High Court Date Set For Landmark Hearing Which Will Examine Legality Of SEND Policy

Families across the country are taking the government to the High Court to challenge its special education needs (“SEND”) funding policy which has created a ‘national scandal’.

Campaigners believe that current government grants are leaving councils across the country without enough money to fulfil their legal obligation of providing education for pupils with a range of disabilities and conditions.

Families from North Yorkshire, Birmingham and East Sussex instructed specialist lawyers at Irwin Mitchell to issue a Judicial Review into the legality of how the government provides funding to local authorities.

A Judge has considered extensive submissions and evidence and has now ordered that the case needs to be heard at a full two-day hearing in the High Court, listed for 26 and 27 June.

The decision comes at a time when several local authorities are also facing legal challenges to their cuts to SEND budgets.

Expert Opinion

“How special education needs services are funded is an issue which is continuing to snowball. This is especially the case at a time when many local authorities are setting their budgets for the next financial year in the face of continued budget cuts.

“We continue to hear very concerning accounts from families who say thousands of children in towns and cities across the country are not receiving the education they deserve because of government policy.

“The families feel that there have been left with no choice but to bring this action and are pleased that the High Court recognises that SEND funding is an issue which needs to be looked at urgently in detail.

“While we are prepared to put forward strong legal arguments in court on behalf of the families, we would rather the government re-examine its position and come up with a solution which will benefit families nationally." 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 judicial review will examine whether the government’s current level of funding for SEND is lawful.   If the High Court finds that the government is acting unlawfully, the government would be forced to rethink its approach to funding for SEND.

The families initially raised funds through an online crowdfunding campaign and have now 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 shortly.

Last year education watchdog Ofsted said that it was a “national scandal” that thousands of children in England diagnosed with special educational needs were missing out on support. Shortly afterwards the Department for Education pledged an additional £350 million for SEND funding. However, in response Ofsted added there was still “a long way to go” before children with specialist needs received “the support they deserve.”

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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: We are not asking for any special treatment, all we want is for Nico and others with SEND to be given the same opportunities as other children. Nico is at an important time in his education and yet it just seems like we have to be locked in a constant fight for what he deserves.

“Nico should be allowed to decide if he wants to remain in education, find a job or an apprenticeship after his exams, however, we fear that he is not going to be given the opportunity to decide what path he wants to take.

“We would rather not be in this position but we feel we have been left with no other choice because the government has just ignored us so far. We are delighted that the High Court has granted us permission to officially challenge the government.”

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 last year North Yorkshire County Council 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:  “Sadly the government seems totally oblivious to the national crisis it has created. You only have to see the number of councils across different parts of the country that are all struggling to fund SEND services to see the current situation is not working.

“The next few years are going to be key in determining Ben’s life chances but yet we have to find ourselves in this situation fighting every step of the way for a basic education. 

“If families across the country are all facing similar issues it cannot be the fault of councils. This is a problem being created from the very top so it should be sorted from the top.”

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 three 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’s school and her teachers are doing the best they can in difficult circumstances but the current situation means she is not receiving the support and education she deserves. If the current situation is allowed to slide Dakota and thousands of other children are going to suffer.

“All children regardless of their needs deserve the best education possible and this is not happening. 

“We feel that throughout all of this the government has just ignored our concerns. We didn’t want to take this to court but we feel we have been left without any choice.”