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Department for Education facing judicial review over content of SEND green paper consultation

The Secretary of State for Education has been threatened with a legal claim arguing that its consultation on the Special Educational Needs and Disability (SEND) green paper fails to provide consultees with information about the inability of the First-tier Tribunal to award damages as a remedy to successful claimants.

The pre-action protocol letter sent to the Secretary contends that the lack of information regarding damages "offends the common law principle confirmed in R (Moseley) v LB Haringey [2014] UKSC 56 requiring provision of sufficient information to enable intelligent consideration and response to a consultation".

Suzanne Sixsmith is bringing the claim on behalf of her son, who has a diagnosis of Autistic Spectrum Disorder and a severe language disorder.

Sixsmith has faced a number of issues regarding the implementation of her son's Education Health and Care Plan (EHC). As a result, she has had to pay in excess of £38,000 in legal fees to secure the provision he is entitled to, according to the letter before action.

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"Despite successful claims through the [Local Government and Social Care Ombudsman] route as well as findings from the FTT and [Parliamentary and Health Service Ombudsman] that decision makers have acted inappropriately towards her son, she has been unable to seek damages in recompense for the failings which have been identified to date," the letter added.

"She has been left substantively out of pocket even when she has received countless […] apologies and admissions of wrongdoing."

On 29 March 2022, the government published a green paper on the future of the SEND and alternative provision (AP) system. A public consultation was launched alongside the green paper.

One of the questions asked in the consultation says: "Do you consider the current remedies available to the SEND Tribunal for disabled children who have been discriminated against by schools effective in putting children and young people's education back on track? Please give a reason for your answer with examples, if possible.

"(Please refer to chapter 2: paragraphs 33-34 for further details)."

The paragraphs that the question's footnote refers consultees to detail the role of the FTT in resolving disputes between parents, carers, young people and local authorities.

However, the claimant argues that the paragraphs make no reference to the fact that the FTT has no power to order damages for breaches of the Equality Act 2010.

"There is also no reference to the inability of the FTT to award financial compensation to claimants who are successful in their claims in the green paper, green paper summary or the accompanying YouTube video, or in any other accompanying materials which we have seen," the letter adds.

The claimant’s letter before actions argues that the omission "offends the principle confirmed in the Moseley Case R (Moseley) v LB Haringey [2014] UKSC 56) regarding the common law requirement as to the provision of sufficient information to consultees".

In R (Moseley) v LB Haringey, Lord Wilson held that, in a consultation, "the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response".

In light of the legal threat, the claimant is asking that the Secretary of State for Education to:

  1. publish an amended version of the supported information with at least a minimum level of information for consultees, namely that the issue is that presently the FTT cannot award damages in the event of a successful claim;
  2. extend the consultation period (whether generally or on this specific question) for at least six weeks subsequent to the publication of such amended information;
  3. explain in the accompanying materials (for example the web page hosting the consultation) why the deadline has been extended, drawing consultees attention to the amended information.

The claimant has asked that the Secretary reply to the letter by 4 pm on 15 July 2022.

Adam Carey

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