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High Court dismisses legal challenge over resourcing given to local authorities for special educational needs

A High Court judge has rejected a legal challenge brought by three families over the level of the Government’s resourcing for provision to children with special educational needs and disabilities, it has been reported.

The claimants in R (Simone and others) v Chancellor of the Exchequer and Secretary of State for Education argued that government funding meant local authorities could not fulfil their legal obligation of providing education to children with SEND.

In particular they contended that:

  • The Chancellor and the Education Secretary had breached the public sector equality duty (PSED);
  • The Education Secretary had breached the duty in s.7 of the Children and Young Persons Act 2008 to promote the well-being of children in England;
  • The ministers had acted irrationally; and
  • The ministers failed to treat disabled children sufficiently differently such that there was a breach of Art 14 ECHR (Thlimmenos discrimination).

Mr Justice Lewis gave permission for all the grounds of challenge but rejected each one.

39 Essex Chambers, whose Jenni Richards QC and Katherine Barnes appeared alongside Steven Broach of Monckton Chambers for the claimants, said: “The court was not prepared to treat the decision under challenge as one ongoing failure but instead examined the various aspects of the process in the run up to the 2018 budget which led to the Second Defendant bidding for funding from the First Defendant. In this context, the court found that the evidence showed that both Defendants had paid ‘due regard’ to the impacts on disabled children of the various steps taken.

“Of wider legal relevance, the court found that s.7 of the Children and Young Persons Act 2008 is a high-level target duty such that it cannot be enforced by individuals in the courts.”

Anne-Marie Irwin, a Senior Associate Solicitor at Irwin Mitchell who acted for the claimants, said: “The decision to take this case to the High Court was not taken lightly. We believe that it was the first time that the High Court has granted permission for a legal challenge against a government budget decision.

“We feel we put forward very strong legal arguments on behalf of the families that the decisions taken about SEND funding were so inadequate as to make them unlawful. We and the families are disappointed by today’s decision but thank the court for hearing the case.”

Irwin added: “How SEND services are funded is still an incredibly important issue, affecting tens of thousands of families, and one that needs addressing.

“We welcome the announcements that were made after June’s hearing pledging additional government money for SEND and for a review of the SEND system. However, our clients believe that there is still a long way to go.

“It is vital that action is now taken to ensure children benefit from these pledges so young people with SEND can access the education they are entitled to.”

Last week the Local Government and Social Care Ombudsman said complaints about support for special educational needs were “at an exceptional and unprecedented level”.

The LGO revealed that complaints about support for children with SEN are being upheld in nearly nine out of ten cases investigated (87%), compared to an uphold rate of 57% across all cases it looks at, discounting SEND cases.