SPOTLIGHT

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Judge gives reasons for rejecting application for judicial review of consultation on SEND provision

A High Court judge has set out his reasons for this month dismissing an application for permission to bring a judicial review of a council's consultation on the future of services for children and young people with special and educational needs and disabilities (SEND) in its area.

The claimant in Y, R (on the application of) v The London Borough of Richmond-Upon-Thames & Anor [2019] EWHC 364 was the mother of a disabled child who is in receipt of special education provision from the local authority in a mainstream school.

Richmond Council ran its consultation from 26 October to 25 November last year. It acknowledged that SEND funding was a very complex area and stated that in the consultation it had tried to achieve the difficult balance of providing enough information to understand the options proposed, but without the level of complexity it has had to consider in arriving at these options.

The purpose of the series of proposed options was said to be: "…to bring what we spend on SEND services more in line with what we receive from government." The council stressed that it had not yet taken decisions about the options and therefore the consultation did not represent a list of intended actions.

The claimant sought an interim injunction preventing Richmond from setting its budget on 14 February pending the application for judicial review. Her counsel argued that:

  1. There was a clear error of law in the consultation because it made no reference at all to alternative ways of making good the anticipated shortfall of DSG [Dedicated Schools Grant] (provided by central government) as against the defendant council's schools budget. The consultation was misleading because consultees were being told Richmond had to so something and asked what parts of the budget it should reduce, whilst omitting another course – namely, adding to the schools' budget by finding alternative sources of funding.
  2. The application was not premature in seeking an order preventing the council from setting its schools budget. The setting of the budget was imminent, there was an irretrievable flaw in the consultation which could not be self-corrected, the budget would be set in stone the next week (or shortly afterwards when a full Council meeting approved the Cabinet's recommendations) and, if the claimant did not act now, she might later be criticised for not acting sooner.

The application was heard on 7 February by His Honour Judge Blair QC, who the following day notified the parties’ representatives of his conclusions. The judge’s ruling was published this week (21 February).

HHJ Blair QC concluded that there was nothing misleading in the wording of the consultation. “It set out the difficult financial landscape accurately and was only stating the obvious about a fast-growing deficit being unsustainable. To explain that it was exploring options with a view to bringing the schools budget ‘more in line with what we receive from government’ and seeking the responses of consultees to some approaches towards achieving that end was a legitimate exercise to undertake.”

The judge added: “Importantly it was not presenting hard and fast financial proposals in a way which sought to conceal discarded alternatives, thus making it no real consultation at all (as in the Moseley case).

“There is no prospect, in my view, of the claimant being able to establish that this consultation process was so unfair as to be unlawful. There is nothing that gets it to the stage of being properly described as 'clearly unfair' or 'clearly and radically wrong'. Therefore, there is no 'serious issue to be tried' which would give rise to the consideration of granting interim relief by way of an injunction preventing the respondent from setting its budget.”

The judge concluded as well that the claim had been brought prematurely.

Even if he were wrong in reaching those conclusions, he said, the balance of convenience did not favour the granting of the relief sought. He also refused permission for a judicial review.