Stephen Knafler QC, Landmark Chambers
Every year, I give a talk at Legal Action Group’s annual community care conference, summarising the case-law developments over the last 12 months. I generally divide up cases between adult and children’s cases and work out how often the claimants have succeeded. In recent years, claimants in children’s cases have been substantially more successful than in adult’s cases. There has never been just one simple reason for this, but, factoring in my own personal experience, I think it’s fair to say that one factor has been that, overall, the judiciary has tended to view children’s cases more sympathetically.
2019 has not, however, been a good year for children.
Earlier this year, the Supreme Court decided that local authorities do not owe vulnerable children a duty to take reasonable care to exercise their functions under the Children Act 1989 so as to protect them from injury resulting from the extremely anti-social conduct of neighbours: Poole BC v GN and CN  UKSC 25, (2019) 22 CCLR 111 (Hale, Reed, Wilson, Hodge and Black JJSC). I wrote about this case earlier in the year and explained why, in my view, this decision took a wrong turn, essentially, because the Justices did not fully appreciate the extent to which some families with vulnerable children rely on local authority help.
Later in the year, there has been a series of failed attempts to judicially review decisions by local authorities to reduce different kinds of provision for children in need and children with special educational needs. There doesn’t seem much point in going over these cases, at this point. Any local authority, these days, can be expected – sooner rather than later –to undertake consultation lawfully, discharge the PSED and make a rational decision based on a proper understanding of the relevant law. And, if at first they don’t succeed, they almost inevitably get another chance and get it right later on if the service change is one that they feel compelled to make. As local authorities get more used to challenges of this kind, and as the Courts get more used to them and understand the financial difficulties that local authorities face, one suspects that this type of challenge will only get harder.
I do not suggest that this is a good thing, on the contrary. It is obvious that decision-making must be balanced and fair, and take proper account of the need to help vulnerable individuals who stand to be adversely affected, not just because of the importance of justice being seen to be done but because, at least in ordinary circumstances and in some cases, the process ought to result in some modified, or even reversed, decisions. I also have a great deal of sympathy with a complaint made by the great American jurist Grant Gilmore, who wrote in The Ages of American Law that ‘The worse the society, the more law there will be. In hell, there will be nothing but law, and due process will be meticulously observed’. The trouble with judicial review is that it is mainly all about due process and, as Grant Gilmore wrote in language that presumably was intended to evoke some of the worst horrors of modern times, due process is able to co-exist entirely happily with hell on earth.
How refreshing then, to see a bold, ambitious challenge – admittedly one still based on due process – that seeks to get to the heart of the problems that beset a particular aspect of provision for vulnerable children: special educational needs provision. And how sad to see it struggle to clear the first hurdle – the judicial review permission stage – and fail to get any further.
This is the case of R (Simone) v Chancellor of the Exchequer and the Secretary of State for Education  EWHC 2609 (Admin), in which Lewis J dismissed applications for a judicial review of central government’s budgetary decisions relating to special educational needs provision.
The applications were supported by what appears to have been impressive, detailed evidence from the claimants, supported by local authorities and charities, that central government’s funding of special educational needs has been inadequate.
At paras 18–19, Lewis J explains how departmental budgets are set, and at paras 20–25, he explains how funding for special educational needs is set and adjusted, centrally, whilst also noting that local authorities have their own sources of revenue.
Lewis J then held that both defendants had complied with the PSED in that they had considered rationally sufficient information about the possible adverse impacts of their funding decisions (essentially that, owing to the lack of sufficient state provision, special educational needs provision would increasingly have to be made in more expensive private establishments, diverting funds from mainstream budgets, until the next spending review). In relation to the Chancellor, Lewis J said that:
… given the function he was exercising, the nature of the decision he was taking, and the information he had, the Chancellor did have due regard to the specific matters identified in section 149 of the 2010 Act, including the need to advance equality of opportunity for children and young persons with special educational needs and disabilities.
