Shaw & Anor, R (On the Application Of) v Secretary of State for Education

The claimant disabled children challenge decisions of the defendant Secretary of State by statutory notices and secondary legislation, taken in April, May and June 2020 in the light of the current coronavirus pandemic, to modify and reduce the obligations on local authorities to make statutory educational and health care provision for children and young people with special educational needs and disabilities (SEND) in England.

The decisions challenged are as follows. The first decision is to enact the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the 2020 Regulations), temporarily amending 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.

The second, third and fourth decisions challenged are to issue statutory notices (the three notices) modifying the duty to secure the provision specified in EHC plans under section 42 of the Children and Families Act 2014 (the 2014 Act). The three notices (the May notice, the June notice and the July notice) were issued pursuant to powers conferred by the Coronavirus Act 2020 (the 2020 Act). Their 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 2020 Regulations entered into force on 1 May 2020 and, by their terms, will cease to have effect on 25 September 2020. The second, third and fourth decisions had effect during the three calendar months May, June and July 2020 respectively, thus covering the period from 1 May to 31 July 2020. The last of the notices expired at the end of July 2020 and the duty to secure the provision in an EHC plan has from 1 August 2020 returned to normal.

The five grounds of challenge are: breach of a duty to consult prior to making the 2020 Regulations and issuing the three notices; 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; and in breach of section 7 of the Children and Young Persons Act 2008 failing to have in mind the aim of promoting the well-being of children when making the 2020 Regulations and issuing the three notices.

I gave directions on 1 July 2020 for a “rolled up hearing” of the claim, to be heard the same month. The matter came back before me at the end of July. The defendant submits that the claim is academic in respect of the second, third and fourth decisions, as they are already spent, but accepts that the challenge to the first decision – to make the 2020 Regulations, due to remain in force until 25 September 2020 – needs to be determined.

The defendant further submits that in any event, all aspects of the claim are unarguable or, alternatively, should be dismissed; and that, in relation to the first ground of challenge (failure to consult), if that failure was unlawful, I must nonetheless refuse leave to apply for judicial review on the ground that the outcome for the applicants would not have been substantially different if the conduct complained of had not occurred, i.e. if a consultation exercise had taken place (see section 31(3C) and (3D) of the Senior Courts Act 1981).

The claimants deny that this latter point is correct and deny that the claim is academic; and they argue, further, that even if it is correct to say that the outcome would not have been substantially different had a consultation exercise been undertaken, I should nevertheless grant leave to apply for judicial review and allow the claim as it is appropriate to do so “for reasons of exceptional public interest” (see section 31(3E) and (2B)).

The statutory regime for making provision for children with SEND was overhauled in 2014 following extensive consultation. The new EHC plans combined educational provision with health care and replaced the old statements of special educational needs with the new EHC plans, which can last until the age of 25.

The new governing instruments became the 2014 Act and the corresponding regulations, the 2014 Regulations. Part 3 of the 2014 Act contains the provision for children with SEND. Special educational needs (SEN) are defined in section 20. The special educational provision (SEP) required to meet those needs, together with health care and social care provision, are defined in section 21.

By section 36, the relevant local authority must consider a request to assess those needs (an EHC needs assessment) and decide whether it may be necessary for the child to have an EHC plan specifying the provision required to meet the child’s needs. Where the EHC needs assessment leads to the conclusion that SEP, health care or social care is necessary, the authority must secure that an EHC plan for the child is prepared.

By section 42 of the 2014 Act, unless the child or young person’s parents have made suitable alternative provision, the authority must “secure the specified special educational provision for the child or young person” (section 42(2)) and any health care provision must be provided by the “responsible commissioning body” (section 42(3) and (4)).

The EHC plan must be reviewed every 12 months (section 44). Under section 51, there is a right of appeal to the First-tier Tribunal against various decisions including a decision not to secure an EHC needs assessment and a decision as to the content of an EHC plan. These decisions are of vital importance to the children and young people concerned. They greatly affect their lives and futures, determining where and how they are to be educated and cared for.

