AD & Ors, R (On the Application Of) v London Borough of Hackney

Mr Andrew Lee, Assistant Director of Education Services at the Council, describes in his first witness statement the overall structure of central government funding for both maintained schools and academies and the specific structure of funding for children with SEND. The needs of most of this group of children are met using up to £6,000 of "notional SEND" budget per pupil, also known as "Element 2 funding". This per pupil amount is set nationally. Schools are allocated an "additional needs budget", from which £6,000 of "notional SEND" funding is drawn for all children with SEND, based on specific indicators of need in their area. Most SEND children's needs can be met by spending considerably less than £6,000 and as a result schools have a degree of flexibility on their overall SEND spending. For children with an education, health and care plan (“EHCP”), the school still contributes £6,000 of "notional SEN" funding, supplemented by "top-up" or "Element 3" funding. For children in mainstream schools, top-up funding from the Dedicated Schools Grant (“DSG”) is available at one of five pre-set Resource Levels.

Mr Lee states (at para 10):

Mr Lee continues (at para 20):

Mr Lee states that in the ten years he has been involved in the administration of SEND funding he believes that the majority of local authorities use some form of banding to allocate funds to schools (para 25). In his view the approach of costing individual provision would not be workable in practice (para 26). His statement continues:

Mr Lee states that additional funding is made available if a child's needs are not being met. He states (at para 39):

At paragraphs 41-54 of his witness statement Mr Lee deals with the issue of costs pressures on High Needs funding in Hackney. Since 2014/15 the funding allocated by central government to the Council under the High Needs Block has remained virtually flat in absolute terms, and so has been eroded in real terms. He states (at para 43):

At paragraphs 55-66 of his witness statement, Mr Lee deals with the 5% reduction in the Resource Level bandings. He states, so far as is material:

These scenarios and other options for reducing spend were extensively discussed within a series of operational working groups and at SLT [Speech and Language Therapy] meetings, during 2016 and 2017. Although these meetings and discussions were not formally minuted, I was present at many of them and I can recall the nature of the discussions, the conclusions of which are set… out below. It was our judgment that it was possible for Hackney's schools to absorb a funding reduction at this level without reducing or putting at risk the special educational provision of individual children.

Due to the scale of the costs pressures on SEND budgets, there was a desire to achieve the highest possible savings consistent with our legal obligations. It quickly became clear that higher levels of reduction that had been modelled would have a material impact on schools' ability to make adequate provision for pupils with EHCPs. However, the Council considered that a reduction of 5% could be absorbed by schools making efficiencies, without compromising the special educational provision of individual children.

One factor contributing to our view that a reduction of 5% (to element 3 only) was within the capacity of schools, is that schools have considerable operational flexibility in their dayto-day use of resources in making the correct provision for pupils in a class, or in a whole school setting. We felt that a 5% reduction to the element 3 funding band could be absorbed through efficiency, without compromising the special educational provision of individual children. The provision made for a pupil with an EHCP in a mainstream school is not made in isolation from the rest of the staff or school, where personnel and resources are routinely switched or deployed between pupils, groups of pupils or classes. In this context, a funding change of between £249 and £833 for a pupil over the course of a year is in our view manageable. The lower sum of £250 for example might be equated to a day of cover for a teacher, and given the ability of schools to deploy staff internally to cover or provide support from a workforce of say 60-plus staff members, is both management and routine. There are many other day-to-day decisions on the deployment of staff and the use of resources through which this can be managed.

