Specialist Lawyers At Irwin Mitchell Seek Judicial Review Of SEND Funding

Families have officially launched a High Court legal challenge against the government’s special education needs funding policy which is leaving “thousands of children across the country in limbo”.

Irwin Mitchell’s specialist Public Law and Human Rights team is acting for a number of families who believe that their children, who have an array of special educational needs and disabilities (SEND), are not receiving the essential support they require.

The legal experts have now asked the High Court to give the green light for a Judicial Review to be held into the legality of how the government provides funding to local authorities. 

The families from North Yorkshire, Birmingham and East Sussex, believe that current government grants are leaving councils without enough money to fulfil their legal obligation of providing care for pupils with a range of disabilities and conditions.

The application comes  after education watchdog Ofsted said earlier this month that it was a “national scandal” that thousands of children in England diagnosed with special educational needs were missing out on support. Following the weekend’s announcement that the Department for Education had pledged an additional £350 million for SEND funding Ofsted added there was still “a long way to go” before children with specialist needs receive “the support they deserve.” 

Expert Opinion

“How local authorities fund special education needs is a major issue nationally and will only become more acute as local authorities continue to feel that they have no option but to further squeeze services in light of continued budget cuts.

“We have heard extremely worrying first-hand accounts from the families we are supporting about the issues and obstacles their children have faced. They believe that the government’s current funding policy is leaving thousands of pupils across the country in limbo and that the government is failing in its legal duty to unequivocally promote the well-being of children.

“While we welcome the government’s recent announcement to increase the SEND funding it provides by £350 million over the next two years, some local government estimates state that there could be a national deficit in high needs spending of between £1.2 billion and £1.6 billion by 2021. Therefore this issue still needs addressing urgently.” Anne-Marie Irwin - Senior Associate

  
The families have launched a campaign group called SEND Action. The group is calling on Education Secretary, Damian Hinds, and Chancellor of the Exchequer, Philip Hammond, to increase funding to local authorities. 

The families have raised funds through an online crowdfunding campaign and have been granted legal aid to bring the challenge.

Specialist barristers Jenni Richards QC of 39 Essex Chambers and Stephen Broach and Ciar McAndrew of Monckton Chambers are instructed to advise on the case.

Irwin Mitchell is also representing families of children with special education needs in Hackney, Surrey and Somerset who are opposing local authority cuts to services in their area. 

Judicial reviews to decide the legality of Surrey County Council’s and Hackney Council’s decisions to reduce their SEND budgets have been heard with decisions due at a later date.

According to the Department for Education:

• Pupils with identified SEND account for almost half of all permanent exclusions.
• Pupils with SEND are up to six times more likely to be excluded.
• The number of pupils with SEND without a school place more than doubled from 2016 to 2017 from 1,710 to 4,050. 
• More than 4,000 SEND pupils were left without a school place last year compared with 776 in 2010.

The National Deaf Children’s Society has been campaigning against local authority funding cuts for the past seven years. 

Ian Noon, the charity’s Head of Policy and Research said: “A complete crisis is unfolding across the country for children with special needs. 

“From the work we do with deaf children, we see councils cutting the services these children depend on at an unprecedented rate. Parents are distraught, battling for ever decreasing levels of support. Specialist teachers are being cut each and every year. While at the same time, official Government data shows that deaf children’s grades at school have started to get worse. 

“It’s fundamentally wrong that parents have to take a case to the High Court to get the support their children are legally entitled to. The Government must do far more before this crisis in special needs education spirals out of control, and we have a generation of lost potential from children who have so much to give.”  

James Robinson, Policy Lead for Children and Young People at Mencap, added: “When children and young people with a learning disability miss out on the right Special Educational Needs and Disability (SEND) support, their health, social care and other areas of their life can also be negatively impacted. 

"The SEND reforms provided an opportunity to help address some of the barriers that some children face by focusing support on the individual needs and ambitions of the children and young people they are being implemented to help. But this will only happen if there is sufficient funding in place. 

