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Latest SEND Court judgment helps no-one … and may undermine the statutory duty to consult parents

They are now coming thick and fast.

Legal challenges by parents to Council decisions to make changes to the provision of services for those with Special Education Needs and Disabilities (SEND). First, we had a case in Bristol last year – won by claimants on the grounds that the Council had not consulted properly. Last month, Surrey CC successfully defended an action because its plan to save money on such services was not sufficiently specific as to warrant consultation. Now we have the judgment of Judge Supperstone in the case of R (ex parte AD) v LB of Hackney [2019] EWHC 943.

In this case the claimants challenged two Council policies – a ‘Resource Levels’ policy and a ‘Plan Format’ policy. The case failed. At judicial review, the Court found that, under the specific circumstances of the case, there was no clear-cut common law duty to consult. Neither was a requirement under the Public Sector Equality Duty (PSED) for there to be a distinctive ‘duty of enquiry’ into the likely impact of a planned 5% across-the-board reduction in funding.

On the debate as to when and how consultation is required when Councils seek to fit quarts into pint pots, this tells us very little. For some reason, the legitimate expectation argument was not used – possibly because this was not a challenge to specific cuts in service, but to general funding policy which officials argued, did not compromise the Council’s ability to meet its obligations. Hackney may feel happy it has won its case, but, I suggest is no further forward in understanding when consultation would have been required.

However, two other important consultation issues arise from this judgment.

1- The Schools Forum assumes pivotal importance. The Council defended the consultative obligation for its decision on having consulted the Schools Forum. Having decided not to undertake a conventional impact assessment, the Council seems to have relied upon the unwillingness of the Forum to ‘register an objection’. In fact, this body consists of head teachers and chairs of Governors. Evidence quoted in the case included the following:

  “ …Forum members commented in general terms that a reduction in overall school funding would lead to a reduction in services. That was clearly a concern: that some services would be diminished. However, the Forum was not saying that the special educational provision in children’s Plans would not be met. The outcome of the discussion was in fact that the Forum ‘noted and received’ the report.

…Whilst formally the Forum’s function is an advisory one, it is able to and sometimes does register an objection where it has serious concerns about a proposal put to it. Had the Forum chosen to do so in this case, I have no doubt that we would have reconsidered the 5% element 3 reduction.” (Par 14)

One wonders whether members of the Forum, including those with serious misgivings about the Council plans, realised that their alleged acquiescence would be relied upon by the Council as having satisfied in full any need to consult about the issue.

Note also that there was no recorded dialogue with any parents or – as far we can tell – any representative group interested in SEND.

This – according to the Courts was perfectly lawful. Best practice it is not!

 

2- The Court has followed the Surrey decision in its interpretation of the Children and Families Act 2014. Section 27 requires Councils to keep its SEND provisions ‘under review’ and consider whether it meets the demanding needs for education, training and support of the children and young people concerned. It then goes on to say that that ‘In exercising its functions under this Section, the authority must consult’ a very long list of organisations and people, including, of course the parents….

Parents who challenged SEND cuts therefore assumed that this gave them the right to be consulted. In fact, what the Courts have done in the last two cases is to rule that consultation is only triggered when the Council actually undertakes a ‘review’, and that at a ‘strategic level of the global provision.’ In other words, making relatively small changes to the detailed services don’t count. Supperstone J. quotes the Judges in the Surrey case:

“We do not consider Parliament can have intended that the extensive and onerous duties of consultation made mandatory by s.27, should be undertaken on a ‘rolling basis’ let alone, that it would be triggered every time a change is made to the provision of SEN. Such an interpretation would be capable of leading to absurd results, adversely affecting both the ability of local government to carry out its business, and the amount of resources available to meet the needs of those the legislation is designed to protect.”

Now it may well be that our overworked Parliamentarians legislated carelessly in 2014, and even the Judges have conceded that ‘the drafting of S.27(3) is not abundantly clear’ But the conclusion that significant reductions in the budget do not require consultation is, to say the least, highly arguable.

What campaigners on behalf of parents and those interest to defend Special Needs Education and good provision for those with disability must now do is to exert political pressure on the Education Secretary and the Minister for Housing and Local Communities to clarify what the statue intends – if necessary by new legislation. A further Court case on the contentious legislation is already in process.

It has taken decades to convince the establishment that officials do not always know best and that better decisions emerge when those affected are properly consulted. MPs probably thought that they had prevented this happening through the 2014 Act. Sadly, a London Council felt it possible for a senior official to decide that a 5% would not have any significant impact, and for the Council to proceed without observing any of the consultation provisions. Anyone sensitive to the political need to be responsive to an electorate increasingly aware of its right would have seen the warning signs. What a shame this one didn’t!

About the Author

Rhion Jones is considered a leading authority on Public Engagement and Consultation. A founding Director of the Consultation Institute, he is co-author of “The Art of Consultation” (2009) and “The Politics of Consultation” (2018). He has delivered over 500 training courses and Masterclasses and is a prolific writer on the subject, having written over 350 different Topic papers and over 50 full Briefing Papers for the Institute. Since 2003 over 15,000 person-days of training based on courses he invented have been delivered. Rhion is in demand as an entertaining Keynote Speaker and Special Adviser, particularly on the Law of Consultation, and its implications for Government and other Public Bodies. In 2017, he was awarded the ‘Lifetime Achievement Award’.

Read more about Rhion

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