This week the High Court published its judgment on the legal challenge to the Government’s funding of services for those with Special Educational Needs and Disability or SEND. It ruled in favour of the Chancellor and the Education Secretary. There had been no irrationality, no breach of S.149 of the 2010 Equality Act nor had there been a failure to promote the wellbeing of children under the 2008 Children & Young Persons Act.

The case follows a succession of other challenges to local SEND budgets where parents argued that councils had not made sufficient provision for these services. In three specific cases, they claimed that consultation had been inadequate, and although, in Bristol, they won, they lost in the LB of Hackney and in Surrey.

Local Authorities in England face a genuine problem. At a time when their overall spending power has been reduced by 29% in eight years, far too many are overspending on SEND because they argue, Government funding has not kept pace with increased demand, mostly arising from the well-meaning but underfunded reorganisation in the wake of the 2014 Children and Families Act. Despite spending a record £9.4bn on SEND, the Department of Education faces anger and disillusionment from campaigners and parents. As pointed out last month by the National Audit Office[1], too many councils are failing to make ends meet. Incentives on mainstream schools are such that they lack the capacity to accommodate all those with significant special needs, forcing more and more to be taught in special schools… at a much higher cost.

Naively, Ministers had made astonishing assumptions:

“The Department expected that the benefits and savings would significantly outweigh the costs of moving to the new system. It believed that more collaborative working between agencies and greater engagement with families would lead to cost savings. However, it did not quantify these or validate its assumptions before implementing the changes. It expected, for example, that there would be fewer challenges to local authorities’ decisions about support and that these could be resolved through mediation. In practice, the number of cases being taken to tribunal increased by 80.5%, from 3,147 in 2014/15 to 5,679 in 2017/18”

In other words, parents are fighting for (what they believe to be) their rights.

Intentionally or not, Parliament has given them a number of levers, including specific requirements upon councils to consult local people on the ‘local offer’ for such services. It is true that the Courts have allowed local authorities a generous interpretation of the relevant provisions so that some budget cuts do not require extensive consultation. But the principle is well-established. Clued-up consultees will be reluctant to forego the opportunity to argue their corner.

The Government is drip-feeding more money into the system, and with a looming General Election, who knows what might be forthcoming? What the last decade shows, however, is that there is immense professional pressure to invest in these services. Add to that, international obligations for the rights of children, enforceable human rights, a raft of evidence that such services provide individual and societal benefits. Above all, note the power of social media to help parents campaign for something better.

Consultation remains the best mechanism for local areas to consider their priorities and preferences. It is rules-based, so requires adherence to clear standards, and should be wholly transparent. Councils have no choice but to come clean about their funding dilemmas and face difficult dialogues with parents who will fight for better services for their own children. We have probably not seen the last judicial review on this subject, so smart councils will tread carefully to ensure that legal and best practice obligations are fulfilled. The cost of defending a JR is considerable, and most will wish to avoid it…

Another discussion point for our forthcoming courses on the Law of Consultation

One-day course: next in York on 13^th November

Two-day Masterclass next in London on 19/20 November