R AD (by his mother and litigation friend LH) and Others v London Borough of Hackney
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 12 April 2019 |
| Neutral Citation | [2019] EWHC 943 (Admin) |
| Docket Number | Case No: CO/1994/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 April 2019 |
[2019] EWHC 943 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Supperstone
Case No: CO/1994/2018
Stephen Broach and Khatija Hafesji (instructed by Irwin Mitchell LLP) for the Claimants
Jonathan Auburn and Peter Lockley (instructed by LB Hackney) for the Defendant
Hearing dates: 31 October and 1 & 2 November 2018
Approved Judgment
Introduction
The Claimants attend mainstream schools within the London Borough of Hackney. They are all children who have special educational needs and disabilities (“SEND”). They challenge two policies operated by the Defendant local authority (“the Council”) in relation to the provision required to meet their additional needs.
The first policy, referred to as the “Resource Levels policy”, governs the way the Council funds schools to deliver the special educational provision (“SEP”) specified in Section F of the Education, Health and Care Plans (“EHC Plans”) it makes and maintains. By this policy the Council distributes the additional “top-up” element of this funding through five banded resource levels rather than, as the Claimants contend it should, by reference to the individualised cost of the provision specified in EHC Plans. In the alternative, if the Council is entitled to operate its Resource Levels policy, the Claimants challenge the decision of the Council made in February 2018 to reduce the value of the Resource Levels by 5% for the 2018–19 financial year (“the 5% reduction”).
The second policy, referred to as “the Plan Format policy”, is, the Claimants contend, one of “referencing” the special educational provision in Section F of EHC Plans to the outcomes in Section E, rather than to the educational needs identified in Section B. The outcome of this is, it is said, that there are needs in EHC Plans which are not matched by appropriate provision.
The Claimants contend that these policies are in breach of the Council's duty under s.42 of the Children and Families Act 2014 (“CFA 2014”) to secure provision to meet the needs of children with SEND, and breach other statutory duties, duties of consultation and the public sector equality duty (“PSED”).
On 2 July 2018 Lang J granted permission.
At the conclusion of the hearing on 2 November 2018 I directed that the parties may make written submissions dealing with the impact on the present claim of the decision of the then reserved decision of the Divisional Court (Sharp LJ and McGowan J) in R (Hollow and ors) v Surrey County Council (“ Surrey”). The Surrey decision was handed down on 15 March 2019 ( [2019] EWHC 618 (Admin)). Pursuant to my directions, I have received further written submissions from the parties.
Factual Background
Mr Andrew Lee, Assistant Director of Education Services at the Council, describes in his first witness statement (at paras 4–40) the overall structure of central government funding for both maintained schools and academies and the specific structure of funding for children with SEN. He describes how most children with SEN do not have an EHC Plan and their needs are met using up to £6,000 of “notional SEN” budget per pupil, also known as “Element 2 funding”. This per-pupil amount is set nationally and schools are allocated an “additional needs budget” (from which £6,000 of “notional SEN” funding is drawn for all children with SEN), based on specific indicators of need in their area. Most SEN children's needs can be met by spending considerably less than £6,000 and as a result schools have a degree of flexibility on their overall SEN spending. For children with EHC Plans, the school still contributes £6,000 of “notional SEN” funding, but this is supplemented by “top-up” or “Element 3” funding. For children in mainstream schools, top-up funding is available at one of five pre-set Resource Levels.
