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

Section 27 of the Children and Families Act 2014 creates a single strategic duty. A local authority must keep SEND provision under review and, in doing so, consider whether it is sufficient. The associated consultation duty is indivisible and extends to every person or body listed in section 27(3).

The duty is performed from time to time as occasion requires. It has no decision-specific trigger and does not require consultation whenever an authority changes SEND provision or funding. A modest funding reduction, rationally assessed as not impairing the special educational provision required by individual children, did not trigger a strategic review or the wider section 27 consultation.

The appellants were children with special educational needs and disabilities attending mainstream schools in Hackney. They challenged two Council policies by judicial review, including a 5% reduction in Element 3 top-up funding for pupils with education, health and care plans.

Supperstone J dismissed the claim on all grounds: [2019] EWHC 9430 (Admin). Permission to appeal was granted only on the question whether the Council had breached its consultation duty under section 27 of the Children and Families Act 2014.

The central issue was whether the funding reduction triggered a duty to conduct the strategic review and extensive consultation required by section 27.

1. The appeal was dismissed unanimously. Lord Justice Bean, with whom Lord Justice Baker and Mr Justice Cobb agreed, held that the Council had not breached section 27 of the Children and Families Act 2014.

2. Sections 27(1) and 27(2) impose one duty. A local authority must keep its educational, training and social-care provision for children and young people with SEND under review and, in carrying out that review, consider whether the provision is sufficient to meet their needs. Section 27(3) imposes a single, indivisible duty to consult. The authority must consult every person and body listed in paragraphs (a) to (j), though it may consult additional persons under paragraph (k).

3. The court agreed with the strategic construction adopted in R (Hollow) v Surrey County Council [2019] EWHC 618 (Admin). Section 27 concerns global SEND provision and is performed from time to time as occasion requires. It specifies no particular trigger. The court therefore disagreed with the view in R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin) and R (KE) v Bristol City Council [2018] EWHC 2103 (Admin) that a consultation duty arises whenever a decision necessarily affects the scope of SEND provision.

4. The court also approved the view in R (ZK) v London Borough of Redbridge [2019] EWHC 1450 (Admin) that the duty is strategic and that local authorities ordinarily determine the appropriate elements of review, subject to ordinary public-law review. It was unnecessary to decide whether section 27 requires a programmatic approach or whether a combination of higher-level and lower-level exercises will suffice.

5. The Council had rationally concluded that the 5% Element 3 reduction could be absorbed without compromising the provision required by individual children. It was not a tipping point. The reduction therefore did not trigger a section 27 strategic review or its extensive consultation requirement. Consultation with the Schools Forum, required under the Schools Forums (England) Regulations 2012, had occurred. The court left open what major cuts or transformation might trigger consultation under section 27 or at common law.

• Court of Appeal (Civil Division) — dismissed the appellants’ appeal on the sole permitted ground concerning consultation under section 27: [2020] EWCA Civ 518.
• Administrative Court — Supperstone J dismissed the judicial-review claim on all grounds: [2019] EWHC 9430 (Admin).