The processes for deciding whether to carry out an assessment and for carrying out assessments and making EHC plans are set out in the 2014 Regulations. They require reporting by expert professionals such as specialist teachers, educational psychologists, doctors and others able to contribute to assessing educational and health needs. The 2014 Regulations include detailed provisions stating the procedure and time limits for each step of the process, including amendments to EHC plans following a review and compliance with orders made by the First-tier Tribunal on appeal.

The Coronavirus Bill received its first reading in the House of Commons on 19 March 2020 and became the 2020 Act, entering into force six days later on 25 March 2020. Section 38(1)(b) provides that Part 1 of Schedule 17 makes provision enabling the Secretary of State to give notices disapplying or modifying enactments.

Schedule 17, paragraph 5(1)(b) gives the Secretary of State power to modify for a specified period the enactments listed in a table in paragraph 5(6), in the manner set out in the table. By paragraph 5(7) the specified period may not exceed one month. Among the enactments that may be modified is section 42 of the 2014 Act, enacting the duty (the section 42 duty) to secure the SEP and health care provision in an EHC plan. The section 42 duty may be modified so that the duty “is to be treated as discharged if the person has used reasonable endeavours to discharge it”.

A notice disapplying or modifying an enactment may be limited by reference to a specified person or description of persons, a specified area or any other matter (paragraph 5(2)). A notice disapplying or modifying an enactment “must state why the Secretary of State considers that the issuing of the notice is an appropriate and proportionate action in all the circumstances relating to the incidence or transmission of coronavirus”.

Paragraph 6 of Schedule 17 gives the Secretary of State power to make regulations amending the list of enactments that may be disapplied, or the table in paragraph 5(6) setting out the enactments that may be modified “so as to add an enactment relating (directly or indirectly) to children, education or training, or to vary or remove an entry” (paragraph 6(1)). The Secretary of State must publish a notice under paragraph 5 and take such other steps as he considers reasonable to bring it to the attention of those likely to be affected.

The 2020 Regulations were made on 28 April 2020, laid before Parliament on 30 April 2020 and entered into force on 1 May 2020. By regulation 2(2) they will cease to have effect on 25 September 2020. As explained in the explanatory note at the end, they “make amendments to secondary legislation relating to special educational needs and disability in order to provide exceptions to time limits set out in that legislation where they cannot be met because of a reason relating to the incidence or transmission of coronavirus”.

Regulation 5 inserted a temporary regulation 2A into the 2014 Regulations:

“Relaxation of time periods due to coronavirus exception

2A.-(1) Where the coronavirus exception applies, any requirement in any of the regulations specified in paragraph (3) for action to be taken within a specified period of time or by a certain day is to be read instead as a requirement for such action to be taken as soon as reasonably practicable.

(2)

The coronavirus exception applies where it is not reasonably practicable for a person to meet a requirement referred to in paragraph (1) for a reason relating to the incidence or transmission of coronavirus.

(3)

The following regulations are specified for the purposes of paragraphs (1) and (2)—

….”

There then follows a list within regulation 2A(3) of the 2020 Regulations, lettered from (a) to (p), of provisions in the 2014 Regulations setting maximum time periods for the carrying out of various steps in the process of assessment and making of EHC plans for children and young people with SEND. The effect of inserting the new temporary regulation 2A into the 2014 Regulations is accurately summarised in the explanatory note at the end of the 2020 Regulations, thus:

“Regulation 5 inserts a glossing provision into the SEND Regulations 2014 which relaxes certain requirements in those Regulations for actions to be taken within specified time limits where it is not reasonably practicable for a person to meet those requirements for a reason relating to the incidence or transmission of coronavirus. Instead, any such requirement is to be read as a requirement for such action to be taken as soon as reasonably practicable.”

On 30 April 2020, the day before the 2020 Regulations entered into force, the Secretary of State published non-statutory guidance on the changes to the law entitled Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19) (the Guidance). It has since been updated, most recently on 6 July 2020.

