This two day hearing took place on 29 and 30 July 2020 in front of Rt Hon Mr Justice Kerr at the High Court of Justice, Queen’s Bench Division, Administrative Court. There were two claimants, Amber Shaw (pictured), with her mother and litigation friend Deanne Shaw and an anonymous claimant ABC, with his mother and litigation friend XYZ.

Solicitor for the claimant’s was Polly Sweeney, consultant at Scott Moncrief & Associates, counsel were Steve Broach, 39 Essex Chambers and Alice Irving of Doughty Street Chambers.

The defendant was Secretary of State for Education, Gavin Williamson. His solicitor was the Government Legal Department and counsel were Sarah Hannett and Nathan Roberts from Matrix Chambers and Mark Davies of 6 Pump Court.

This was a hybrid hearing held during the coronavirus pandemic. The judge and legal counsel were in court, parties, press and public attended remotely via an audio link.

The claimants in the case, two disabled children, challenged the Secretary of State’s decision to modify the legal duty under Section 42 of the Children and Families Act 2014. This places a duty on local authorities to secure provision to meet special educational needs and health needs as set out in an Education, Health and Care Plan. The SOS for Education downgraded the legal rights of over 390,000 children with special educational needs during covid, replacing the legal duty with a requirement to use ‘reasonable endeavours’ to secure the associated provision.

You can see the tweets from Day One here and Day Two from here. The judge handed down his judgement on 14 August 2020 (linked below), dismissing all the grounds for claim. Although he did acknowledge that:

“the impact on parents and their children with SEND was sudden and severe and came at a time when there had already been serious failures in delivery of SEND provision, before the pandemic struck”.

In response to the concerns raised about timings and scrutiny available relating to the decision, he acknowledged that the decision to lay the new regulations before Parliament only one day before they came into force:

“curtailed nearly to vanishing point any practical opportunity for Parliament to scrutinise the 2020 Regulations before they came into effect”. 

Despite this, the judge found this was a decision of Parliament and therefore not ‘justiciable’ (a matter for the courts) and that he did not consider it irrational due to the urgency of the situation.