Amber Shaw (a child, by her mother and litigation friend Deanne Shaw) v Secretary of State for Education
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 14 August 2020 |
| Neutral Citation | [2020] EWHC 2216 (Admin) |
| Docket Number | Case No: CO/2133/2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 August 2020 |
[2020] EWHC 2216 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON Mr Justice Kerr
Case No: CO/2133/2020
The Queen on the application of
Stephen Broach, Alice Irving and Polly Sweeney (instructed by Scott-Moncrieff and Associates) for the Claimants
Sarah Hannett, Nathan Roberts and Mark Davies (instructed by Government Legal Department) for the Defendant
Hearing dates: 29th – 30th July 2020
Approved Judgment
Summary
The claimant disabled children challenge decisions of the defendant Secretary of State by statutory notices and secondary legislation, taken in April, May and June 2020 in the light of the current coronavirus pandemic, to modify and reduce the obligations on local authorities to make statutory educational and health care provision for children and young people with special educational needs and disabilities ( SEND) in England.
The decisions challenged are as follows. The first decision is to enact the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 ( the 2020 Regulations), temporarily amending the Special Educational Needs and Disability Regulations 2014 ( the 2014 Regulations), by relaxing various time limits for the completion of steps to be taken in the preparation of Education, Health and Care ( EHC) assessments and plans.
The second, third and fourth decisions challenged are to issue statutory notices ( the three notices) modifying the duty to secure the provision specified in EHC plans under section 42 of the Children and Families Act 2014 ( the 2014 Act). The three notices ( the May notice, the June notice and the July notice) were issued pursuant to powers conferred by the Coronavirus Act 2020 (the 2020 Act). Their effect was that the duty to secure the making of the provision specified in an EHC plan was replaced for three months by a duty to use “reasonable endeavours” to secure the provision.
The 2020 Regulations entered into force on 1 May 2020 and, by their terms, will cease to have effect on 25 September 2020. The second, third and fourth decisions had effect during the three calendar months May, June and July 2020 respectively, thus covering the period from 1 May to 31 July 2020. The last of the notices expired at the end of July 2020 and the duty to secure the provision in an EHC plan has from 1 August 2020 returned to normal.
The five grounds of challenge are: breach of a duty to consult prior to making the 2020 Regulations and issuing the three notices; failing to comply with the Tameside duty of enquiry; irrationally laying the 2020 Regulations before Parliament the day before they came into force; irrationally deciding that it was appropriate and proportionate to issue the three notices; and in breach of section 7 of the Children and Young Persons Act 2008 failing to have in mind the aim of promoting the well-being of children when making the 2020 Regulations and issuing the three notices.
I gave directions on 1 July 2020 for a “rolled up hearing” of the claim, to be heard the same month. The matter came back before me at the end of July. The defendant submits that the claim is academic in respect of the second, third and fourth decisions, as they are already spent, but accepts that the challenge to the first decision – to make the 2020 Regulations, due to remain in force until 25 September 2020 – needs to be determined.
The defendant further submits that in any event, all aspects of the claim are unarguable or, alternatively, should be dismissed; and that, in relation to the first ground of challenge (failure to consult), if that failure was unlawful, I must nonetheless refuse leave to apply for judicial review on the ground that the outcome for the applicants would not have been substantially different if the conduct complained of had not occurred, i.e. if a consultation exercise had taken place (see section 31(3C) and (3D) of the Senior Courts Act 1981).
The claimants deny that this latter point is correct and deny that the claim is academic; and they argue, further, that even if it is correct to say that the outcome would not have been substantially different had a consultation exercise been undertaken, I should nevertheless grant leave to apply for judicial review and allow the claim as it is appropriate to do so “for reasons of exceptional public interest” (see section 31(3E) and (2B)).
Relevant Law and Guidance
The statutory regime for making provision for children with SEND was overhauled in 2014 following extensive consultation. The new EHC plans combined educational provision with health care and replaced the old statements of special educational needs with the new EHC plans, which can last until the age of 25.