A second factor contributing to our judgment that the special educational provision for individual children could be maintained with a 5% reduction in Resource Levels was that the reduction in the overall funding available for an individual child arising from a 5% cut to the element 3 funding was lower than 5% in practice. It is in fact the range of 2.3-3.7%. This is because element 2 remained unchanged at £6,000. …

A third factor contributing to our view that a 5% reduction would not put at risk the special educational provision of any individual children was that the reduction would not be applied immediately to provision under existing EHCPs. Rather, the changes to the Resource Level amounts would be implemented at the point of the child's next Annual Review. Since the

A fourth factor contributing to the Council's view that the 5% reduction was manageable for schools without putting at risk the special educational provision of individual children, was because it resulted in only a very small % reduction in the schools' overall budgets. I analysed the figures for every school in the borough… In most cases the reductions were in the region of a few thousand pounds per school with the two outlier schools receiving reductions of £20,000 (for a very large secondary school) and £499 (for a small primary school). This is in the context of overall budgets of a few million pounds for each school. Very roughly then, the impact on each school's total budget was in the region of 0.1%. …

Local authorities are required to consult Schools Forums on financial issues relating to arrangements for pupils with special educational needs, including the arrangements for paying topup funding. The Council sought the views of Forum members on the proposed 5% reductions. A report was sent to Forum members in October 2017, enclosing a report for consideration at a meeting on 8 November 201[7]… At the meeting, there was a robust discussion during which Forum members probed Council members (including myself) about the practical implications of the proposal. This can be seen from the minutes. Forum members commented in general terms that a reduction in overall school funding would lead to a reduction in services. That was clearly a concern: that some services would be diminished. However, the Forum was not saying that the special educational provision in children's Plans would not be met. The outcome of the discussion was in fact that the Forum 'noted and received' the report.

Whilst formally the Forum's function is an advisory one, it is able to and sometimes does register an objection where it has serious concerns about a proposal put to it. Had the Forum chosen to do so in this case, I have no doubt that we would have reconsidered the 5% element 3 reduction.

On 20 December 2017 the Mayor and Deputy Mayor of Hackney held a meeting in the Town Hall with a group of parents, carers and activists concerned with the issue of provision for children with SEND and using the collective self-description (at least for the purposes of e-mail correspondence) of “hackneyspecialeducationcrisis”. The group then sent a letter on 8 January 2018 to the Mayor and Deputy Mayor which included 15 formal questions. On 20 February 2018 the Mayor and Deputy Mayor replied stating, so far as is relevant:

With regard to the 5% cut to funding for EHC plans from April 2018, how was this decision made and who was consulted (beyond the Schools forum)?

Were schools asked to provide information on the likely impact of this 5% cut?

Ms Norma Hewins, headteacher at Jubilee Primary School, which has 15 children with EHC plans out of a total number of just over 440 children in the school, comments in a witness statement served on behalf of the Claimants on Mr Lee's evidence that the approach of costing individual provision would not be workable in practice. She disagrees, saying:

The current SEND scheme is to be found in Part 3 of the 2014 Act which replaced the previous scheme in Part 4 of the Education Act 1996.

Section 19 of the 2014 Act provides, so far as is relevant:

Section 27 ("Duty to keep education and care provision under review") is at the heart of the present appeal. It provides, so far as relevant:

the educational provision, training provision and social care provision made in its area for children and young people who have special educational needs or a disability, and

the educational provision, training provision and social care provision made outside its area for—

children and young people for whom it is responsible who have special educational needs, and

children and young people in its area who have a disability.

The authority must consider the extent to which the provision referred to in sub-section (1)(a) and (b) is sufficient to meet the educational needs, training needs and social care needs of the children and young people concerned.

In exercising its functions under this section, the authority must consult—

children and young people in its area with special educational needs, and the parents of children in its area with special educational needs;

children and young people in its area who have a disability, and the parents of children in its area who have a

the governing bodies of maintained schools and maintained nursery schools in its area;

the proprietors of Academies in its area;

the governing bodies, proprietors or principals of post16 institutions in its area;

the governing bodies of non-maintained special schools in its area;

the advisory boards of children's centres in its area;

the providers of relevant early years education in its area;

the governing bodies, proprietors or principals of other schools and post-16 institutions in England and Wales that the authority thinks are or are likely to be attended by—

children or young people for whom it is responsible, or

children or young people in its area who have a disability;

a youth offending team that the authority thinks has functions in relation to—

children or young people for whom it is responsible, or

children or young people in its area who have a disability;

such other persons as the authority thinks appropriate."

