Press Statement on behalf of the Claimants
14 August 2020
Claimants to pursue an appeal against High Court ruling that downgrading of rights of over 390,000 children with special educational needs during the coronavirus pandemic was lawful
Following a hearing in the High Court on 29 and 30 July 2020, Mr Justice Kerr has today handed down a Judgment in the legal challenge brought by two disabled children against the Secretary of State for Education’s downgrading of important legal rights of over 390,000 children with special educational needs during the Coronavirus pandemic.
The background to the claim, as observed by Mr Justice Kerr in his Judgment, was that the “Parliament and the government have enacted unusual primary and secondary legislation in response to the pandemic. Education and health care are among the sectors most severely affected”.
The legal challenge was brought against the particular decisions of the Secretary of State (covering the months of May, June and July) to modify the core legal duty on local authorities, under section 42 Children and Families 2014, to secure provision to meet special educational needs as set out in a child or young person’s Education, Health and Care Plan – replacing it with a requirement to use ‘reasonable endeavours’ to secure that provision. This core entitlement in relation to education had been in place undisturbed for decades for children through successive pieces of legislation. In addition, the claim challenged the Secretary of State’s decision to issue Amendment Regulations which provide exceptions to the strict timescales which local authorities are required to comply with during the planning and reviewing process for Education, Health and Care Plans where these cannot be met because of a reason relating to the coronavirus.
As Mr Justice Kerr observed “These decisions are of vital importance to the children and young people concerned. They greatly affect their lives and futures, determining where and how they are to be educated and cared for”.
The Children’s Commissioner had responded publicly to these changes in a statement in which she expressed “serious concerns about the regulations that came into effect on 1 May, downgrading the duties of councils towards children with Education, Health and Care Plans (EHCPs)” and that “I am of the view that the downgrading of key duties towards children with SEND is disproportionate to the situation. The SEND system was already under considerable strain before Covid-19 and I am worried that these changes could result in local services being stripped back further.” These concerns were echoed by representatives of 49 charities and organisations that work with and support children with special needs and/or disabilities (SEND), and their families who wrote jointly to Vicky Ford MP, Minister for Children and Families on 29 May 2020, stating “we have significant concerns about the disproportionate impact on this group of children, who already experience poorer outcomes than their peers. In particular, we are concerned about the modification of Section 42 of the Children and Families Act and the variability in the interpretation of ‘reasonable endeavours’.”
The grounds of claim included that the Secretary of State failed to consult and failed to carry out ‘sufficient inquiry’ before making the decisions and that it was irrational for him to determine that it was appropriate and proportionate to make the Notices. In addition, the claimants argued that the Amendment Regulations should have been laid before Parliament for scrutiny before they came into force and that the Secretary of State breached his duty under section 7 of the Children and Young Persons Act 2008 to have regard to the well-being of children prior to making these decisions.
Following the issue of proceedings, the government made an announcement that, unless the evidence changed, it did not intend to issue further notices modifying the section 42 duty beyond the end of July. However, the Claimants were concerned that the Secretary of State retained a power to issue further notices at any time and there was a real prospect that further notices might be issued, for example in the event of a ‘second wave’. In addition, the Amendment Regulations remain in force until at least 25 September and the Claimants were concerned that the backlog of assessments and decisions by local authorities continues to grow by the day.
Following a two day hearing at the Royal Courts of Justice, Mr Justice Kerr has handed down a judgment that all of the grounds of claim were dismissed.
Although Mr Justice Kerr found that the Secretary of State had not acted unlawfully, he did find that “the impact on parents and their children with SEND was sudden and severe and came at a time when there had already been serious failures in delivery of SEND provision, before the pandemic struck”.
He also held that the decision to lay the Regulations before Parliament only one day before they came into force “curtailed nearly to vanishing point any practical opportunity for Parliament to scrutinise the 2020 Regulations before they came into effect”. However, the Judge ultimately found that not only this was a decision of Parliament and therefore not ‘justiciable’ in the Courts but that it was not irrational due to the urgency of the situation.
However, in response to the claim made by the Secretary of State that aspects of the challenge were academic by the date of the hearing as the Notices had expired, the Judge warned that “short term mini-laws should not be used in future as a way of eluding justiciability”.
Polly Sweeney, Consultant Solicitor at Scott-Moncrieff who acts for the Claimants said:
“The Claimants are of course incredibly disappointed by the ruling. They brought this legal challenge not just to seek reinstatement of their own legal rights, but those of over 390,000 other children with special educational needs and disabilities.
The evidence filed on behalf of the claimants - from organisations such as IPSEA, SOS!SEN, National Autistic Society, SEND Action and the Special Needs Jungle – demonstrated the devastating impact of the changes on children and young people with special educational needs and in particular that families have been left feeling ‘abandoned’.
Whilst we are pleased that following the issue of proceedings, the government announced that it would no longer be issuing any further notices, my clients remain concerned about the way that these decisions were made and that there is a real prospect that this may happen again if future notices are issued.
Although the Court has found that the Secretary of State has acted lawfully, my clients believe that it was fundamentally unfair that the Department of Education went to such great lengths to have extensive engagement with local authorities when making these decisions – including no less than 127 structured telephone interviews with local authority representatives to seek their views – and yet there was no comparable engagement directly with the very group these decisions would impact on the most - children and young people with SEND and their families.
The claimants intend to pursue an appeal against the ruling.
Counsel instructed to act on behalf of the Claimants are Steve Broach of 39 Essex Chambers and Alice Irving of 1 Crown Office Row.
The full statement of the Children’s Commissioner can be viewed here.
The sector letter on behalf of 49 representative organisations and charities can be viewed here.
Finally to view the Judgement of ABC v Secretary of State for Education click here.