AD v London Borough of Hackney: Upholding Banded Resource Level Funding for SEND Provision

Introduction

In the case of AD & Ors, R (On the Application Of) v. London Borough of Hackney ([2019] WLR(D) 228), the Claimants, who are children with Special Educational Needs and Disabilities (SEND), challenged policies implemented by the London Borough of Hackney. The primary issues revolved around the Council's Resource Levels policy and Plan Format policy, particularly concerning the funding mechanisms for delivering Special Educational Provision (SEP) as outlined in Education, Health and Care Plans (EHC Plans). The Claimants argued that these policies breached the Council's statutory duties under the Children and Families Act 2014 (CFA 2014) and the Public Sector Equality Duty (PSED).

Summary of the Judgment

The England and Wales High Court (Administrative Court) delivered its judgment on April 12, 2019. Judge Lang dismissed the Claimants' challenges, affirming the legality of the Council's policies. The court found that the banded funding approach under the Resource Levels policy did not infringe upon the statutory duties to secure specific SEND provisions. Additionally, the Plan Format policy was deemed compliant with legislative requirements. The Claimants failed to demonstrate that the policies led to unlawful outcomes or breached procedural fairness, resulting in the dismissal of their claims.

Analysis

Precedents Cited

The Judgment referenced several key cases to shape its reasoning:

R (KM) v Cambridgeshire CC [2012] UKSC 23: Highlighted that funding mechanisms like Resource Allocation Schemes (RAS) must not substitute for securing necessary provision based on individual needs.
R (Hollow and ors) v Surrey County Council [2019] EWHC 618 (Admin): Influenced the court's interpretation of the duties under the CFA 2014, particularly concerning consultation requirements.
R v London Borough of Hillington ex parte Governing Body of Queensmead School [1997] ELR 331: Confirmed that Local Education Authorities (LEAs) can adopt formulaic funding approaches.
R (Surrey) v London Borough of Hackney: Provided insights into the interpretation of section 27 of CFA 2014, shaping the court's views on consultation duties.

These precedents collectively established that while funding mechanisms need to respect individual needs, banded approaches are permissible if they do not inherently lead to unlawful outcomes.

Legal Reasoning

The court's reasoning centered on the interpretation of the CFA 2014 and related statutory duties. Key points included:

Duty to Secure SEP: Under section 42 of CFA 2014, the Council must secure the specific SEP outlined in each child's EHC Plan. The court determined that the Resource Levels policy, with its banded funding approach, provided sufficient flexibility to meet these obligations.
Systemic Challenge Threshold: The Claimants attempted a systemic challenge, arguing that the policies inherently risked unlawful decision-making. The court assessed that the policies did not present an unacceptable risk of breaching statutory duties.
Consultation Requirements: The court found that the Council’s consultation with the Schools Forum was adequate, negating claims of insufficient consultation with families.
Plan Format Compliance: The merger of Sections E and F in EHC Plans was upheld as compliant with statutory requirements, given that the sections remained separately identified as per regulation 12 of the 2014 Regulations.

Overall, the court emphasized that as long as the Council's policies allowed for the fulfillment of individual EHC Plan requirements, the methods employed were legally sound.

Impact

This Judgment reaffirms the legitimacy of banded funding approaches in SEND provision, provided they maintain compliance with statutory duties to secure individualized support. Future implications include:

Policy Implementation: Local authorities may continue using banded funding, assured that such mechanisms are legally defensible if they ensure the fulfillment of EHC Plan requirements.
Administrative Flexibility: Schools retain the flexibility to manage their budgets effectively within the banded system, promoting efficient resource allocation without compromising individual needs.
Legal Precedent: The decision provides a clear precedent against systemic challenges that fail to demonstrate inherent unlawful risks, guiding future litigations involving public sector funding policies.

Consequently, other councils might adopt similar funding structures with confidence, knowing that such approaches have judicial backing when appropriately implemented.

Complex Concepts Simplified

Resource Levels Policy: A funding mechanism where schools receive additional funds for SEND pupils based on predefined bands rather than individual cost assessments.
Special Educational Needs and Disabilities (SEND): Identified requirements of children who need additional support to access education effectively.
Education, Health and Care Plans (EHC Plans): Comprehensive plans outlining the support required for children with SEND.
Public Sector Equality Duty (PSED): A statutory duty requiring public bodies to consider how their decisions affect people with protected characteristics, including disabilities.
Systemic Challenge: A legal challenge against a policy or a system as a whole, rather than individual decisions within that system.

Conclusion

The High Court's decision in AD v London Borough of Hackney underscores the permissibility of using banded funding approaches for SEND provision, provided they adhere to statutory obligations to secure individualized support. The dismissal of the Claimants' challenges reinforces the Council's ability to manage budgets effectively without infringing on the rights and needs of SEND children. This Judgment not only clarifies the boundaries within which local authorities can operate but also sets a significant precedent for future disputes involving SEND funding policies. Ultimately, it balances administrative efficiency with the imperative to meet the specific needs of vulnerable children, maintaining the integrity of educational support systems.