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Judicial Review against Devon Council’s ‘Safety Valve Agreement’

Claimant issues judicial review challenging Devon County Council’s ‘Safety Valve Agreement’

Rook Irwin Sweeney are instructed on behalf of a child in Devon in an application for judicial review against Devon County Council, challenging its decision to enter into a ‘safety valve agreement’ with the Department for Education. Ollie Persey, barrister at Garden Court Chambers, acts as counsel.

Safety valve agreements (“SVAs”) are individual agreements entered into by local authorities and the Department of Education where a local authority has a high deficit in relation to its high needs spending. In return for additional funding and investment by central government to help repair the deficit, local authorities are asked to agree to a plan which will eventually return them to a point where their spending is within budget.

There are serious concerns about the lawfulness of SVAs, including amongst charities and commentators in the special educational needs and disability (SEND) community, who are concerned that SVAs 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 children and young people’s special educational needs. A common feature of many SVAs is that they include agreements to reduce the number of Education, Health and Care Plans (“EHC Plans”)  (legally binding documents which require the local authority to deliver certain provision to children and young people with special educational needs above certain threshold) and agreements to reduce specialist provision in the area.

Through its SVA with the government, Devon County Council has committed to ‘mitigate’ its SEND overspend by £7 million in 2024/25, around £19 million in 2025/26, and around £12 million in 2026/2027. It has stated that it will do this by reducing the number of children and young people on EHCPs and reducing its reliance on independent specialist provision. However, it has provided sparse details about how these measures will be implemented in practice and what the impact on children and young people in Devon will be. The Claimant in this case is a child with SEND, whose parent acts as litigation friend. The child’s parent is concerned that the Council’s commitment to such 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. These concerns are shared by other families who have provided evidence in support of the claim. The legal grounds of claim include that the Council’s decision to enter into the SVA 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, including disabled people.

The claim was issued on 11 June 2024 and the court will first decide whether to grant ‘permission’ to the Claimant to bring the claim.

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