The High Court judgement has finally been handed down. While unfortunately the case was unable to demonstrate the sufficient level of legal 'irrationality' needed to prove the Council lacked unlawfully, there are some real positives to take away from the judgement which will help families and carers trying to get support for their children to access an education in Waltham Forest.

So huge thank you to all of you who supported this Crowdfunder and enabled families to describe the difficulties they have faced in accessing special educational support in the High Court. Every single penny counted and we appreciate your support more than we can say.

The Judgement highlights the absolute duties which the local authority is under to meet the needs of children with SEND. It is is a public document, and these statements should empower parents and schools to hold the Council to account and ensure that it provides the additional funding when that is required, and without delay. many positives to take from it.

We also think following sentence in the judgement is very important: 'The cuts to the Band E and the Band F levels do not, in any sense, operate as “caps” on the funding available to any individual child with an EHC Plan.'

In other words, our children should be funded according to need, as and when they need it. The banding levels offer guidance, but are not upper limits, and we do not have to wait until annual review time to request an increase in funding. Any failure to adhere to this is a breach of the law.

Below is the full statement from the campaign group. 

Thanks to everyone who has supported the campaign thus far - we consider this the start of the next phase of campaigning to give ALL children access to an education.

Waltham Forest SEND Crisis Statement:

We received the judgement on the High Court case today.

The court case gave families the chance to describe the multitude of delays and deficiencies standing in the way of support for children with special educational needs and disability (SEND) in Waltham Forest. To be able to hold Waltham Forest Council to account for their decision represents a great achievement, both for the two families who brought the case and for everyone who has supported and donated to the campaign.

We are, of course, disappointed that from a legal point of view the case did not meet the high threshold to prove Waltham Forest Council’s decision to make cuts was unlawful, though are delighted that the Judge was able to provide clarity on the legal responsibilities of the Council in making these cuts – a move that will help ensure that children are supported in future.

We would urge all parents and carers of children with SEND and schools in the borough to feel empowered by the judgement. The Judge emphasises (in particular at paragraphs 109, 114, 117, 120 and 122) that the Council is under an absolute legal obligation to secure the provision, including funding, in an Education Health and Care Plan. It also states that there is scope for the Council to increase funding outside of the annual review process, and that failing to do so or delaying could be a breach of that absolute duty.

These statements emphatically highlight that schools and the families of children with SEND should not hesitate to request additional funding should cuts be negatively impacting a child’s support. We hope that this Judgement helps parents, carers and schools to hold the Council to account, and so ensure that all children receive the support and funding they require without delay.

Despite this helpful clarity on the legal rights of children and families, our view remains that cutting 10% across-the-board from the top-up funding that goes towards supporting SEND children is both unethical and unjust. These cuts – conceived before the Covid-19 pandemic – are having a devasting impact both on the education of SEND children, and on local school budgets. In the wake of the current crisis, there is little doubt that the consequences will be even more dire. It is well understood that the first lockdown had a particularly detrimental impact on children with special educational needs, a situation only exacerbated by the current lockdown. Against this backdrop, the budget cuts appear even more heartless.

No one wants to be in a situation where special educational support is so under threat that their local authority is engaged in potentially unlawful activity, yet this where we now find ourselves. We urge Waltham Forest Council to open their eyes and recognise the plight of the many children they are currently failing to support in their education. We ask that they do everything necessary to comply with the basic legal requirements of the Children and Families Act 2014. We also urge the Council to be transparent in their processes, to reassure us they are behaving in a fair and equitable manner towards all children.

Waltham Forest Council used the court case to stress that children who are currently underfunded will have the opportunity to have their financial support increased accordingly, and in a timely fashion. Unfortunately, there is no publicly available policy that makes clear exactly how this is to happen. We are calling on the Council to remedy this oversight as a priority, and moreover honour their claim in Court that they are committed to providing the support they are legally obliged to give. We thus look forward to the Council rapidly putting in place, and transparently explaining, the processes required to ensure funding matches need at all times, as required by the Children and Families Act 2014.

Furthermore, we wish to highlight the Council’s woeful shortcomings in carrying out Annual Reviews for children with special needs. Annual Reviews represent a vital means of assessing whether children are receiving sufficient support, yet less than half of children had a completed annual review last year – despite this being a legal requirement for EVERY child with an Education Health and Care Plan. We urge Waltham Forest to honour their legal obligation and ensure that Annual Reviews are completed for every child with a plan.

Above all, we wish to offer huge thanks to the two local families who so bravely brought this case after having struggled to get the support their children need. We would also like to thank everyone who has helped with our campaign so far, including everyone who signed our open letter, came to our protests, donated to our legal crowdfunder, joined our Facebook group Waltham Forest SEND Crisis or followed us @SENDCrisisWF.

We would also like to thank the legal team at Irwin Mitchell, as well as barristers Khatija Hafesji and David Wolfe QC for helping the families bring the case.

We will continue our campaign to halt reductions in support for children with special educational needs and disabilities. These include brutal cuts to early years intervention, portage and hospital and home teaching; confusion over school transport; inadequate and non-specific EHCPs; a chronic shortfall of essential therapies; and delayed or non-existent EHCP annual reviews.

Ultimately, we hope to create a future where Waltham Forest will be a borough inclusive to all children, including those with disability or special educational needs.

Please do stay in touch to find out how we are continuing to make sure ALL children in Waltham Forest get the support they need to access an education.