A setback at the High Court, but parents’ SEND Action goes on

Today on SNJ we want to pay tribute to the SEND Action parent campaigners who took the Government to the High Court in a judicial review over SEND funding.

Ultimately, their landmark legal case was not successful. But that is not to say it shouldn’t have been brought. I firmly believe that it is the combined pressure from SEND campaigners acting on all fronts, pressure from MPs reacting to parental complaints and a steady stream of critical reports and inquiries (not least the recent NAO inquiry) that forced the Government to announce the new DfE funding of £700 million that is just for one year for SEND. 

It’s not enough to fix SEND in the long term and may only yet be used to back-fill holes in local authorities coffers. It's only forecast to only put the situation back to where it was before the cuts began to bite - which is before the implementation of the 0-25 SEND reforms began to be implemented. 

For the Department for Education, it has been a year of inescapable public and private pressure, from national but grass roots parent groups such as SEND Action and SEND National Crisis, from what we do at Special Needs Jungle, and from other SEND “agitators”, parent groups and charity organisations such as the DCP Campaign. 

What was the case about

We covered the two-day court hearing at the High Court here in which the judge described the parents' action as "A remarkable achievement."

Three mothers, on behalf of their children, stood up for all parents. Along with SEND Action founder, Gillian Doherty (from whom we will hear in a moment) Lorraine Heugh for her son Nico, Mary Riddell, for her daughter Dakota, and Kirsty, mum of Benedict McFinnigan.

The Judicial Review wasn't about whether SEND is underfunded, or whether the DfE should do more. It was a technical case about whether various legal duties, processes and procedures around funding had been carried out correctly.

1. Did the defendants (the Chancellor of the Exchequer and the Education Secretary) comply with their duty under section 149 of the 2010 (Equalities) Act to have due regard to specific equality matters?
2. Did the second defendant, the Secretary of State for Education, comply with the general duty imposed by section 7 of the 2008 (Children & Young Persons') Act to promote the wellbeing of children in England?
3. Was the approach of the defendants to the allocation of funding for special educational provision irrational?
4. Has there been any unlawful discrimination within the meaning of Article 14 of the EHCR (European Convention on Human Rights), read with wither Article 2 to the First Protocol of Article 8 EHCR?

So you see, ensuring children with SEND get the education they deserve wasn’t what was at issue - if it was, the SEND Action team would have surely won hands down.

What did the judge say?

The judgement was long and complicated, but the judge dismissed the case on all four grounds.

Anne Marie Irwin, the solicitor who represented the families (represented in the High Court by barrister Steve Broach, Jenni Richards QC and Katherine Barnes) said:

"We believe that it was the first time that the High Court has granted permission for a legal challenge against a government budget decision. 

"We feel we put forward very strong legal arguments on behalf of the families that the decisions taken about SEND funding were so inadequate as to make them unlawful. We and the families are disappointed by today’s decision but thank the court for hearing the case. 

“How SEND services are funded is still an incredibly important issue, affecting tens of thousands of families, and one that needs addressing."

Anne-Marie Irwin - Senior Associate Solicitor for SEND Action

In a series of tweets, she said:

You can download the judgement as a PDF here

We would like to pay tribute to ALL the remarkable children and families who fight every day for support, and yet made the time to support this campaign and to march in the SEND Crisis National March earlier this year. Know that your love and passion IS making a difference.
We thank the thousands of supporters, now friends, who have donated to our crowdfunding campaign and worked with us to expose the special educational needs crisis. We could not have done this without you.
And of course we must thank our legal team. Rights only exist in any meaningful sense if you fight to uphold them. It was an immense amount of work to get this case all the way to the high court and allow us to be heard, and we regard this as a incredible success in itself.
Together we will continue to fight for adequate funding, improved accountability and for our children’s rights to be respected, including through further civil and legal action if necessary.

SEND Action team

Speaking to me in an interview that is embedded below, SEND Action founder, Gillian Doherty said, “There’s no doubt that children are being failed, I think it's just that in terms of the decision-making process there wasn’t legal fault.” She went on to say, “...as the barrister said, local authorities DO have obligations, and lack of funding is no reason not to meet those obligations. So that leaves us in a rather strange place in terms of responsibilities”

I am disappointed in the result and there is a blatant crisis within SEND. The system is failing it's most vulnerable children. I fought because it was the right thing to do and will go on fighting. Always.
That being said what we have achieved is extraordinary! We made history! We challenged the Government in the High Court and they were made to listen! We got the SEND crisis well and truly into the media and shouted from the roof tops about it! I am extremely proud of that! 

Mary Riddell, one of the three parents who brought the case

Disabled children's charities respond

We were all invested in this case. Not just parents themselves, but organisations representing disabeld children.

It’s not that we want to trip up the Department for Education, it’s just that families are desperate to make them change policies. They want true accountability in schools and LAs and for government to ensure that money given to disabled children ends up where it should and that SEND is properly funded for the long term, including a realistic amount for young people with EHCPs aged 16-25.

Ring-fencing funds means more than just giving it to the High Needs Block. Children on SEN Support, the lower level of SEND where children do not have Education, Health and Care Plans, is often no more than a wing and a prayer. It depends on the ethos of your child’s school and the expertise of its SENCO and Senior Leadership Team. Some SENCOs get hold of the “delegated budget” that’s given for all children with SEND in the school. Others say, “What budget?” and have no idea where the money for SEND has gone.

“The very fact that parents had to mount this High Court challenge reveals the inherent problems and lack of support within the current special educational needs system. We know that chronic underfunding has left far too many vulnerable children and young people without the help they need to thrive in education. As a result many families are facing lengthy and costly legal battles with local authorities to get their children the support the desperately need - and deserve.

Chief Executive of Ambitious about Autism, Jolanta Lasota

“The High Court may have found in favour of the Government, but the fact families have had to mount the challenge demonstrates the inherent problems and lack of adequate support available within the SEND system.
Disabled children and young people deserve to receive the right support which meets their education, health and social care needs. This hasn’t happened though, due to chronic underfunding, and as a consequence families are facing costly legal battles with local authorities to secure adequate support. Families shouldn’t be under this type of pressure.

Sarah White, Head of Policy and Campaigns at Sense

Video interview

The founder of SEND Action, Gillian Doherty, spoke to me yesterday after she had read the judgement. Here’s the interview:

Also read:

• Disabled children “increasingly failed” as nearly 9 in 10 EHCP Ombudsman complaints upheld
• Public Accounts Committee launches SEND Inquiry (yes another one)
• We won a legal point on unlawful exclusion and cleared my disabled son’s name
• SEND Review: A game-changer or playing politics with vulnerable children?
• Half-a-billion pound funding gap for SEND says Local Government Association
• The government’s legal day of reckoning looms, as families challenge over SEND failures

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Tania Tirraoro

Founder, Co-Director at Special Needs Jungle

Founder of Special Needs Jungle. (She/Her) Parent of two young adults with autism. New grandma. Tania, who is autistic, is a leading SEND advisor, working with the Special Education Consortium, Ofsted, and Whole School SEND. She is also an Advisory Board member of the Royal Holloway, University of London Centre of Gene and Cell Therapy and an Editorial Board member of Springer Nature Gene Therapy journal.
Tania is an experienced broadcast and print journalist & author. She also runs a PR, web & social media consultancy, SocialOro Media.
Tania is a rare disease & chronic pain patient advocate with Ehlers Danlos syndrome.

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