In R (AD & Ors) v London Borough of Hackney [2019] EWHC 943 (Admin), Mr Justice Supperstone rejected a multi-faceted challenge to Hackney’s provision of Special Educational Needs (“SEN”) funding and its method of drawing up Education and Healthcare (“EHC”) Plans, in a ruling that will have important ramifications for legal challenges to local authority funding decisions.
The Court held that Hackney was entitled to apply a banded approach to costing SEN provision, and gave important rulings on a number of commonly used forms of legal challenge to local authority funding decisions, including statutory have regard duties relating to childrens’ welfare and equality duties[JA1] .
The
Claimants’, parents of local children with SEN, challenged Hackney’s use of a
banded system for funding provision for children in mainstream schools with EHC
Plans, and its decision to reduce the amounts in each band by 5%. On the
various grounds of challenge, the court held that:
- A banded system was not an
intrinsically unlawful way to discharge the duty in s.42 of the Children
and Families Act 2014, notwithstanding the absolute nature of that duty [§§38-39].
Nor was the particular system operated by Hackney unlawful, either before
or after the 5% reduction.
- The Court set decided the test
for determining when an administrative system is unlawful because it
produces substantive unlawful results in individual cases [§47], which was
the allegation in the present case. Previously courts had only set a test
for claims pf systemic procedural
unfairness. On the facts, there was no evidence that Hackney’s system
inherently produced failures to meet the s.42 duty [§§49-51], particularly
as the impact of the reduction in an individual case could be mitigated by
the flexibility to provide additional funding [§68];
- In maintaining a banded system
and reducing the level of funding in each band, Hackney did not breach the
welfare duties in s.175 of the Education Act 2002 or s.11 of the Children
Act 2004 [§55], or the Public Sector Equality Duty (“PSED”) in s.149
Equality Act 2010 [§59]. Even though express consideration had not been
given to those duties, they had been discharged in substance, because the
decisions in question were ‘all about’ welfare and eliminating
discrimination [§§55; 59]. Hackney had conscientiously considered how to
ensure that the needs of SEN children would be met when deciding on the 5%
reduction, it had also properly considered their welfare and equality
needs [§68].
- The duty to consider
sufficiency of provision in s.27 of the CFA 2014 was not engaged. The
Court followed the recent decision of the Divisional Court in R (Hollow
and ors) v Surrey County Council [2019] EWHC 618 [LINK TO OUR PAGE ON
THAT] in holding that s.27 required only a global review of sufficiency
from time to time, linked to the authority’s local offer [§§69-79]. As a
result, it is now abundantly clear that dicta to the contrary in the cases
of R (DAT and BNM) v West Berkshire Council [2016] EWHC 1876
(Admin) and R (KE) v Bristol CC [2018] EWHC 2103 (Admin) are wrong
and should not be followed.
- No public consultation was
required at common law, as an aspect of the PSED, or under s.27. The Court
restored orthodoxy on the common law position by again declining to follow
KE v Bristol: the duty arises only in cases of legitimate
expectation or, exceptionally, ‘conspicuous unfairness’ [§§87-88]. The
supposed ‘duty of inquiry’ inherent in the PSED is no more than an aspect
of the broader Tameside duty to equip oneself with adequate
information [§83]. That may or may not require public consultation,
depending on the facts. In the present case, Hackney had adequate
information to carry out a detailed analysis of the impacts of the 5% reduction,
and furthermore had consulted with the Schools Forum, which had the
appropriate technical expertise [§84].
The
ruling will be welcomed by local authorities for the clarity and common sense
it brings to the various issues above. Welfare, equalities and consultation
obligations are not traps for unwary decision-makers. Box-ticking assessments
are not required just for the sake of meeting them. Hackney had made a clear
commitment to continue to meet the absolute duty in s.42 to secure provision
for SEN children, and backed it up by a detailed analysis of the financial
implications of the proposed reduction, which showed that needs would still be
met. Its clear and conscientious focus on meeting the s.42 duty was
enough to discharge all of the relevant duties.
The
Court also dismissed a challenge to the format adopted by Hackney in writing
EHC Plans. There is nothing unlawful in placing Section E (Outcomes) next to
Section F (Provision). This does not violate the principle that provision
should be made to meet needs (which are identified in Section B. Nor is it
contrary to the statutory scheme for EHC Plans, which does not specify the plan
format beyond stipulating that the different sections should be ‘separately
identified [§105]. As the Court observed, it merely ‘enables the reader to see
what the provision was trying to achieve for the child’ [§107]
Jonathan Auburn and Peter Lockley acted for the London Borough of Hackney.
