Introduction

The case of AD & Ors, R (On the Application Of) v. London Borough of Hackney ([2020] EWCA Civ 518) addresses significant issues surrounding the obligations of local authorities in England under the Children and Families Act 2014 ("the 2014 Act"), particularly focusing on Section 27 which mandates the duty to consult regarding special educational needs and disabilities (SEND) provisions.

The appellants, children with SEND attending mainstream schools in Hackney, challenged two Council policies related to SEND funding, arguing that the Council breached its duty to consult under Section 27 of the 2014 Act. The case escalated to the Court of Appeal after the initial judgment by Supperstone J in 2019 dismissed their claim.

Summary of the Judgment

The England and Wales Court of Appeal (Civil Division) upheld the initial decision by Supperstone J, dismissing the appellants' appeal. The core of the case revolved around whether the Council's 5% reduction in "Element 3" SEND funding necessitated a duty to consult under Section 27 of the 2014 Act.

The Court concluded that the modest 5% reduction did not trigger the extensive consultation requirements stipulated in Section 27. The judgment emphasized that Section 27 imposes a strategic, ongoing duty to review SEND provisions, not necessarily invoked by every minor budget adjustment. Consequently, the appeal was dismissed, and the Council's policies were upheld.

Analysis

Precedents Cited

The judgment extensively examined and distinguished several precedential cases to interpret Section 27:

• R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin): The Administrative Court interpreted Section 27 as requiring local authorities to consult extensively when making decisions that significantly affect SEND provisions.
• R (KE) v Bristol City Council [2018] EWHC 2103 (Admin): Reinforced the notion that significant budgetary changes necessitate consultation but did not agree with the breadth suggested in DAT.
• R (Hollow) v Surrey County Council [2019] EWHC 618 (Admin): Clarified that Section 27 imposes a strategic obligation, allowing for a mix of review activities rather than mandatory consultations for every minor change.
• R (ZK) v London Borough of Redbridge [2019] EWHC 1450 (Admin): Emphasized that Section 27 requires a programmatic approach to reviewing SEND provisions rather than reacting to specific events.

The Court of Appeal in the Hackney case found the Divisional Court's interpretation in Surrey to be more accurate, rejecting the broader implications posited in DAT and KE.

Legal Reasoning

The Court analyzed the statutory language of Section 27, focusing on:

• Section 27(1)-(2): Interpreted as imposing a single, ongoing duty to keep SEND provision under review and to assess its sufficiency.
• Section 27(3): Viewed as an indivisible requirement to consult a comprehensive list of stakeholders when fulfilling the duty under Section 27(1)-(2).

The Court rejected the notion that any reduction in SEND funding automatically triggers the extensive consultations under Section 27. Instead, it focused on whether the decision represented a significant alteration to the overall SEND provision, necessitating strategic review and wide-ranging consultation.

The judgment emphasized that minor budget adjustments, such as the 5% reduction in Element 3 funding, do not inherently breach Section 27 unless they substantially impact the sufficiency of SEND provisions. The Council's evidence demonstrated that such reductions could be absorbed without compromising individual provisions, aligning with Section 27's strategic and flexible intent.

Impact

This judgment clarifies the application of Section 27, establishing that:

• Strategic Obligation: Local authorities must engage in a programmatic review of SEND provisions, rather than reacting to every budgetary change with extensive consultation.
• Flexibility in Budget Management: Authorities have the discretion to manage minor budget adjustments operationally without triggering mandatory broad consultations.
• Scope of Consultation: Only significant alterations affecting the sufficiency of SEND provisions necessitate the full spectrum of consultations outlined in Section 27(3).

Future cases will likely reference this judgment to delineate the boundaries of when extensive consultations are required under Section 27, promoting a balanced approach between administrative efficiency and compliance with statutory obligations.

Complex Concepts Simplified

Section 27 of the Children and Families Act 2014

Section 27 imposes a duty on local authorities to regularly review the educational, training, and social care provisions they offer to children and young people with SEND or disabilities. This includes evaluating whether these provisions are sufficient to meet their needs.

Element 2 and Element 3 Funding

- Element 2 Funding: A nationally set budget allocated per pupil to cover essential SEND needs. Most children's needs are met within this budget.
- Element 3 Funding: Additional top-up funding for children with an Education, Health and Care Plan (EHCP) to address more specific or higher-level needs.

Judicial Review

A process where courts review the lawfulness of decisions or actions taken by public bodies, such as local authorities, ensuring they comply with legal standards and obligations.

Wednesbury Standards

A principle from UK administrative law dictating that a decision by a public body should be reasonable, logical, and not manifestly irrational. Courts will not interfere unless a decision is so unreasonable that no reasonable authority could have made it.

Conclusion

The Court of Appeal in AD & Ors v. London Borough of Hackney provides a pivotal interpretation of Section 27 of the Children and Families Act 2014, emphasizing its strategic and flexible nature. By distinguishing between minor budget adjustments and significant changes affecting SEND provisions, the Court ensures that local authorities are not unduly burdened with excessive consultation requirements for every small-scale decision.

This judgment reinforces the necessity for local authorities to engage in ongoing, programmatic reviews of SEND provisions, consulting extensively only when substantial alterations threaten the sufficiency of services provided to children and young people with SEND. Consequently, this establishes a balanced precedent that upholds both the rights of individuals with SEND and the administrative practicality for local authorities.

Moving forward, this case will serve as a key reference point for similar disputes, ensuring that the duties under Section 27 are applied judiciously and contextually, promoting both compliance and administrative efficiency within the framework of SEND provision.