Local authorities are under a growing, complex range of duties when it comes to children and young persons with Special Educational Needs and Disabilities (‘SEND’).
That said, it is only in recent years that the domestic legal duties inspired by Article 3 of the UN Convention on the Rights of the Child 1989 (‘UN CRC’) have come to the fore in social welfare litigation.
Article 3(1) of the UN CRC requires that in all decisions affecting children:
…the best interest of the child shall be a primary consideration.
While immigration lawyers have been litigating this ‘children duty’ for over a decade, other fields of law have been more reserved, at least until recently. However, there are signs that this may be changing.
The case of R (AD (by his mother and litigation friend LH)) & Ors v Hackney London Borough Council  EWHC 943 (Admin) concerns a judicial review challenge brought on behalf of children with SEND who attended mainstream schools in the London borough.
The Claimants targeted two of the local authority’s policies on special educational provision, asserting that the policies were in breach of a raft of legal duties that Hackney owed to safeguard and promote the welfare of children (by section 175 of the Education Act 2002 and section 11(2) of the Children Act 2004) to promote equality for disabled persons (by section 149 Equality Act 2010) and to secure special educational provision (by section 42 of the Education Act 1996).
1) The ‘Resource Levels policy’
This governed how Hackney funded its schools to deliver the special educational provision as specified in Part F of the Education Health and Care Plans (‘EHCPs’) that Hackney maintained for the children. On top of the core funding that is provided for each pupil (called Elements 1 and 2), the Resource Levels policy meant that top-up funding (Element 3) was delivered through 5-levels that were banded according to need (ie. from low to very high needs). Additional funding beyond ‘band 5’ was available where a child’s needs were not being met or in exceptional circumstances.
The Claimants complained that banding the top-up funding according to needs was unlawful and contrary to section 42 of the Children and Families Act 2014 (‘CAFA 2014’), which requires local authorities to ‘secure‘ the provision specified in a child’s EHCPs.
They argued that the top-up funding should be allocated by reference to the individual costs that were specified in the Plans. In the alternative, the Claimants challenged the local authority’s decision to reduce the top-up funding budget by 5%.
2) The ‘Plan Format policy’
This policy re-jigged the format of Hackney’s EHC Plans. Previously, the Plans set out the child’s needs (Section B), provision (Section F) and outcomes (Section E) separately. Under the new policy, the Plans combined the special educational provision in Section F with the outcomes in Section E, rather than to the needs in Section B. The Claimants complained that conflating Sections E and F did not conform to regulation 12 of the Special Educational Needs and Disability Regulations 2014, which required that each Section of an EHC Plan was separately identified.
Hackney’s evidence suggested that the majority of local authorities in England use a form of banding to allocate funds to schools out of Element 3, (also called the ‘High Needs Block’). The local authority argued that it would be impractical for this budget to be set by aggregating the exact amount of the unique costs of each of their 1,850 EHCPs. Both local authority and school staff could not cope with the burden. The Claimants countered that aggregation would be straightforward and that staff are usually highly skilled in providing accurate costings regarding SEN provision.
On the funding cuts, the context of the decision was that the level of central government funding for the High Needs Block has remained flat since the financial year 2014 – 2015. The local authority witness acknowledged the negative impact of this austerity:
The current level of budget pressure in SEND provision is not sustainable in the long term. The Council is therefore seeking to find efficiencies across the education service as a whole.
The 5% reduction to Hackney’s budget, it was said, would be ‘absorbed’ by schools, would not be implemented immediately and would not materially impact on the schools’ abilities to meet the needs of pupils with EHCPs. It worked out as a small fraction of the schools’ overall budgets.
The Claimants provided evidence criticising the level and quality of provision in the borough which they claimed would suffer further from the banded funding structures and the agreed cut. There was evidence from some of the schools that they could not absorb the 5% reduction as they already had shortfalls in their SEN funding.
On the change to the format of the EHC Plans, Hackney explained that this was done in consultation with parents with the aim of making the Plan a more accessible document.
The Claimant’s complained that combining provision (Section F) with outcomes (Section E) meant that certain specific needs (in Section B) were not given corresponding provision.
The Court’s judgment
Mr Justice Supperstone in the Administrative Court of the High Court dismissed the Claimants’ challenge, holding that:
- The duty in section 42 of CAFA 2014 is a duty to ‘secure’ rather than to ‘cost’ special educational provision specified in EHC Plans (§ 36). There was no statutory prohibition on a local authority administering its High Needs Block funding via a banding system, provided that, in practice, the system secures the required provision in Section F (§ 39);
- None of the Claimants could show that they had suffered any prejudice as a result of failure to secure their provision due to the Resource Levels policy. The policy did not lead to underfunding of SEN provision and was sufficiently flexible to allow for review and additional resources where needed. It did not give rise to a systemic risk of unlawful decision-making (§§ 49 to 51);
- The local authority’s decision to adopt and maintain the Resource Levels policy and to make the 5% cut was focused on the welfare of children. It was consistent with the section 42 CAFA 2014 duty to secure SEN provision, and by extension it met the wider children duties contained in section 175 of the Education Act 2002 and section 11 of the Children Act 2004. Importantly, at § 55, the Court noted:
Where the decision is in itself about children’s welfare, as is meeting needs of SEN children, there is in my view no additional duty to explain how children’s welfare was taken into account, above and beyond explaining why needs will be met.
This appears to qualify the duty, explored by Lady Hale in Nzolameso v Westminster CC  UKSC 22 at §§ 30 to 32, on local authorities to provide an explanation and to keep records to evidence that they have had regard to the children duty;
- Similarly, the Claimants challenge under section 149 of the Equality Act 2010 (the public sector equality duty, or ‘PSED’) failed because the decision-making process took place through statutes that specifically drew attention to the needs of disabled children;
- Consultation with the ‘Schools Forum’ regarding the technical matter of the proposed cut of 5% to Element 3 funding was sufficient and no further duty to inquire or consult arose on the facts. Nor was it appropriate to impose a common law duty to consult the families who may be affected in this case. In any event, no prejudice arose from the failure to consult (§ 89);
- The Council’s new EHCP template was lawful. The presentation of the separately identified sections in an EHC Plan is a matter left to the discretion of the local authority. Readers could refer back to Section B while reading Sections E and F which were presented together. The new format was not adopted in breach of the children duty in section 175 of the Education Act 2002 and section 11 of the Children Act 2004 and/or the PSED. The evidence showed that the Council’s aim in re-formatting the Plans was to assist parents and carers and children by improving the documents. By doing so, the Council had regard to promoting the children’s welfare and advancing the interests of disabled persons (§§ 105 to 107 and 111).
The Court dismissed the challenge in its entirety.
This is a largely fact specific judgment dismissing an ambitious and systemic legal challenge.
Those with an interest in public law will find in this case a useful summary of the case law on challenges to allegedly unlawful systems (at §§ 43 to 48).
It highlights the high hurdles that need to be crossed in litigation of this nature, where success for the Claimants could have wide implications for public authorities on a national scale.
The impression this judgment gives is that the Claimants were out-gunned on the quality of the evidence presented to the Court. Experience suggests that those who invite the High Court to intervene in public policy-making must ensure that their cases are thoroughly and logically evidenced if they are to obtain the relief that they seek.