“The additional £350 million announced at the weekend is welcome, but will not stretch far enough to drive the improvements that we, and the families of people with a learning disability, urgently need to see. 

"With the number of people with a learning disability in this country on the rise, the time is now to ensure sufficient funding and support for today and tomorrow's young people with a learning disability."

Case Studies

East Sussex

Nico Heugh Simone, 15, from Robertsbridge, has autism, anxiety and related conditions which means he requires specialist educational care to remain in a mainstream school. 

When he started secondary school in September 2014  East Sussex County Council  would not meet the total cost of his care, arguing the school should pay the shortfall out of its budget. 

However, following protracted correspondence between the school and the local authority, and complaints made by Nico’s mother, the local authority agreed to meet the full cost of care. The following year, the local authority again refused to meet the cost of Nico’s care. Nico’s mother instructed solicitors to send a pre-action letter to the local authority threatening judicial review, and the local authority then agreed to pay for the cost of Nico’s support.

However, the following year the school was advised by the local authority that a new scoring system would see Nico’s funding reduced. 

This has seen the money the school receives from East Sussex County Council for Nico reduced by half. However, the cost of the care he needs has remained the same. The school has agreed, reluctantly, to absorb the significant additional cost, however they have told Nico’s mum that they will not be able to sustain this long-term.

Nico’s mum, Lorraine Heugh, 57, said: “Nico is at a critical time in his education and instead of helping him concentrate on his exams it just feels that we are in a constant battle with the council for him to get the education he deserves. 

“We cannot fault Nico’s school and the care and support he receives not only from staff but also his friends. 

“It would be great if the government realised the national crisis it has created and amended its funding policy. But we feel that our concerns have been ignored so far, that is why we feel we have no option but to seek a judicial review.” 

North Yorkshire

Benedict McFinnigan has been diagnosed as having post-traumatic stress disorder, anxiety, depression and chronic insomnia. 

The 14-year-old from Scarborough, North Yorkshire, was refused an education healthcare assessment by North Yorkshire County Council because the local authority said he did not meet its criteria for having special educational needs. The family appealed the refusal and in the last week North Yorkshire County Council has agreed to assess Benedict for an EHCP. 

However, Benedict has not attended a mainstream school for two years and was taught at home. Benedict, who has a three-year-old brother Brian, is currently attending a pupil referral unit for less than three hours a day. 

His mum Kirsty, 40, a full time carer for her children, said:  “All we want is for our children and other children with SEND to be given the same opportunities to learn as other pupils. However, this is not happening at present because of how councils are funded.

“Ben should be able to decide if he wants to go to university or start a job or apprenticeship but at present he is being denied those options. We fear that what he does after his GCSEs is being decided for him because of lack of opportunity to receive an equal education.

“We are angry with the position the government is taking on this issue which is now of national importance and is impacting thousands of children.” 

Birmingham

Dakota Riddell has a number of disabilities including cerebral palsy, global developmental disorder, seizure disorder, and muscle disorders clonus and dystonia. The overall effect of these conditions means that Dakota needs extensive support with all aspects of life, including getting dressed, feeding, bathing and maintaining personal hygiene

The nine-year-old of Great Barr had an Education Health Care Plan (EHCP) drawn up by Birmingham City Council in 2016 when she attended a mainstream school. 

However, she now requires a SEN school. The EHCP was not updated for 3 years despite a significant increase in the care and support she needed.

When the plan was finally amended Dakota’s mum Mary said it contained errors. Travel support funded by the local authority allowing Dakota to travel to and from school was withdrawn based on information contained in her previous EHCP which said she had no healthcare needs. 

Mary, 35, said:  “Dakota has many challenges and deserves the best support available. However, this is more than just about what she needs.

“Thousands of children with specialist and complex needs, who through no fault of their own require support, are being left in limbo because of how government hands money to councils.

“From our experience and from what other families have told us, it is abundantly  clear councils feel that the funding made available from central government is insufficient.”