R (Shaw) v. Secretary of State for Education

The claim challenged a package of emergency measures taken in spring and early summer 2020 in response to the coronavirus pandemic: the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (which temporarily amended the Special Educational Needs and Disability Regulations 2014) and three statutory notices (the May, June and July notices) issued under Schedule 17 to the Coronavirus Act 2020 modifying the section 42 duty in the Children and Families Act 2014 from an absolute duty to a duty to use "reasonable endeavours" for limited periods.

The claimants advanced five grounds: (1) breach of a common law duty to consult; (2) failure of the duty of inquiry (Tameside); (3) irrationality in laying the amendment Regulations before Parliament one day before they came into force (breach of the 21-day parliamentary convention and challenge to timing); (4) irrationality and disproportionality in deciding to issue the three notices; and (5) failure to have regard to the general duty to promote children’s well-being under section 7 of the Children and Young Persons Act 2008.

The court held that the consultation challenge and the parliamentary-timing challenge were arguable at permission stage but rejected them on the merits: Ministers were entitled to act urgently, the informal stakeholder engagement was adequate in the circumstances and the decision to curtail the usual 21-day parliamentary convention was a political decision governed by statute and parliamentary mechanisms and therefore not one the court would supervise in the absence of a statutory obligation. The court refused permission in relation to the Tameside duty, the proportionality/irrationality challenge to the notices, and the section 7 challenge, concluding those grounds were not arguable. Overall the judicial review claim was dismissed.

The claimants were two children with Education, Health and Care (EHC) plans. They sought judicial review of four decisions taken by the Secretary of State in April–June 2020: (i) to make the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the 2020 Regulations) which relaxed timescales in the SEND Regulations 2014 by inserting regulation 2A; and (ii) to issue three monthly notices under Schedule 17 to the Coronavirus Act 2020 (the May, June and July notices) temporarily modifying the section 42 duty to secure the special educational provision (SEP) specified in EHC plans so that the duty would be treated as discharged if reasonable endeavours had been used.

The claim was brought at first instance in the Administrative Court and heard as a rolled up permission and substantive hearing. The claim framed five issues: (1) whether the Secretary of State breached a common law duty to consult families and representative bodies before making the Regulations and issuing the notices; (2) whether the Secretary of State failed the Tameside duty to make adequate inquiries before deciding the measures; (3) whether it was irrational to lay the 2020 Regulations before Parliament one day before they came into force thereby avoiding the 21-day convention; (4) whether it was irrational and disproportionate to issue the May/June/July notices modifying the section 42 duty; and (5) whether the Secretary of State failed to have the well-being of children in mind under section 7 of the Children and Young Persons Act 2008.

The judge reviewed the statutory framework (Children and Families Act 2014 Part 3, section 42, the 2014 Regulations, Schedule 17 to the Coronavirus Act 2020, and the Statutory Instruments Act 1946 rules on laying instruments), traced the factual engagement between the Department for Education and stakeholders in March–June 2020, and considered equality and children’s rights impact assessments prepared by officials.

• On consultation: the court found the claimant’s case arguable at permission stage given the abrupt and severe impact on children with SEND, but concluded that, on the facts, Ministers’ informal but extensive stakeholder engagement and the urgency of the pandemic made it reasonable not to conduct a formal consultation. The claim on this ground therefore failed on the merits.
• On the Tameside duty: the court refused permission, holding the degree of inquiry undertaken was sufficient; the impossibility of complying with unmodified statutory duties in lockdown made the need for changes plainly rational and inquiry proportionate.
• On parliamentary timing/21-day convention: the court granted permission that the point was arguable, but concluded that the timing decision was political and fell within the judicial exclusion zone under parliamentary privilege in the absence of an enforceable statutory constraint; alternatively, on the merits the reasons for abbreviated parliamentary scrutiny were rational given the emergency.
• On irrationality/proportionality of the notices: the court refused permission, finding the claimants’ criticisms amounted to disagreement with the weight given to evidence and not to an arguable error of law or irrationality.
• On section 7 duty to promote children’s well-being: the court refused permission, holding the statutory "target" duty did not establish an individual actionable duty in the circumstances and that the Secretary of State plainly had the well-being of children with SEND in mind when deciding to take measures despite their adverse impact.

The judge therefore refused permission on grounds 2, 4 and 5, granted permission on 1 and 3 but dismissed the application on those grounds, and concluded the claim was dismissed. The judgment also records that the three monthly notices became spent by the end of July 2020 while the 2020 Regulations remained in force until 25 September 2020.

At first instance the court dismissed the judicial review claim. The judge refused permission on grounds 2 (Tameside duty), 4 (irrationality of issuing the notices) and 5 (breach of section 7 Children and Young Persons Act 2008). Permission was granted on grounds 1 (failure to consult) and 3 (laying before Parliament one day prior to commencement) as arguable, but those grounds were dismissed on the facts (consultation was not required given urgency and stakeholder engagement; the timing decision fell within the political/judicial exclusion zone and, in any event, was rational). The overall claim therefore failed and was dismissed.