Section 30 of the 2014 Act creates the concept of a “local offer”, which is a term of art describing information which each local authority is required to publish about SEND provision. It states:

the provision within subsection (2) it expects to be available in its area at the time of publication for children and young people who have special educational needs or a disability, and

the provision within subsection (2) it expects to be available outside its area at that time for—

children and young people for whom it is

children and young people in its area who have a

education, health and care provision;

other educational provision;

other training provision;

arrangements for travel to and from schools and post-16 institutions and places at which relevant early years education is provided;

provision to assist in preparing children and young people for adulthood and independent living.

For the purposes of subsection (2)(e), provision to assist in preparation for adulthood and independent living includes provision relating to— (a) finding employment; (b) obtaining accommodation; (c) participation in society.

Information required to be published by an authority under this section is to be known as its "SEN and disability local offer".

A local authority must keep its SEN and disability local offer under review and may from time to time revise it.

A local authority must from time to time publish—

comments about its SEN and disability local offer it has received from or on behalf of—

children and young people with special educational needs, and the parents of children with special educational needs, and

children and young people who have a disability, and the parents of children who have a disability, and

the authority's response to those comments (including details of any action the authority intends to take).

Comments published under subsection (6)(a) must be published in a form that does not enable the person making them to be identified.

Regulations may make provision about—

the information to be included in an authority's SEN and disability local offer;

how an authority's SEN and disability local offer is to be published;

who is to be consulted by an authority in preparing and reviewing its SEN and disability local offer;

how an authority is to involve—

children and young people with special educational needs, and the parents of children with special educational needs, and

children and young people who have a disability, and the parents of children who have a disability, in the preparation and review of its SEN and disability local offer;

The regulations may in particular require an authority's SEN and disability local offer to include—

information about how to obtain an EHC needs assessment;

information about other sources of information, advice and support for—

children and young people with special educational needs and those who care for them, and

children and young people who have a disability and those who care for them;

information about gaining access to provision additional to, or different from, the provision mentioned in subsection (2);

information about how to make a complaint about provision mentioned in subsection (2).”

The duty to carry out an EHC needs assessment is imposed by s 36. Section 37 establishes the duty in relation to EHC plans:

Where, in the light of an EHC needs assessment it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan—

the local authority must secure that an EHC plan is prepared for the child or young person, and

once an EHC plan has been prepared, it must maintain the plan.

For the purposes of this Part, an EHC plan is a plan specifying—

the child's or young person's special educational needs;

the outcomes sought for him or her;

the special educational provision required by him or her;

any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs;

in the case of a child or a young person aged under 18, any social care provision which must be made for him or her by the local authority as a result of section 2 of the

any social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs, to the extent that the provision is not already specified in the plan under paragraph (e).

An EHC plan may also specify other health care and social care provision reasonably required by the child or young person.

Regulations may make provision about the preparation, content, maintenance, amendment and disclosure of EHC

Section 42 ("Duty to secure special educational provision and health care provision in accordance with EHC Plan") provides, so far as is relevant:

The duty on a local authority to keep special educational provision under review was first introduced by s 2(4) of the Education Act 1981 which provided:

This provision was re-enacted in s 159 of the Education Act 1993, which introduced a duty to consult, in these terms:

This was later consolidated with minor amendments in s 315 of the Education Act 1996, which provided as follows:

This section requires local authorities in England to keep under review the educational and training provision and social care provision made in their area for children and young people with special educational needs or disabilities and the provision made outside their area for children and young people with special educational needs for whom they are responsible and for those with disabilities.

Local authorities must consider the extent of provision and whether it is sufficient to meet children and young people's educational needs, training needs and social care needs. This complements the local authority's duties under section 14 and section 15ZA of the Education Act 1996 to secure sufficient schools and suitable education and training for young people.

When keeping their provision under review local authorities are required to consult with children and young people with special educational needs and disabilities, parents of children with special educational needs and disabilities, the bodies named in subsection (3) of the section and any other such people as the local authority thinks appropriate.”