The Guidance explains in detail over 18 pages the changes and the reasoning behind them to a target audience of families, parent carer forums, providers of SEND information, advice and support services, local authorities, health commissioning bodies, health care professionals and others involved in SEND assessment and provision.

The Guidance emphasises “[t]he importance of co-production”, which I was told means “working together”, and of co-operation (which also means working together) between local authorities, early years providers, schools, colleges and other education providers. It included examples of “alternative arrangements” in the performance of the modified duty under section 42 of the 2014 Act, for example alterations to the frequency and timing of delivery of provision in school.

The Guidance also explained that the elements of EHC needs assessments and plans were unchanged, but that the timescales were modified in accordance with the 2020 Regulations. Rights of appeal to the First-tier Tribunal were unchanged and that tribunal was doing its best to continue its programme of determining appeals during the coronavirus outbreak. The publishing of the Guidance coincided with the publication of the first of the three notices embodying the first, second and third decisions.

They were the May notice, signed by the Secretary of State on 28 April 2020 and published on 30 April. It was operational during the maximum one month period from 1-31 May 2020. That was followed on 29 May 2020 by the June notice, covering the period from 1-30 June 2020; and on 29 June 2020 (after these proceedings had been issued) by the July notice, covering the period from 1-31 July 2020 and thus expiring the day after the second and final day of the hearing before me. These three notices modified the section 42 duty during that three month period.

There is currently a pandemic in this country and many other parts of the world. The disruption, upheaval, suffering and deaths caused by the coronavirus pandemic are too well known to need further elaboration. Many aspects of life changed suddenly and unexpectedly. Parliament and the government have enacted unusual primary and secondary legislation in response to the pandemic. Education and health care are among the sectors most severely affected.

The facts relevant to the present claim are documented in detail in the bundles used at the hearing. I have already mentioned the timing of the key legal instruments adopted during the unfolding history. The parties helpfully set out the detailed facts in an agreed chronology, which is largely reproduced as an appendix to this judgment. I will concentrate here on the main events but in reaching my decision I have been taken through and considered the matters set out in the chronology and in the documents shown to me at the hearing.

The claimants are both disabled children with EHC plans. They have not attended school since March 2020. Both have received only limited SEP during the pandemic. Their parents and supporters believe that the “reasonable endeavours” modified version of the section 42 duty leaves the claimants and others like them vulnerable to loss of the provision they need and should receive and that local authorities and health care providers are using the pandemic and the dilution of their legal duties to avoid what should be their obligations to provide the SEP specified in the claimants’ EHC plans.

An announcement was made in the House of Commons by the Secretary of State for Health and Social Care on 16 March 2020, stating that unnecessary social contact should cease. On 18 March, the Prime Minister announced the closure of schools, colleges and nurseries from 20 March, except for the children of key workers and vulnerable children. On 19 March, the Coronavirus Bill was introduced in the House of Commons.

On 23 March, during the accelerated passage of the Bill through Parliament, the Prime Minister announced lockdown measures on national television. The same day, ministers decided in principle to relax the statutory timescales for EHC plan processes. On 24 March, Vicky Ford MP, a Minister in the Department for Education, wrote an open letter for circulation to all partner organisations, parents and others in the SEND sector.

The letter referred to published guidance on supporting vulnerable children and alerted recipients to the coming changes. She explained that local authorities would have to decide whether children with SEP would be safer at school or at home. She informed that the Council for Disabled Children (CDC), a charity, would act as information provider via its website and would collate and pass on “questions and queries from stakeholders”.

The National Network of Parent Carer Forums (NNPCF) responded in a document the same day making recommendations and observations. They raised many concerns and asked 26 specific questions relating to the published guidance on vulnerable children and young persons, to which the Minister had alluded in her open letter, and about how the needs of those vulnerable persons would be met.

