R Kian Hollow (by his mother and litigation friend Alicia McColl) and Others v Surrey County Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp |
| Judgment Date | 15 March 2019 |
| Neutral Citation | [2019] EWHC 618 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1735/2018 |
| Date | 15 March 2019 |
[2019] EWHC 618 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Sharp
and
Mrs Justice McGowan
Case No: CO/1735/2018
Ms Jenni Richards QC and Mr Stephen Broach (instructed by Irwin Mitchell LLP) for the Appellant
Mr Jonathan Moffett QC and Mr Michael Lee (instructed by Surrey County Council Legal Services) for the Respondent
Hearing dates: 2–3 October 2018
Approved Judgment
Introduction
This is the judgment of the Court.
The claimants are five children who are resident in Surrey, and who have special educational needs and disabilities (SEND). They bring this claim for judicial review acting through their mothers as their litigation friends, and have adequate standing to bring this claim. The mothers have made it clear they are content for their children to be identified by name. The defendant is Surrey County Council (the Council). The Council bears responsibility making provision for the special educational needs of the claimants.
Permission to apply for judicial review was granted on 23 May 2018 by Holman J. On 20 September 2018 Walker J permitted the claimants to amend the claim to add one ground (Ground D: see para 8 below) and to adduce fresh evidence, namely further evidence from the mothers of the children concerned.
The claimants challenge a decision taken by the Council on 27 March 2018. By that decision, the Council's Cabinet (the Cabinet) approved the Council's detailed service revenue and capital budgets for the 2018–19 financial year, including the Council's budget for schools and special educational needs and disabilities (the SSEND budget). The claimants submit the Council's decision to make significant reductions in the funding available for SEN (special educational needs) provision was flawed and invite this Court to grant declaratory relief, and an order quashing the SSEND ‘budget allocation for 2018–19’ and costs.
In the Amended Grounds and Statement of Facts, the claimants state that the relief sought in the present case would not involve the Court quashing the Council's entire revenue budget or interfering with the council tax calculation: but would require the Council “to reconsider its SEN budget from within all resources then available to it and in the light of the guidance from the Court as to its legal obligations in this regard.”
The budget for overall Council expenditure was set at £1,711,989,000. This included the budget for the Children's Schools and Families Directorate, set at £795,175,000, and within it the SSEND budget of £228,836,000. The latter included eight line items of savings totalling £21,001,000. The nature of the savings identified in the SSEND Budget for the 2018–19 financial year was set out in the Council's Medium Term Financial Plan (MTFP).
The claimants originally challenged the decision to approve the savings of £21,001,000 to which we have referred, that is in the eight line items identified in the SSEND budget in the MTFP. At the hearing before us however, Ms Jenni Richards QC for the claimants confined her challenge to only one of those line items, namely item number seven, which is described as “areas of focus” (AOF) (inclusion, commissioning, provision and transition) comprising £11,694,000. 1
The specific grounds of review as formulated on behalf of the claimants are as follows. The decision under challenge was taken: Ground A: without consultation as required by statute and/or common law; Ground B: in breach of the public sector equality duty (PSED) imposed by section 149 of the Equality Act 2010 (the 2010 Act); Ground C: in breach of section 11 of the Children Act 2004 (the 2004 Act); Ground D: in breach of section 27 of the Children and Families Act 2014 (the 2014 Act); and Ground E: in breach of the common law requirement to have regard to relevant considerations and the “ Tameside duty” of sufficient inquiry: see Secretary of State for Education v Metropolitan Borough Council of Tameside [1977] AC 1014.
Notwithstanding the way in which the discrete grounds are framed, the substance of the challenge as it has been argued before us is centrally concerned with the issues of rationality and consultation. The claimants contend there were failures to comply both with the Council's statutory and common law duties to consult and with statutory duties which gave rise to a duty to consult. They further seek to argue that to set such a budget in such circumstances, including proposed savings in the SSEND budget, without knowing precisely how those savings would be made, or what the implications and likely impact of making them might be, was irrational.
There was some suggestion at an earlier stage of these proceedings that the claimants might wish to put in expert evidence on matters concerning local government finance, but in the event they did not do so. There is therefore no challenge to the evidence served by the Council in opposition to this claim, which explains in detail the material facts concerning the decision under challenge.
It is common ground that no consultation took place. The Council submits that on the unchallenged evidence it was lawful and permissible as a matter of local government finance and accounting practice for the Cabinet to include in its budget the eight line items, which made up the savings in the SSEND budget, including item seven; and that the claimants' case is predicated on the flawed assumption that the decision to approve the savings in the SSEND budget relating to the AOF will result in a reduction of services provided by the Council to children with SEND.
The Council accepts that if or when identifiable cuts to SEND services are proposed it will fully consult upon those proposals in accordance with any legal duties to do so. However the evidence shows that the decision under challenge is not a decision to cut spending or services, let alone to make a global and indiscriminate “cut” to the provision of services to children with SEND.
In simple terms, the budget is part of a lawful local government accountancy process that identifies how savings might be made, but the budget is not set in stone. What the Council has identified is the potential for future savings. To put it another way, the Council has identified areas of spending upon which it proposes to concentrate as the potential areas in which savings could be made. In those circumstances, the Council
could not know what the impact of cuts might be in those areas, or consult on them, because at the time the decision under challenge was taken, no cuts had been decided upon or worked outIn our view, the Council's opposition to the claim is well founded for the summary reasons given above; and for the more detailed reasons set out below, we would dismiss this application.
The claimants' evidence
The evidence adduced by the claimants in this case comes principally from the mothers of the claimants. The mothers are, naturally enough, extremely concerned about the position of their children and the prospect that the services currently provided to them, or which they may need in the future, will be affected by decisions made by the Council. Their evidence undoubtedly demonstrates the vital importance of SEN services to children with such needs and to their families, and the importance from the families' perspective of consultation and having their say. That said however, the evidence does not bear on whether the nature of the decision under challenge was rational or gave rise to a duty to consult as a matter of law. We should nonetheless record what is said.
Alicia McColl is the mother and litigation friend of Kian Hollow (aged 14 the relevant time) who has a diagnosis of Autistic Spectrum Disorder (ASD) and co-occurring Attention Deficit Hyperactivity Disorder (ADHD). Kian uses the Council's transport and specialist school services. In particular, he benefits from ‘one to one’ and group therapy sessions and dedicated daily support. She contended that ‘significant deficiencies’ remained in Kian's current Education, Health and Care Plan (EHCP) because of the Council's alleged failure to engage with their social care team to ascertain Kian's social care needs. She had concerns about the outcomes envisioned in the EHCP, especially in relation to his progression into college and the workforce. On previous occasions, she has successfully challenged decisions cutting Kian's SEN services; however, she fears that she will not be able to repeat the success of previous challenges in light of the SSEND budget.
Sarah Jones is the mother and litigation friend of Kyffin Carpenter (aged 4). He suffers from a rare neuromuscular condition that causes severe muscle weakness. This affects his ability to eat and communicate. He currently attends nursery and benefits from ‘one to one’ support and therapy. From September 2018, he had attended school but was not eligible for the Council's transport services. Further, he was refused a place in the school's communication and interaction needs unit. Ms Jones contended that Kyffin's latest EHCP failed to comply with the Special Educational Needs Code of Practice. She contended that it neglected to make provisions for the necessary ‘one to one’ support and contemplated that Kyffin may have had to attend a primary school which would not provide the required support for his SEN. Ms Jones maintains that this can only be understood against the background of “the cuts”, as she describes them, made by the Council. Further, she says that some aspects of his therapy were available only through private funding. She expresses concern about...
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