The case of AD v. London Borough of Hackney  EWCA Civ 518 was recently heard by the culinary trio of Lords Justice Bean and Baker, and Mr Justice Cobb at the Court of Appeal. It is the latest in a series of unsuccessful legal challenges to local authority budget cuts affecting (or potentially affecting) special educational needs provision in England and Wales.
I came across this article in TES recently which reported that a group of parents in Surrey had been unsuccessful in their challenge to cuts made to the Special Educational Needs (SEN) budget of their local authority. The challenge was brought by the parents of 5 children who claimed that the SEN budget for 2018-2019 cut spending by £21 million and was unlawful due to a lack of consultation. This type of challenge – by way of Judicial Review –is not an isolated one, although it is much less common north of the border. And, despite the outcome in this case, can be successful.
Indeed, the case of KE & Ors, R (On the application of) v Bristol City Council  EWHC 2103 (Admin) – raised earlier in 2018 – was successful in quashing the budget decision and sending it back to the Council for reconsideration. The focus of the case was slightly narrower – the parents challenged the Council’s decision to set a school’s budget as it included a reduction in expenditure of £5 million pounds in the “high needs” block budget. This is the budget used for special needs provision.
The grounds for review in that case were multiple, but of particular interest is the challenge made with reference to the Equality Act 2010. More specifically, that the decision breached the public sector equality duty (PSED) which contains a duty to acquire further information – including through consultation.
For its part, the Council argued that the Judicial Review was premature as no decision had been taken on provision proposals which were to be developed within the funding envelope. The Judge, however, held that the decision was indeed one that could be challenged. The cut was to funding in a very specific area within the Local Authority’s education budget. It was sufficiently focused even at this stage.
Having concluded that the challenge was a relevant one he went on to hold that there had been a failure to consult in terms of the PSED. Further, the Court noted that ‘participation in public life embraces participation in a mainstream educational environment and such participation for children with disabilities is disproportionately low’. Factors such as levels of exclusions and the high numbers of children in special schools were factors that cried out for consideration by the Local Authority and had not been.
Surrey County Council used the same defence as put forward by Bristol City Council. The parents were, however, challenging proposed cuts made across the authority and not to a particular school – or provision. In rejecting their claim, Lady Justice Sharp said that the evidence in the case showed that the decision being challenged was not, in fact, a ‘cut’ to the budget. Rather the authority had identified a potential for future savings: “The Council could not know what the impact of the cuts might be in those areas, or consult on them, because at the time the decision under challenge was taken, no cuts have been decided upon or worked out.”
With the Public Sector Equality Duty applying to local authorities in Scotland too, local government across the UK should take note. These cases confirm that the PSED applies to budget decisions and embraces participation in a mainstream environment.
Information gathering and consultation during the budget setting process goes some way to assist that and is a requirement on decision-makers to ensure that mainstreaming is happening. The Bristol case makes mention of statistics relating to the high numbers of children in special schools in the local authority area, and the numbers of exclusions. A properly conducted Equality Impact Assessment may also be of relevance.
By actively considering how successfully inclusion is working within a local authority area, and what needs to be done if it is not, budget decisions will better reflect and focus on children with additional support needs and disabilities. It may be some time before we see similar cases in Scotland (and funding of such cases is always a thorny issue) but the reminder of the application of the public sector equality duty to changes in the additional support or education budget is certainly timely.
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