October 2018

“I am not satisfied that had the Defendant acted lawfully there would necessarily have been any reduction at all” - R (on the application of (1) KE (2) IE (3) CH v Bristol City Council [2018] EWHC (Admin) 2103

This recent case concerned the judicial review of Bristol City Council’s decision to reduce its high needs block budget by over £5million. 

The decision was challenged  by the Claimants on the grounds that the decision was: made in a way which was irrational; was made in a way which was procedurally unfair; and, was made in breach of the Council’s statutory duties under s.149 Equality Act 2010 (“public sector equality duties”), s.27 Children & Families Act 2014 (duty to keep education and care provision under review and consult children, YP and their parents when doing so) and s.11 Children Act 2004 (duty to safeguard and promote the welfare of children).

Amongst other things, the Council argued that these duties didn’t apply at the point that the reduction was approved, but only when service provision proposals were determined or developed.  This was rejected.

The Court found that Council had not discharged the “heavy burden” of the duties under the Equality Act 2010, nor had it complied with the mandate that children, young people and their parents be consulted when reviews under the Children & Families Act 2014 were being carried out. The decision did not meet the requirements of the common law principle of procedural fairness. 

The Court made clear that a general awareness that a budget cut might have implications in relation to service cuts or “general regard to issues of quality is not the same as having specific regard by way of conscious approach to the statutory criteria” (para 105).  Indeed, the Court noted that:  “the decision-making process appears to have been driven entirely from the standpoint of ensuring a balanced budget by 2020/2021” (para 129)

Consideration should have been given to the potential impact of the proposals to reduce the budget: by consultation and adequate inquiry.  In considering the proposed reduction at a full Council meeting, the Mayor had commented about the absence of statements or questions regarding a reduction, and stated that this: “really [gave] authenticity and integrity to the position we are putting forward”.  The fact that there were no statements or questions was not surprising given that there had been no consultation or inquiry about the proposed reduction beyond some risk factors identified for the Schools Forum (which did not have the power to approve or reject the proposal).  No Equality Impact Assessment had been undertaken for the reduction to the high needs block budget.

In particular, the Court found that the high rates of fixed term exclusion in this local authority, along with acknowledged achievement gaps in respect of children with SEN, were factors  which: “cried out for consideration as part of the Defendant’s decision-making process”.  There had been ample time for the Council to inquire and consult but they had done so.

This decision will have implications for any local authority which is considering proposals to make reductions to its high needs funding for children and young people with SEN and gives clear guidance as to the steps which need to be taken for such decision making to be lawful.  Not least, even in this difficult financial climate, local authorities should be approaching SEN budgets by considering “if” they should face cuts at all, not simply “where” and “how much”.

This case has been of interest to the families of children and young people with SEN across the country. Judgment is currently awaited in an attempted judicial review of cuts to funding brought bu parents in Surrey, and a similar hearing into Hackney’s SEN funding plans is scheduled for next month. Two families from East Sussex and North Yorkshire have also successfully raised over £10,000 to bring a potential action against the Secretary of State for Education.

IPSEA Legal Team