The first case in which s 27 was considered in a reported decision of the Administrative Court was R (DAT) v West Berkshire Council [2016] EWHC 1876

In R (KE) v Bristol City Council [2018] EWHC 2103 (Admin) Judge Cotter QC said:-

The hearing of the present case before Supperstone J took place from 31 October to 2 November 2018. The judge delayed giving judgment because it was known to him and to the parties that a Divisional Court comprising Sharp LJ and McGowan J had reserved judgment in a very similar, though not identical, case about s 27 of the 2014 Act: R (Hollow) v Surrey County Council [2019] EWHC 618 (Admin); [2019] PTSR 1871. Judgment in the Surrey case was handed down on 15 March 2019. The court

As Mr Moffett QC also submits, an examination of the structure of section 27 makes this clear. First, it imposes a duty on a local authority to review the provision that is made in its area for children with SEND and the provision that is made outside its area for children with SEND who are from its area. Secondly, when reviewing the relevant provision, the local authority must consider whether it is sufficient. Thirdly, the duties are to be performed from time to time, as the occasion arises. In this connection, no specific 'trigger' for the duty to review is provided. Thus by s 12(1) of the Interpretation Act 1978, the power may be exercised, or the duty is to be performed, from time to time as occasion requires. Fourthly, when reviewing the relevant provision and considering whether it is sufficient, the local authority must consult a wide range of persons and bodies who are likely to have an interest in the relevant provision, namely all those bodies or individuals specified in section 27(3) of the 2014 Act.

These are children and young people in its area with special educational needs, and their parents; children and young people in its area who have a disability, and the parents of children in its area who have a disability; the governing bodies of maintained schools and maintained nursery schools in its area; the proprietors of Academies in its area; the governing bodies, proprietors or principals of post-16 institutions in its area; the governing bodies of non-maintained special schools in its area; the advisory boards of children's centres in its area; the providers of relevant early years education in its area; the governing bodies, proprietors or principals of other schools and post-16 institutions in England and Wales that the authority thinks are or are likely to be attended by children or young people for whom it is responsible, or children or young people in its area who have a disability; a youth offending team that the authority thinks has functions in relation to (i) children or young people for whom it is responsible, or (ii) children or young people in its area who have a disability and such other persons as the authority thinks appropriate.

We would add that although the drafting of section 27(3) is not entirely clear, in our view, the duty of consultation applies compendiously to the functions described by sections 27(1) and (2). That is, we do not consider that what is contemplated is consultation in relation to the review, pursuant to section 27(1) and section 27(3) and then a further consultation in relation to the sufficiency of provision, pursuant to section 27(2) and section 27(3).

The claimants' case that section 27 of the 2014 Act is engaged by the decision under challenge must carry with it the proposition that the extensive duties of consultation made mandatory by section 27(3), of the many different parties who must be consulted, are engaged whenever a local authority makes any alteration to SEND services, including budgetary decisions of the kind taken by the Council in this case. This is an interpretation that we are unable to accept. We do not consider Parliament can have intended that the extensive and onerous duties of consultation made mandatory by section 27, should be undertaken on a "rolling basis" let alone, that it would be triggered every time a change is made to the provision of SEN. Such an interpretation would be capable of leading to absurd results, adversely affecting both the ability of local government to carry out its business, and the amount of resources available to meet the needs of those the legislation is designed to protect.

In our view, there is nothing in the legislation, or legislative history for that matter, to support such an interpretation, or to indicate that this was Parliament's intention. On its face, and when read in the statutory context to which we have referred, in our view, the legislation imposes a duty on local authorities, which arises from time to time, to consult at reasonable intervals, those identified in section 27(3) in order to keep the provision referred to under review, in which connection local authorities must consider the extent to which the provision referred to is sufficient to meet the educational needs, training needs and social care needs of the children and young people concerned.

