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AD & Ors, R (On the Application Of) v London Borough of Hackney [2020] EWCA Civ 518

Clarification from the Court of Appeal in respect of the duty to consult under s 27 of the Children and Families Act 2014

This case involved an appeal of a judicial review decision in respect of the Respondent Council's policy in relation to provision to support children who have special educational needs and disabilities ("SEND"). The policy in question involved a 5% reduction in one of the funding elements for SEND provision to schools. The Appellants were children who have SEN and disabilities and attend mainstream schools in Hackney.

Following a 3 day substantive hearing in April 2019, Supperstone J dismissed the judicial review claim in respect of the Council's policy on all grounds ([2019] EWHC 9430 (Admin)). Permission to appeal was granted by the Court of Appeal solely on the issue of whether the Council was in breach of a duty to consult under s 27 of the Children and Families Act 2014 ("the 2014 Act").

Section 27 of the 2014 Act provides that, when reviewing its education and care provision, a local authority must consult children and young people in its area with special educational needs and disabilities and their parents, amongst many other parties.

The Council did not dispute that in respect of the specific policy change in question, they had not consulted with the relevant children and their parents. However, they argued that the correct interpretation of s27 did not require them to consult in respect of this particular change. The respondents submitted that s27 refers to a global or strategic review of educational provision to be carried out from time to time and on which the very extensive consultation required by s 27(3) with all the parties listed therein would have to take place. The Council considered that not every budget decision affecting SEND provision engages s 27, if that were the case, it would be overly burdensome for local authorities.

The Appellants argued that s 27 required an ongoing process by which the local authority is alert to any changes which may require it to consult about the sufficiency of the SEND provision in the borough. They considered that the budget changes in the present case were sufficient to 'trigger' the Council's duty to consult and as such they had failed in their statutory duties. The Appellants were of the view that the Council's interpretation would allow many substantial changes to local SEND provision but no consultation upon any of them until the next strategic review happened to take place, which might be long after the impact of the changes had been felt by the children and young people concerned. It was also submitted that there is no obligation under s 27(3) to consult every person or organisation in the list of subsections: it would be sufficient for the local authority only to consult those people or bodies identified which are relevant to the function being exercised. On this basis and on the basis that de minimis changes would also not trigger the duty to consult, it was submitted that this was not too much of a burden on local authorities.

The court specifically considered the decision R (Hollow) v Surrey County Council [2019] EWHC 618 (Admin); [2019] PTSR 1871 where the Divisional Court concluded that the interpretation adopted by the Respondent was correct. The court also considered the case of R (ZK) v London Borough of Redbridge [2019] EWHC 1450 (Admin) where Swift J observed in paragraphs [63]-[64] that the s 27 duty is in the nature of a strategic obligation and that local authorities should be best placed to decide for themselves what the elements of a review should be, subject to review by the courts against Wednesbury standards.

The Court of Appeal agreed with the Respondent's submissions, in their entirety and dismissed the appeal. The court observed the following at [43] and [44]:

'There is no limitation of the duty to consult each of the people and bodies on the list created by s 27(3)(a)-(j). The local authority can add to the list (s 27(3)(k)) but not subtract from it…'

'Section 27 is concerned with consideration at a strategic level of the global provision for SEND made by a local authority; and … the duties are to be performed from time to time, as the occasion requires, with no particular "trigger" for the duty being specified.

The court's conclusion is succinctly summarised by Lord Justice Bean at [48]:

'I do not consider that this modest reduction in one element of SEND funding was sufficient to trigger a strategic review under s 27(1)-(2) with the consequent requirement of widespread consultation under s 27(3)… I would leave for another day the issue of what level of major budget cuts or transformation of a local authority's SEND provision would trigger a wider duty to consult either under s 27 or at common law.'

Summary by Asha Groves, barrister, St Johns Chambers

Read the full judgment of AD & Ors, R (On the Application Of) v London Borough of Hackney [2020] EWCA Civ 518 on BAILII