That was followed on 26 March by a letter from Ms Anne Longfield OBE, the

Officials at the Department for Education met the CDC and NNPCF on 30 March and held briefing sessions. These are documented in emails, most of them so heavily - and inappropriately, in my view - redacted that it is a difficult and slow process to make sense of them. They show that a dialogue was taking place between government and those organisations. Minister Ford met Dame Christine Lenehan of the CDC on 31 March. 36. Dame Christine wanted “clarity around the powers of the Bill” (i.e. the 2020 Act). She referred to “confusion” among local authorities “around what they should be doing”. The same day, departmental officials met representatives of the Association of Directors of Children’s Services (ADCS). This body brings together those in charge of delivering children’s services by local authorities. The meeting included discussion of many issues arising from the closure of schools, including new guidance relating to “Vulnerable Children and largely the EHCP cohort”.

There were further communications and discussions during the first few days of April. On 3 April, Ms Alison Fiddy, the chief executive of Independent Provider of Special Education Advice (IPSEA), wrote to the Department lamenting that parents were being advised by local authorities that the latter would not be complying with their duties under the 2014 Act. She asked the Department if or when the section 42 duty might be modified and requested that local authorities be reminded there had been no disapplication of timescales for EHC plan processes.

The Department held a meeting with the ADCS and the Local Government

On 6-8 April, a document was produced on an online forum of medical and clinical officers responsible for health care provision, hosted by the CDC. It summarised over several pages the changes to their working patterns and practices arising from the pandemic and the lockdown; for example, officers were being redeployed to do Covid-19 related work. Many were working remotely or in different settings and this was diverting them from availability to do work on EHC assessments and plans. This intelligence was gathered from health care providers and was collated and forwarded by the National Children’s Bureau (NCB), a children’s charity, to the Department.

It was followed by a letter of 8 April sent on behalf of all Directors of Children’s Services in the East Midlands to the Secretary of State complaining that “the void around SEND becomes more obvious every day”. The letter explained that all the 2014 Act duties remained in place and that this was leading to pressure from parents and carers and threats of legal action, which in a period of “global emergency” was “both untenable and unacceptable”. The author requested, among other things, that the section 42 duty be disapplied completely, not merely modified; and asked for EHC assessment and planning timescales to be relaxed.

Between 6 and 27 April, officials at the Department undertook structured calls with SEN officers from 127 local authorities. Summaries of 88 of the calls were compiled and tabulated. The picture was mixed but it was plain that much of the SEP normally made was not being delivered. For example, one local authority reported graphically that its main health provider had “pulled up drawbridge and gone to trenches”. Another was “managing parents expectations”, some of whom were pushing for an “external placement”. A document from within the Department at around this time indicated that only about 3.9 per cent of children with EHC plans were attending school.

On 9 April, while this exercise was going on, an anonymous official, whose name was redacted out, made a written submission to Minister Ford seeking her agreement to exercise the power to modify temporarily the statutory deadlines for EHC assessments and plans and to note that advice would follow shortly that the duty to secure the SEP in EHC plans should be modified. The written submission envisaged that regulations would be laid before Parliament without observing the conventional 21 days of lead time.

The reasoning in the submission included reference to pressure from local authorities and health bodies and the possibility of legal challenges; parent groups and SEND stakeholders were also recorded as having concerns and “the sector generally recognises that changing the law is rightly part of the Government’s response to COVID-19 and parents are keen to have greater certainty as to their entitlements”.

The anonymous official argued that changing the law “would not … in itself have a major impact on the current levels of service … the outbreak has already led to a significant diminution in that provision… .” There was a “significant mismatch between … the statutory duties … and … the current reality on the ground…”.

The reasoning was that the relevant duties would not be performed whether or not the law continued to require them to be performed. However, the changes would be controversial and legal challenge could be expected. Some authorities were already threatened with judicial review. It was therefore important to “get messaging on these changes right”. Public endorsement from bodies such as the ADCS and NNPCF should be sought; “conversations with these stakeholders” had already taken place, the official explained.

