AD & Ors, R (On the Application Of) v London Borough of Hackney

Factual and Procedural Background

The Appellants are children with special educational needs and disabilities ("SEND") attending mainstream schools in The City. They issued a claim for judicial review on 21 May 2018 challenging two policies operated by the Respondent ("the Council") relating to the provision of SEND support. Permission to seek judicial review was granted on 2 July 2018. The substantive claim was heard over three days before Judge A, who dismissed the claim in a judgment dated 12 April 2019. The Appellants obtained permission to appeal on the limited issue of whether the Council breached a duty to consult under section 27 of the Children and Families Act 2014 ("the 2014 Act"), with all other issues refused permission.

The case concerns the Council's funding arrangements for children with SEND, including the use of nationally set "notional SEND" funding ("Element 2") and additional "top-up" funding ("Element 3") allocated through pre-set Resource Levels. The Council's witness, Assistant Director of Education Services Mr Lee, explained the funding structure, the use of banding systems, and the administrative impracticality of individually costing each child's provision. He stated that the Council provides additional funding beyond Resource Level 5 where necessary and that the annual review process allows adjustments to funding based on need.

Due to budget pressures and flat central government funding since 2014/15, the Council undertook a review to identify savings, resulting in a 5% reduction to the Element 3 Resource Levels. This reduction was modelled and discussed internally and with the Schools Forum, a representative advisory body of school governors and headteachers. The Forum was consulted in October and November 2017 and did not object to the proposal, though concerns about potential reductions in services were noted.

The Council communicated with concerned parents and carers, responding to formal questions about the decision-making and consultation process related to the 5% reduction. Evidence from a headteacher on behalf of the Appellants challenged the Council's position, arguing that the reduction could not be absorbed without compromising SEND provision.

The statutory framework centers on Part 3 of the 2014 Act, which replaced earlier legislation and imposes duties on local authorities to keep SEND provision under review (section 27), to consult specified bodies and persons, and to secure provision in accordance with Education, Health and Care Plans ("EHCPs"). The duty to consult under section 27 is central to the appeal.

Prior case law, including decisions in West Berkshire, Bristol, Surrey, and Redbridge, addresses the interpretation and application of section 27, particularly the scope and timing of consultation duties. The Surrey case, decided shortly before this appeal, held that section 27 imposes a strategic, periodic duty to review and consult rather than a duty triggered by every change to SEND provision or budget.

At first instance, Judge A agreed with the Surrey analysis, finding no breach of the duty to consult under section 27 by the Council regarding the 5% funding reduction.

Legal Issues Presented

1. Whether the Council was in breach of its statutory duty to consult under section 27 of the Children and Families Act 2014 in relation to the 5% reduction in Element 3 Resource Level funding for SEND provision.

Arguments of the Parties

Appellants' Arguments

• Section 27 requires an ongoing, proactive duty to keep SEND provision under review and to consult affected parties whenever changes affecting sufficiency of provision occur, not just at strategic intervals.
• The duty to keep under review (subsection 1) and the duty to consider sufficiency (subsection 2) are independent and can arise separately, triggering consultation obligations accordingly.
• The Council's 5% reduction was a significant change close to a "tipping point," necessitating consultation with parents, carers, and young people under section 27.
• The duty to consult under section 27(3) does not require consultation with every person or body listed but only those relevant to the function being exercised.
• The Divisional Court's interpretation in Surrey was incorrect to limit the duty to strategic reviews and to exclude consultation on smaller but impactful changes.

Respondent's Arguments

• Sections 27(1) and (2) impose a single, unified duty to keep SEND provision under review and to consider its sufficiency as part of that review.
• The consultation duty under section 27(3) is indivisible and requires consultation with all listed persons and bodies when the duty arises.
• The duty under section 27 is strategic and periodic, not triggered by every budgetary or service change; it is to be performed "from time to time" as occasion requires.
• The 5% funding reduction was modest, could be absorbed by schools without compromising provision, and did not trigger the extensive consultation under section 27.
• Consultation with the Schools Forum, as required by other regulations, was conducted appropriately regarding the funding changes.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the language of section 27 of the 2014 Act and concluded that subsections (1) and (2) impose a single, unified duty on local authorities to keep SEND provision under review and to consider its sufficiency as part of that review. The court found this interpretation plain from the statutory text, reinforced by the absence of any language suggesting separate duties and supported by the Explanatory Notes and the 2015 SEND Code of Practice.

Regarding the consultation duty under section 27(3), the court held it to be indivisible, requiring consultation with all persons and bodies listed unless the local authority adds others, but not permitting selective consultation. This interpretation aligns with the statutory wording and policy considerations.

The court accepted the reasoning in the Surrey case, which held that the duty under section 27 is strategic and periodic, performed "from time to time" as occasion requires, rather than triggered by every decision or budgetary change affecting SEND provision. The court rejected the broader interpretation in West Berkshire and Bristol that consultation is required whenever any decision affects SEND provision, finding that such an approach would be impractical and contrary to legislative intent.

The court considered the evidence of the Council's internal review and modelling of the 5% reduction, which concluded that the reduction could be absorbed by schools without compromising individual SEND provision. The Council had consulted the Schools Forum as required by other regulations, and the court found this consultation appropriate for the nature and scale of the funding change.

The court rejected the Appellants' argument that the 5% reduction was a "tipping point" triggering the consultation duty under section 27, noting that the Council's evidence consistently described the reduction as manageable and not adversely affecting provision. The court emphasized that a rational local authority decision that a particular level of savings will not have a significant adverse impact does not trigger the consultation duty for lesser changes.

In sum, the court concluded that the modest funding reduction did not engage the strategic review and consultation duty under section 27, and the statutory consultation with the Schools Forum sufficed in the circumstances.

Holding and Implications

The appeal is dismissed.

The court upheld the Council's interpretation and application of section 27 of the Children and Families Act 2014, confirming that the statutory duty to keep SEND provision under review and to consult is strategic and periodic rather than triggered by every change. The 5% reduction in Element 3 Resource Level funding was not sufficient to activate the extensive consultation requirements of section 27. Consultation with the Schools Forum was adequate for the decision made.

This decision clarifies the scope and timing of consultation duties under section 27, endorsing a practical and proportionate approach that balances statutory obligations with administrative feasibility. No new precedent beyond the confirmation of existing case law was established. The direct effect is to affirm the Council's lawful conduct in managing SEND funding and consultation in this instance.