Given what parents and others have had to deal with during the pandemic, many people may have missed the Judgement in AD & Ors, R (On the Application Of) v London Borough of Hackney  EWCA Civ 518. This was an appeal of a decision of a judicial review in respect of a policy of the LB of Hackney to provide support for children who have special educational needs. Specifically, the challenge was to a policy to reduce one element of SEND funding by 5%. The Appellants were children who have SEN and disabilities and attend mainstream schools in Hackney and therefore had the required standing to bring proceedings.
It all seemed to hinge around section 27 The Children and Families Act 2020 – specifically the statutory requirement to consult in relation to education and care provision and should this requirement be limited to only the strategic or “big stuff”. The Court of appeal said it should be limited. Lord Justice Bean summarised the position as follows:
‘I do not consider that this modest reduction in one element of SEND funding was sufficient to trigger a strategic review under s 27(1)-(2) with the consequent requirement of widespread consultation under s 27(3)… I would leave for another day the issue of what level of major budget cuts or transformation of a local authority’s SEND provision would trigger a wider duty to consult either under s 27 or at common law.’
So, what does this mean? Simply that local authorities are not required to consult on all relevant budget cuts.
Whilst legal challenges like the one above were no doubt well intentioned, we do come back to the point that any allegations of SEND funding failures must be evidence based. This, yet again, stresses the importance of ensuring that the contents of section F of an EHC plan be specified, quantified and detailed and parents and young persons should be motivated to ensure this is achieved. When this is attained, a penetrating light is shone upon any Authority who fails to deliver. The judgement in the above case can be found HERE
25th September 2020