It does not appear that either defendant undertook formal equality impact assessments. Lewis J appears to have proceeded however on the basis that, in substance, each defendant had ‘due regard’ to the considerations in the PSED by carefully considering the advantages and disadvantages of the various funding options, in the light of the needs of pupils with special educational needs, based on rationally sufficient information.
Lewis J then held that the secretary of state was not in breach of Children and Young Persons Act 2008 s7, which imposes on him the ‘general duty … to promote the well-being of children in England’. Lewis J held, unsurprisingly, that section 7 did not give rise to any duty on the part of the secretary of state to take any specific step, enforceable at the suit of an individual. More controversially, he seems to come close to describing the duty as all but non-justiciable. His conclusion, however, was that however one precisely defines the section 7 duty, it was manifestly not breached on the facts, given that the secretary of state made difficult funding decisions, involving choosing between different options in the light of his assessment of their relative strength, on the basis of adequate information.
There was an irrationality challenge that did not really get off the ground, given that there was to be a further major spending review later in 2019, both defendants had sufficient information before them, and the decision related to complex funding allocations.
Lewis J then considered a claim based on Thlimmenos-discrimination, that insufficient extra provision was made for children with special educational needs. Lewis J noted that children with special educational needs were ‘treated in a fundamentally different way both factually and legally’ and did receive substantial additional funding. He concluded that:
The legal regime provides for special educational needs, and the appropriate provision, to be identified. Thereafter, local authorities are required to secure that the provision is made available (irrespective of their resources). The funding system provides specifically for high needs funding. It is recognised by the second defendant that many local authorities are spending in excess of their allocation and are funding that from other sources. The second defendant has made additional funding available in December 2018. The question of funding for future years is to be considered in the 2019 spending review. There is no reasonable basis for concluding that the situation that applies here involves any breach of the need for reasonable accommodation for disabled students when needed in a particular case …
In short, Lewis J decided that there was no ‘differential treatment’ and so it was unnecessary to reach a decision of issues such as whether the treatment of pupils with special educational needs fell within Article 2 of the First Protocol ECHR. He specifically held that the UN Convention on the Rights of Persons with Disabilities was of no assistance, in this case, to the proper approach to the ECHR.
In conclusion, Lewis J expressed the view that he had found the judicial review applications to be ‘just about arguable’ and fired a warning shot across the bows of anyone who might be contemplating similar litigation in the future, that they may not be granted even permission to apply for judicial review.
What went wrong? In my opinion, the fundamental underlying problem was that the evidence, as summarised by Lewis J, did not show – on careful analysis – anything more than serious concerns on behalf of the individual claimants that their particular needs might not be fully and sustainably met. And, in this context, local authorities are of course under a duty to assess and meet the special educational needs of individual pupils without regard to the cost.
There appears to have been a serious concern, in the wider evidence, that local authorities were routinely exceeding their budgetary allocations on special educational needs, because of the lack of relatively cost-effective state-funded provision, which required local authorities to take from other budgets for special educational needs purposes. On the other hand, there does not appear to have been evidence that local authorities were not diverting money from other budgets, so as to be able to discharge their duties relating to those with special educational needs. The defendants appear to have accepted that there was a fundamental problem here but that it should be assessed in the context of a formal spending review in 2019, when a wider view would be taken as to the local and national policy changes, and funding approaches, that could be deployed. There does not appear to have been any evidence that this serious problem could not wait until then, or, even, that it could be resolved before then, on the evidence currently available.
Ultimately, therefore, the judge seems to have been presented with a case where, almost inevitably, quite wide legal principles could not gain any traction, given the complexity of the high-level budgetary and policy considerations in play. There was insufficient evidence of concrete failures of service provision and, although there was a serious problem around funding and state provision, that was a problem that the government had well in mind and was actively grappling with, in a manner that could not be seriously criticised.
