Simone and others v Chancellor of the Exchequer and the Secretary of State for Education

The claimants sought judicial review of UK Government decisions about funding for special educational needs (challenging the Autumn 2018 Budget decisions and subsequent allocations announced 16 December 2018) on four grounds: breach of the public sector equality duty under section 149 Equality Act 2010; breach of the Secretary of State's general duty to promote the well-being of children under section 7 Children and Young Persons Act 2008; irrationality; and discrimination contrary to Article 14 ECHR read with Article 2 of Protocol No.1 or Article 8 ECHR.

The court analysed the relevant decision-making framework (spending reviews, the Dedicated Schools Grant, and DfE bids), the specific decisions taken by the Chancellor and by the Secretary of State, and the evidence before ministers and officials. It concluded that the Chancellor and the Secretary of State had, in the exercise of the functions before them, had due regard to the matters in section 149 of the Equality Act 2010; that section 7 of the 2008 Act is a general duty and does not create an enforceable obligation to make particular allocations of funding to individuals; that the decisions challenged were rationally open to the decision-makers on the material before them (including the decision to defer the capital high-needs bid to the 2019 spending review and the later allocations totalling £350 million); and that Article 14 ECHR was not engaged because children with special educational needs are treated under a distinct legal and factual regime.

This is a first-instance judicial review arising from claims by three children (through litigation friends) that central government decisions were unlawful because they failed to secure adequate funding for provision for children with special educational needs ("high needs").

• Parties and relief sought: Claimants challenged (1) the Chancellor's decisions in the Autumn 2018 Budget (including the decision not to fund the DfE's high‑needs capital bid and the decision to make a one‑off £400m capital payment to schools) and (2) the Secretary of State for Education's decisions about departmental bids and the allocation announced 16 December 2018 (an additional £350m: £125m revenue 2018/19, £125m revenue 2019/20 and £100m capital). They sought judicial review on four main grounds: breach of the public sector equality duty (Equality Act 2010 s149), breach of the duty to promote children's well‑being (Children and Young Persons Act 2008 s7), irrationality, and unlawful discrimination under Article 14 ECHR read with A2P1 or Article 8.
• Procedural posture: Claim issued 17 December 2018; Lang J ordered a rolled‑up oral permission/substantive hearing; full hearing before Lewis J on 26–27 June 2019, with all evidence and argument presented.
• Issues for decision: (i) whether the Chancellor and Secretary of State had "due regard" under s149 Equality Act 2010 (including any duty of inquiry); (ii) whether s7 Children and Young Persons Act 2008 imposed an enforceable, substantive duty mandating particular funding allocations; (iii) whether the decisions were irrational or affected by unlawful failure of reasonable inquiry; and (iv) whether Article 14 ECHR applied (and if so whether differential treatment was justified) or a failure to make reasonable accommodation under Article 14 existed.
• Court's reasoning and findings: The judgment explains the public finance framework (2015 spending review, Dedicated Schools Grant, block funding and the national funding formula), the DfE's internal business cases for high‑needs capital and revenue bids and their review, and the Treasury's and Chancellor's consideration of bids. The court applied established PSED principles (noting Bracking and other authorities) and held that assessment of "due regard" is fact‑sensitive and shaped by the function exercised. The Chancellor was not allocating the departmental baseline (that was set in 2015) but deciding whether to accept specific bids for additional allocations at the Budget; he had material and explicit warnings about the impact on children with disabilities and he considered equality implications when choosing the distribution formula for the £400m capital payment. The Secretary of State had required, considered and relied on business cases and equality analysis when deciding which bids to pursue and when making the December 2018 allocations. On s7 (2008 Act) the court held the duty is a general policy objective, not a private law obligation to make particular quantums of spending or individualisable rights enforceable by court order; the decisions complained of were consistent with the section 7 duty. On rationality, each decision was within the range of reasonable judgments available to ministers on the material before them (including the decision to defer larger capital funding to the 2019 spending review and to retain a prudential £50m). On Article 14 the court found no relevantly similar treatment: children with SEN are governed by specific statutory mechanisms (EHCPs, an obligation on local authorities to secure specified provision, and targeted high‑needs funding) and the factual and legal regimes differentiate them from other children; the Article 14 complaints and alleged failure to make "reasonable accommodation" were not made out.
• Outcome and ancillary observations: Permission to apply for judicial review was granted as arguable but, on the evidence, all substantive grounds failed and the claim was dismissed. The court emphasised the limits of judicial review in reviewing central budgetary allocations and noted the importance of correctly identifying the specific decision under challenge.

The claim is dismissed. The judge held that (1) both the Chancellor and the Secretary of State had complied with the public sector equality duty in respect of the functions and decisions before them; (2) section 7 of the Children and Young Persons Act 2008 imposes a general duty to promote children's well‑being rather than an enforceable obligation to make particular funding allocations, and the Secretary of State did not breach that duty; (3) the challenged decisions were rationally open on the material before ministers and there was no unlawful failure of reasonable inquiry; and (4) Article 14 ECHR was not engaged because children with special educational needs are subject to a distinct legal and factual regime and there was no unlawful discrimination or failure to make reasonable accommodation on the facts of the case.

Claim for judicial review issued 17 December 2018. Lang J ordered that the permission application be adjourned to an oral rolled‑up hearing and, if permission were granted, the substantive hearing would follow (order dated 31 January 2019). Full hearing (permission and substantive) before The Honourable Mr Justice Lewis on 26–27 June 2019. Final judgment delivered 7 October 2019 ([2019] EWHC 2609 (Admin)).