An equality impact assessment recognised the temporary disadvantage to some disabled children and that boys are twice as likely as girls to have EHC plans. These factors were considered to be outweighed by the public interest in local authorities and health bodies responding appropriately to the Covid-19 outbreak. They should be allowed to deploy their resources where they were most needed without risk of a successful legal challenge.

Further rounds of meetings and correspondence continued in the second and third week of April. Directors of Children’s Services in other regions followed the lead of the East Midlands in asking for duties in the 2014 Act to be disapplied completely and time limits for EHC assessments and plans relaxed. On 16 April, the Department circulated draft guidance on what became the changes in the law wrought by the four decisions.

Comments on the draft guidance were sought and received from interested parties, including the NCB, the NNPCF and another organisation called Contact, a charity for families with disabled children. A discussion was held with those bodies on 17 April. Ms Fiddy of IPSEA was telephoned on 20 April and asked to provide her comments by 5pm the next day, which she did.

A further submission to Ministers, from the Department’s Ms Sue Pickerill, was produced on 21 April. This sought approval from two Ministers of proposals to exercise various powers under the 2020 Act. The submission recorded that officials had “taken into account stakeholders’ views on the burdens that trying to meet legislative requirements are creating, whilst they are focusing on maintaining essential provision”.

Among the proposals was one to modify the section 42 duty in the manner provided for by the 2020 Act, to replace the absolute duty with a “reasonable endeavours” duty regarding the SEP specified in an EHC plan. The submission pointed to the requirement that a relevant notice must specify why the issuing of the notice was an appropriate and proportionate action in all the circumstances relating to the incidence or transmission of coronavirus.

Suggested reasons to be included in any notice were then set out and the Ministers were asked to consider those reasons. In relation to modifying the section 42 duty, the reasons suggested were: reduced available local authority resources; redeployment of local authorities’ and health care bodies’ staff to respond to pressures generated by the outbreak itself; the fact that only about 3.9 per cent of EHC plan children were attending school, making it in many cases impossible to make provision normally delivered in an education setting and only some of which could be delivered remotely; and allowing local authorities and health bodies to adapt to the situation.

The submission to Ministers then set out a strategy to “control the narrative” and

“mitigate criticisms around how this direction-making power will be used”. Both “proactive statement” emphasising limiting the spread of the virus and “reactive handling” of concerns of parents that their children are “no longer getting the support they need” would have to be used. There was an equality impact assessment similar to the previous one, though broader because other proposals (not relevant to this claim) were also addressed.

The first decision, to make the 2020 Regulations, was then made, together with the second decision, to issue the May notice, together with the Guidance. These three instruments together formed a package of measures. The 2020 Regulations were made on 28 April, the day the Secretary of State signed the May notice. The 2020 Regulations were laid before Parliament on 30 April, the same day as the May notice was issued and the Guidance was published.

I have already touched upon the Guidance, to which there is no separate challenge, though it clearly stands or falls with the 2020 Regulations and, while they were effective and current, the three notices. I have already explained the effect of the 2020 Regulations, which entered into force on 1 May, and the effect of the May notice.

The reasoning in the May notice mirrored that suggested in the written submission of Ms Pickerill. It was also stated in the notice that the Secretary of State had considered alternative options such as delivering provision remotely but that this was hampered by redeployment of staff and limitations on the ability of parents of children with SEND to participate remotely and the fact that remote provision would not comply fully with the duty.

An explanatory memorandum accompanying the 2020 Regulations stated the reasons for not complying with the “21-day rule”, a parliamentary convention requiring relevant instruments to be laid before Parliament for at least 21 days prior to coming into force. The explanatory memorandum continued:

“3.1

…. The instrument forms part of the Government’s response to the outbreak of coronavirus (COVID-19), a national public health emergency. This instrument will come into force on 1st May 2020, in order urgently to reduce pressures on local authorities, health commissioning bodies and others involved in EHC needs assessment and plan processes; thereby allowing them to focus on the response to coronavirus (COVID-19) and direct their resources where most needed. Local authorities in particular have asked for these changes to take effect as a matter of urgency.

