Nico Heugh Simone v The Chancellor of the Exchequer
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 07 October 2019 |
| Neutral Citation | [2019] EWHC 2609 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5041/2018 |
| Date | 07 October 2019 |
[2019] EWHC 2609 (Admin)
THE HONOURABLE Mr Justice Lewis
Case No: CO/5041/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jenni Richards Q.C., Stephen Broach and Katherine Barnes (instructed by Irwin Mitchell LLP) for the claimants
Sir James Eadie Q.C., Sarah Hannett and Eleanor Mitchell (instructed by the Government Legal Department) for the defendants
Hearing dates: 26 and 27 June 2019
Approved Judgment
INTRODUCTION
This is a claim by three claimants challenging decisions by the Chancellor of the Exchequer and the Secretary of State for Education relating to the provision of funding for special educational needs.
The claimants challenge the budget announced in October 2018 and what is described in the claim form as the ongoing failure to allocate sufficient resources, most recently on 16 December 2018, for the provision of special educational needs (referred to as high needs). The autumn 2018 budget did not include provision for additional allocations of funds for high needs expenditure and, in particular, did not allocate funds for a bid made by the second defendant for high needs capital spending (to create a specified number of additional places for children with special educational needs at state funded mainstream or special schools). The decision of the 16 December 2018 involved the allocation by the second defendant of £350 million comprising £125 million for high needs revenue funding in each of the years 2018–2019 and 2019–2020 and £100 million for capital expenditure to create approximately 1,600 new places for children with special educational needs.
The claimants challenge the decisions on four grounds. First, they contend that each of the defendants breached his duty under section 149 of the Equality Act 2010 (“the 2010 Act”) to have due regard to certain specified equality matters in the exercise of their respective functions. Secondly, they contend that the second defendant, the Secretary of State for Education, breached the duty imposed by section 7 of the Children and Young Persons Act 2008 (“the 2008 Act”) to promote the well-being of children in England. Thirdly, they contend that the decisions taken by each of the defendants are irrational. Fourthly, they contend that the defendants have breached Article 14 of the European Convention on Human Rights (“ECHR”) read with Article 2 of the First Protocol (“A2P1”) or Article 8 ECHR as they contend that the decisions involve differential treatment of children with special educational needs as compared with other children who do not have such needs and that the defendants cannot justify that differential treatment.
Lang J. ordered that the application for permission to apply for judicial review be adjourned to an oral hearing to be listed as a rolled-up hearing, so that the application for permission would be considered at that hearing and, if permission were granted, the substantive hearing of the claim would follow immediately. In practice, all the arguments, and all the evidence, were fully considered at the hearing on 26 and 27 June 2019.
THE LEGAL FRAMEWORK GOVERNING SPECIAL EDUCATIONAL NEEDS
There are statutory provisions contained in the Children and Families Act 2014 (“the 2014 Act”) governing the making of provision to meet the special educational needs of children and young persons between the ages of 16 and 25 (see section 83 of the 2014 Act). In brief, the principal relevant provisions provide as follows.
A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her: see section 20 of the 2014 Act. Local authorities are under a duty to exercise their functions with a view to ensuring that all children and young people with disabilities in their areas are identified. The parent of a child, a young person, or other specified people may request an assessment of the educational, health care, and social care needs of a child or a young person (and there is a right of appeal against a refusal to assess): see section 36 and 51 of the 2014 Act.
Where, in the light of an assessment, it is necessary for special educational provision to be made, the local authority must prepare, and then maintain, an education and health and care plan (the “EHCP”). That will specify, amongst other things, any special educational provision: see section 37 of the 2014 Act. There are rights of appeal against the content of an EHCP (see section 51 of the 2014 Act).
Section 42(2) of the 2014 Act provides that the local authority “must secure the specified educational provision for the young child or person”. It is well-established law, and accepted by all parties, that a local authority must ensure that the special educational provision specified in the EHCP is provided to the child or young person. Furthermore, that obligation is not dependent on available resources: the local authority is obliged to secure that the specified special educational provision is made available (see R (N) v North Tyneside BC [2010] EWCA Civ 135 and the reasoning, in relation to a different provision, of the House of Lords in R v East Sussex County Council ex p. Tandy [1998] AC 714).
THE FACTUAL BACKGROUND
The claimants are three children, acting through their mothers as their litigation friends. Their mothers are concerned from their own experience, and from the material assembled from local authorities, charities and others, that central government funding is inadequate to ensure that local authorities are complying with their duties to assess needs, prepare EHCPs, and to secure that educational provision is made.
The first claimant, Nico, is 15 years old. He has autism and other conditions. His mother describes in her witness statement his range of complex needs which require, amongst other things, the provision of a full-time individual needs assistant whilst in school. His mother describes the importance of the individual needs assistant to Nico. She describes the difficulties they have had over the years in ensuring that the local authority does provide the funding necessary to provide for the individual needs assistant (provision of which is specified in Nico's EHCP and, prior to that, in his statement of special educational needs). Ultimately, by one means or another, the assistant has been funded. Nico's mother is concerned that the arrangements are not robust or sustainable and, in future years, problems over funding the individual needs assistant will arise again.
The second claimant, Benedict, is 14 years old. He has diagnoses of post traumatic stress disorder, anxiety, depression and chronic insomnia. His mother describes, in her witness statement, the debilitating effect of these conditions on Benedict. She asked her local authority to assess B's needs and prepare an EHCP for him. The authority initially declined as it said that B did not meet the criteria for an EHCP. Benedict's mother describes the steps that she took to try and ensure that Benedict received some form of education. In August 2018, Benedict's mother says that she wrote to the authority indicating that she intended to appeal against the refusal to assess Benedict and prepare an EHCP. Benedict's mother says that the authority replied in December 2018, agreeing to carry out an assessment which was completed in January 2019. Benedict's mother is concerned that sufficient funding is not being made available for the provision of special educational needs for children like her son and, as a result, is concerned that authorities are not assessing children's needs or providing them with the special educational provision which they need, and to which they are entitled.
The third claimant, Dakota, is 9 years old. Dakota is quadriplegic and has diagnoses of cerebral palsy and other conditions. Her mother describes, in her witness statement, the challenges that these conditions provide for her daughter and the level of support that Dakota needs at school. Her mother is anxious that the special educational provision currently being provided in practice by the school is not specified in Dakota's EHCP and that funding constraints might result in reductions in the provision made for Dakota. Her mother too expresses the hope that this claim will highlight concerns over the level of funding for children with special educational needs.
As part of their case, the claimants have adduced a large body of evidence which they say demonstrates that the funding specifically allocated for meeting the special educational needs of children and young persons is inadequate. The evidence includes but is not limited to the following. There is material from local authorities and others (such as the association of directors of children's services) indicating that local authorities' expenditure on special educational needs exceeds the amount included in the element of high needs funding specifically allocated for meeting special educational needs. As a result, local authorities are having to meet the shortfall by means such as transferring money from other parts of their budget or using reserves. By way of example, the association of directors of children's services indicates that 68 authorities had overspent their high needs allocation in 2017–2018 and this totalled £139.5 million. There is a witness statement from Gerald Almeroth who is the strategic director of resources at a London Borough and also the president of the society of London Treasurers which is an organisation representing directors of finance for all...
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