Judgment in major SEN funding challenge

On Monday 7 October 2019 judgment was handed down in the case of R (Simone and others) v Chancellor of the Exchequer and Secretary of State for Education. Following a rolled-up hearing Lewis J granted permission on all four grounds but ultimately rejected the claim.

The Claimants, various children with special educational needs, sought to challenge the ongoing failure by the Defendants to allocate sufficient resources, most recently on 16 December 2018, for the provision of special educational needs. In respect of this decision the Claimants alleged that the Defendants breached the public sector equality duty (PSED), that the Second Defendant breached the duty in s.7 of the Children and Young Persons Act 2008 to promote the well-being of children in England, that the Defendants acted irrationally and that the Defendants failed to treat disabled children sufficiently differently such that there was a breach of Art 14 ECHR (Thlimmenos discrimination).

The court was not prepared to treat the decision under challenge as one ongoing failure but instead examined the various aspects of the process in the run up to the 2018 budget which led to the Second Defendant bidding for funding from the First Defendant. In this context, the court found that the evidence showed that both Defendants had paid "due regard" to the impacts on disabled children of the various steps taken.

Of wider legal relevance, the court found that s.7 of the Children and Young Persons Act 2008 is a high-level target duty such that it cannot be enforced by individuals in the courts.

Jenni Richards QC, Stephen Broach and Katherine Barnes acted for the Claimants, instructed by Anne-Marie Irwin at Irwin Mitchell.

Please click here for a copy of the judgment.