Shaw & Anor, R (On the Application Of) v Secretary of State for Education

The Secretary of State’s emergency modification of statutory duties concerning special educational provision was lawful. A common law duty to consult did not arise where urgent action was required and the decision maker had gathered information through dialogue and representations. The Tameside duty required sufficiently informed decisions, but did not require investigation of historic compliance that was not directly relevant to pandemic conditions. The timing of laying delegated legislation was non-justiciable where challenged only by reference to parliamentary convention and no statutory obligation governed the timing. A statutory requirement that a notice be appropriate and proportionate did not permit review merely because the court might prefer a different balance. A target duty to promote children’s well-being required consideration of that aim, but did not prevent adverse measures in an extreme emergency.

Two disabled children with Education, Health and Care plans challenged four decisions made by the Secretary of State during the coronavirus pandemic. The first was the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020, which relaxed statutory time limits. The other three were notices under the Coronavirus Act 2020 modifying the duty in section 42 of the Children and Families Act 2014 from an absolute duty to a duty to use reasonable endeavours.

The claim alleged failure to consult, failure to make sufficient enquiry, irrational laying of the Regulations shortly before they came into force, irrationality and disproportionality in issuing the notices, and breach of the duty to promote children’s well-being. The court also considered whether the challenges to the spent notices were academic.

1. Disposition. Permission was refused on the second, fourth and fifth grounds. Permission was granted on the first and third grounds, but judicial review was dismissed on both. The court addressed the challenges to the spent notices pragmatically because most grounds had to be considered in any event.
2. Consultation. The sudden and severe impact on children with SEND made the consultation ground arguable, but no duty to consult arose. The emergency required changes by the beginning of May. The Department had gathered evidence through calls, correspondence, meetings and representations from local authorities, health bodies, parents’ organisations and other SEND organisations. That informal process was rational and fair in the circumstances.
3. Enquiry. The level of enquiry was adequate. It was obvious that the unqualified section 42 duty and the statutory assessment deadlines could not generally be performed during lockdown, school closures and the diversion of health workers. Historic pre-pandemic compliance was not a mandatory relevant consideration.
4. Parliamentary timing. The challenge to laying the Regulations one day before commencement was not justiciable. The judicial exclusion zone applied to decisions to lay delegated legislation unless a statutory obligation, rather than parliamentary convention, authorised intervention. The court could not enforce the 21-day convention. In any event, the decision was rational in the emergency circumstances.
5. Appropriateness and proportionality. The claimants’ criticisms of the notices expressed disagreement with the Secretary of State’s assessment and did not approach irrationality. The claimants could not prescribe mandatory alternatives, such as a different form of modified duty. The statutory requirement to state why a notice was appropriate and proportionate did not require the court to substitute its own assessment.
6. Children’s well-being. Section 7(1) of the Children and Young Persons Act 2008 imposed a target duty and made promoting children’s well-being a mandatory relevant consideration. It did not create an individual entitlement to particular provision or prevent measures adverse to well-being where the Secretary of State had considered the impact and was constrained by extreme circumstances.