3.2

If we complied with the 21-day rule, it would delay these bodies having the flexibility they need urgently to adapt their priorities during the coronavirus (COVID-19) outbreak. It was not possible to make this instrument sooner. The Government announced social distancing guidance on 16th March 2020, then introduced ‘stay at home’ rules on 23rd March. The Department was not in a position to assess the full extent and impact of these measures on the EHC needs assessment and plan processes immediately and needed to engage with the sector to understand the impact.

3.3

By taking effect on 1st May, we are also responding to calls from the families of those with SEND for greater certainty as to what they can reasonably expect over the EHC needs assessment and plan processes during the outbreak. It should also be noted that this instrument is relaxing the timescales for EHC need assessments and plan processes, rather than changing the substance of those processes.”

Later in the explanatory memorandum, the following passage appeared:

“10.

Consultation outcome

10.1

Given the importance of acting swiftly to change the law so as to free up local authorities, health commissioning bodies and the other public bodies concerned to respond to the current national public health emergency, no formal consultation was conducted. There is no legal requirement to consult on changes to the timescales covered in this instrument.

10.2

We have, however, discussed the principle of amending the timescales and why urgent action is needed with a range of stakeholders, including representative bodies for local authorities and parents of children with SEND and a number of specialist SEND organisations. Local authority representatives expressed strong support for the principle of changing the statutory deadlines to give greater flexibility over the deployment of resources. Representatives of the families of those with SEND and SEND organisations recognised the need for changes to the law during the coronavirus (COVID-19) outbreak, provided that those changes were proportionate. There was strong consensus among all stakeholders about the need for clear guidance to support implementation.”

A pre-action protocol letter then arrived at the Department, sent on behalf of the first claimant on 7 May 2020. The lockdown continued. Discussion, meetings, correspondence and debate about the first and second decisions continued through May. The Children’s Commissioner published a statement on 12 May expressing “serious concerns” about the 2020 Regulations and stating her view that “the downgrading of key duties towards children with SEND is disproportionate to the situation”.

The Department responded to the pre-action protocol letter on 22 May. The battle lines were drawn for what became this case. Ms Pickerill produced a further written submission to the two Ministers on 22 May. The May notice was due to expire at the end of the month, and the question arose whether to issue a further notice covering part or all of the month of June. The submission to Ministers was similar to the previous one.

The new development mentioned in the submission of 22 May was that officials had reviewed whether the relevant notices (including the May notice) should be renewed for June, in the light of what by then had become “conditional plans for the phased wider opening of education and childcare settings for selected groups of children and young people, in addition to vulnerable children and the children of critical workers, from 1 June 2020”.

Officials had, Ms Pickerill explained, “taken steps to engage with stakeholders’ [sic] and consider their views on the burdens that trying to meet legislative requirements are creating, whilst they are focusing on maintaining essential provision.” The conclusion was that:

“[i]rrespective of whether the planned conditional phased wider opening goes ahead from 1 June or provision is continued solely for children of critical workers and vulnerable children, we consider that the issuing of notices is an appropriate and proportionate action at this time”.

The evidence reviewed was described later in the submission, thus: feedback from the ADCS; intelligence from local authorities’ SEND heads of service received via departmental SEND advisers; the CDC’s dedicated medical officer and dedicated clinical officer forum; regional SEND lead officers from NHS England and NHS Improvement; and “[o]ther relevant evidence that has come to our attention, such as relevant research reports”.

On 29 May 2020, a group of about 50 organisations supporting children with SEND wrote to the Minister, Vicky Ford MP, expressing their concerns about the “disproportionate impact” of the 2020 Act and the Guidance on children with SEND “who already experience poorer outcomes than their peers”. They asserted that some local authorities were making “little or no attempt to engage with them to agree what provision in [EHC plans] will continue to be made and how and when this will happen … .”

