High Court ruling clarifies councils’ SEND funding duties

Local authorities can legally allocate funding for special educational needs and disabilities (SEND) using banding levels rather than having to calculate individualised provision costs, a court has ruled.

A High Court judgement last week rejected all 10 grounds of a challenge by a group of families to London Borough of Hackney’s policies on distributing SEND resources.

The court also concluded that the council had not breached its “section 42” duty to provide care for SEND pupils when it reduced one element of the funding by 5% in April last year.

A statement by law firm 11KBW, which acted for Hackney in the case, said the ruling would be welcomed by local authorities “for the clarity and common sense it brings” to a number of issues.

It said: “Welfare, equalities and consultation obligations are not traps for unwary decision-makers.

“Box-ticking assessments are not required just for the sake of meeting them.

“Hackney had made a clear commitment to continue to meet the absolute duty in section 42 to secure provision for SEND children, and backed it up by a detailed analysis of the financial implications of the proposed reduction, which showed that needs would still be met.”

The parents bringing the case argued that section 42 of the Children and Families Act 2014 places an absolute statutory requirement on councils to secure the specified provision outlined in each child or young person’s Education, Health and Care (EHC) Plan.

Nothing in the wording of the duty allows a local authority to allocate funding through broad bands, as Hackney did, they argued.

In a witness statement, Andrew Lee, assistant director of education services at the council, said that apportioning costs individually “would in reality impose a level of administrative burden which I do not think Hackney could cope with.

“I think most local authorities would find themselves in the same position.”

However, a witness statement from Norma Hewins, headteacher at Jubilee Primary School, which has 15 children with EHC plans, disagreed, saying: “It is something we are used to doing, and it does not create an overly burdensome system.”

In his judgement, Hon. Mr. Justice Supperstone backed the council, saying: “I am satisfied that there is nothing inherent in the policy that gives rise to an unacceptable risk of unlawful decision making or unfairness and there are realistic methods by which the policy can be lawfully implemented.”

He said the council’s policy does not lead to the underfunding of SEND provision, and that…”bandings are used in the context of a system in which the SEND provision for each child must be individually reviewed every year”.

The judge concluded that Hackney, in agreeing the 5% cut to one element of the funding, “plainly focussed on determining the appropriate arrangements for SEN provision for children, and thus the council properly focussed on the arrangements for promoting the welfare of children”.

The judge also rejected other grounds of claim, including that the council had failed to meet its duties on equality, consultation and welfare safeguarding.

Irwin Mitchell, the law firm representing the families, said that it would appeal the decision.

Anne-Marie Irwin, senior associate solicitor at the firm, said: “By doing so they hope that the council will adopt a policy in which funding is allocated according to the specific provision identified for each child, and reverses its cuts to expenditure on SEND, so that children get the vital specialist support that they require.”

This week, the National Education Union released a report claiming that 93% of local authorities in England face a combined £1.2bn shortfall in SEND funding.