Consultation

April 8th, 2020

In R (AD) v Hackney LBC (2020) EWCA 518 the Court of Appeal has dismissed an appeal from the rejection of a challenge to a 5% cut to funding for one element of an Education, Health and Care Plan. The cut was alleged to have been unlawful on account of a failure to consult under Section 27 of the Children and Families Act 2014. The Court held that there was no such failure. They overruled first instances that such a duty arises whenever a local authority makes a decision which will necessarily affect the scope of outs SEND provision. The – per Bean LJ – “modest reduction in one element of SEND funding” was not sufficient to trigger a strategic review with the consequent requirement of widespread consultation. The Court left for another day (para 48j the issue of what level of major budget cuts or transformation of a local authority’s SEND provision would trigger a duty to consult wider than the Schools Forum either under Section 27 or at common law. If a local authority rationally concludes that a particular level of saving in SEND provision can be achieved without a significant adverse impact, but that a more drastic budget reduction, which it is not proposing to implement, might well have such an impact, that is not enough to bring Section 27 into play.

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