AB, R (on the application of) v Bristol City Council

The court considered judicial review challenges to local authorities' decisions to enter Safety Valve Agreements (SVAs) with the Department for Education, in the context of persistent deficits in Dedicated Schools Grant high needs funding. The central legal questions were whether the duty in section 27(3) of the Children and Families Act 2014 (to consult specified persons when keeping SEND provision under review) was engaged before entering the SVAs, and whether the public sector equality duty (section 149 Equality Act 2010), the Tameside duty of reasonable inquiry, Padfield principle and the prohibition on secret policies were breached in relation to the Devon SVA.

The judge held that: (i) section 27 imposes a strategic, periodic duty to keep provision under review and to consult specified persons as occasion requires, but the decision whether to carry out a review/consultation is for the local authority and is only susceptible to Wednesbury review; (ii) Bristol and Devon were not Wednesbury irrational in deciding not to carry out a separate section 27 review before entering the SVAs, because the SVAs and accompanying action plans were high-level, capable of multiple methods of implementation, did not bind the authorities to fail in individual statutory duties under Part 3 of the 2014 Act, and built on prior engagement and work; (iii) in the Devon cases there was no failure to have "due regard" under the PSED in the decision to enter the SVA given the high-level nature of the agreement and the legitimate decision to assess equality impacts at the point of concrete proposals; and (iv) the Tameside, Padfield and secret-policy grounds failed on the facts. All live grounds therefore failed and the claims were dismissed or permission refused.

This is a first-instance Administrative Court judgment concerning three linked judicial review claims brought on behalf of children with special educational needs (AB v Bristol City Council; ES and JX v Devon County Council). The claimants challenged their local authorities' decisions to enter Safety Valve Agreements (SVAs) with the Department for Education in March 2024. The SVAs provide DfE funding to help eradicate accumulated DSG high-needs deficits in return for the local authorities implementing action plans and meeting specified deficit targets subject to monitoring.

Parties and posture: The claimants are children with Education, Health and Care Plans, represented by litigation friends. Defendants were Bristol City Council and Devon County Council; the Secretary of State for Education was an interested party. Permission had been granted in Bristol in relation to a section 27 ground only and was granted in Devon for several grounds; the matters came for rolled-up hearing.

Relief sought: quashing or other relief in judicial review challenging (i) the absence of a section 27(3) consultation before entry into the SVAs (Ground 1), (ii) breach of the public sector equality duty (PSED) under section 149 Equality Act 2010 (Ground 2, Devon only), (iii) failure of reasonable inquiry (Tameside duty) (Ground 3, JX), (iv) exercise of powers in a manner frustrating Part 3 of the Children and Families Act 2014 (Padfield) (Ground 4, JX), and (v) application of a secret policy (Ground 5, JX).

Issues framed by the court:

• Whether the decision to enter SVAs constituted a "trigger" obliging a section 27 strategic review and consultation under section 27(3), and if so whether that determination is for the court or for the authority subject to Wednesbury review.
• Whether Devon failed to have "due regard" under section 149 Equality Act 2010 when Cabinet ratified the Devon SVA.
• Whether Devon breached the Tameside duty to make reasonable inquiries before deciding to enter the SVA.
• Whether the SVA decision frustrated the purpose of Part 3 of the 2014 Act (Padfield-type complaint) or evidenced a secret policy.

Court's reasoning (concise): The court followed and applied earlier authorities (notably the Divisional Court's analysis in R (Hollow) v Surrey and the Court of Appeal in R (D) v Hackney and R (ZK) v Redbridge) in concluding that section 27 imposes a strategic, periodic duty to keep SEND provision under review and to consult specified parties "from time to time as occasion requires". The decision whether to undertake a review or consultation is for the local authority and challengeable only on Wednesbury grounds. The SVAs' action plans were framed at a high level; the DfE-supported Deficit Management Plans (DMPs) were for local planning and were not rigid contractual obligations endorsed in detail by the DfE. Entering the SVAs did not bind the authorities to breach individual duties under Part 3 of the 2014 Act. Given prior engagement, ongoing consultation plans for specific proposals, unlocked funding and the conditional nature of further DfE payments, it was not irrational for the councils to decide not to undertake a section 27 review before entering the SVAs. On PSED, the court emphasised context-sensitive "due regard": at the high-level stage Devon's decision to consider equality impacts later when concrete proposals were formulated was lawful. The Tameside, Padfield and secret-policy grounds failed on the evidence and legal analysis. The live grounds therefore failed.

This is a first-instance claim. The court dismissed the substantive challenges. Ground 1 (alleged failure to carry out a section 27 review/consultation) was rejected as the decision whether to consult under section 27 is for the local authority and only subject to Wednesbury review; Bristol and Devon were not irrational in deciding not to hold a separate section 27 review before entering the SVAs. In the Devon claims, the court refused permission on the PSED challenge (section 149 Equality Act 2010) because the decision to enter a high-level SVA and to assess equality impacts later when concrete proposals emerged was within a lawful margin of discretion. The Tameside, Padfield and secret-policy grounds advanced in JX failed on their respective merits and were refused. The judge gave detailed reasons emphasising the high-level nature of SVAs, the conditional and non-binding character of the detailed DMP material, and the availability of statutory and tribunal safeguards for individual children under Part 3 of the Children and Families Act 2014.