It is not often that barristers hit the headlines as they argue a case in the High Court. But heads were turned this week by the words of Sir James Eadie QC, defending the Government in the action brought against it by those claiming that Special Educational Needs and Disability services (SEND) have been consciously under-funded.

The Government’s defence is that any reduction in services is due to decisions taken by local authorities, and that Government funding is only one of many factors – and not necessarily the decisive one. According to press reports, the exchange went as follows:-

Sir James Eadie: “The position ultimately is that [local authorities] are responsible for making the necessary provisions under the Children and Families Act 2014 and they cannot cite scarcity of resources as a reason for not doing it,” he added. “In other words, saying that ‘we have not got the money’ is no excuse.”

Responding, Mr Justice Lewis asked: “What if a council says we have not got a cheque book? We have sold that too.”

“If they have got to rob Peter to pay Paul then that means you have to because you have a statutory duty to help Paul,” Sir Eadie replied.“If that means you got to cut traffic lights or cut social care, then so be it.”

In other words, Councils must prioritise ‘statutory’ services – even to the point of totally disengaging from any that are ‘non-statutory’. Except that we have an untidy patchwork of inherited obligations – and it is often merely an accident of history whether something is ‘statutory’ or not (or how ‘statutory’ it is – given Whitehall’s reliance on Regulations and Guidance). The truth is that many statutory services only deliver the intended outcomes because of well-structured non-statutory initiatives that operate alongside.

Take children’s services, for example. A few weeks ago, a Commons Select Committee[1] reported on the Funding of local authorities’ Children’s services. It highlights the threat to children’s centres, parenting programmes and early help services. It discusses the at-risk Troubled Families Programme which has, over the years, spent £1.4bn on those few who potentially cost Councils a fortune unless their problems are identified and tackled promptly. Similar scenarios abound in Adult Care services – ‘meals on wheels’, for instance is not a statutory service.

It goes way beyond the care services. In the London Borough of Westminster there has been a long-running row after the Council de-commissioned 75 CCTV cameras – because it was not a ‘statutory’ requirement. It then re-instated a small number of them when public safety was compromised. What is and is not a ‘statutory’ requirement is indeed a blurred picture.

Cultural services, Libraries, Highways (eg pothole maintenance etc), Planning and Housing have all suffered huge cuts, and Council consultations on proposals for change in these areas frequently run into the difficulty of persuading local people that what they want is not always a ‘statutory’ requirement.

The universal advice these days is to work with citizens and stakeholders to tackle community challenges through one form or another of co-production. Makes sense. Time and again they come up with creative, innovative solutions – but almost always they involve developing and delivering new services that may not be ‘statutory’ in the strict sense of the word.

If, however, Sir James is right to require local authorities to rob the non-statutory Peter to pay the statutory Paul, life becomes even more difficult for Councils in England. Far from responding to local priorities and preferences, they could increasingly become, just local implementers of central Government services.

So let’s recall the context of the current High Court battle. It comes after a succession of judicial reviews have considered whether consultations on changes to SEND services have been lawful. They’ve gone both ways, leading to a confused picture for Cabinets wrestling with sums that may not add up. Predicting the winner at the High Court is not easy. But in one sense it may not matter. Funding shortfalls will remain – if not in SEND, then in other areas.

Communities must become aware of what Councils can and cannot realistically do, so public consultation has never been more critical. It’s a rather big elephant in most Council Chambers!