Families of children with SEND have lost a High Court legal challenge in which they alleged cash-strapped councils had broken the law over controversial “safety valve agreements”.
The case centred on families’ concerns that measures introduced under safety valve agreements (SVAs) entered into by Bristol City Council and Devon County Council – aimed to reduce the local authorities’ huge SEND budget deficits – would limit vital support for children with additional needs.
Both councils signed multi-million pound SVAs last year, along with 36 other councils with gaping high needs funding deficits.
Under the controversial agreements, the 38 local authorities received a total of more than £1bn from the DfE, in exchange for assurances they would slash their high needs deficits over an agreed number of years.
At Bristol High Court in January, DCC and BCC were accused by families of three children with SEN, who have not been named, of not fully assessing the long-term implications their agreements would have on SEND provision.
All grounds dismissed by judge
Passing down a ruling on Thursday, Mr Justice Linden dismissed a claim that councils had a duty to consult, under the Children and Families Act 2014, on the agreements.
He found that when deciding to enter into the SVAs, both councils “were entitled to consider” that they already “had a good awareness and understanding of the views of interested bodies and individuals in their areas”, in relation to their proposed plans.
“It was perfectly rational for them to decide that they need not consult at this stage, given this, given the overall beneficial nature of the SVAs…given their intention to consult on the specific proposals which would implement these objectives, and given their ability to alter these proposals”.
The judge refused permission for all of the four other grounds of the appeal brought by the claimants. These included that Devon had breached the public sector equality duty, and had operated a secret policy in breach of transparency obligations.
‘Case brought needed national attention’
Beverley Watkins, managing partner at Watkins Solicitors, which represented two of the families, said “safety valve agreements are having a significant impact on children’s access to vital support, and we believe those impacts must be subject to greater scrutiny”.
“Every day, we speak to parents who are forced to give up work or reduce their hours, who face inappropriate school placements for their children, or who must pursue legal action simply to secure basic educational provision.
“Although we did not succeed today, this case has brought important national attention to the challenges families are facing under the current system. We remain committed to holding decision-makers to account and standing with families as they fight for the education and support their children deserve.”
A spokesperson for Devon County Council said: “We are pleased with the High Court’s decision and will continue in our ongoing work to improve outcomes for children and young people with SEND and their families.”
Bristol City Council added: “We remain committed to working closely with parents and carers, our partners in health and social care, and community organisations, to ensure SEND services meet the needs of children and young people, providing them with the right support, opportunities, and resources to thrive.”
Savings plans fall off track
Both BCC and DCC signed safety valve deals in March last year.
Bristol “undertook” to reach a positive in-year balance on its dedicated schools grant (DSG) account by the end of 2029-30.
In exchange, the DfE agreed to pay the authority £53.8m over a seven-year period.
Devon aims to reach a positive in-year balance on its DSG account by the end of 2026-27, in exchange for £95m paid across nine years.
By January 2024, shortly before Bristol entered into its SVA, its accumulated dedicated school grant (DSG) deficit was forecast to be £56.07 million.
Devon’s deficit had reached £118.3 million by the end of the 2022-23 financial year, when it was invited to enter into an SVA.
But both have fallen behind schedule on their plans. As of November, neither council was on track to achieve agreed targets under the safety valve agreements.
In total, 11 of the 38 authorities with SVAs are not on track to deliver the agreed savings, and five having been suspended for this reason.
In December, the government announced it will not enter into any new safety valve agreements with councils struggling with big high needs deficits.
The scheme “has not been effective enough across the board given the scale of the challenge”, they said.
