Explaining the inexplicable: why the government won the SEND coronavirus judicial review (round one)

with Donnchadh Greene, pupil barrister at Doughty Street Chambers

Earlier this month, the High Court heard the case of a family who brought a judicial review against the government, claiming that the Coronavirus Act downgrading of legal duties for EHCPs were unlawful.

The family complained that, among other issues, the reasoning was flawed, there had been a failure to consult, and children's welfare was not considered. The state offered little real defence in the face of strong legal argument from barrister Steve Broach. The government's lawyers even went so far as to say that as EHCPs were now back in force, the matter was pointless to pursue. This is like saying, I stole your car, but you got it back in the end, so I have no case to answer.

Nevertheless, the judge still managed to find for the government, dismissing the case. Surprise surprise. The family are appealing, so this is just round one.

To help decipher what happened, pupil barrister in education, community care and public law at Doughty Street Chambers, Donnchadh Greene, has written this article for us.

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Explaining the outcome of the legal challenge against the downgrading of EHCP duties by Donnchadh Greene, Doughty Street Chambers

On 30 April 2020, the Secretary of State for Education announced that the duty to secure or arrange the provision set out in an education and health care plan (EHC plan) under s.42 Children and Families Act 2014 would temporarily be downgraded to a duty to use “reasonable endeavours”. This was done by issuing three notices under the Coronavirus Act 2020, the last of which expired on 31 July 2020.

SEND Regulations governing the timescales for completing EHCP assessments, plans and tribunal orders were relaxed at the same time. These changes are still in force, until 25 September 2020.

Donnchadh Greene

This watering down of duties and timeframes worried many families who had fought hard to secure special education provision to meet their child or young person’s needs. Even more so for those who were in the middle of seeking to obtain a plan that met those needs: the relaxing of timeframes meant further delays for a system riddled with them.

Two children with special educational needs and EHC plans challenged these legal changes by way of judicial review in R (Shaw and another) v Secretary of State for Education.

There were five grounds to their challenge:

  • First, the decision of the Secretary of State for Education to make the legal changes was in breach of his duty to consult those most closely and abruptly affected by the changes prior to making any such decision;
  • Second, the Secretary of State for Education failed to comply with his duty to make sufficient enquiries before making a decision, particularly considering the impact these changes had and would have on children and their families;
  • Third, the decision to lay the SEND Regulations 2020 before Parliament only a day before they came into force, thereby avoiding Parliamentary scrutiny, was a decision that no reasonable Minister would have made;
  • Fourth, deciding that it was appropriate and proportionate to issue the three notices under the Coronavirus Act 2020 was also a decision that no reasonable Minister would have made; and,
  • Fifth, the decision was unlawful as the Secretary of State failed to have in mind the aim of promoting the wellbeing of children (s.7 Children and Young Persons Act 2008) when making the legal changes.

The Decision

Disappointingly, the judge, Mr Justice Kerr, held that the claim would fail and that the decision of the Secretary of State in enacting the SEND Regulations 2020 and the notices issued under the Coronavirus Act 2020 were lawful decisions.

The High Court judge decided the case in what’s known as a “rolled-up” hearing where the judge decides whether the decision should be granted permission to be reviewed by a judge at the same time as the merits of the claim are decided. Permission is decided on whether a case is “arguable” or not. 

The judge decided that the second, fourth and fifth grounds were not arguable and refused permission on those grounds, although he did provide some comments on them. He decided that the first and third grounds were arguable and granted permission.

Mr Justice Kerr was well aware of the impact of these decisions on children and their families. He agreed that:

The impact on parents and their children with SEND was sudden and severe and came at a time when there had already been serious failures in delivery of SEND provision, before the pandemic struck.” (§104)

He decided that the decision to make the legal changes did not breach the duty to consult, to make enquiries or to have in mind the aim of promoting the wellbeing of children. A lot of his reasoning related to the urgency of the pandemic, in particular:

“...it was obvious that performance of the full section 42 duty was unachievable during lockdown conditions, with a medical emergency diverting many health workers to more urgent and dangerous work, and with schools and colleges closed” (§124)

However, he also highlighted that sufficient consultation and enquiries, albeit informally, had taken place. He noted that many organisations, including the Children’s Commissioner, had made representations on behalf of children with special educational needs. He did not agree with the argument of the two children who brought the claim that families with children and young people with EHC plans had been “shut out” or that the pre-pandemic lack of provision had to be taken into account. 

Equally, he held that it was appropriate, proportionate and a reasonable decision, to issue all three notices under the Coronavirus Act 2020. The Claimants had highlighted the “circular” reasoning of the Secretary of State in the July notice which said that children with special educational needs were not returning to schools meaning that special education provision could still not be delivered: in effect, missing the point that those children were effectively prevented from returning because of the absence of special education provision. Nonetheless, the judge held that this decision was still reasonable. 

Owing to old rules which prevent courts enforcing a parliamentary conventions, such as the laying of regulations, Mr Justice Kerr stated that the court could not decide whether it was reasonable or not to lay the SEND Regulations 2020 before Parliament only one day before they were due to come into effect. He did note that he believed that the decision would have been reasonable, should he have been allowed to decide this question. 

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Comment

It is good news that the two children have stated that they will appeal this decision. Throughout their claim, their lawyers made it clear that special education provision had been suffering systemic failures well before the urgency of the pandemic became clear: the suspension of local authorities’ duties only meant that families faced a further gap in provision. Equally, many families had suffered a gap in provision since lockdown, with many families not hearing from their schools for some time at the time of the legal changes.

It is a relief that the notices are no longer in effect and that local authorities are required to resume their duty to secure the provision specified in EHC plans (irrespective of previous delays or the knock-on effect of the pandemic). However, it will be interesting to keep an eye on this appeal, particularly for those who are subject to the relaxing of the timeframes for the EHC assessments and provision and are facing further delays to their special education provision.

The Claimants instructed Polly Sweeney at Scott-Moncrieff & Associates, and were represented by Stephen Broach (39 Essex Chambers) and Alice Irving (1 Crown Office Row).

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