ms Maffre, that Wandsworth carried out extensive work with schools designed to further LGBTQ+ inclusion and equality. Further, neither Brighton and Hove City Council nor any other local authority had put in place monitoring of discrimination in schools, either generally or for gender reassignment - whether generally, nor as is alleged should have happened here, in relation to children and young people with EHCPs or more. As mentioned, none of the 17 boroughs responding to a Wandsworth Freedom of Information request had adopted any policies, procedures or guidance to protect against gender reassignment discrimination in schools or colleges either, in addition to not monitoring to alert it to discrimination, especially gender reassignment discrimination as it was said Wandsworth should.

The Claimant suggested that it is generally known that there is a reluctance to communicate about these matters and the local authority were on notice about an issue because of him. Again, the nature of the EHCP is such that Wandsworth were justifiably confident that they would be alerted to those cases where a breakdown or difficulty was impacting a person in the cohort.

The Defendant says they in fact have looked at the position - in 2020 and saw they had “no data” - there was no indication at all that it existed in respect of the particular cohort - namely SEND people with gender reassignment - in their schools etc. There is no evidence of complaints, nothing. In fact there was 2017 evidence backing general schools problems and not SEND pupils who are subject to the personalised attention and provision under statute that is designed to identify the issues and provide appropriately.

The Claimant complained about failure to take the EINA information further, but the Defendant reminded the Court that the EINA had considered the possible impact of the SEND strategy on the Defendant’s pupils by reference to protected characteristics and indicated that:

The EINA reported that the relative impact of the SEND strategy by reference to gender reassignment was “not known”. While the EINA records a “data gap” pertaining to “protected characteristics of children and young people with SEN provision – sexual orientation, gender reassignment” the plan to address this was to have:

Wandsworth made clear that no conclusion had been reached that the collection of information on sexual orientation and gender reassignment was appropriate, much less necessary, in the exercise of the Defendant’s PSED. They had not, nor was it necessary in order to act lawfully, to commit themselves to monitor SEND provision by gender reassignment. Wandsworth submitted and I accept, there has been no change of policy nor other trigger event which ought to have caused them to anticipate a possible impact on one or other group of people identified by reference to a protected characteristic so as to require further investigation. Nor, absent any evidence of systemic or repeated problems such as are alleged on the Claimant’s behalf, has a requirement to investigate been triggered.

The Claimant sought to adduce evidence giving views on the general position, and on certain statistical material - although not introduced as expert evidence.

I looked at the material in any event although the points about their admissibility were well made: this was opinion evidence, and thus expert evidence if anything. In truth, with respect to the care with which the exhibits and content had been compiled, and the palpable desire to improve the position of a disadvantaged and vulnerable sector, the evidence was not of any real assistance to the Court given its nature. (On occasion it formed a critique of the sufficiency of Wandsworth’s EINA stating it would have liked to see it done differently).

Of course, there is no difficulty with the position asserted (though not detailed) by the Claimant’s witness Mr Arnall, the Chief Executive Office of Just Like Us, a LGBT+ young people’s charity, that the negative “impact of misgendering on the mental health of trans children and young people” may be very significant indeed – and is to be strenuously avoided where at all possible. The Defendant did not seek to say any different and their behaviour towards AI through their employees and their policy personnel made clear how seriously they take the position.

Mr Arnall said at one point:

However, as stated, the evidence of the Claimant (nor that from Mr Arnall) does not support the proposition that there are high levels of misgendering in schools - and certainly not that there are high levels of misgendering for the relevant cohort - transgender children and young people with EHCPs.

The Claimant asserts that “87% of secondary school teachers have at least one transgender pupil” is not supported by the survey on which the Claimant seeks to rely. In fact what it states is that 86% of the secondary teachers surveyed were at a school at which at least one pupil had come out as transgender and that this was “most common in schools serving affluent pupils the percentage falling through Q1 to Q4”.

It is asserted but not evidenced that “[i]nevitably, a substantial proportion of this cohort will also have special educational needs”. Likewise, it is only an assertion that:

Wandsworth take issue with the specificity of a number of the statements made by Mr Arnall, observing that:

The position with regard to AI tells a different story. Any assessment under an EHCP must necessarily be entirely person-specific and crafted to the individual. The effect of the evidence is that the EHCP process necessarily comprehends particular consideration of any issue which may feed into the provision of appropriate education in a particular case, and the section 149 considerations.

Necessarily in the case of AI his manifold adjustment and other mental difficulties, his chequered educational history and also factors of autism and gender dysphoria were part of the picture. As the Defendant has articulated, in order properly to comply with its duty to produce an EHCP, a local authority must consider a very personalised, tailored provision. It would be impossible to fulfil the duties arising without properly assessing and, where possible, accommodating each and every one of the aspects of the individual’s needs.

Although it is clear from the manner in which AI makes his case, that he retains a view that failures regarding his gender identity and the inability of the Defendant properly to deal with them have caused, to some extent, the breakdown of placements he has enjoyed, he accepts (in his statement and in his claim in terms) that the gender dysphoria issue is not the sole cause of breakdown. In my judgement the contemporaneous evidence does not begin to support a case that Wandsworth were responsible for any failures around his gender diagnosis that caused or materially contributed to the failure of his placements. There are a number of reasons for my view.

As to a systemic challenge, the PSED might apply in the event of challenge to a systemic approach or policy which arguably had the effect that the authority placed itself in breach of the section 42 duty towards individual children or young people. Wandsworth says here, and I agree, that, as in SG, the PSED does “not require more detailed consideration of a problem which had not been demonstrated to exist”.

The Claimant argued that this was an example of “putting the cart before the horse”, as referred to in Bridges at paragraph [105]. The Court of Appeal at paragraph [182] held that such an approach is flawed in that the:

I do not accept this argument. This is not an occasion of overlooking information because of the very nature of the section 42 exercise and the manner in which the EHCP was crafted and reviewed by the Defendant who necessarily looked at the very issues that are required to be examined in the case of a person with the characteristics of this Claimant.

Nor is there any evidence that transgender children or young persons with EHCPs are more likely than other children with EHCPs to have their placements break down, (by contrast with the position in R (DMA) v SSHD [2002] EWHC 3416 (Admin), [2021] 1 WLR 2374).

I add that in my judgement there was no failure of candour in this case. The exhibited document was not the material, posted document, and it was marked through with the words “draft”. It was stated by Wandsworth, and I accept on the evidence, it was used in individual cases (here in 2017, ) and was not a general policy. It was thus not an obvious piece of material to discover on an initial trawl. Further, it was, in my view, of assistance to Wandsworth as showing their minds were addressed to the issues- it did not compel a conclusion that absent a document in this form, Wandsworth was acting unlawfully.

In very broad summary, Ms Braganza KC argued:

In all these circumstances and for the further reasons given above, the Claimant’s claim must fail.