High Court hears council SEND cuts case

The Royal Courts of Justice
The Royal Courts of Justice (credit Steve F-E-Cameron/Wikimedia Commons)

Report by Victoria Munro, Local Democracy Reporter

The High Court has heard arguments for and against Waltham Forest Council’s decision to cut funding for special needs children in the borough, as part of a judicial review case brought by local parents.

The council’s cabinet voted on 19th March to cut the ‘top-up’ special educational needs and disability (SEND) funding by 10% for students in the lowest two bands of need, starting from 1st September. It followed months of protest by parents and teachers, who argued the council’s consultation on the changes had been inadequate. Campaign group Waltham Forest SEND Crisis raised £3,000 to launch a judicial review of the decision, which was heard at the High Court on 29th and 30th July.

The council has long argued the decision is difficult but necessary, both to allow an overhaul of funding and plug a £5.3million budget gap, and claims schools can apply to have each student’s needs reviewed if the cut makes their support inadequate. A total of 1,374 children will see their funding reduced if the change goes ahead. Councils have a legal duty to provide whatever special educational support each child needs.

On the first day of the two-day High Court hearing, brought on behalf of two affected children, parents insisted applying for extra funding is a delayed and difficult process and that any gap in support putting pressure on schools could result in their children being excluded from mainstream education.

Lawyer David Wolfe told the court that the council’s decision was unlawful because the process to review funding is “fundamentally broken, not least because it involves significant, unchallenged delays”.

He added: “The cabinet’s decision relied for its legality on a safety mechanism that’s ineffective. As a result of its decision, children will be unsecured for potentially significant periods.”

Legal firm Irwin Mitchell brought the case on behalf of two Waltham Forest children, aged six and nine, who both have special educational needs, attend a mainstream school, and cannot be named for legal reasons. Witness statements from the mothers of both children described how difficulties correcting insufficient funding had already affected their children’s support.

The six-year-old’s mother said it took “almost a year for his funding to be increased”, while the mother of the nine-year-old said her school’s request for more funding is still being processed.

David also referenced comments from the headteacher of the mainstream school that takes the largest number of children with special educational needs in the borough. Jennifer Smith, headteacher of Frederick Bremer School in Walthamstow, said the process of applying for additional funding was “cumbersome and unclear” and added it could sometimes be “several months” before the school received sufficient funding.

Council lawyer Peter Oldham, said the council’s decision to cut funding was “difficult” but “nonetheless perfectly lawful”. He insisted it was “a mischaracterisation of the decision to say it was only taken with a view to saving money” and explained the council also plans to completely review the funding ladder. He added that councillors “have to make judgements about how to share out precious resources and face the practical consequences of those decisions”.

Regarding alleged problems with the review process, Peter contested the length of the delay in the six-year-old’s case, stating the council was not initially informed of the need for a review. He added that “one would expect some time to be taken” over decisions involving large sums of public money.

A report presented to the cabinet in March stated no mainstream school would lose more than 1% of its funding under the new proposed model. A ‘Band E’ child’s funding would reduce by £843 in primary school and £714 in secondary school, while a ‘Band F’ child’s funding would reduce by £1,518 in primary school and £1,389 in secondary school.

On the second and final day of the High Court hearing, Peter insisted campaigners had offered “no real evidence” that there were delays in the SEND service. He told the court: “We had one case where there was a delay and that was it. The evidence simply does not show that there’s a structural fault in the panel process.

“There is no evidence of intervention from concerned regulators, no other extraneous information suggesting this is a SEND service that’s failing or in danger of failing.

“The claimants have been thinking about litigating since autumn last year, they have had a very long time to get their best evidence together and that is the sum of it.”

The council argues that many children in the lowest two bands are receiving more funding than needed and that only a minority, estimated to be around 15%, will need a review.

With the two-day hearing concluded, a verdict in the judicial review case is now being awaited.