Claimants vow to appeal after High Court dismisses challenge over “downgrading” during pandemic of rights of children with SEN

The judgment in Shaw & Anor, R (On the Application Of) v Secretary of State for Education [2020] EWHC 2216 (Admin) followed a two-day hearing in between 29 and 30 July in which the claimants (two disabled children) said the decisions “downgraded” the rights of 390,000 children with special education needs.

The claimants say they plan to appeal Mr Justice Kerr's ruling.

The first decision challenged was the enactment of the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the 2020 Regulations), which temporarily amended the Special Educational Needs and Disability Regulations 2014 (the 2014 Regulations), by relaxing various time limits for the completion of steps to be taken in the preparation of Education, Health and Care (EHC) assessments and plans.

Three other later decisions by the government to issue statutory notices modifying the duty to secure the provision specified in EHC plans under section 42 of the Children and Families Act 2014 were also challenged.

The notices’ effect was that the duty to secure the making of the provision specified in an EHC plan was replaced for three months by a duty to use "reasonable endeavours" to secure the provision.

The claimants challenged the government on the following grounds:

Breach of duty to consult.
Failing to comply with the Tameside duty of enquiry.
Irrationally laying the 2020 Regulations before Parliament the day before they came into force.
Irrationally deciding that it was appropriate and proportionate to issue the three notices.
Failing to have in mind the aim of promoting the well-being of children, in breach of section 7 of the Children and Young Persons Act 2008.

Mr Justice Kerr granted permission on the first and third grounds but ultimately dismissed the application.

On the first ground, the claimants asserted that there was a common law duty to consult families whose children have SEND and their representative organisations, before making the 2020 Regulations and issuing the three notices. Given that duty, no reasonable decision-maker could decide that it was fair to make the 2020 Regulations and issue the three notices without first consulting those most closely and abruptly affected by the changes, according to the claimant.

Noting the disproportionate effect on children with SEND, Mr Justice Kerr granted permission on this ground.

He said: "The impact on parents and their children with SEND was sudden and severe and came at a time when there had already been serious failures in delivery of SEND provision before the pandemic struck. The effect of the virus on delivery of SEP [special educational provision] began in March 2020, before any change in the law. But the Amendment Regulations and the three notices had a disproportionate impact on children with SEND as the defendant's own impact assessments confirmed."

However, the judge said he had “little difficulty” in preferring the contention of the defendant that the duty to consult did not arise on the facts. The question that confronted ministers in the DfE was how to respond to the emergency.

Mr Justice Kerr said the DfE’s method of proceeding, “informal though it was”, did not shut out the voice of parents of children with SEND and organisations representing their needs and interests. Representations from those organisations, up to and including the Children's Commissioner, were heard, received and considered by officials at the Department and Ministers responsible for the decision making.

He added that he could “see nothing irrational or unfair about the chosen method of proceeding, by information gathering, research and dialogue rather than formal consultation”.

The claim that the Secretary of State for Education failed to fulfil his Tameside duty of enquiry was also dismissed by the judge who said that the level of enquiry was "incontestably" adequate to make informed and rational decisions.

He also pointed to the "impossible conditions" engendered by the pandemic, lockdown and school closures.

He rejected as "unarguable" the submission that the defendant made an insufficient enquiry into the pre-pandemic levels of compliance with the section 42 duty because they were not of direct relevance to the situation on the ground from late March 2020.

The judge also dismissed claims that the defendant had painted an overly optimistic picture of the effects on children with SEND. Mr Justice Kerr said the equality impact assessments and the CRIA "squarely faced up to the disproportionate adverse impact the measures would have on children with SEND, compared to other children missing out on their schooling; and, within the SEND group, on those who were boys, being twice as likely as girls to have an EHC plan."

The third ground claimed it was irrational to lay the 2020 Regulations before Parliament the day before they came into force, thereby avoiding all but the most cursory parliamentary scrutiny. The claimant made specific reference to the parliamentary convention that 21 days should be allowed between the laying of regulations and their entry into force.

