With Bristol parent carer, Jen Smith,
In our SEND Inquiry response, one of the (many) recommendations we have made is for the Department for Education’s controversial SEND Safety Valve scheme to be totally scrapped. It has not achieved its aims and, as we predicted, is causing cuts to provision and creating an even more adversarial environment. We are also backing the petition of our columnist and team member, Rachel Filmer, to bring the scheme to an end.
There are currently 38 Safety Valve Agreements in place across England. Of those, a total of 16 are currently not on track because it is difficult for LAs to meet the targets set. At the end of 2024, the DfE said the Labour Government will not be entering into any more Safety Valve Agreements in favour of wider reform of the system to target early intervention.
This week, families in Bristol and Devon took their councils to court over the effect of the scheme on provision in their area. Bristol parent carer, Jen Smith, who is involved in the Bristol case, has written more about it for us.
Why we brought a judicial review against the Government over SEND Safety Valve, by Jen Smith
Safety Valve Agreements are localised agreements between an LA and the Department for Education (DfE). When an LA enters an agreement, it is given funding over an extended period of time for the purpose of reducing a deficit on its DSG. To get the funding, LAs must comply with certain agreed conditions otherwise the funding is withheld.
On 18th July 2023, Bristol was invited to apply for the DfE’s Safety Valve Programme and submitted its application on 12th January 2024. The scheme has caused controversy from the moment it was added as a late agenda item to the March 2024 meeting of Cabinet at Bristol City Council. The final agreement was signed and dated 8th March 2024. Bristol had previously been part of the Delivering Better Value in SEND Programme (DBS).
This week, the judicial review brought against Bristol City Council for its Safety Valve Agreement (SVA) with the Department for Education (DfE) was finally heard by High Court Judge, the Honourable Mr Justice Linden. The hearing took place at Bristol Civil Justice Centre, opening on Tuesday 28 January 2025. It was heard alongside two rolled-up claims against Devon County Council.
The Bristol Action
Bristol’s Safety Valve agreement was shrouded in secrecy until the last possible moment, but other than the city’s Debt Management Plan (DMP) there was “no requirement for confidentiality,” Barrister Steve Broach KC, told the court.
Steve Broach was representing a Bristol family and one of the two Devon claimants, with barrister Dr Alice Irving and Watkins Solicitors for Bristol. The second Devon family were represented by Caroline Barrett and Rosie Campbell at Rook Irwin Sweeney solicitors, alongside Carine Patry KC and barristers Ollie Persey and Jake Thorold.
Laying out the background of the claim, Mr Broach explained Bristol’s Dedicated Schools Grant position was “not financial incompetence” but one of funding not keeping pace with rising need. “The cost of meeting the needs of children with Special Educational Needs and Disabilities (SEND) has not been fully funded by central Government,” he said, which has proved difficult given the growing numbers of children with an increasing complexity of needs.
Section 42 of the Children and Families Act 2014, creates an absolute duty for local authorities (LA) to secure special educational provision and healthcare provision in section F of an EHC Plan. As the budget to meet those needs has been “fixed”, it has left councils with “no wriggle room”. Mr Broach described the “a systemic issue” across England, pointing to the National Audit Office’s 2024 report that says “Families and children lack confidence in an SEN system that often falls short of statutory and quality expectations.”
There’s also more trouble on the horizon. A statutory override, introduced in 2020, is due to end in March 2026. This ‘accounting fudge’ has allowed LAs to separate deficits in its Dedicated Schools Grants from their wider financial situation.
High-stakes Safety Valve plans are financially flawed
Bristol’s Safety Valve Agreement has a seven-point action plan. This includes city-wide inclusion, early intervention and reducing the number of children in specialist independent places. Under the agreement, the council is monitored three times a year, subject to full compliance by 2029/30. If insufficient progress is made, the DfE could stop the funding.
Steve Broach KC, argued the agreement will see a real-terms reduction in spending of £10m less across six years, saying, “The significant reduction in spending at the end of Safety Valve doesn’t take into consideration either inflation or increased demand.”
