LB Waltham Forest defeats challenge to SEN funding cuts

Cases

In a judgment of 12th February 2021 in R (MI and IR) v LB Waltham Forest [2021] EWHC 281,Murray J rejected a claim for judicial review against LB Waltham Forest’s decision of March 2020 to cut funding by 10% for some statutory Education and Health Care Plans, which specify provision which has to be made for children with special educational needs. In a full judgment after a “rolled-up” hearing, the judge refused permission to apply for judicial review. 

The claimants had two grounds of claim: first, that the decision to make the cuts was irrational, and second, that the decision should not have been made without a review of provision under s 27 of the Children and Families Act 2014.  S 27 imposes a duty on local authorities to keep SEN, training and social care provision for children with SENs and disabilities “under review”.

On the first ground, the judge agreed with the Council’s submission that this was a “systemic” claim, rather than a claim that a particular child’s needs were not going to be met, so that the question was whether the March 2020 decision gave rise to an “unacceptable risk of unlawful outcomes”: R (Suppiah) v Secretary of State for the Home Department [2011] EWHC 2.  Murray J accepted that a number of safeguards for children with EHC Plans meant that there was no such risk. These safeguards included (para 104) the fact that the cuts were small in terms of schools’ overall budgets; that LBWF had undertaken an exercise before the March 2020 decision to see what the effect of the cuts would be on a sample of children with EHC Plans; that Schools Forum supported the decision; and that LBWF recognised that if funding was not sufficient for a particular child after the 10% cut, then it would have to be increased given LAs’ duties under s 42 of the CFA 2014 to pay for the provision specified in an EHC Plan.

On the s 27 claim, the judge said that neither the level of cuts, nor the fact that no review had been undertaken since the CFA was passed, was sufficient to trigger the “strategic” duty under s 27.  This is the latest in a line of case to similar effect: R (Hollow) v Surrey County Council [2019] EWHC 618, R (ZK) v London Borough of Redbridge [2019] EWHC 1450 and R (AD) v LB Hackney [2020] EWCA 518.

Peter Oldham QC appeared for LB Waltham Forest