Thread by @GeorgeJulian

Just connected to court for the #CovidSEND judicial review case [It's very echoey, legal teams are in court, a number of people attending remotely through Skype]

Background thread here

https://twitter.com/GeorgeJulian/status/1288386891063136257

I believe those in court are listed in attachment.

@polly_sweeney of @scottmoncrief, @SteveBroach of @39publiclaw and @AliceLIrving for claimants Amber and @1985Deanne Shaw and anonymous claimant ABC thru XYZ

@sarahhannett and Nathan Roberts of @matrixchambers and Mark Davies of @6PumpCourt for defendant SOS for @educationgovuk

As far as possible I will tweet word for word what is said, if not possible due to speed I'll paraphrase. I'll offer no analytical commentary, I'm simply trying to facilitate #OpenJustice thru live tweeting to a wider audience #CovidSEND

MrJK: My clerk will keep an eye on attendees and share any indication from them of any difficulty

SB: My Lord I act for the claimaint's families, I'm assisted by Ms Irving.

[@SteveBroach introduces who is in court]

SB: The hearing bundle has been updated as well [checks Mr JK has final page]

#CovidSEND

[Lots of scrabbling and shuffling of paper, very hard to hear]

SB: The authorities bundle is filed... I think that is all my housekeeping

SB: Current notice expires on Friday

Second aspect of claim is... [sorry can't hear]

SB: Claim is brought by two children with SEND bought with their litigation friends.

No anonymity is sought for the first claimant, an anonymity order is in place for the second

[cut out]

Really sorry people, can't hear anything #CovidSEND

Clerk to the court is trying to sort the sound, but it drops out.

SB: @DisRightsUK have a statement in the bundle; also statement from other organisations

SB: I propose to address your lordship under following headings:

preliminary issues
law (briefly)
grounds of review in skeleton
relief

#CovidSEND

SB: The defendant has caused significant and unnecessary detriment to [children with SEND's] education... done under an assumption that changing the law would not have an impact

[my paraphrase; very hard to hear, drops in and out]

SB: We say the issue is more accurately described as hypothetical rather than academic as in [case law]

#CovidSEND

SB: Part 8 of supplemental authorities if I may... there is a bookmark on the left hand side that helps me get around these bundles.

Judgement from para 1 of claim whether SOS could refuse child's...

#CovidSEND

SB: Para 55 is aspect we need for these basis, on p93 of the bundle my Lord. I should start at the stop of that page, the heading 'is the claimant empty [?]'

We submit Para 55 is a very helpful summary of the principles, can I invite your Lordship to read Para 55 #CovidSEND

SB: We say my Lord, by reference to... that the challenge to notices in this claim is a hypothetical challenge... it is not an academic claim, which is one the judge says does not need to be answered for any practical purpose #CovidSEND

SB: Para 9 my Lord we make a number of points, the first of which is that the July notice remains in force, therefore this is not simply a hypothetical or academic claim. #CovidSEND

SB: We're not aware of any other case where a decision that remained in place but was about to expire was treated as hypothetical or academic. #CovidSEND

We say this is not a hypothetical or academic

Mr HJ: It's midnight on Friday it comes in [hard to hear]

SB: As I say we're not aware of any case where a claim has been knocked out on that basis... the second point, the defendant only began to argue the challenge was academic when he announced on 2 July no further notices would be issued unless the evidence was [??? ]

#CovidSEND

SB: This is the second statement from official @educationgovuk they give evidence about position regarding further notices... on 2 July govt announced intention of return from Sept 20, with return to absolute duty as one element of this #CovidSEND

SB: Para 27 quotes from guidance issued on that date [here I think gov.uk/government/pub… ]

#CovidSEND

SB: Guidance updated on 6 July... that's what changed, until that point the defendant had not argued it was academic; we say that is not reassurance there will be no further notices... unless the evidence changes is such a broad caveat #CovidSEND

SB: Nothing we say of any substance has changed since the defendant agreed the challenges to the notices should be heard #CovidSEND

SB: Is there a good reason in the public interest to hear the claim?

For your Lordship's note my learned friend quotes a case Kenzie [?] where suggestion is...

We do not make any such concession, we say examples given are merely examples. #CovidSEND

[Very hard to hear His Honour Mr Justice Kerr - discussion between him and @SteveBroach about case law]

SB: We put forward good reasons in public interest to hear this challenge.... real possibility of future notices been issued under same powers, with same process that we argue is unlawful in this claim #CovidSEND

SB: Can I divert your Lordship's attention to the F judgement...

[dropped out... might be that Mr JK is reading]

#CovidSEND

SB: We say of course the context is quite different but it demonstrates that there is precedent for the court to hear.... the guidance

#CovidSEND

SB: We move to Eleanor Wright's statement for @sos_sen, one of the two leading legal charities supporting families... at the end of the statement she deals with the question of what might happen next. We are really anxious if there is a second wave...

