AD & Ors, R (On the Application Of) v London Borough of Hackney

A local authority may administer high-needs special educational funding through banded resource levels. The statutory duty is to secure the special educational provision specified in an EHC plan, not to cost every item individually. Banding is lawful where the system can secure the child’s overall provision in practice and contains mechanisms for review and additional funding. A policy is not systemically unlawful if it is capable of lawful implementation and does not create an unacceptable risk of unlawful decision-making. Duties concerning welfare and equality are substantive, not formal. The statutory duty to review provision and consult under the Children and Families Act 2014 is strategic and arises at reasonable intervals, not whenever funding changes. An EHC plan may place outcomes and provision side by side if each section remains separately identified.

The claimants were children with special educational needs and disabilities attending mainstream schools in Hackney. They challenged the Council’s Resource Levels policy for funding special educational provision, including a 5% reduction in resource levels for 2018–19, and its revised EHC plan format. They alleged breaches of the duty to secure provision, statutory welfare and equality duties, consultation duties, the duty to review sufficiency of provision, the Padfield principle, and the statutory requirements governing EHC plans. Permission was granted on 2 July 2018. The central issues were whether the funding policies were inherently unlawful and whether the plan format lawfully set out needs, outcomes and provision.

The claim was dismissed. None of the grounds of challenge to the Resource Levels policy, the 5% reduction or the Plan Format policy was made out.

1. The duty under the Children and Families Act 2014, s.42, is a duty to secure the special educational provision specified in each EHC plan. It is not a duty to calculate the individual cost of every item of provision. A banded funding system is lawful if it secures the child’s overall provision in practice. R (KM) v Cambridgeshire CC [2012] UKSC 23 concerned a fundamentally different adult social care scheme. The formulaic approach considered in R v London Borough of Hillington ex parte Governing Body of Queensmead School [1997] ELR 331 did not assist the claimants.
2. The systemic challenge failed. A policy is unlawful if it cannot be operated lawfully or creates an unacceptable risk of unlawful decision-making. It is not unlawful where realistic methods exist for lawful implementation. The principles in R (Suppiah) v Secretary of State for the Home Department [2011] EWHC 2 (Admin), R (Woolcock) v SSCLG [2018] EWHC 17 (Admin) and Bayer plc v NHS Darlington CCG and others [2018] EWHC 2465 (Admin) were applied. Annual review, movement between resource levels and additional funding provided safeguards. No claimant showed that the policy caused a failure to secure provision.
3. The duties under the Education Act 2002, s.175, and the Children Act 2004, s.11, were met. The Council’s decision-making directly concerned meeting the needs of children with SEND. There was no additional requirement to explain separately how welfare had been considered. The public sector equality duty is one of substance, not form. Applying R (MacDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33, the Council had due regard to equality by addressing identified needs.
4. The 5% reduction was carefully considered and could be absorbed without compromising provision. No prior consultation with families was required. Following R (Hollow and ors) v Surrey County Council [2019] EWHC 618 (Admin), s.27 of the Children and Families Act 2014 imposes a strategic review and consultation duty at reasonable intervals, not whenever funding changes. The Council had adequate information and had consulted the Schools Forum. The common law imposed no duty to consult in the absence of a procedural legitimate expectation, and there was no conspicuous unfairness or substantial prejudice.
5. The Padfield challenge failed because the Council had considered whether the reduction could operate consistently with its statutory duty. The revised EHC plan format was also lawful: the legislation required the relevant sections to be separately identified but left their presentation to the Council. Placing outcomes and provision next to each other did not conflate sections E and F.

The claim was dismissed.

Permission to apply for judicial review was granted by Lang J on 2 July 2018. The claim was heard at first instance by the High Court (Administrative Court) and dismissed by Supperstone J. No appellate stage is stated in the judgment.