| SPOTLIGHT |
The High Court has rejected a judicial review challenge to Surrey County Council’s decision to save £11m from its special education needs and disabilities (SEND) budget.
The claimants in Hollow & Ors, R (On the Application Of) v Surrey County Council [2019] EWHC 618 were five children resident in the county and who have SEND.
They sought to challenge a decision taken by the council on 27 March 2018 by which its Cabinet approved the detailed service revenue and capital budgets for the 2018-19 financial year, including the council's budget for schools and special educational needs and disabilities (the SSEND budget).
The claimants submitted that the council's decision to make significant reductions in the funding available for SEN (special educational needs) provision was flawed and invited the High Court to grant declaratory relief, and an order quashing the SSEND 'budget allocation for 2018-19' and costs.
In their Amended Grounds and Statement of Facts, the claimants stated that the relief sought in the present case would not involve the Court quashing the council's entire revenue budget or interfering with the council tax calculation: but would require the council "to reconsider its SEN budget from within all resources then available to it and in the light of the guidance from the Court as to its legal obligations in this regard."
The budget for overall council expenditure at Surrey was set at £1,711,989,000. This included the budget for the Children's Schools and Families Directorate, set at £795,175,000, and within it the SSEND budget of £228,836,000. The latter included eight line items of savings totalling £21,001,000. The nature of the savings identified in the SSEND Budget for the 2018-19 financial year was set out in the Council's Medium Term Financial Plan (MTFP).
The claimants originally challenged the decision to approve the savings of £21,001,000. At the hearing however, their QC confined her challenge to only one of those line items, namely item number seven, which was described as "areas of focus" (AOF) (inclusion, commissioning, provision and transition) comprising £11,694,000.
The specific grounds of challenge were that the decision under challenge was taken:
Lady Justice Sharp, who heard the case in the Administrative Court with Mrs Justice McGowan, said: “Notwithstanding the way in which the discrete grounds are framed, the substance of the challenge as it has been argued before us is centrally concerned with the issues of rationality and consultation. The claimants contend there were failures to comply both with the council's statutory and common law duties to consult and with statutory duties which gave rise to a duty to consult. They further seek to argue that to set such a budget in such circumstances, including proposed savings in the SSEND budget, without knowing precisely how those savings would be made, or what the implications and likely impact of making them might be, was irrational.
“There was some suggestion at an earlier stage of these proceedings that the claimants might wish to put in expert evidence on matters concerning local government finance, but in the event they did not do so. There is therefore no challenge to the evidence served by the council in opposition to this claim, which explains in detail the material facts concerning the decision under challenge.”
Lady Justice Sharp said it was common ground that no consultation took place. “The council submits that on the unchallenged evidence it was lawful and permissible as a matter of local government finance and accounting practice for the Cabinet to include in its budget the eight line items, which made up the savings in the SSEND budget, including item seven; and that the claimants' case is predicated on the flawed assumption that the decision to approve the savings in the SSEND budget relating to the AOF will result in a reduction of services provided by the council to children with SEND.”
The council accepted that if or when identifiable cuts to SEND services were proposed it would fully consult upon those proposals in accordance with any legal duties to do so. However, the evidence showed that the decision under challenge was not a decision to cut spending or services, let alone to make a global and indiscriminate ‘cut’ to the provision of services to children with SEND.
Lady Justice Sharp said: “In simple terms, the budget is part of a lawful local government accountancy process that identifies how savings might be made, but the budget is not set in stone. What the council has identified is the potential for future savings. To put it another way, the council has identified areas of spending upon which it proposes to concentrate as the potential areas in which savings could be made. In those circumstances, the council could not know what the impact of cuts might be in those areas, or consult on them, because at the time the decision under challenge was taken, no cuts had been decided upon or worked out.”
The judges said Surrey’s opposition to the claim was “well-founded” and therefore they dismissed the application.
Julie Iles, Surrey County Council’s Cabinet Member for All-Age Learning, said: "We’re pleased the court has confirmed our approach was appropriate but we recognise the case has been difficult and sensitive for the families involved. We’re investing in the services provided to children and young people and our focus has always been on working with families to improve what is offered.
"Our aim is to give families the support they need at the earliest possible opportunity which will offer children and young people the best chance to thrive, ensuring that no one is left behind."
The lawyers for the claimants, Irwin Mitchell, said their clients would be considering an appeal.
Anne-Marie Irwin, Senior Associate Solicitor at the firm, said: “The decision to take this case to the High Court was one that was not taken lightly. We feel that we put forward very strong legal arguments on behalf of the families as to how they believed they would be severely affected by the county council’s plans.
“Shortly before the hearing, Surrey County Council conceded that it would not make any changes to SEND services and that it estimated a spend of around £4m more than its budget had anticipated during the 2018/19 financial year – a significant result for the families who brought this case. However, the council was clear that it still intended to make the cuts in future financial years, meaning that the families had no real option but to fight on to the hearing.”
Irwin added: “While the families would like to thank the judge for thoroughly examining their case, they are now considering whether to apply for permission to appeal.
“This case does not mean that future decisions to cut budgets and services cannot be challenged – each case must be considered on its facts. It is important that families seek legal advice as quickly as possible if they are concerned about the impact of a decision or policy by a public body.
“What this case and other cases around the country have highlighted is that cuts to SEND budgets and services are causing a great deal of distress to tens of thousands of families. It is an issue which is likely to become of increasing concern as the new financial year, during which local authorities face continued budget cuts, approaches.”
Irwin Mitchell is also representing families of children with special educational needs who have challenged aspects of Hackney Council’s SEND policy and provision.
The firm said lawyers now have to make further submissions to the High Court on the Hackney case following the Surrey judgment.
Irwin Mitchell said another challenge to how the government funds SEND services would go ahead in the High Court as planned in June. This is based on claims that current government grants are leaving councils across the country without enough money to fulfil their legal obligation of providing education for pupils with a range of disabilities and conditions.
Philip Hoult