The case for the claimants rests here on an observation made by Laing J in DAT and on a finding in KE that a specific duty to consult under section 27 of the 2014 Act arose on the facts of that case. In DAT, it was held that the duties imposed by section 27 must bite where a local authority makes a decision which will necessarily affect the scope of the provision referred to in section 27. However, in the short passage in her judgment, at para 30, where section 27 was considered, the judge gave no reasons for her conclusion, and expressed misgivings about it, in particular because, as she said, she had heard limited, if any argument on the point, and had not been referred to any material which explained the frequency with which the duties were expected to be exercised. In that connection the judge was not referred to section 12(1) of the Interpretation Act 1978 to which we have referred.

We think the judge was right to express those misgivings. If her reluctant interpretation were to be correct, the results would be startling indeed. This would mean that every time a local authority makes a decision that will affect the scope of provision made in its area for children with SEND or the provision that is made outside its area for children with SEND who are from its area, no matter how small, it must review the entirety of its provision both in and outside its area. It must consider whether the entirety of its provision is sufficient and it must consult the wide range of persons and bodies identified (including children with SEND) whether the decision is to reduce the scope of provision or increase it, regardless of the interest that such consultees, such as youth offending teams, might have in any change.

The decision in KE which referred to and relied on the decision in DAT, carries the claimants' case in this regard no further; the judge in KE did not refer to the terms of section 27, referring only to a duty to consult "relevant children and their parents" without reference to the actual breadth of the consultation requirement. In the circumstances, and with great respect to the judges concerned, we consider their interpretation of section 27 of the 2014 was wrong, and we would decline to follow it (for this purpose, see R v Greater Manchester Coroner, ex p Tal [1985] QB 67, 81).

In the circumstances, in our judgment, both the claimants' substantive and procedural case under section 27, namely that it gave rise to a duty to consult, must fail.”

On this aspect of the case which was before Supperstone J, he agreed with the Divisional Court’s analysis in Surrey of s 27 and was not persuaded that there were grounds for departing from it. He did not consider that s 27(2) was engaged in the present case, nor that the s 27(3) duty to consult arose.

The most recent case cited to us was the decision of Swift J in R (ZK) v London Borough of Redbridge [2019] EWHC 1450 (Admin). As in the present case at first instance, Redbridge’s SEND provision was challenged on a number of grounds. One of these was a failure to consult under s 27 about the sufficiency of SEND provision at any time between 1^st September 2014 (the date on which s 27 came into force) and the issue of proceedings in late 2017, with two exceptions of consultations concerning: (a) a High Needs Review in preparation for a revised national funding formula for the 2018-19 academic year, and (b) an annual review of provision for the support of visually impaired pupils in mainstream schools.

Swift J noted that:-

Swift J then referred to the Surrey case and observed that the Divisional Court had there taken a different view from the one reached by Elisabeth Laing J in DAT as to whether the s 27 obligations were triggered by specific events. Having cited paragraphs 102-105 of Surrey, Swift J continued:-

Rather, in Hollow, the court relied on Section 12 of the Interpretation Act 1978 as a sufficient explanation of when the section 27 obligations will arise

This does not, however, address the substantive content of the section 27 duties – i.e. what is required to discharge the obligations imposed. As I see it, this is point [sic] that arises in the present case. The outcome of the section 27 argument in this case does not depend on whether or not the section 27 duty is triggered by events in like or similar manner to the public sector equality duty. On the facts of this case the Claimant does not point to any specific trigger event.

I consider that in substance, the section 27 duty is in the nature of a strategic obligation. Section 27 is a more sophisticated and subtle function than many which are imposed on local authorities. As formulated, section 27 suggests local authorities ought to take some sort of programmatic approach to the review and assessment of their general provision for children who are disabled or who have special educational needs. I do not suggest that what is required is a written programme. Section 27 is directed to substance not form. What is required is something programmatic in the sense that in the course of a sensible period of time, a local authority monitors and evaluates the provision it makes, leading overall to reconsideration of whether that provision ought to be the provision that continues to be made.