The letter went on to express concern that reporting on required therapeutic interventions was not taking place, which could adversely impact on the children’s long term physical and mental health and well-being. Given the expectation of an imminent renewal of the May notice to cover the month of June, the letter asked “how your Department is monitoring these processes, what provision is being made; how the measures have affected children with SEND and what evidence will inform any subsequent decisions … .”

The letter asked for an assurance that the 2020 Regulations would not be extended beyond their current lifespan until 25 September 2020; and went on to raise the question how and when children with SEND could be expected to return to a school setting without the SEN support in their EHC plans in place to assist them on their return.

Then on 28 May 2020, the Secretary of State made the third decision, signing the June notice covering the period from 1-30 June 2020. The narrative and reasoning in it were similar to that in the May notice, but slightly expanded. The May notice became spent on 31 May and the June notice took effect from 1 June. Some schools did indeed reopen in early June to children beyond those of key workers and vulnerable children. A limited number of children in reception classes, year 1 and year 6 began to return to school.

A further pre-action protocol letter before claim was sent to the Department on 5

Saini J gave directions the same day, including an anonymity order in respect of the second claimant and his litigation friend, which remains in place. He gave directions

On 15 June, a number of schools opened their doors to year 10 and 12 students and those in secondary schools. The Department kept the position under review. Representations continued to be made by, among others, the NNPCF and feedback for monitoring purposes was provided by the ADCS.

On 16 June, a further submission to Minister Ford was provided, by an anonymous official. She or he emphasised the “significant implications for children and young people with SEND and their families” which the changes to the SEND regime had wrought. It was necessary to monitor the impact of the changes and assess whether they continued to be appropriate and proportionate, “given the implications for children’s rights”.

The official recommended that the Minister noted the proposed approach to monitoring the temporary changes and offer any views. The author explained further that a judicial review application was underway and that the Department had “come under pressure to carry out a Children’s Rights Impact Assessment” (CRIA) in relation to the temporary changes. This was not a statutory requirement but was recommended to supplement the prior equality impact assessments. The CRIA would be complete by the end of June.

The defendant filed its acknowledgment of service and summary grounds of resistance, together with written evidence, on 22 June. The CRIA was then completed and a further submission to Ministers incorporating it provided the next day, again penned by an anonymous official whose name has been blanked out.

The author recorded that in applying the “appropriate and proportionate” test, officials had, once again, taken steps to engage with stakeholders and consider their views. In the light of the partial reopening of schools, officials had also considered whether the modifications and disapplications in paragraph 5(6) of Schedule 17 to the 2020 Act remained appropriate or whether “there is a case for taking a more nuanced approach, by limiting the modifications and disapplications to specified persons, specified areas, or in other ways …”.

The recommendation in the case of the modified section 42 duty, however, remained the same: that the duty remained modified as before under a new notice to take effect from 1-31 July 2020. Officials considered, in the light of the CRIA, that the temporary changes to the legislation remained an appropriate and proportionate response to the extraordinary circumstances.

The evidence cited, on which that view was based, was described in similar terms to the description in the previous submission to Ministers, but was slightly expanded, to include more recent feedback including from “SEND stakeholders”, namely the CDC, Contact and the NNPCF; and the results of the Department’s “COVID-19 Pupils, Parents and Young People’s Survey”.

The view of the author was that despite the judicial review and the view of those who questioned whether a further notice was needed, and despite the wider opening of educational and childcare settings and increased attendance of children and young

Three options were presented to Ministers: to revert to the absolute duty under section

These options were then briefly assessed in turn. The first was considered premature:

The third option, continuing the status quo for another month, was therefore “strongly recommended”. The reasons were set out in an annex to the submission. The main reason was that “children and young people with [EHC] plans are still for the most part at home where their full provision cannot be secured or arranged irrespective of local authorities and health commissioning bodies continued efforts”.

