Parents of children with special needs lose High Court fight against government over funding ‘crisis’

Families of children with special educational needs who warned of a “crisis” in funding have lost a High Court challenge against the government

Lawyers representing three families argued that the government’s approach to providing special educational needs and disabilities (SEND) funding could “blight” the lives of young people forever.

Councils are so starved of funds they are unable to meet their legal obligation to provide education and support to young people with SEND, the campaigning group of parents said.

But a High Court ruling on Monday concluded that there was “no unlawful discrimination” in the way the government made provisions for funding.

Families who launched the legal challenge have pledged to continue their fight for better provision.

Jenni Richards QC, for the families, told the court at a hearing in June that there was “clear and incontrovertible evidence” of a “substantial national shortfall” in funding.

Ms Richards argued that former chancellor Philip Hammond acted unlawfully in setting the national budget in October 2018, and former education secretary Damian Hinds did so when offering “insufficient” SEND funding.

She told Mr Justice Lewis they did not take enough account of the “nature and extent of the crisis” in SEND funding when making those decisions.

Ms Richards said Department for Education statistics showed “rising demand” for SEND funding, which had “not been matched by anything like a commensurate increase in funding”.

Government lawyers, opposing the legal action, argued that the increase in demand was recognised by the ministers and Mr Hinds had “made it clear” that high needs would be one of his priorities.

Mr Justice Lewis said: “Children and young persons with special educational needs are not treated in the same way or a similar way to others who do not have such needs.

“They are treated in a fundamentally different way, both legally and factually.”

The judge added: “Recognising the financial pressures on local authorities to meet their legal obligation to provide the specified special educational provision, the (education secretary) has, from time to time, made additional funds available specifically for special education needs – as he did with the allocation of an additional £350m in December 2018.”

In the September spending round, the government also said it would provide an additional £700m over the next year for pupils “with the most complex needs” and they also announced a review into special educational needs and disability and how the law is working in practice.

Anne-Marie Irwin, specialist lawyer at Irwin Mitchell law firm which represented the families, said: “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.”

She added that the parents who they were representing still feel there was a “long way to go” despite the recent funding pledges from the government for SEND.

One mother, belonging to one of the three families at the heart of the case, said she was “disappointed” by the ruling but added that she would keep “campaigning for change.”

Lorraine Heugh, mother of 16-year-old Nico Heugh Simone, who has autism, anxiety and other related conditions, said: “We campaigned for months on this issue and still believe that not only our children, but thousands of other children across the country are being failed by the current system.

“We urge the government to ensure the extra money it has promised for SEND pupils finds its way to them.”

The landmark case, believed to be the first time the government has been taken to court over SEND funding, was also brought by the families of Dakota Riddell and Benedict McFinnigan.

The legal action was also supported by campaign network SEND Action – which held a demonstration outside the Royal Courts of Justice ahead of the two-day hearing in June.

Mary Bousted, joint general secretary of the National Education Union, said: “Today’s verdict is a huge blow to the families and children involved in this case, and allows the government to once again shirk its responsibility for these young people by fobbing them off to severely underfunded local authorities, who do not have the financial capacity to provide the specialist care and provision these families need and deserve.

“Despite the government’s recent announcement of additional investment in SEND, there is still a £1bn shortfall in SEND funding which the government must now urgently address.”

A Department for Education spokesperson said: “No child should be held back from reaching their potential, which is why we recently announced major new high needs funding worth well over £700m in 2020-21 – an increase of more than 11 per cent on the amount available this year, bringing the total spent on supporting those with the most complex needs to over £7bn. We have also launched a review of the system to see how it can make further improvements to make sure every child gets the education that is right for them.”

Additional reporting by PA