It is likely that from time to time, a range of different steps may be appropriate if a local authority is to review and consider the sufficiency of the provision it makes available. Any local authority may in the first instance decide for itself what steps should be taken and when they should be taken. Section 27 does not contain obligations of the sort that lend themselves to an overly prescriptive approach by the courts. A "one size fits all" approach ought not to be the objective. Local authorities should be best-placed to determine for themselves what the elements of a review programme should be, subject always to review by the courts against the well-known Wednesbury standards of purpose, relevance and rationality. What a local authority might do in discharge of its section 27 obligations could include general strategic review exercises; it might also include more specific exercises prompted by particular decisions or circumstances. Such actions, perhaps a mix of higher level exercises and lower level exercises, perhaps a range of interlocking steps, will collectively, demonstrate compliance with the section 27 duties.

In the present case the Claimant's case is that since September 2014 when section 27 came into effect, Redbridge has not acted so as to comply with its requirements. In fact, the section 27 duty is not as new as that submission might be taken to suggest: see the judgment in Hollow at paragraphs 88-90. In respect of the arrangements for special educational needs provision there were precursors to section 27 of 2014 Act in section 2 of the Education Act 1981, section 159 of the Education Act 1993, and section 315 of the Education Act 1996.

In this case Redbridge points to two matters indicating compliance with section 27. The first is a High Needs Review undertaken in response to the introduction of a new national formula for the 2018/19 academic year. The review covered the whole of what is referred to as the "High Needs block" which comprises services provided to children and young persons up to the age of 25 who are assessed as having high needs as a result of disability or special educational need. In scope, the High Needs Review covered all expenditure on special educational needs funded through the High Needs budget. The work of the Review included discussion with those involved in the provision of services, and consultation with those who have EHCPs and their parents. The second matter Redbridge relies on is the annual process by which it determines in relation to the provision of the support for VI pupils in mainstream schools, the nature and extent of services it buys-in from JCES. This process is specific to a single area of service provision. It may well not 67. entail any, or any significant consultation with those in receipt of those services. It does include review of provision by the Council's officers, and approval by elected members of the arrangements proposed for the following year.

The Claimant's response is to the effect that the JCES reviews do too little as they only concern provision of outreach services for visually impaired pupils in mainstream schools, while exercises such as the High Needs Review do too little because they are too broad and insufficiently focused on matters such as outreach provision for pupils with visual impairments.

In the context of the section 27 obligations as I have sought to describe them, I do not consider that either criticism is valid. Compliance with the section 27 duties will not necessarily rely on single, set-piece, comprehensive exercises. A mix of generic and specific actions is capable of being sufficient, so long as the overall consequence is the progressive review and assessment of the provision that a local authority makes. In the present case, I do not consider there to be any sufficient evidence to make good the submission that Redbridge has failed to comply with its section 27 obligations.”

Mr David Wolfe QC submitted that Surrey did not directly concern s 27 and that the conclusions of the Divisional Court in relation to s 27 were obiter; but in any event submits that their interpretation of the section was wrong in a number of respects. The duty is not to “review” the Council’s provision for SEND but to “keep under review” that provision. It was accordingly wrong to say (by reference to s 12 of the Interpretation Act 1978 or otherwise) that s 27 only requires a local authority to carry out a strategic review “from time to time” (the 1978 Act wording) or “at reasonable intervals” (the phrase used by the court in Surrey). What s 27 requires is an ongoing process by which the local authority is alert to any changes which may require it to consult about the sufficiency of the SEND provision in the borough.

Mr Wolfe also takes issue with the finding of the Divisional Court in Surrey at [98] that s 27 is “concerned with consideration at a strategic level of the global provision for SEN made by a local authority …”. He submits that the words “strategic” and “global” do not appear in the text of s 27. The section does not impose an obligation to carry out a review of all the authority’s SEND provision at the same time. The Appellants do not, therefore, accept the finding in Surrey at [105] that a small change in one aspect of SEND provision would require a local authority to review the whole of its provision, both in and outside its area.

