The Court of Appeal has rejected a claim that a 5% reduction in one element of its SEND provision was unlawful because the council was in breach of a duty to consult under s.27 of the Children and Families Act 2014.
The appellants in AD & Ors, R (On the Application Of) v London Borough of Hackney [2020] EWCA Civ 518 were children who have special educational needs and disabilities ("SEND") and attend mainstream schools in Hackney.
The council had decided that the reduction of 5% could be absorbed by schools making efficiencies, without compromising the SEN provision of individual children.
The appellants’ claim for judicial review over two of Hackney’s policies on provision to meet their special needs was dismissed in the High Court by Mr Justice Supperstone in April 2020.
Permission for an appeal was granted on the single issue of whether the council was in breach of a duty to consult under s 27 of the 2014 Act (“Duty to keep education and care provision under review”).
Counsel for the appellants had argued that the budget reduction was not de minimis, the gist of the evidence of Hackney’s Assistant Director of Education Services was that a reduction of anything more than 5% in the relevant element of the SEND budget would have been unacceptable, 5% was therefore to be seen as a “tipping point” and consultation under s.27 was therefore essential.
Counsel for Hackney, Jonathan Auburn of 11KBW, pointed out that there were three levels of decision-making relevant to SEND provision for children and young people:
- Individual decisions.
- Annual consultation with schools conducted through the local Schools Forum.
- Decision-making required by s.27. This was the broadest level.
It was submitted on behalf of Hackney that not every budget decision affecting SEND provision engaged s.27. The Schools Forum was the statutory basis for consultation on the type of decision under review in the present case, namely a modest reduction in part of the budget for the forthcoming financial year.
Lord Justice Bean, with whom Lord Justice Baker and Mr Justice Cobb agreed, concluded that:
- s 27(1)-(2) of the 2014 Act create a single duty. “Each local authority to which the section applies must keep its SEND provision (not only educational but also training and social care provision) under review, and in doing so must consider the extent to which that provision is sufficient to meet the needs of the children and young people concerned.”
- Since the interpretation of the section was clear and unambiguous without recourse to external sources, it was unnecessary to rely on the Explanatory Notes to the Act or the 2015 Code of Practice. What these did show was that in each case the drafters of the documents – presumably parliamentary counsel for the Explanatory Notes and Departmental civil servants for the Code of Practice – “thought that s 27(1)-(2) created a single duty: which is at least some reassurance to me that my reading of the statute is not an eccentric one.”
- The duty to consult imposed by s 27(3) was indivisible.
- The decision in R (Hollow) v Surrey County Council [2019] EWHC 618 (Admin); [2019] PTSR 1871 was not binding on this court; and it was therefore an academic question whether the Divisional Court's interpretation of s 27 was essential to the decision or merely obiter. “Whichever it was, I agree with it, in particular with the finding at [98] that s 27 is concerned with consideration at a strategic level of the global provision for SEND made by a local authority; and with the observation at [99] that the duties are to be performed from time to time, as the occasion requires, with no particular 'trigger' for the duty being specified.”
- Like the Divisional Court in Surrey, he respectfully disagreed with the observation of Elisabeth Laing J, in the final sentence of paragraph [30] of her judgment in R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin) ("albeit with misgivings, as she made clear"), that a duty to consult under s 27(3) arises whenever a local authority makes a decision which will necessarily affect the scope of its SEND provision; and with paragraph [113] of Judge Cotter's decision in R (KE) v Bristol City Council [2018] EWHC 2103 (Admin).
- He agreed with the observations of Swift J in paragraphs [63]-[64] of R (ZK) v London Borough of Redbridge [2019] EWHC 1450 (Admin) that the s.27 duty is in the nature of a strategic obligation and that local authorities should be best placed to decide for themselves what the elements of a review should be, subject to review by the courts against Wednesbury standards.
- He rejected the argument [from counsel for the appellants] that the reduction of 5% in the Element 3 Resource Level funding (a lower reduction overall, as the Assistant Director had explained) was so close to the "tipping point" that consultation with parents, carers and young people affected was required by law. “It cannot be the case that if a local authority rationally concludes that a particular level of saving on SEND provision can be achieved without a significant adverse impact, but that a more drastic budget reduction (which it is not proposing to implement) might well have such an impact, that is enough to bring s.27 into play.”
- He did 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). “It did necessitate consultation with the Schools Forum under the 2012 Regulations, which is what occurred. 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.”
- It was therefore unnecessary to consider the council’s fallback defence, under s 31(2A) of the Senior Courts Act 1981, that even if the consultation which the claimants argued was required by s 27(3) had occurred, it was highly likely that the outcome for the appellants would not have been substantially different.
The appeal was therefore dismissed.