The figures used for the agreement have been underpinned by an action plan of reform. This relies in particular on the Deficit Management Plan. Executive Director of the Children and Education Directorate, Hannah Woodhouse, said in her witness statement the mitigations had arisen from a rethinking of how SEND provision is likely to be made. A large part of this would come from not sending children and young people to independent specialist settings.
One of the biggest problems of the Safety Valve Agreement that led to the Bristol legal action arose from Section 27 of the Children and Families Act 2014 and the long list of people, in addition to the family, the LA “must” consult with. Section 27, ‘Duty to keep education and care provision under review’, says:
(1)A local authority in England must keep under review—
Section 27
(a) the educational provision, training provision and social care provision made in its area for children and young people who have special educational needs or a disability, and
(b) the educational provision, training provision and social care provision made outside its area for—
(i) children and young people for whom it is responsible who have special educational needs, and
(ii )children and young people in its area who have a disability.
(2) The authority must consider the extent to which the provision referred to in subsection (1)(a) and (b) is sufficient to meet the educational needs, training needs and social care needs of the children and young people concerned.
(3) In exercising its functions under this section, the authority must consult—
(a) children and young people in its area with special educational needs, and the parents of children in its area with special educational needs;
(b) children and young people in its area who have a disability, and the parents of children in its area who have a disability;
(c) the governing bodies of maintained schools and maintained nursery schools in its area;
(d) the proprietors of Academies in its area;
(e) the governing bodies, proprietors or principals of post-16 institutions in its area;
(f) the governing bodies of non-maintained special schools in its area;
(g) the advisory boards of children’s centres in its area;
(h) the providers of relevant early years education in its area;
(i) the governing bodies, proprietors or principals of other schools and post-16 institutions in England and Wales that the authority thinks are or are likely to be attended by—
(i) children or young people for whom it is responsible, or
(ii) children or young people in its area who have a disability;
(j) a youth offending team that the authority thinks has functions in relation to—
(i) children or young people for whom it is responsible, or
(ii) children or young people in its area who have a disability;
(k) such other persons as the authority thinks appropriate.
“In exercising its functions in this area, the views of children, their parents and young people should be central to the way LAs review their services and they must be consulted,” Steve Broach said. “Due to the secretive nature of Bristol’s original application, no such consultation took place…. The decision about where to place children is informed by the budget. If provision does not exist, it cannot be made,” he said. “Section 27 is important because it will constrain the provision that can be made.”
The Gunning Principles
When Section 27 is engaged, the LA “must” consult. It is an obligation. Mr Broach referred to the ‘Gunning Principles’ that stem from a 1985 court case, R v London Borough of Brent ex parte Gunning. In this case, Stephen Sedley QC successfully argued that Brent’s decision to close two schools was unlawful because of the manner of its consultation.
Under the Gunning Principles, a consultation is only legitimate when four principles are met:
- Proposals are still at a formative stage
- There is sufficient information to give ‘intelligent consideration’
- There is adequate time for consideration and response
- ‘Conscientious consideration’ must be given to the consultation responses before a decision is made
Mr Broach said the changes under the Safety Valve Agreement will affect SEND provision and Bristol City Council’s contention, that there is no adverse impact, is a “matter of perspective”.
He expressed the concern the scheme will increase specialist state-funded provision, but some children will need the quality of expertise and provision that only (high-cost) independent specialist schools can provide.
Bristol has accepted the Safety Valve Agreement will change provision, and understands there are issues with sufficiency. The impact of this provision is such as to trigger a Section 27, but Bristol says it did not reach this point. That is in addition to a clear reduction in targets and spend.
Bristol’s SEND and Inclusion Strategy, which the council relies on, came after the Safety Valve Agreement was signed, which was too late. The parents’ lawyers claim Bristol was unable to rely on confidentiality to discharge its responsibilities to Section 27 because there was no requirement for confidentiality.