The Appellants argue that a careful reading of subsections (1) and (2) of s 27 makes it plain that these are independent provisions. If they were intended to be carried out together, they would either form part of the same subsection, or s 27(2) would begin with the words “in exercising its functions under subsection (1)” or something similar. The use of the plural word “functions” in s27(3) leaves open the potential for the obligation to keep under review pursuant to s 27(1) and the consideration of sufficiency pursuant to s 27(2) to arise separately. Mr Wolfe argues that by treating the latter as being linked to the former, and the former as being only a periodic obligation to carry out a global or strategic review, the Divisional Court has interpreted the duties in a way in which there could be many substantial changes to

It was also submitted that there is no obligation under s 27(3) to consult every person or organisation in the list of subsections: it would be sufficient for the local authority only to consult those people or bodies identified in s 27(3) which are relevant to the function being exercised.

Mr Wolfe argued that the Appellants’ interpretation of the section would not lead to

Mr Auburn, in his concise and compelling response on behalf of the Council, submitted that s 27(1)-(2) of the 2014 Act impose a single duty. This is shown, for example, by the use of the definite article at the start of subsection (2). “The authority” referred to in subsection (2) is the one fulfilling its obligation under subsection (1) to keep SEND provision under review. When doing so it must consider the extent to which that provision is sufficient to meet the needs of the children and young people concerned.

Mr Auburn submits that this construction is supported by the Explanatory Notes to the 2014 Act as well as by the 2015 Code of Practice. Paragraph 186 of the Explanatory Notes (cited above) says that s 27 requires local authorities in England to keep the SEND provision under review. Paragraph 187 says that they must consider the extent of the provision and whether it is sufficient to meet children and young people’s educational, training and social care needs. Paragraph 188 then says that “when keeping their provision under review local authorities are required to consult…”. The draftsman of this paragraph clearly regarded the preceding two paragraphs as forming part of a single duty. In the 2015 SEND Code of Practice issued jointly by the Department for Education and the Department of Health, paragraph 4.19 makes this point even more clearly by saying that [emphasis in the original]:-

Mr Auburn further submits that the consultation obligation imposed by s 27(3) is indivisible. When the authority carries out a consultation under s 27(3) it must consult each of the bodies or persons on the list in subparagraphs (a) to (j), together with such

Mr Auburn points out that there are three levels of decision-making relevant to SEND provision for children and young people. The first is individual decisions. These require each individual child or young person to be provided with a draft EHCP which must (s 38(2) of the 2014 Act) be the subject of individual consultation with each young person or a parent of each child.

At the next level up there has to be annual consultation with schools conducted through the local Schools Forum. The Schools Forums (England) Regulations 2012, reg 10 provides so far as material that:-

the places to be commissioned by the local authority in different schools and other institutions and

the arrangements for paying top-up to schools and other institutions.”

The third and broadest level of decision-making is that required by s 27. Mr Auburn submitted that the Divisional Court in Surrey was right to find that this was a global or strategic review to be carried out from time to time and on which the very extensive consultation required by s 27(3) would have to take place. Not every budget decision affecting SEND provision engages s 27. The Schools Forum is the statutory basis for consultation on the type of decision under review in the present case, namely a modest reduction in part of the budget for the forthcoming financial year.

I accept the submission of Mr Auburn that s 27(1)-(2) create a single duty. Each local authority to which the section applies must keep its SEND provision (not only educational but also training and social care provision) under review, and in doing so must consider the extent to which that provision is sufficient to meet the needs of the children and young people concerned. This seems plain to me from the wording of s 27(2), with its use of the definite article in the phrase “the authority” as well as the further reference back to s 27(1)(a)-(b); and the absence of any word such as “also” before “consider”.

Since the interpretation of the section is in my opinion clear and unambiguous without recourse to external sources, it is unnecessary to rely on the Explanatory Notes to the Act or the 2015 Code of Practice. Mr Wolfe did not seek to advance the traditionalist view that such documents, in particular a Code of Practice, are not a legitimate aid to statutory interpretation. (This view is now rather outdated, and I note that both documents were cited in the Surrey case, apparently without objection, and referred to in the judgment.) What they do show is that in each case the drafters of the documents – presumably parliamentary counsel for the Explanatory Notes and Departmental civil servants for the Code of Practice – thought that s 27(1)-(2) created a single duty: which is at least some reassurance to me that my reading of the statute is not an eccentric one.