The new governing instruments became the 2014 Act and the corresponding regulations, the 2014 Regulations. Part 3 of the 2014 Act contains the provision for children with SEND. Special educational needs ( SEN) are defined in section 20. The special educational provision ( SEP) required to meet those needs, together with health care and social care provision, are defined in section 21.
By section 36, the relevant local authority must consider a request to assess those needs (an EHC needs assessment) and decide whether it may be necessary for the child to have an EHC plan specifying the provision required to meet the child's needs. Where the EHC needs assessment leads to the conclusion that SEP, health care or social care is necessary, the authority must secure that an EHC plan for the child is prepared.
By section 42 of the 2014 Act, unless the child or young person's parents have made suitable alternative provision, the authority must “secure the specified special educational provision for the child or young person” (section 42(2)) and any health care provision must be provided by the “responsible commissioning body” (section 42(3) and (4)).
The EHC plan must be reviewed every 12 months (section 44). Under section 51, there is a right of appeal to the First-tier Tribunal against various decisions including a decision not to secure an EHC needs assessment and a decision as to the content of an EHC plan. These decisions are of vital importance to the children and young people concerned. They greatly affect their lives and futures, determining where and how they are to be educated and cared for.
The processes for deciding whether to carry out an assessment and for carrying out assessments and making EHC plans are set out in the 2014 Regulations. They require reporting by expert professionals such as specialist teachers, educational psychologists, doctors and others able to contribute to assessing educational and health needs. The 2014 Regulations include detailed provisions stating the procedure and time limits for each step of the process, including amendments to EHC plans following a review and compliance with orders made by the First-tier Tribunal on appeal.
The Coronavirus Bill received its first reading in the House of Commons on 19 March 2020 and became the 2020 Act, entering into force six days later on 25 March 2020. Section 38(1)(b) provides that Part 1 of Schedule 17 makes provision enabling the Secretary of State to give notices disapplying or modifying enactments.
Schedule 17, paragraph 5(1)(b) gives the Secretary of State power to modify for a specified period the enactments listed in a table in paragraph 5(6), in the manner set out in the table. By paragraph 5(7) the specified period may not exceed one month. Among the enactments that may be modified is section 42 of the 2014 Act, enacting the duty ( the section 42 duty) to secure the SEP and health care provision in an EHC plan. The section 42 duty may be modified so that the duty “is to be treated as discharged if the person has used reasonable endeavours to discharge it”.
A notice disapplying or modifying an enactment may be limited by reference to a specified person or description of persons, a specified area or any other matter (paragraph 5(2)). A notice disapplying or modifying an enactment “must state why the Secretary of State considers that the issuing of the notice is an appropriate and proportionate action in all the circumstances relating to the incidence or transmission of coronavirus”.
Paragraph 6 of Schedule 17 gives the Secretary of State power to make regulations amending the list of enactments that may be disapplied, or the table in paragraph 5(6) setting out the enactments that may be modified “so as to add an enactment relating (directly or indirectly) to children, education or training, or to vary or remove an entry” (paragraph 6(1)). The Secretary of State must publish a notice under paragraph 5 and take such other steps as he considers reasonable to bring it to the attention of those likely to be affected.
The 2020 Regulations were made on 28 April 2020, laid before Parliament on 30 April 2020 and entered into force on 1 May 2020. By regulation 2(2) they will cease to have effect on 25 September 2020. As explained in the explanatory note at the end, they “make amendments to secondary legislation relating to special educational needs and disability in order to provide exceptions to time limits set out in that legislation where they cannot be met because of a reason relating to the incidence or transmission of coronavirus”.
Regulation 5 inserted a temporary regulation 2A into the 2014 Regulations:
“ Relaxation of time periods due to coronavirus exception
2A.-(1) Where the coronavirus exception applies, any requirement in any of the regulations specified in paragraph (3) for action...
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...of exercise likely to lead to an allegation of voluntary but unfair consultation (cf. R (Shaw) v. Secretary of State for Education [2020] EWHC 2216 (Admin) at [108]–[115]). A likely objection is that the consultation is not “ Coughlan compliant” because the proposals are not at a formative......