Key Facts
- •Judicial review challenge to question 7 (Q7) of the SEND Review consultation Green Paper (published March 29, 2022).
- •Q7 concerned remedies available to the First-tier Tribunal (FTT) in disability discrimination claims against schools.
- •Claimant (12-year-old boy with SEND, referred to as CU) argued Q7 unlawfully omitted information about the FTT's lack of jurisdiction to award compensation in such cases (contravening the second Gunning principle and being irrational).
- •Defendant (Secretary of State for Education) argued Gunning principles didn't apply to Q7 and the irrationality claim failed.
- •Claim issued August 17, 2022; stayed pending the Court of Appeal's decision in *Eveleigh* ([2023] EWCA Civ 810), then restored.
- •Defendant argued claim was out of time and the outcome would not have been substantially different if the omission had not occurred.
- •The consultation period ran to July 22, 2022.
Legal Principles
Gunning principles for voluntary consultations: (1) consultation at a formative stage; (2) sufficient reasons given; (3) adequate time; (4) responses conscientiously considered.
*Eveleigh* ([2023] EWCA Civ 810), *R (Moseley) v LB Haringey* [2014] 1 WLR 3947
Irrationality: A decision is unlawful if it's so unreasonable that no reasonable authority could have reached it, or if there's a demonstrable flaw in the reasoning process.
*R (Law Society) v Lord Chancellor* [2018] EWHC 2094 (Admin)
Time limit for judicial review challenges to consultation exercises: Fact-specific, considering factors such as when the unlawful decision was made, opportunity for self-correction, and whether the challenge is premature.
*R v Secretary of State for Transport ex p London Borough of Richmond (No 3)* [1995] Env LR 409; *Burkett v Hammersmith and Fulham LBC* [2002] UKHL 23; *Nash v Barnett LBC* [2013] EWCA Civ 1004; *Royal Brompton v Joint Committee of Primary Care Trusts* [2012] EWCA Civ 472; *Draper v Lincolnshire County Council* [2015] EWHC 2964 (Admin); *Tilley v Vale of Glamorgan Council* [2015] EWHC 3194 (Admin); *Esai Ltd v National Institute for Health and Clinical Excellence* [2008] EWCA Civ 438; *Hoareau v Secretary of State for Foreign and Commonwealth Affairs* [2019] EWHC (Admin)
"No substantial difference" test: Court considers whether the outcome for the applicant would have been substantially different if the unlawful conduct hadn't occurred; high hurdle of 'highly likely'.
s.31(3D) of the Senior Courts Act 1981; *R (Cava Bien Limited) v Milton Keynes Council* [2021] EWHC 3003 (Admin); *R (Wainwright) v Richmond upon Thames LBC* [2001] EWCA Civ 2062; *R v North & East Devon Health Authority, ex p Pow* (1998) 1 CCLR 280
Outcomes
Claim failed on the merits.
The court found the Gunning principles did not apply to Q7 as it was not a specific proposal but an exploration of the current arrangement. The irrationality claim also failed because the government's decision not to include a proposal regarding compensation was not considered irrational.
Permission to bring the claim was granted.
The claim was not out of time because it was brought promptly after the defendant refused to remedy the alleged flaw. The 'no substantial difference' point was also rejected; the court found it was not highly likely that the absence of information on the compensation remedy would not have made a difference to the consultation outcome.