Mr Broach said Bristol’s claims that Safety Valve was the only way of getting funding, make the case “of exceptional public interest” because of the “vulnerability of a protected group”.
Broach talked more about the experience of the Bristol family involved in the action, addressing
He said the family had submitted a complaint about the issue to Bristol City Council, but a response did not arrive on the date promised, an “undue delay”. The council had still not responded to the family before they finally made contact with a solicitor.
In the interim, a local councillor the family had arranged to discuss their concerns with cancelled that meeting, ignoring requests for another date.
Bristol’s defence
Bristol City Council’s defence was delivered by Joanne Clement KC who said the city’s issues with DSG deficit were not unique, with the issues arising nationally. The council moved onto its Deficit Management Plan (DMP)—a requirement of the DSG grant—in 2021, which Clements stressed was “long before Safety Valve.” However, another council official stated the document was by no means “set in stone” because financial models can become quickly out of date.
In 2022, just 10 LAs had an effective management of their High Needs Block, according to the relevant government guidance for local authorities. The core aim of a DSG management plan is to reduce escalation of need. Plans to stabilise the budget included managing the need for EHCPs and reducing the escalation of need by prioritising early intervention. This would be with the use of appropriate provision and “careful use of specialist provision”.
Ms Clement said Bristol’s Debt Management Plan targeted seven areas, from the creation of specialist provision to the reduction of Alternative Learning Provision (ALP). It had followed “extensive consultation” of mitigations and included that its use of independent specialist provision and associated home-to-school transport costs was a growing pressure. She said DSG engagement survey did demonstrate engagement and there was a detailed response from the Bristol Parent Carer Forum.
As it negotiated joining the Delivering Better Value in Send (DVB) in July 2023, Bristol continued to work on creating more placements at specialist resource bases in mainstream schools, which are now already opened up or ready to go. It says more consultation took place on non-statutory Top-Up funding towards the end of 2023, with proposals going to Cabinet on 06 February 2024.
The financial DMP was then submitted, containing the key mitigation schemes, showing these had been in place “long before Safety Valve.” The figures had been worked up for the DBV programme, which then moved into Safety Valve.
Bristol’s financial agreement with the DfE
As part of its commitments to the scheme, Bristol agreed to obtain a positive in-year balance by 29/30, including contributions from its reserves. Bristol would “eliminate” the entire deficit to zero. This includes the Safety Valve instalment funding, which would be provided subject to satisfactorily meeting agreed targets.
Ms Clement said Bristol City Council had tried to enter a different agreement but that the DfE had “knocked them back.” In response to the judge’s query that the city got around £100 million in DfE funding, but without making any changes at all to the way it designed and implemented its SEND services, Ms Clement argued it was because the plan was the basis of the seven themes in the DMP. This included co-production and joint working of a city-wide SEND Inclusion Strategy. The strategy included enhanced early intervention, school improvement, increased numbers of children and young people with EHCPs to be supported in mainstream, and using a ‘test and learn’ approach to ‘retain’ young people in ‘quality mainstream provision’. It also included building provision to meet current and future demand that can adapt to changes in need.
Ms Clement said the Safety Valve Agreement is the “best estimate” of projections. It “may not match reality,” but the increased cost of placements can be reviewed. The money was to “implement measures, not financed projections.” Ms Clements said all Bristol had agreed to was the seven conditions, again stressing the DMP predated Safety Valve by two years.
When the judge, Mr Justice Linden, again questioned Ms Clement about what exactly would change about Bristol’s provision, she said the, “…high-level strategic themes in the DMP is not about provision. Safety Valve is a finance agreement. Nothing is changing as a result of entering the Safety Valve Agreement because it was already being done through the DMP.”
No cuts, just a strategy vision…
So basically, the SVA had no impact on the strategy themes, other than Bristol was increasing its efforts to achieve them.