In response, the defendant submitted that the decision to dispense with the 21 day convention was not justiciable because a ruling from the court on the legality of that decision would infringe the rule in article 9 of the Bill of Rights Act 1689 '[t]hat the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.'

Mr Justice Kerr held that this ground of challenge was not justiciable. “If I were wrong about that, I would not accept the claimants' argument that the defendant acted irrationally and unlawfully by laying the 2020 Regulations before Parliament the day before they were due to enter into force.”

The judge said the decision not to observe the 21 day convention was not irrational because local authorities and health bodies needed to have pressures on them reduced in late April, allowing them to focus and direct their resources on the response to the virus.

However, he did grant permission to advance the ground agreeing that the short time that Parliament had to discuss the 2020 Regulations "curtailed nearly to vanishing point any practical opportunity for Parliament to scrutinise the 2020 Regulations before they came into effect".

Ground 4 was dismissed entirely by the judge who found the claimant's criticisms did "no more than express strong disagreement with the defendant's assessment of what was appropriate and proportionate".

He added: "The argument that the defendant's reasoning is circular has superficial attraction but, as the defendant points out, depends for its validity on removal of SEP being the only permissibly discernible cause of SEND children's absence from an educational setting. That is untenable.

"The argument that the defendant should have considered other alternatives such as amending the 2020 Act using a Henry VIII power is bad because the claimants cannot select mandatory relevant considerations for the defendant. For the rest, the claimants' arguments merely read like representations in favour of a different outcome and do not arguably impugn the validity of the three notices, or any of them. I refuse permission on the fourth ground."

On ground five, the claimants argued that the Secretary of State for Education, in making the 2020 Regulations and the notices failed to perform his duty "to promote the well-being of children in England" under section 7(1) of the Children and Young Persons Act 2008 (the 2008 Act).

Mr Justice Kerr, while acknowledging that the defendant was considering decisions he knew would negatively impact children with SEND, refused permission to advance the ground.

He said: "The duty under section 7(1) does not mean that the minister can never take measures adverse to the well-being of children in England. He may feel reluctantly constrained to do so despite having well in mind his general duty to promote their well-being; particularly in extreme circumstances such as war or, as in this case, a pandemic."

"I do think that the general duty in section 7(1) makes promoting the well-being of children a mandatory relevant consideration when considering measures that may affect their well-being; though that does not mean it must always be expressly mentioned when recording the reasons for such decisions. Beyond that, it does not provide a vehicle for the court to interfere with decisions affecting children taken in the exercise of the minister's judgment.”

The judge added: "It is incontestable that the defendant in this case had in mind the need to promote the well-being of children with SEND when he took the four decisions. There is no arguable merit in the claimants' contention to the contrary and I therefore refuse permission to advance the claimants' fifth and final ground of challenge."

Mr Justice Kerr dismissed the application for judicial review.

Responding to the judgment, Polly Sweeney, consultant solicitor at Scott-Moncrieff who acts for the claimants, said: "The claimants are of course incredibly disappointed by the ruling. They brought this legal challenge not just to seek reinstatement of their own legal rights, but those of over 390,000 other children with special educational needs and disabilities.

"The evidence filed on behalf of the claimants - from organisations such as IPSEA, SOS!SEN, National Autistic Society, SEND Action and the Special Needs Jungle – demonstrated the devastating impact of the changes on children and young people with special educational needs and in particular that families have been left feeling 'abandoned'.

"Whilst we are pleased that following the issue of proceedings, the government announced that it would no longer be issuing any further notices, my clients remain concerned about the way that these decisions were made and that there is a real prospect that this may happen again if future notices are issued.”

She added: "Although the Court has found that the Secretary of State has acted lawfully, my clients believe that it was fundamentally unfair that the Department of Education went to such great lengths to have extensive engagement with local authorities when making these decisions – including no less than 127 structured telephone interviews with local authority representatives to seek their views – and yet there was no comparable engagement directly with the very group these decisions would impact on the most - children and young people with SEND and their families."

Counsel instructed to act on behalf of the claimants were Steve Broach of 39 Essex Chambers and Alice Irving of 1 Crown Office Row .

Adam Carey