QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
By her mother and Litigation Friend HK
|LONDON BOROUGH OF REDBRIDGE
DEOK- JOO RHEE QC and TOM TABORI (instructed by London Borough of Redbridge) for the Defendant
Hearing dates: 23/01/2019 - 24/01/2019
Crown Copyright ©
MR JUSTICE SWIFT
B. The Claimant's challenge
C. Redbridge's "decentralised model"
(1) Grounds 1 and 2. Are the arrangements Wednesbury unlawful; do they entail unacceptable risk that Redbridge will fail to comply with statutory obligations?
(2) Ground 3. The discrimination claims
(a) The indirect discrimination claim under the Human Rights Act
(b) The indirect discrimination claim under the Equality Act 2010 (sections 6,19, and 29(6)).
(c) The failure to make reasonable adjustments claim under the Equality Act (sections 6, 20, 21 and 29(7), and Schedule 2).
"(3) The first requirement is a requirement, where a provision, or criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."
A failure to comply with the section 20 duty is unlawful discrimination: see section 21 of the 2010 Act.
(3) Ground 4: section 27 of the Children and Families Act 2014
"27 Duty to keep education and care provision under review
(1) A local authority in England must keep under review—
(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."
"…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."
Section 27(3) requires local authorities in excise of their functions under subsection (1) and (2) to consult various specified groups of person.
"102. The claimants' case that section 27 of the 2014 Act is engaged by the decision under challenge must carry with it the proposition that the extensive duties of consultation made mandatory by section 27(3), of the many different parties who must be consulted, are engaged whenever a local authority makes any alteration to SEND services, including budgetary decisions of the kind taken by the Council in this case. This is an interpretation that we are unable to accept. We do not consider Parliament can have intended that the extensive and onerous duties of consultation made mandatory by section 27, should be undertaken on a "rolling basis" let alone, that it would be triggered every time a change is made to the provision of SEN. Such an interpretation would be capable of leading to absurd results, adversely affecting both the ability of local government to carry out its business, and the amount of resources available to meet the needs of those the legislation is designed to protect.
103. In our view, there is nothing in the legislation, or legislative history for that matter, to support such an interpretation, or to indicate that this was Parliament's intention. On its face, and when read in the statutory context to which we have referred, in our view, the legislation imposes a duty on local authorities, which arises from time to time, to consult at reasonable intervals, those identified in section 27(3) in order to keep the provision referred to under review, in which connection local authorities must consider the extent to which the provision referred to is sufficient to meet the educational needs, training needs and social care needs of the children and young people concerned.
104. The case for the claimants rests here on an observation made by Laing J in R DAT … In DAT, it was held that the duties imposed by section 27 must bite where a local authority makes a decision which will necessarily affect the scope of the provision referred to in section 27. However, in the short passage in her judgment, at para 30, … the judge gave no reasons for her conclusion, and expressed misgivings about it, in particular because, as she said, she had heard limited, if any argument on the point, and had not been referred to any material which explained the frequency with which the duties were expected to be exercised. In that connection the judge was not referred to section 12(1) of the Interpretation Act 1978 to which we have referred.
105. We think the judge was right to express those misgivings. If her reluctant interpretation were to be correct, the results would be startling indeed. This would mean that every time a local authority makes a decision that will affect the scope of provision made in its area for children with SEND or the provision that is made outside its area for children with SEND who are from its area, no matter how small, it must review the entirety of its provision both in and outside its area. It must consider whether the entirety of its provision is sufficient and it must consult the wide range of persons and bodies identified (including children with SEND) whether the decision is to reduce the scope of provision or increase it, regardless of the interest that such consultees, such as youth offending teams, might have in any change."
"(1) Where an Act confers a power or imposes a duty it is implied, unless the contrary intention appears, that the power may be exercised, or the duty is to be performed, from time to time as occasion requires."
(4) Ground 5. Section 149 Equality Act 2010, the public sector equality duty
"24. This argument … is in my opinion hopeless. Where, as here, the person concerned is ex-hypothesi disabled and the public authority is discharging its functions under statutes which expressly direct their attention to the needs of disabled persons, it may be entirely superfluous to make express reference to section 49A and absurd to infer from an omission to do so a failure on the authority's part to have regard to their general duty under the section. That, I am satisfied, is the position here. The question is one of substance, not of form. This case is wholly unlike Pieretti v Enfield London Borough Council  PTSR 565 (which held that the section 49A duty complements a housing authority's duties to the homeless under Part 7 of the Housing Act 1996)."