5 September 2018, by Emma Fitzsimons
In a rolled up hearing before HHJ Cotter QC, the Claimants sought permission to challenge the decision of the Defendant’s decision of February 2018 to set a school’s budget which included a reduction in expenditure of £5 million in the high needs block budget – which is set aside for provision for special education needs.
The Claimants were:
- KE, the mother and litigation friend of the second Claimant, IE;
- IE is a 9-year-old child, a Year 5 pupil with significant learning difficulties, physical difficulties and a diagnosis of autism, and has an Education and Health Plan. KE was appealing the Plan; as a result IE is likely to move to a special school for Year 6;
- CH is also a 9-year-old child, appearing by his mother and litigation friend, TH, was diagnosed with ambivalent attachment disorder and encorpresis and attending a Pupil Referral Unit.
KE was concerned about the impact of funding cuts on the ability of the Defendant to fund the kind of early interventionist services, which may have prevented IE from needing specialist provision, and prevented deterioration in her mental health. In CH’s case, his mother was concerned by the £150,000 reduction in the budget for PRUs as part of the overall High Needs Block Budget. CH had been at the PRU for four months, despite his mother having been told that the maximum would be 12 weeks. CH’s Education and Health Plan needs assessment still had not been completed.
The Claimants argued that in setting a budget, which included a funding reduction for the High Needs Block budget, the Defendant:
- Failed to consult on this issue, when it was required to do so;
- Breached the public sector equality duty (‘PSED’) in section 149 of the Equality Act 2010;
- Breached section 11 of the Children Act 2004;
- Breached section 27 of the Children and Families Act 2014; and
- Breached the common law requirement to act reasonably, to take into account all relevant considerations, and to ask and answer the right questions (the duty of sufficient inquiry).
The Claimants sought a quashing order in respect of the high needs block budget and for the Defendant to reconsider the funding allocated to this area within the parameters of available funds. The Defendant argued that no decision has yet been taken such that they were in breach of any duties owed: the duties only bite later when service provision proposals are developed within the funding envelope.
HHJ Cotter QC held that the decision was one to cut funding to a specified area within the education budget. It followed on from detailed consideration of historic overspend, which identified how savings could be focussed. It was a significant, sufficiently focused, and in financial terms, apparently rigid decision to engage the statutory duties. The decision was not too distant from the actual affect upon services to make inquiry meaningless or even difficult (para 91). Meaningful consultation was possible (para 99).
Was there a breach by a failure to consult? HHJ Cotter QC held that in respect of PSED, the Defendant was under a duty to acquire further information, including through consultation but did not do so. The Judge noted that “participation in public life embraces participation in a mainstream educational environment and such participation for children with disabilities is disproportionately low.” The evidence showed that there were high numbers of exclusions and high numbers of children in special schools. These were factors that cried out for consideration (para 104-106).
Consultation was mandated also by section 27 of the Children and Families Act 2014 (para 107). If there is a clear issue requiring review as to the future adequacy of provision then, in exercising its functions of review, an authority is mandated to consult with children and young people in its area with special educational needs, and the parents of children in its area with special educational needs (para 113). Further, the evidence suggested that the decision process was driven entirely by the need to have a balanced budget for 2020/2021 (para 129).
The common law duty to consult had also been breached. Children and their families receiving the services could expect to have an opportunity to explain from an informed standpoint why cuts to the service must be avoided and to be treated the same as other specified groups who would necessarily feel the adverse impact of reduced funding (para 124). Applying an “impressionistic” standard, the decision not to consult this affected cohort was unfair (para 125).
There was also a breach of the section 11 duty to promote the welfare of children (paras 126-130). There was no evidence from the extensive paperwork showing the council’s decision making process that there was any regard to the need to safeguard and promote the welfare of children, still less “actively promote” the welfare when making the decision.
In terms of relief, the Defendant argued that it would be inappropriate to grant relief because of developments in the Council’s budget meaning a smaller reduction was required, and that the Council were now keenly aware of the significance of duty to consult.
The Judge flatly rejected that at para 151:
“The obvious flaw in his submission is that a significant reduction to the SEN budget remains in place, even with the better outcome. I am not satisfied that had the Defendant acted lawfully there would necessarily have been any reduction at all.”
The judgment underscores the importance of procedurally fair processes and sound, evidence-based decisions in ensuring lawful resource allocation for children with special education needs.
The full judgment is available here: R (on the application of (1) KE; (2) IE; and (3) CH) v Bristol City Council  EWHC 2103 (Admin) – 3 August 2018