R AD (by his Mother & Litigation Friend LH) and Others v London Borough of Hackney
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Mr Justice Cobb,Lord Justice Bean |
| Judgment Date | 08 April 2020 |
| Neutral Citation | [2020] EWCA Civ 518 |
| Date | 08 April 2020 |
| Docket Number | Case No: C1/2019/1016 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 518
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
THE HON MR JUSTICE SUPPERSTONE
CO/1994/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Lord Justice Baker
and
Mr Justice Cobb
Case No: C1/2019/1016
David Wolfe QC and Khatija Hafesji (instructed by Irwin Mitchell LLP) for the Appellant
Jonathan Auburn and Peter Lockley (instructed by London Borough of Hackney) for the Respondent
Hearing date: 26 March 2020 (on Skype for Business)
Approved Judgment
The Appellants are children who have special educational needs and disabilities (“SEND”) and attend mainstream schools in Hackney. By a claim for judicial review issued on 21 May 2018 they challenged two policies operated by the Respondent (“the Council”) in relation to the provision required to meet their special needs. They obtained permission to seek judicial review by an order of Lang J on 2 nd July 2018. The substantive claim came on before Supperstone J at an oral hearing lasting three days. By a judgment handed down on 12 April 2019 ( [2019] EWHC 9430 (Admin)) the judge dismissed the claim on all grounds. The Claimants applied for permission to appeal to this court. By an order made on 1 November 2019 Leggatt LJ granted permission on the issue of whether the Council was in breach of a duty to consult under s 27 of the Children and Families Act 2014 (“the 2014 Act”) but refused permission on all other issues.
Factual background
Mr Andrew Lee, Assistant Director of Education Services at the Council, describes in his first witness statement the overall structure of central government funding for both maintained schools and academies and the specific structure of funding for children with SEND. The needs of most of this group of children are met using up to £6,000 of “notional SEND” budget per pupil, also known as “Element 2 funding”. This per pupil amount is set nationally. Schools are allocated an “additional needs budget”, from which £6,000 of “notional SEND” funding is drawn for all children with SEND, based on specific indicators of need in their area. Most SEND 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 SEND spending. For children with an education, health and care plan (“EHCP”), the school still contributes £6,000 of “notional SEN” funding, supplemented by “top-up” or “Element 3” funding. For children in mainstream schools, top-up funding from the Dedicated Schools Grant (“DSG”) 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 EHCPs. …”
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 by seeking to constrain spend to an overall budgetary limit for provision.”
At paragraphs 55–66 of his witness statement, Mr Lee deals with the 5% reduction in the Resource Level bandings. He states, so far as is material:
“55. Against this background of severe and continuing cost pressures, in 2016 Finance and SEND officers undertook to analyse what savings could potentially be made from within the SEN budget, whilst still complying with our legal obligations. Working with Frank O'Donoghue, the Council's Head of Business Services, a range of possible scenarios were identified including those for reductions in the element 3 Resource Levels. The latter ranged from reductions of 30% to 5%. For each of these reductions, we modelled the % reduction in total SEN funding for each pupil (bearing in mind that there was no proposal to reduce element 2 funding), the impact on the total funding available to each school in the borough, as well as the likely saving to the SEN provision budget.
56. These scenarios and other options for reducing spend were extensively discussed within a series of operational working groups and at SLT [Speech and Language Therapy] meetings, during 2016 and 2017. Although these meetings and discussions were not formally minuted, I was present at many of them and I can recall the nature of the discussions, the conclusions of which are set… out below. It was our judgment that it was possible for Hackney's schools to absorb a funding reduction at this level without reducing or putting at risk the special educational provision of individual children.
57. Due to the scale of the costs pressures on SEND budgets, there was a desire to achieve the highest possible savings consistent with our legal obligations. It quickly became clear that higher levels of reduction that had been modelled would have a material impact on schools' ability to make adequate provision for pupils with EHCPs. However, the Council considered that a reduction of 5% could be absorbed by schools making efficiencies, without compromising the special...
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