Parents lose High Court case over SEND cuts

SEND protest by parents outside Waltham Forest Town Hall last month
A protest by parents outside Waltham Forest Town Hall in March 2020

Disappointment for campaigners against cuts to special needs budget, reports Victoria Munro, Local Democracy Reporter

An attempt by Waltham Forest parents to reverse a controversial funding cut for children with special needs has failed.

High Court judge Justice Murray rejected the argument that the council’s decision to cut funding last year posed “an unacceptable risk” to more than 1,300 affected children.

The council’s cabinet voted last March to cut ‘top-up’ special educational needs and disability (SEND) funding by 10% for students in the lowest two bands of need from 1st September.

Campaign group Waltham Forest SEND Crisis, which opposed the cut, raised thousands to launch a judicial review of the decision, heard at the High Court in July 2020.

In his long-awaited decision, published last month, Judge Murray wrote: “In my view, it is not arguable that the decision poses an unacceptable risk. 

“I acknowledge the sincerity and the strength and depth of feeling of the claimants’ witnesses regarding difficulties and frustrations they have experienced and continue to experience with the SEND process.

“There is a clear and strong disagreement by the claimants with the decision as a matter of policy but that disagreement, however strongly and sincerely held, does not mean that the decision is unlawful.”

The council argued the decision was difficult but necessary, both to allow an overhaul of funding and plug a £5.3million budget gap, and that schools could apply to increase funding if the cut made a child’s support inadequate. 

However, parents insisted any gap in support would add pressure to already-stretched schools and could result in their children being excluded from mainstream education.

Legal firm Irwin Mitchell brought the case on behalf of two Waltham Forest children with special needs, aged six and nine, who cannot be named for legal reasons. 

Lawyer David Wolfe argued that, because the process to review funding is “fundamentally broken”, any blanket cuts would leave some support inadequate for “significant periods”.

Witness statements from both mothers described how difficulties correcting insufficient funding had already affected their children’s support.

Speaking at the hearing, the six-year-old’s mother said it took “almost a year for his funding to be increased” after a request from his school.

Council lawyer Peter Oldham responded that the decision to cut funding was, while “difficult”, “nonetheless perfectly lawful”. 

He insisted it was “a mischaracterisation… to say it was only taken with a view to saving money” and that campaigners had offered “no real evidence” of alleged delays reviewing funding.

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.”

Judge Murray ultimately agreed that delays “in relation to some individual children” was not enough to prove “an unacceptable systemic risk”, as parents alleged.

He ruled that the council “clearly acknowledges” the risk that the cut would leave some children in need of additional funding but “has given reasons why that risk can rationally be addressed”.

A report presented to the cabinet when it voted to make the cut stated no mainstream school would lose more than 1 per cent of its funding under the new proposed model. 

The council also 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.

Following the decision, Waltham Forest SEND Crisis said they were “disappointed” but “delighted that the judge was able to provide clarity on the legal responsibilities of the council”.

They said: “Our view remains that cutting 10 per cent across-the-board from the top-up funding that goes towards supporting SEND children is both unethical and unjust. 

“It is well understood that the first lockdown had a particularly detrimental impact on children with special educational needs… [and] against this backdrop, the budget cuts appear even more heartless.

“Waltham Forest Council used the court case to stress that children who are currently underfunded will have the opportunity to have their financial support increased accordingly, and in a timely fashion. 

“Unfortunately, there is no publicly available policy that makes clear exactly how this is to happen. 

“We are calling on the council to remedy this oversight as a priority, and moreover honour their claim in court that they are committed to providing the support they are legally obliged to give.”

Grace Williams, the council’s cabinet member for children and families, explained all children whose care plans were created before September this year “will continue to receive their current level of support”.

She said: “At every point we have done our utmost to listen to and work constructively with parents.

“Demand for SEND services has increased by 35% in Waltham Forest since 2014.

“We have repeatedly lobbied the government to increase the amount of funding they provide… To date this has not happened.

“In the meantime, we have taken vital action to safeguard our local SEND services so that we are able to provide for local families who rely on our help.”