SEND after Surrey
Two High Court judgments, one in August 2018, and another last week, on largely similar facts but coming to diametrically opposite decisions.
In Bristol, the Judge found that a large proposed reduction in funding Special Educational Needs and Disability (SEND) by Bristol City Council required a public consultation. When the same thing happened in Surrey, the Court came to a different conclusion and came mighty close to saying that the Judge in the former case was plain wrong. What are councils to make of these seemingly contradictory messages?
There are three points to note:-
• These are not the only legal challenges. The London Borough of Hackney still awaits judgment from a case brought against it in October and campaigners in Wiltshire are proposing to challenge the County Council in the coming weeks. On 26th June, campaign group, SEND Family Action takes the Government to Court arguing that its underfunding of Special Education Needs is unlawful. At its heart, the issue is about resources and politics, not about laws and consultation. However, parents of pupils needing help have influence in local communities and will go to Court to defend their rights to be properly consulted.
• The requirement for consultation is complicated by the statutory provisions that were intended to ensure that SEND services are subject to regular review and consultation with a large number of stakeholders – per S.27(3) of the Children & Families Act 2014. In the Bristol case, the Judge accepted that a major cut in funding triggered the requirement. In the Surrey case, the Judges said that it did not. They argued that such reviews were only required as and when the occasion arose, and that proposed funding cuts did not necessarily meet that criterion. Their rationale in the judgment relies upon the assumption that every change in the local offer would require a review and a consultation, and the Judges argue that Parliament could not have intended such a process. A more balanced view might be that when funding changes are proposed, their extent and impact might affect whether or not they trigger the S.27(3) requirement.
• A key factor seems to have been that whereas the Bristol proposals amounted to a concrete budgetary decision, almost inevitably leading to substantial reductions in service, the Surrey proposals were much more tentative. Tackling a savings target of £11m in SEND services, Surrey adopted a plan to make changes in five different Areas of Focus (AOF). Unfortunately, there were never any specific proposals, and whilst the Council had said it ‘hopes and expects’ to make the savings, it acknowledged that this might not be possible. Judges therefore ruled that the common law duty to consult did not arise.
Lawyers can argue about the relative judgments, but from a best practice view, the Surrey case sends some problematic signals. This is because It appears to remove from the Council the obligation to consult, principally because it had not worked out the details of its proposals. The sequence of events was that in November 2017, the AOF plan was accepted by the Surrey Cabinet. They discussed the potential negative consequences of making the savings – but because there were no specific proposals, there was no attempt to prepare a formal impact assessment. Four months later, on the eve of the financial year during which the savings were meant to have been made, the Council was no further forward; the AOF was still work-in-progress and although they were in discussions with the Schools Forum, officials accepted that they were not yet at the stage where a consultation and a detailed Equality Impact Assessment could be made. By the date of the JR hearing in October, Surrey confirmed that it was still not possible to identify ‘sufficiently specific proposals’ and that the AOF was still not implemented. It was, however, hoping to consult more widely fairly soon.
In the Surrey judgment, Judges declared that this kind of approach was ‘not unusual’. This must surely be open to question. Once major cuts in services are envisaged and made public, the political reality is that wise councils know that they must be seen to act quickly, put the various options on the table and engage with key stakeholders and the general public. Every experienced Councillor knows that uncertainty about services makes constituents anxious and letting things fester just breeds opposition.
There might just be some local extenuating circumstances, but prima facie, Surrey’s inability to formulate its own proposals smacks of inefficiency or a lack of planning. The failure to consult in situations like this seems to be the direct result of the Council not having done its homework. “Keep your proposals vague, and you can avoid a consultation!”
The truth is that, however poorly Parliament drafted its legislation, the intention presumably was to ensure a degree of engagement with those affected by SEND services. It also occurs in Health and Wellbeing. Had these been NHS services, there would have been a statutory requirement (per the well-known S.14Z2 provisions) to involve the public and patients in ‘the development and consideration of proposals.’
It does not apply to local government, but maybe it should. What is missing from the Surrey story (per the judgment) is any suggestion that the Council was in dialogue with parents whilst this AOF was being considered. In this case, the failure to consult was less a breach of law, but more a breach of best practice.
Councils contemplating the 2019-2020 budget process now need to tread very carefully. The Bristol case suggests that major changes to the SHAPE of the Budget may need early consultation if the impacts appear significant. The Surrey case implies that as long as the SUBSTANCE of proposals are not specific, consultation can be deferred. The Institute expects that best practice will ultimately appeal to professionally-minded elected members and officers, and few authorities will wish to risk judicial reviews as Surrey was obliged to defend.
Even though they won !
This and other recent legal judgments of significance will be considered in detail at the next Law of Consultation training course in York on Wednesday, 27th March and in London on 8th May.