R (D) v Hackney London Borough Council

The Court of Appeal considered whether a 5% reduction to Element 3 "top-up" funding for pupils with education, health and care plans engaged the duty to keep provision under review and to consult under section 27 of the Children and Families Act 2014. The court held that section 27 imposes a single, strategic duty to keep SEND provision under review and to consider its sufficiency, and that the list of consultees in section 27(3) must be consulted as a whole when that strategic duty is triggered.

The court agreed with the Divisional Court in R (Hollow) v Surrey County Council and R (ZK) v Redbridge that section 27 requires periodic strategic review "from time to time" rather than consultation every time a local authority makes a change affecting SEND provision. On the facts, the modest targeted reduction did not require a wider section 27 consultation; consultation with the Schools Forum under the Schools Forum Regulations was appropriate for the decision in question.

The claimants were children with special educational needs and disabilities attending mainstream schools in Hackney. They sought judicial review of the Council's decision to reduce the Element 3 resource level bands by 5% for mainstream pupils with education, health and care plans (EHCPs). The claimants argued that the Council had failed to comply with the statutory duty in section 27 of the Children and Families Act 2014 to keep SEND provision under review and to consult prescribed persons and bodies about the sufficiency of that provision.

Procedural history:

• Permission for judicial review was granted by Lang J (order dated 2 July 2018).
• Supperstone J heard the substantive claim and dismissed it on all grounds by judgment of 12 April 2019 ([2019] EWHC 9430 (Admin)).
• Permission to appeal to the Court of Appeal was granted by Leggatt LJ on 1 November 2019 limited to the section 27 consultation issue.

Issues before the Court of Appeal:

1. Whether section 27(1)–(3) creates an ongoing, case-by-case duty to consult whenever a local authority makes a decision affecting SEND provision, or instead a strategic duty to be discharged from time to time; and
2. Whether the Council’s decision to implement a 5% reduction in Element 3 funding triggered the wider consultation obligations in section 27(3).

Court’s reasoning:

The court concluded that section 27(1) and (2) form a single statutory duty: a local authority must keep under review its SEND provision and, in doing so, consider whether that provision is sufficient. The consultation duty in section 27(3) is indivisible and requires consultation with the listed persons and bodies when the strategic duty is triggered. Citing and agreeing with the Divisional Court in Hollow (Surrey) and the decision in Redbridge, the court held that section 27 imposes a strategic, not rolling, consultation obligation that is to be performed "from time to time" as occasion requires. The court rejected earlier statements in DAT (West Berkshire) and KE (Bristol) that suggested a duty to consult would arise on every decision that affected the scope of provision.

The court examined the Council’s evidence that the 5% reduction was modest, could be absorbed by schools without compromising individual pupils’ special educational provision, and was the subject of consultation with the Schools Forum. On that factual and evidential basis the court held the reduction did not trigger the wider strategic consultation under section 27(3). The court therefore dismissed the appeal but left open the question of what level of change would require a full strategic review and consultation.

The appeal is dismissed. The Court of Appeal held that section 27 of the Children and Families Act 2014 imposes a single, strategic duty to keep SEND provision under review and to consider its sufficiency, with the wide consultation in section 27(3) required only when that strategic duty is engaged. A modest, targeted 5% reduction in Element 3 funding did not trigger the section 27(3) consultation; consultation with the Schools Forum satisfied the consultation requirements for this decision.

Permission to seek judicial review was granted by Lang J (order dated 2 July 2018). Supperstone J dismissed the claim on all grounds on 12 April 2019 ([2019] EWHC 9430 (Admin)). Limited permission to appeal to the Court of Appeal was granted by Leggatt LJ on 1 November 2019 on the issue of the section 27 consultation. The Court of Appeal dismissed the appeal on 8 April 2020 ([2020] EWCA Civ 518).