And yet, one is left with a lingering sense of what might have been, had the application for judicial review been made at a different time, or with different evidence, and that lingering doubt is anything but assuaged by the report of the House of Commons Education Committee, published on the 23 October 2019, called Special educational needs and disabilities (First Report of Session 2019-20). I’m not going to summarise the report because it’s publicly available and easily read. Suffice to say, the report paints a bleak picture of ‘confusion and at times unlawful practice, bureaucratic nightmares and adversarial experiences’ and ‘too much of a tension between the child’s needs and the provision available’, a ‘significant funding shortfall’ (albeit, it is acknowledged, the government has very recently ‘taken initial steps’ to remedy that) and ‘a general lack of accountability within the system’.
The situation is arguably even worse, when it comes to adult social care provision.
The Care Quality Commission published The State of health care and adult social care in England 2018/2019 on the 14 October 2019. Whilst many areas of good service provision were noted, the Care Quality Commission also considered that:
- People who need support from mental health, learning disability and autism services “may receive poor care from unqualified staff; they may have to wait until they are at crisis point to get the best help they need; they may be detained in unsuitable services far from home, or they may be unable to access care at all”;
- “Some people are detained in mental health services when this might have been avoided if they had been helped sooner, and then find themselves spending too long in services that are not suitable for them”;
- “Our inspectors are seeing too many mental health and learning disability services with people who lack the skills, training, experience or clinical support to care for patients with complex needs”;
- “Healthwatch England has suggested that fewer than half of all people with dementia, who use social care, are getting the regular care reviews they are entitled to …”;
- “there are parts of the country where relative concentrations of poor-quality care, as shown by the ratings, mean that people living there may find it more difficult to access good care”;
- 16 per cent of social care providers were rated as inadequate (1 per cent) or requires improvement (15 per cent);
- Age UK has estimated that 1.4 million people are not obtaining the care they need, and of that number “300,000 people need help with three or more essential daily tasks”;
- The social care system remained hugely under-funded;
- Private providers were increasingly refusing to make provision in local authority-funded cases because the contract prices did not cover the cost of providing care;
- There were problems with obtaining and retaining good quality social care staff because of the greater rewards and clearer career structure in health care provision;
- 39 per cent of hospital, community health and ambulance services were rated as inadequate (3 per cent) or requires improvement (36 per cent) in relation to safety;
- Emergency health care was rising year-on-year;
- 20 per cent of mental health care provision was rated as inadequate (3 per cent) or requires improvement (17 per cent) – safety was a particular concern;
- There had been a 14 per cent reduction in the number of mental health beds, which had been planned, but the planned commensurate increase in community-based provision did not appear to have occurred;
- Children with learning disabilities and autism experienced a lack of timeous and appropriate are throughout childhood and young adulthood;
- Between June 2018 and March 2019, according to coroners, at least seven people died after they had been assessed as requiring hospital admission but before a mental health bed had become available;
- There was a serious lack of mental health rehabilitation services in the community for those most seriously affected;
- The responsiveness of CAMHS was rated as requires improvement (21 per cent) or inadequate (10 per cent).
The parlous state of adult and children’s services concerns families and local government alike but, at the moment, litigation aimed at securing a legal remedy appears to run into the ground, except in cases where incautious local authorities clearly get something very wrong and then fail to appreciate that until it is too late. One recollects that local authority attempts to challenge inadequate social care funding by central government have also come to grief: R (Liverpool CC) v Secretary of State for Health  EWHC 986 Admin, (2017) 20 CCLR 391. It may be that a wider view needs to be taken of the legal remedies available. It may be that future litigation aimed at central government will stand on the shoulders of Simone and be more successful and (ideally) that seems a potentially useful way to go for those concerned, despite Lewis J’s shot across the bows. However, it has to be said, such cases are complex, expensive and exhausting to prepare, and risky to litigate. But unless a political solution is going to be found, and there is nothing on the horizon at the moment, surely, something to give. Things can’t carry on as they are.