Mr Lee states (at para 10):
“The fourth block of funding from the DSG is the High Needs Block. It is from the High Needs Block that the local authority funds that ‘top up’ or ‘Element 3’ funding that is allocated to individual pupils who have been assessed as requiring an EHCP. The High Needs block allocation to the local authority covers a wider range of responsibilities and spending than simply the top up (Element 3). In broad terms the Council allocates the funding to (1) Support Services – money that is spent on providing services to pupils, parents or schools and (2) Provision Budgets – money that is allocated to schools and settings (in this case, mainstream schools) to support provision for individual SEND pupils with ECHPs. …”
The “Support Services” budget includes Speech and Language Therapy (“SaLT”) Service. This is the only element of SEN provision that is directly commissioned by the Council. It also includes (1) SEN Pupil Access to Learning. This is the equipment budget used to purchase specialist/individualised equipment required to allow a pupil to access the curriculum. (2) SEN Administration Team; and (3) Educational Psychology (EP) Service. The service in the main provides the statutory EP advice as part of the ECHP process and is also commissioned by schools for specific pieces of work (see Mr Lee's witness statement at para 11).
Mr Lee continues (at para 20):
“In addition to the five resource levels, it is possible for additional funding above level 5, to be made available in exceptional cases to children who require it on an individual basis in mainstream schools. Fundamentally, the Council's obligation is to fund whatever provision is required to meet a child's needs as assessed in the EHCP. Where additional funding is required to achieve this, we provide it.”
Mr Lee states that in the ten years he has been involved in the administration of SEND funding he believes that the majority of local authorities use some form of banding to allocate funds to schools (para 25). In his view the approach of costing individual provision would not be workable in practice (para 26). His statement continues:
“29. To my knowledge the Council has never set its SEND budget each year by aggregating the exact, unique cost of each child's EHC Plan provision. I very much doubt this would be possible administratively. There are approximately some 1,850 young people with EHCPs at present in Hackney. It would simply be unworkable for the Council (and the settings) to keep track of its budget if it were required, in effect, to cost every single item of provision in each of these, as well as the variations to costs that would constantly arise as circumstances changed.
30. An approach of individually costing each element of Section F, according the individual and variable costs that each school or setting might dictate, would in reality impose a level of administrative burden which I do not think Hackney could cope with. I think most local authorities would find themselves in the same position. The construction of an individual and detailed costed plan for every child that is eventually assessed as needing a plan would engage both school staff and local authority staff to an extremely high degree, especially given that this would then be subject to annual (or more frequent) review. …”
Mr Lee states that additional funding is made available if a child's needs are not being met. He states (at para 39):
“It is not the case that the banded approach leads to the under-funding of SEND provision. A child can move to a higher band, can have individual items of provision funded separately from the Resource Level funding if this is thought appropriate, or be awarded additional money above Level 5 funding where appropriate. The annual review process offers a regular opportunity for EHCPs to be reviewed in conjunction with parents and schools. This offers an opportunity for any concerns and issues to be raised and be addressed. In practice it is schools who raise issues when they think a resource level needs to change for a child. I know that this happened in respect of one of the claimants (AC), whose funding was increased to resource level 5 with effect from 10 March 2017 at the request of his school, following an Annual Review…”
At paragraphs 41–54 of his witness statement Mr Lee deals with the issue of costs pressures on High Needs funding in Hackney. Since 2014/15 the funding allocated by central government to the Council under the High Needs Block has remained virtually flat in absolute terms, and so has been eroded in real terms. He states (at para 43):
“The fact that the Council has exceeded its budget in this way demonstrates that, contrary to the impression given by the Claimants, it is not operating within a fixed budget in relation to top-up funding for children and young people with EHCPs. Quite the opposite: it is spending what is necessary to make provision for the needs identified in all the EHCPs for children and young people in its area, and far exceeding its provision budget in the process. Irrespective of the budget pressures, the Council like every other public body has a duty to achieve value for money in spending public funds. The current level of budget pressure in SEND provision is not sustainable in the long term. The Council is therefore seeking to find efficiencies across the education service as a whole. As a part of that, and consistent with the requirement to meet identified needs in full, a review of spending for SEND provision was undertaken. While this was clearly prompted by budget pressure, nevertheless, the decision-making is determined by needs and not be seeking to constrain spend to an overall budgetary limit for provision.”
At paragraphs 55–66 of his witness statement, Mr Lee...
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