Claimant fails in judicial review over SEND Review consultation and information on available remedies for tribunal in disability discrimination cases

The High Court has rejected a judicial review challenge brought on behalf of a 12-year-old boy with special educational needs to one of the 22 consultation questions contained in the SEND Review, the Government’s consultation Green Paper.

In CU, R (On the Application Of) v Secretary of State for Education [2024] EWHC 638, His Honour Judge Stephen Davies concluded in a rolled up hearing that the claim was “sufficiently arguable” for permission to be granted and that permission should not be refused on the grounds of delay or no substantial difference, but found that the claim failed on the merits on both substantive grounds.

The claimant was referred to as "CU" to protect his right to privacy as a child and acted by his mother, DV.

HHJ Stephen Davies said: “He contends that the approach taken in question 7 of the Green Paper, concerning the remedies available to the First-tier Tribunal ("FTT") in claims of disability discrimination against disabled children by schools, was unlawful, because it failed to inform readers that the FTT currently has no jurisdiction to award a remedy of compensation in such cases. This failure is said to contravene what is known as the second Gunning principle”.

The Defendant, the Secretary of State for Education, contended that that the Gunning principles did not apply to Q7, and therefore there was no need to provide this information.

The judge noted that Q7 of The Green Paper asked as follows:

"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?".

Immediately above Q7 was paragraph 34, which stated:

"[…] families and young people are able to bring a claim to the First-tier SEND Tribunal, which has the power to award a range of remedies to redress the wrong with the aim of putting a child or young person's education back on track. These remedies can include training of school staff and ordering a change to school policies. The government proposes to explore how well this arrangement is working in practice".

HHJ Stephen Davies observed: “It is apparent that neither Q7 nor paragraph 34 made reference to the fact that the FTT has no jurisdiction to order the payment of compensation in disability discrimination cases brought against schools or that this exclusion – which is provided for by paragraph 5(3)(b) of Schedule 17 to the Equality Act 2010 – is unique to this particular sub-set of disability discrimination cases.”

Turning to the Gunning principles, the judge took relevant principles from the leading judgment, given by Laing LJ, in Eveleigh v. Secretary of State for Work and Pensions [2023] EWCA Civ 810.

He said: “In paragraph 7 Laing LJ identified that a public body will be obliged to consult in three cases: (a) if there is a statutory duty to do so; (b) if there is a legitimate expectation that it will do so (whether because of a promise, or a sufficiently consistent past practice); and (c) if it would be conspicuously unfair not to consult.”

He noted that the four essential Gunning requirements, as suggested by counsel for the appellant in the Gunning case, are as follows:

• First, that consultation must be at a time when proposals are still at a formative stage.
• Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response.
• Third, that adequate time must be given for consideration and response.
• Fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.

He added: “The essential section of Laing LJ's judgment for present purposes begins at paragraph 81 and may be summarised as follows:

a) The question as to whether, when a public authority engages with the public, that engagement attracts legal obligations is a question of substance, not form.

b) In order for the Gunning requirements to apply:

(i) A public authority must be proposing to make a specific decision which is likely to have a direct (and usually adverse) impact on a person or on a defined group of people. That is to be distinguished from a general policy commitment at such a high level of abstraction that it is not easy to see their direct negative (or positive) impact on a particular person or group of people.

(ii) There is a proposal to make a decision, which, while not inchoate, is at sufficiently formative stage that the views of those consulted might influence it, and has crystallised sufficiently that the public authority knows what the proposed decision may be, and is able to explain why it might make that proposed decision, in enough detail to enable consultees to respond intelligently to that proposed course of action. That is to be distinguished from an inchoate plan which would take shape as and when information was gathered, and in response to that information”

HHJ Stephen Davies found that it was “readily apparent”, that the Gunning requirements could not apply to Q7 and the information provided with it.

He said: “Although it was part of a document which described itself as a consultation, one has to look at the substance of Q7 and the information provided with it, in the context of the document as a whole, to see whether there was in fact a proposal to which the Gunning consultation requirements applied.

“Here, as I have said, there was no explicit proposal other than one to explore how well the current arrangement regarding the remedies currently available to the First Tier Tribunal in relation to disability discrimination claims against schools were working in practice.”

“That was not even a general policy commitment at a high level of abstraction, let alone a proposal to make a specific decision. Nor was it even an inchoate plan, which would take shape as and when information was gathered and in response to that information, let alone a policy which had crystallised sufficiently that the proposal could be explained in enough detail to enable consultees to respond intelligently to it. The fact that the responses might affect the scope of the future investigation and, hence, at some future stage a concrete proposal, does not convert it into a proposal to which the Gunning requirements applied.

The judge therefore rejected the first ground of challenge.

The second ground submitted by the claimant was one of irrationality.

In oral submissions, counsel for the claimant argued that since the purpose of Q7 was to enable government to assist it in better understanding whether or not the existing remedies were effective in getting the education of children with SEND back on track, it was irrational to exclude reference to the lack of a compensation remedy which could not be said to be unrelated to the achievement of that purpose.

Considering the irrationality ground, Judge Davies said: “If Q7 had in fact amounted to a proposal not to change the existing remedies available to the First Tier Tribunal in disability discrimination claims against school and which had the aim of putting the education of a child with SEND back on track, then I am prepared to accept that would have been force in the claimant's submission that it was irrational to make no reference to the existing exclusion of a compensation remedy, in circumstances where government well knew that it was an obvious and significant lacuna in the remedies available to the First Tier Tribunal, and where it could not sensibly be said that it had no part at all to play in putting children's education back on track.”

However, he said: “Since that was not the proposal, in my judgment the same fundamental problem applies to the irrationality ground as applies to the Gunning ground. In reality, it seems to me, the real focus of the irrationality ground has to be that the defendant ought to have extended the question to ask whether responders considered that the addition of a compensation remedy would also be effective in putting children's education back on track.

“However, that is not the way in which the irrationality case is argued and, more fundamentally, it founders on the same difficulty as the Gunning ground, namely that: (a) it is for the authority in question to decide what proposals it wishes to put forward and when; and (b) individual members of the public cannot, through judicial review, force government to put forward a positive proposal rather than to ask for information to inform the content of any future proposals.”

The judge accordingly rejected the second ground of challenge.

Lottie Winson