After again being asked by the judge what had changed since the DMP, Ms Clement said following the Safety Valve Agreement, Bristol City Council was able to commit £46m from its own reserves. It also unblocked the Capital Funding Grant for Claremont School site, where there had been longstanding development plans that could not go ahead until the funding was released.
Ms Clement said that the only change in provision would be an additional 70 specialist places as a condition of grant funding under Safety Valve. She said
the Safety Valve Agreement was about “system-wide transformation” and was not a cut but a “high-level strategy with long-term aims.”
As to the lack of consultation under Section 27, Ms Clement described the requirements in the Children and Families Act 2014 as “unusual and nuanced” and a “question of judgment.” Ms Clement insisted that as a strategic-level council decision, it wasn’t “irrational” to not carry out a Section 27 consultation so wasn’t for a court to decide. She cited other decisions made about Surrey, Redbridge and Hackney.
She said, “The Safety Valve is not about provision, it’s funding. It’s a bailout. There’s nothing new in terms of strategic vision.” Further, it is not irrational to enter into £53.8m of funding before carrying out a strategic review and there was no evidence there will be a “significant adverse impact. It’s not a cut. It’s a strategic vision.”
In any case, Ms Clements argued there wasn’t enough time to consult and the council had believed at the time of its SV application programme had to be kept confidential. The LA would be complying with the Children and Families Act 2014 in any case, because the city would have ended up entering Safety Valve for funding. No funding would be “financial disaster.” She denied the case would be of “exceptional public interest” and said “SEND children can’t make it of public interest.”
What happens next?
If the agreement was considered unlawful a Quashing Order would be granted, but would only take effect from the date of the decision. This could mean Bristol would not have to repay funds already received, transferred from reserves, or been granted in Capital Funding. However, the council contends a Quashing Order does not apply as they are for things such as Statutory Instruments. If Bristol’s Safety Valve Agreement is quashed, it will no longer be able to rejoin the scheme since its suspension by the Department for Education.
Judgement was reserved with a decision expected in anywhere from two weeks’ to two months’ time.
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Also read:
- Renewed petition to SCRAP SEND Safety Valve and write off council High Needs debt
- Will £740m make mainstream truly accessible? Plus SEND safety valve deals halted—we call that a win!
- Uncovering the hidden truth about SEND safety valve agreements and how they’ll cut children’s SEND provision
- NAO: The Government has no clear SEND plan and should consider “whole-system reform” to incentivise mainstream inclusion
- Commons committee lets the Department for Education off the hook—so we’ll do the scrutiny instead
- Is the DfE’s SEND funding “safety valve” on a collision course with schools and families?
- The SEND “Emergency” debate: scrap safety valve, write-off high needs debt and stop piling trauma on to families
- An epidemic of SEND school transport failings leaves disabled children at risk and missing school
- Inside Surrey’s SEND Crisis: Case officers reveal the inner workings of a broken system
- What makes an autism assessment report genuinely useful to a school?
- Big ideas belong to everyone: Education, rights and lifelong learning for people with learning disabilities
- As The Guardian prints our joint campaign’s open letter, it’s clear people with lived experience don’t want to lose SEND rights
- How do you ensure pathways to education, health, and social care support, meet both diagnosis and needs?
- Researching flexi-schooling: How beneficial is it for children with SEND?
- Oops, we did it again… The Government must now listen to more than 100,000 people who do not want to lose SEND rights
- Experts at Hand: When is an occupational therapist also a SEND expert?
- Could using AI to filter Government consultation responses lead to “algorithmic silencing” of neurodivergent voices?
- A council’s “improvement journey”? How determined SEND parents catalogued the trail of their LA’s unlawful behaviour
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- What makes an autism assessment report genuinely useful to a school? - October 14, 2026
- Big ideas belong to everyone: Education, rights and lifelong learning for people with learning disabilities - October 12, 2026
- As The Guardian prints our joint campaign’s open letter, it’s clear people with lived experience don’t want to lose SEND rights - October 9, 2026
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