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Councils face legal challenge over SEND safety valve deals

Three judicial review cases have been launched against councils that have recently entered controversial safety valve agreements, heaping more pressure on the government’s key SEND policy.

Devon is facing two challenges while lawyers have lodged a case against the council in Bristol. All are awaiting permission from judges to proceed. 

Both councils signed multi-million pound safety valve agreements earlier this year, joining 36 other councils with gaping high needs funding deficits. 

In return for bailouts, the councils must make sweeping cuts to their SEND provision to bring down spending.

Law firm Rook Irwin Sweeney, acting on behalf of a child, said there were “serious concerns about the lawfulness” of the safety valve agreements. 

Those concerned said the deals “amount to binding commitments by local authorities to make cuts to SEND provision in such a way that may undermine their ability to comply with their legal duties” to meet youngsters’ SEND needs.

The lawyers argue that Devon’s decision to enter the programme was “irrational” and that it breached section 149 of the Equality Act 2010, which requires public bodies to consider the impact of any decision on people with protected characteristics. 

The firm said the child’s parent is concerned that “significant reductions to its SEND spending have not been properly considered and may result in their child’s needs and the needs of other children and young people in Devon not being met”. 

In exchange for £95 million over nine years, Devon must improve “inclusive capacity” in mainstream schools and improve data use to “make informed decisions about how the council spends money” to support children with SEND.

‘Sparse details’

Rook Irwin said the council had also stated it will “mitigate” its SEND spend by “reducing its reliance on independent specialist provision”.

However, the council has “provided sparse details about how these measures will be implemented in practice and what the impact on children” will be.

Meanwhile, Watkins Solicitors is also pursuing cases in both Devon and Bristol over the councils’ decision to enter the programme.

Bristol is set to receive £53 million over seven years. It has pledged to enhance early intervention, outreach and school improvement to “enable increased numbers of children and young people with EHCPs to be successfully supported in mainstream settings”.

A Devon spokesperson said: “We are aware of the application and will cooperate fully with any subsequent legal process.”

Bristol and the Department for Education have been approached for comment. 

Earlier this year, Bournemouth, Christchurch and Poole council faced legal action from parents over its safety valve negotiations. However, the council’s 15-year plan was rejected by ministers. 

As well as being controversial, it is not clear whether the bailouts are working as intended.

Schools Week reported this month that more than a third of safety-valve councils face bankruptcy, despite being set to receive more than £1 billion in government bailouts before the end of the decade.

In 2020, the government overrode standard accounting rules, letting councils keep dedicated schools grant (DSG) deficits off their general revenue books, which enabled them to set overall balanced budgets.

That override is set to end in 2026, after which it was hoped that councils would have eradicated these deficits.

Stoke-on-Trent council, for instance, said it was facing “a risk of section 114 [meaning it could not balance its budget] due to pressures and demands across all of children’s services”. 

It was “not on track” to balance its DSG deficit by 2025, as agreed in its safety-valve deal, with its officers in “constant dialogue with the DfE”.

It is estimated that councils’ high needs deficits sit at around £1.6 billion.

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