R (AD) v London Borough of Hackney

The claim challenged two local authority policies: the Resource Levels policy (a banding system for Element 3/top-up funding for pupils with EHC plans and a 5% reduction to band values for 2018–19) and the Plan Format policy (presenting outcomes and provision side-by-side so that provision in section F was referenced to outcomes in section E rather than explicitly to needs in section B).

The court held that the Resource Levels banding system is not inconsistent with the statutory duty in section 42 Children and Families Act 2014 to secure the specified special educational provision in an EHC plan, provided the system in practice secures the provision and retains flexibility (annual reviews, movement between bands and individually awarded additional funding above band 5). The court rejected a systemic challenge to the banding policy and rejected arguments that the 5% reduction was unlawful for failure to consult families, for breaching the strategic review and consultation duties in section 27 CFA 2014, for breaching the public sector equality duty (section 149 Equality Act 2010) or for failing to have regard to duties under the Education Act 2002 and Children Act 2004.

The court also held that the Plan Format policy did not breach the statutory scheme. Regulation 12 and section 37 require specified content and that sections be separately identified, but they do not prescribe the page layout; therefore presenting outcomes and provision adjacent on the page did not of itself prevent the specification of provision in section F nor breach duties to safeguard and promote children’s welfare or the PSED. The claim was dismissed.

Background and parties: The claimants are children with special educational needs and disabilities attending mainstream schools in the London Borough of Hackney. They challenged two Council policies: (1) the Resource Levels policy which funds Element 3/top-up for pupils with EHC plans by reference to five banded resource levels (and, in the alternative, the Council’s decision to reduce those resource level values by 5% for 2018–19); and (2) the Plan Format policy which places outcomes (section E) and provision (section F) side-by-side, which the claimants say results in needs in section B not being matched by specific provision in section F.

Procedural posture: Permission to bring the claim was granted by Lang J on 2 July 2018. The claim was heard by Mr Justice Supperstone on 31 October and 1–2 November 2018; the court invited further written submissions on the effect of the then-reserved decision in R (Hollow and ors) v Surrey County Council, which was handed down on 15 March 2019.

Nature of relief sought: Not stated in the judgment.

Issues framed by the court: The court considered seven grounds challenging the Resource Levels policy (including alleged breach of s.42 Children and Families Act 2014, duties to safeguard and promote welfare under Education Act 2002 s.175 and Children Act 2004 s.11, the public sector equality duty under EqA 2010 s.149, the lawfulness of the 5% reduction including consultation/section 27 duties, and an improper purpose/Padfield challenge) and three grounds challenging the Plan Format policy (that it contravenes the statutory requirement to specify provision for each need in section F, and that it breaches the welfare and equality duties).

Court’s reasoning and disposition: On the substantive challenge to banding under s.42 the court concluded that the statutory duty is to secure the specified special educational provision rather than to require individualised costing of every plan; nothing in the Children and Families Act 2014, the Regulations or the statutory guidance precludes local authorities from using banding provided in practice plans are secured. The court found that Hackney’s scheme retained safeguards (ability to award funding above band 5; annual reviews and the ability to move children between bands; central commissioning of some services) and that the evidence did not show systemic under-provision attributable to banding.

On the 5% reduction the court accepted the Council’s evidence that careful modelling and consideration had occurred, that the Schools Forum had been consulted and had not objected, and that there was no obligation to consult families under s.27(3) in the circumstances as interpreted in the Divisional Court’s decision in Surrey. The court rejected a claim that the public sector equality duty or common-law fairness required consultation with families before the reduction.

On the Plan Format policy the court held that the legislation and regulations require specified content and that sections must be separately identified but do not prescribe the physical layout. Placing outcomes and provision side-by-side did not equate to conflation of sections or prevent provision being specified for needs in section B. The court found the format change had been developed in consultation with parents and schools and was intended to improve clarity. All grounds were dismissed and the claim was dismissed.

The claim is dismissed. The court held that: (1) a banded Resource Levels system for Element 3/top-up funding is not inherently incompatible with the local authority’s duty under section 42 Children and Families Act 2014 so long as, in practice, specified special educational provision is secured; (2) the Council’s 5% reduction in resource level values was lawfully reached after considered analysis, and did not require the further family consultation or a section 27 strategic consultation on these facts; (3) the Plan Format policy did not contravene the requirements of section 37, regulation 12 or the Code of Practice, and did not breach duties under the Education Act 2002, Children Act 2004 or the public sector equality duty.