R (KE) v Bristol City Council

The court allowed the claim in judicial review and quashed the allocation to the high needs block of the schools budget set by Bristol City Council on 20 February 2018. The court held that setting a defined reduction of over £5 million in the high needs block was a sufficiently focussed, significant and in practical terms rigid decision that engaged statutory and common law duties prior to implementation.

The principal legal bases for the decision were the public sector equality duty in section 149 of the Equality Act 2010, the duty in section 27 of the Children and Families Act 2014 to keep SEN provision under review (including the consultation duty in s27(3)), and section 11 of the Children Act 2004. The court found that these duties carry an implied duty of inquiry which frequently requires consultation when the decision maker lacks information about likely impacts; here the council failed to consult or carry out appropriate impact assessment in relation to the proposed SEN funding reductions. The court also found a common law duty to consult and that the budget decision was irrational for want of sufficient inquiry.

This was a first instance judicial review. The claimants were parents of children with special educational needs (SEN) who challenged the defendant local authority's decision of 20 February 2018 to set the schools budget for 2018/19, which included a reduction of approximately £5 million to the high needs block. The claimants sought declaratory relief and an order quashing the high needs block allocation.

The key issues were:

• whether the council's decision to set the budget engaged positive duties to inquire and consult under the public sector equality duty (Equality Act 2010 s149),
• whether section 27 of the Children and Families Act 2014 required consultation when the council reduced funding affecting SEN provision,
• whether section 11 of the Children Act 2004 (safeguarding and promoting welfare of children) was engaged,
• whether a common law duty to consult applied before withdrawing an existing benefit, and
• whether the budget decision was irrational for failure to take relevant considerations into account.

The court analysed the factual context: the council had been aware of a significant historic high needs deficit and had developed detailed saving proposals before the budget was set; the public consultation carried out by the council in late 2017 did not expressly address the proposed SEN cuts; no equalities impact assessment for the high needs block reductions was before members; and the council had available general reserves and other possible mitigating options.

The judge reviewed authorities on the scope and operation of the PSED and related duties, including cases relied on by each side (notably Fawcett, JG v Lancashire, and Oxfordshire) and concluded that the question is fact-specific. Because the reduction was concrete, sufficiently focused and financially rigid in effect, the duties to make adequate inquiry and, where necessary, consult were engaged at the budget-setting stage. The council had no sufficient material before members to show they had due regard to equality objectives, had not consulted children and parents as required by s27(3) where a decision would necessarily affect provision, and had not shown compliance with s11. The failure to obtain relevant information and consult rendered the decision unlawful and irrational. The court rejected the defendant's alternative defences based on prematurity, alternative remedies, lack of substantial difference, and delay.

Remedy granted: permission to apply for judicial review and relief in the form of a declaration and quashing order in relation to the high needs block allocation, leaving the council to reconsider that allocation in light of the duties identified and the resources available at the material time.

The claim succeeded. The decision of the council to set a schools budget that included a defined and substantial reduction to the high needs block engaged the public sector equality duty (s149 Equality Act 2010), the review and consultation obligations in s27 Children and Families Act 2014, section 11 Children Act 2004, and a common law duty to consult; the council failed to make adequate inquiry or consult or to carry out an appropriate equality/impact assessment and the decision was therefore unlawful and irrational. The high needs block allocation was quashed so the council must reconsider that allocation in light of those duties.