Simone & Ors v Chancellor of the Exchequer & Anor

The public sector equality duty is a duty of substance, not form, to have due regard to specified equality needs. Its content is fact-sensitive and shaped by the particular function, decision, stage of process and information available; it does not require a particular outcome. The general duty under section 7 of the Children and Young Persons Act 2008 is a target duty identifying broad objectives, not an individual enforceable duty to make a particular funding allocation or bid. Central-government funding choices remain reviewable for rationality, but the court does not substitute its view on policy or resource allocation. Article 14 requires differential treatment, a relevant status, Convention ambit and lack of objective justification. Children with special educational needs were not treated similarly to children without them because they were subject to a distinct legal and funding regime.

Three children with special educational needs challenged decisions concerning central-government funding for high-needs educational provision. The challenge concerned the Chancellor’s decision in the autumn 2018 Budget not to fund a high-needs capital bid, the allocation of a weighted one-off payment to schools, the Secretary of State’s decisions about bids for additional funding, and the allocation of £350 million in December 2018.

The claim alleged breaches of section 149 of the Equality Act 2010, section 7 of the Children and Young Persons Act 2008, irrationality, and Article 14 of the European Convention on Human Rights read with Article 2 of the First Protocol or Article 8. The central issues were the nature of the statutory duties, the rationality of the funding decisions and whether the arrangements involved unlawful discrimination or a failure to make reasonable accommodation.

Disposition. Permission to apply for judicial review was granted on all four grounds, but the claim was dismissed on the merits.

1. Public sector equality duty. Section 149 of the Equality Act 2010 imposes a substantive duty to have due regard to the specified equality needs. The extent of the duty depends on the function being exercised, the nature and stage of the decision, the context and the information available. It is not a duty to achieve a particular result. The court must identify the specific function and decision under challenge.
2. The Chancellor was not allocating the overall Department for Education budget in 2018; that had been fixed by the 2015 spending review. He was considering additional bids. The material before him identified the impact of the high-needs capital bid and the consequences of not accepting it. His decision to defer the bid to the 2019 spending review, and his decision to use a weighted formula for the £400 million school payment, complied with section 149. It was not irrational for him to regard the information available as sufficient.
3. The Secretary of State had due regard when preparing and selecting bids and when allocating an additional £350 million. The evidence showed awareness of the financial pressures on local authorities and the impact on children and young people with special educational needs and disabilities. There was no breach of any associated duty of inquiry.
4. Section 7 duty. Section 7 of the Children and Young Persons Act 2008 is a general target duty. It identifies broad objectives by reference to which the Secretary of State must exercise functions. It does not create an individual, court-enforceable obligation to make a specified funding allocation or Treasury bid. The decision not to pursue a weak revenue bid, the allocation of £350 million, and the retention of £50 million for future pressures were all consistent with the duty.
5. Rationality. The court reviews legality and rationality, not the merits of educational policy or the allocation of resources. It was rationally open to defer the capital bid, submit only bids considered likely to succeed, make the additional allocations and retain part of the unallocated funding. The decision-makers had sufficient information and were not required to make further inquiries.
6. Article 14. The applicable inquiry required differential treatment, a relevant status, a matter within the ambit of Article 8 or Article 2 of the First Protocol, and the absence of objective justification. Children with special educational needs were not treated in the same or a similar way as children without such needs. The Children and Families Act 2014 provided a distinct assessment, EHCP, appeal and provision regime, supported by a high-needs funding block. The claim therefore failed at the differential-treatment stage.
7. The reasonable-accommodation reasoning in Cam v Turkey (App 51500/08) and Enver Sahin v Turkey (App. No 23065/12) concerned necessary adjustments in particular educational settings and did not establish a breach in this systemic funding context. The United Nations Convention was not part of domestic law or directly applicable, and Article 24 did not assist with the Article 14 issues.

High Court (Administrative Court): Lang J directed that permission and the substantive judicial review be considered at a rolled-up hearing. After full argument, permission was granted on all four grounds and the claim was dismissed.