I also agree with Mr Auburn that the duty to consult imposed by s 27(3) is indivisible. Again this is the plain construction of the words used. There is no limitation of the duty to consult each of the people and bodies on the list created by s 27(3)(a)-(j). The local authority can add to the list (s 27(3)(k)) but not subtract from it.

The decision in Surrey is not binding on this court; and it is therefore an academic question whether the Divisional Court’s interpretation of s 27 was essential to the decision or merely obiter. Whichever it was, I agree with it, in particular with the finding at [98] that s 27 is concerned with consideration at a strategic level of the global provision for SEND made by a local authority; and with the observation at [99] that the duties are to be performed from time to time, as the occasion requires, with no particular “trigger” for the duty being specified.

It follows that, like the Divisional Court in Surrey, I respectfully disagree with the observation of Elisabeth Laing J, in the final sentence of paragraph [30] of her judgment in West Berkshire (albeit with misgivings, as she made clear), that a duty to consult under s 27(3) arises whenever a local authority makes a decision which will necessarily affect the scope of its SEND provision; and with paragraph [113] of Judge Cotter’s decision in Bristol.

I agree with the observations of Swift J in paragraphs [63]-[64] of Redbridge that the s 27 duty is in the nature of a strategic obligation and that local authorities should be best placed to decide for themselves what the elements of a review should be, subject to review by the courts against Wednesbury standards. It is not necessary to decide in this case whether Swift J was right to say that s 27 requires local authorities to take “some sort of programmatic approach” to reviewing and assessing the sufficiency of their SEND provision, or that a “mix of higher level and lower level exercises” will collectively demonstrate compliance with s 27.

I reject Mr Wolfe’s argument that the reduction of 5% in the Element 3 Resource Level funding (a lower reduction overall, as Mr Lee explains in paragraphs 59-61 of the witness statement cited above) was so close to the “tipping point” that consultation with parents, carers and young people affected was required by law. The argument, with respect, is circular. Mr Lee says at several points in paragraphs 55-61 of his statement that the Council took the view that a 5% reduction in Element 3 could be “absorbed” by schools making efficiency savings without compromising SEND provision for individual children; that it was “within the capacity of schools”; that SEND provision for individual children “could be maintained” despite the 5% reduction; that it would “not put at risk” such individual provision; and so forth. Nothing in his evidence suggests that 5% was a “tipping point”. It cannot be the case that if a local authority rationally concludes that a particular level of saving on SEND provision can be achieved without a significant adverse impact, but that a more drastic budget reduction (which it is not proposing to implement) might well have such an impact, that is enough to bring s 27 into play.

I do not consider that this modest reduction in one element of SEND funding was sufficient to trigger a strategic review under s 27(1)-(2) with the consequent requirement of widespread consultation under s 27(3). It did necessitate consultation with the Schools Forum under the 2012 Regulations, which is what occurred. I would leave for another day the issue of what level of major budget cuts or transformation of a local authority’s SEND provision would trigger a wider duty to consult either under s 27 or at common law.

It is therefore unnecessary to consider Mr Auburn’s fallback defence, under s 31(2A) of the Senior Courts Act 1981, that even if the consultation which the Claimants argue was required by s 27(3) had occurred, it is highly likely that the outcome for the Appellants would not have been substantially different.

I would accordingly dismiss this appeal.

I agree.

I also agree.

This appeal is dismissed.

The Appellants do pay the Respondent’s costs of the appeal, to be subject to a detailed assessment on the standard basis, if not agreed.

The Appellants’ liability to pay costs under paragraph (2) above shall not be enforced save following and in accordance with a determination by a costs judge of the amount which it is reasonable for the Appellants to pay in accordance with section 26(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The Appellants’ costs of the claim shall be the subject of a detailed assessment in accordance with the Civil Legal Aid (Costs) Regulations 2013.

Permission to appeal is refused.