CU, R (on the application of) v Secretary of State for Education

The claimant, a child with special educational needs and disabilities, challenged one consultation question (Q7) in the SEND Review Green Paper on the basis that the consultation failed to inform respondents that the First-tier Tribunal currently cannot award compensation in disability discrimination claims against schools (Schedule 17 paragraph 5(3)(b) Equality Act 2010). The claimant relied on the second Gunning principle (sufficient reasons must be given to permit intelligent consideration and response) and alternatively on irrationality. The court held that the Gunning requirements and the irrationality ground did not apply because Q7 was a request to explore how the current arrangements were working rather than a crystallised proposal to make a specific decision. The claim was therefore dismissed on the merits. The judge also considered and rejected the defendant's delay and no-substantial-difference arguments under CPR Part 54.5 and s.31 Senior Courts Act 1981, granting permission to proceed but finding the substantive challenge failed.

This judicial review concerned a single consultation question (Q7) in the 2022 SEND Review Green Paper, which asked whether the remedies available to the First-tier SEND Tribunal were effective in putting disabled childrens education back on track. The claimant (a 12 year old with SEND, anonymised) asserted that the consultation failed to state that the Tribunal lacks jurisdiction to award compensation in disability discrimination claims against schools because of Schedule 17 paragraph 5(3)(b) of the Equality Act 2010. He sought relief on two grounds: breach of the second Gunning principle and irrationality.

Procedural posture: The case was a rolled-up hearing (permission and substantive hearing combined). The defendant argued the claim was out of time under CPR Part 54.5 and that, in any event, relief should be refused because the outcome for the claimant would not have been substantially different (s.31 SCA 1981).

Issues framed by the court:

• Whether the Gunning consultation requirements applied to Q7.
• Whether omission of the compensation exclusion rendered Q7 irrational.
• Whether the claim was out of time or should be refused for delay or because the outcome would not have been substantially different for the claimant.

Courts reasoning and conclusion: The judge applied the principles in Eveleigh and other authorities on consultation and the Gunning requirements. He found Q7 was a request to explore how the current arrangement was working and not a crystallised proposal to do nothing or to maintain the status quo; accordingly the second Gunning requirement did not apply. For the irrationality ground the court held that, because Q7 was not a concrete proposal to maintain the current remedies, the omission could not be shown to be irrational in public law terms. On permission and delay points the judge held the claim was arguable and the proceedings were not out of time given that the claimant had requested a remedy during the consultation and had been refused. On the no-substantial-difference issue, the court concluded it was not highly likely that the outcome would have been unchanged, so permission could not be refused on that ground. Ultimately the substantive claim failed and was dismissed.

The claim is dismissed. The court granted permission but found that Q7 in the SEND Review was a question to explore the operation of current remedies rather than a crystallised proposal; therefore the Gunning consultation obligations did not apply and the omission to mention the First-tier Tribunal's inability to award compensation did not render the consultation irrational. The claim therefore failed on the merits. The court also rejected the defendant's delay and no-substantial-difference arguments for refusing permission.