The “detailed rationale” to the same effect was elaborated more fully in Annex B to the submission. The CRIA was summarised near the end of the written submission. The first part of it related to children generally, not just children with SEND. There was a discussion of various matters not relevant to this claim, including the disapplication of section 444 of the Education Act 1996 making school attendance compulsory.

In relation to children with SEND, the outcome of the CRIA (set out in full at Annex C to the written submission) was that “we believe … the adverse impacts on children and young people with EHC plans not necessarily receiving the provision specified in their plans in full whilst the notice is in force are appropriate and proportionate in the circumstances”. The Department had “taken steps to mitigate the negative impacts, detailed in the CRIA”; and:

“In addition we have prioritised vulnerable children and young people, including those with an EHC plan to attend school or college, where it is determined, based on a risk assessment, that their needs would be as safely or more safely met in the educational environment.”

The Secretary of State accepted the advice in the written submission. On 29 June he made the fourth decision, signing the July notice. The reasoning in support of the

“appropriate and proportionate” test referred to the partial reopening of some schools from early June and reflected the reasoning in the written submission. A paragraph was included referring to the subject matter of the CRIA and accepting the “negative impact” on those with EHC plans who were not receiving full provision.

It was also recognised that lack of full provision may also make it impossible to return to an education setting or make it more difficult to transition back to such a setting; but the modification was regarded as proportionate because it allowed local authorities and health commissioning bodies to adapt to the changing situation in their area and arrange “reasonable alternatives to the usual service” during the outbreak, such as delivering services remotely.

The July notice became effective on 1 July and remained so until 31 July. On 1 July, the case came to me on the papers and I directed a rolled up hearing, to take place during the second half of July. I allowed the claimants to amend the claim so as to challenge the July notice. Certain further evidence was filed by both parties in the weeks leading up to the hearing before me, which took place on 29 and 30 July as a “hybrid” hearing, with myself and the advocates in court, while others attended remotely, by Skype.

Of the five grounds of challenge, four attack the legality of the three notices (all except the third ground); while four (all except the fourth ground) attack the legality of the 2020 Regulations. The defendant accepts that the challenge to the 2020 Regulations is not academic, because they are to last until 25 September 2020, but contends that I need not determine the challenge to the three notices because they are all spent and have not been replaced.

Thus, I must address four of the five grounds of challenge even on the defendant’s case that the challenge to the three notices is academic. I therefore hope I will be forgiven for not spending too long on the issue whether the challenge to the three notices is academic. One might say that question is itself largely academic. I have to address all but one of the grounds anyway and it is better to address all five grounds in case of an appeal.

I was referred to the usual authorities: Lord Slynn’s speech in R v. Secretary of State for the Home Department ex p. Salem [1999] 1 AC 450, 457A-B and Silber J’s judgment in R (Zoolife International Ltd) v. Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin) at [36]; and to Lewis J’s recent decision on permission (under appeal) in R (Dolan) v. Secretary of State for Health and Social Care [2020] EWHC 1786 (Admin).

The claimants submit that the defendant may issue further notices at any time during the lifespan of the 2020 Act (currently two years, until March 2022); that if there was an unperformed obligation to consult (one of the grounds of challenge), that obligation will need to be performed before any future notice; that justice should not be defeated by adopting short term measures that expire before the court can catch up with them; and that the issues here are of serious public concern, as Saini J recognised in his initial directions order.

The defendant submits that the summer holiday period for schools and colleges is now upon us; that there is no present intention to issue any further notices; that there is no exceptional public interest reason to determine the legality of the three notices; that the legality of any future notices would be fact-sensitive, including in relation to

The short answer to this issue is the pragmatic one that I need to address all but one of the grounds of challenge anyway and that it is proportionate to address them all, in case of an appeal. If that were not so, I would have preferred the defendant’s submissions and declined to entertain the challenge to the notices. However, I would have done so with the caveat that short term mini-laws should not be used in future as a way of eluding justiciability.

June [C580-C581]

Amaze) and comments [C916-C920]