Southwark must disclose SEND safety valve documents despite section 36 exemptions being engaged, tribunal rules

In London Borough of Southwark v The Information Commissioner & Southwark Law Centre [2026] UKFTT 628 (GRC), decided on 28 April 2026, the tribunal partly allowed the council's appeal against a decision notice issued by the Information Commissioner in October 2025. While the tribunal accepted that the section 36(2)(b)(ii) and 36(2)(c) exemptions under the Freedom of Information Act 2000 were engaged, it held that the public interest balance nonetheless favoured disclosure.

Southwark Law Centre submitted a freedom of information request to the council in July 2024, seeking copies of the council's DSG management plan, its most recent safety valve monitoring report sent to the Department for Education, and a list of key performance indicators used to monitor the safety valve agreement. The safety valve programme provides additional central government funding to local authorities facing overspends on SEND services.

The council withheld the management plan and monitoring report on the basis that disclosure would inhibit the free and frank exchange of views and prejudice the effective conduct of public affairs. It relied on a written qualified person opinion from December 2023, and a subsequent verbal approval given by the same qualified person in July 2024 in relation to the new request.

The Information Commissioner found that the exemptions were not engaged, on the basis that the 2023 written opinion could not reasonably be applied to a different request made in 2024. The council appealed.

The tribunal, presided over by Judge Hazel Oliver, found in the council's favour on the threshold question. It accepted that the qualified person had issued a fresh opinion in July 2024, albeit verbally, and that there is no legal requirement for such an opinion to be given in writing. The reasonableness test under section 36 is a substantive rather than procedural one, the tribunal confirmed, applying Information Commissioner v Malnick [2018] UKUT 72 (AAC).

However, the tribunal was critical of the quality of the evidence presented on the public interest balance. The council's witnesses were not subject matter experts in SEND provision and could not give detailed evidence on the specific content of the withheld documents or how the public interest arguments related to that content. No closed session was held because no such expert was made available. The qualified person's own statement did not address the public interest balance in any meaningful way.

The tribunal drew on the Court of Appeal's decision in Hampshire County Council v GC & Anor [2026] EWCA Civ 20, in which Bean LJ referred to the "fundamental and frightening inequality of power" between parents of children with special educational needs and local authorities. The tribunal accepted Southwark Law Centre's submission that secrecy around safety valve agreements compounds this inequality, since parents are already aware that such agreements involve reductions in SEND spending but cannot scrutinise the specific plans being made.

While acknowledging that a chilling effect on internal deliberation and disruption caused by parental reaction were legitimate concerns, the tribunal said the council had presented only generalised arguments and had not demonstrated how the specific content of these particular documents would produce those effects. It concluded that the public interest in disclosure was not outweighed.

The tribunal was careful to limit the reach of its decision, stating that it was not making a finding that DSG management plans and safety valve monitoring reports must always be disclosed under FOIA, whether by councils, the DfE or other public authorities. The outcome was based on the specific evidence and the specific documents in issue.

The council has 30 days from the date of the decision to disclose the withheld information to Southwark Law Centre.