#CovidSEND

SB: The sector, those who represent and support children and young people see the need for guidance from the court.... we say it's unlawful

Mr JK: sufficiently ??? landscape in September and October

SB: We submit the landscape will be the same

#CovidSEND

SB: It's very specific and discreet power that can be exercised if a second wave arrives, therefore the circumstances are likely to be analogous to those in Spring, it's the same statutory power that will be exercised

#CovidSEND

SB: The national decision... that's the first point, the real possibility. The second point we make is the issue of profound importance to a substantial population of children and young people with significant needs #CovidSEND

SB: The claim raises issues of significant concern, we say there's a real public interest in the court considering whether their rights [?? didn't catch] have been downgraded for this period

Importantly we'd like disclosure of the evidence base for this decision

#CovidSEND

SB: Can I take you to the HBTN case My Lord... discussion at para 41-42, case is concerning slightly curious situation where person claimed to be child, LA conducted age assessment disputed, another LA involved... very curious, the case was she was lying who she was #CovidSEND

SB: The dispute was whether the LA should have disclosed the age assessment to her. The claim against Sunderland was put, the decision challenged was refusal to disclose assessment, but was disclosed by Home Office in proceedings, hence became academic #CovidSEND

SB: I invite your Lorship to read paragraphs 41-42, I'm grateful #CovidSEND

SB: This was wholly academic, para 41 confirmed and para 42 is discussion of principles... particular example given we rely on, where challenge brought to practice that's short term but significant interference....

SB: if regarded academic, may be very difficult for courts to adjudicate and look at practice. We say fact reviews were in place for a month makes it practically impossible for someone to bring a claim.

#CovidSEND

SB: Draw to witness statement from claimants solicitor @polly_sweeney at C161

It's not a delay in relation to discretion, my learned friend says its about whether the court should [dropped out]

#CovidSEND

SB: Criticism made claim wasn't issued until 12 June

SH: It's in 15... [discussion about paperwork]

#CovidSEND

SB: They're making the point our alleged delay is related to not having time to challenge notices in place for 3mths

#CovidSEND

SB: First of all, the defendants said he'd not respond to the first letter before claim for 14 days, he took 15 days to respond, just 4 working days before expiry of first notice

On 29/5 SOS indicated he would be issuing a second notice

#CovidSEND

On 3/6 Ms @polly_sweeney was instructed by second claimant, on 5/6 second letter before claim was sent

SOS responded same evening clear would be no concession so Ms Sweeney began to prepare the claim

#CovidSEND

SB reads: In event you plan to take forward your claim this week, we would suggest is still premature... one remaining section [disclosure] remains outstanding

As of 8/6 the defendant was telling the claimant to issue was premature.

#CovidSEND

SB: Claim was issued on 11/6 and sealed the following morning; the only way the claimants could have issued earlier was to ignore the pre-action protocol and then they would not have got legal aid

#CovidSEND

Mr JK: I can see there is no delay, it's a question of we are where we are

SB: A neutral factor on delay, what matters is where there's good reason and I've not given 3 of my 4 reasons..it couldn't have been done any faster

#CovidSEND

SB: We say this is an exception, in an analogous case relating to breaks in relation to disabled children....

Mr JK: Did you win?

#CovidSEND

SB: I did win. To put in context, this was a discussion about relief... suggestion was no relief should be granted because outcome of claim would not be substantially different.

#CovidSEND

SB: paragraph 68 the Judge accepted was public interest when LA cuts spending and specific issues arise... so was exceptional public interest reason for claim to continue #CovidSEND

SB: We reiterate point that decision had modest authority, but we accept was a reserved authority [hard to hear]

#CovidSEND

SB: In summary, even if challenge to notices is hypothetical, despite fact still current for next 2 days, we say clearly case where his Lordship should exercise discretion because clearly reasons in public interest.

#CovidSEND

SB checks whether Mr JK has had opportunity to read the mother's witness statements as they give a flavour of the claimants - he has

#CovidSEND

SB: References actually say:

I'm sure other families would feel same (para 11)
I can not see why any parent would want to challenge LA about support obviously impossible for them to provide (para 9)
Parents understand where it's impossible (para 13)

#CovidSEND

SB: The evidence claimant relies upon is that parents will not try to enforce provision that it's not possible for LA to provide; second point criticism is evidence does not properly distinguish between difficulties from pandemic

SB takes Mr JK to statements

#CovidSEND

SB: Purpose is LA should provide all provision unless impossible to provide this... so doesn't require a change in the law

Her case is result of downgrading of duty, not just function of the pandemic.

#CovidSEND

SB: Second claimant, para 11, 12 and 15 all identify problems as a result of downgrading of S42 duty

Second statement, para 3-5 specifically distinguish between pandemic and system failures in her view linked to downgrading of duty

#CovidSEND

Mr JK: I can see she says [can't hear]

SB: Yes, her strong view as an informed parent, as she says she works in #NHS and sees impact of the pandemic. The effect of the decisions is that the family have been abandoned without the necessary support #CovidSEND

SB: The third and final issue, para 37 of defendant's skeleton... we say ignores how in practice the challenge of questioning 'reasonable endeavours', challenges of how loose this test is, especially in a pandemic #CovidSEND

SB: Can I take my Lord to what the @ChildrensComm says please in the bundle; it's taken from their website childrenscommissioner.gov.uk/?s=reasonable+…

#CovidSEND

SB: There's no reported cases about reasonable endeavours, no reference on social media that we've seen

SB: The bottom row refers to a LA that is NW9, a table of evidence before defendant in time for July notice to be made... short point we make

Mr JK: [Can't hear]

SB: It's evidence officials had when the decision was made

#CovidSEND

SH interjects with accurate page reference

SB: What we see my Lord, C800, the North West 9 summary and it says 2xJR both relating to reasonable endeavours - that's the only evidence we've been able to identify and we know very little about what happened in those cases #CovidSEND

SB: We say that's wholly unsurprising given how loose it is, and given concerns raised by @ChildrensComm

#CovidSEND

SB: 10B of skeleton summarises evidence that #SEND system was in crisis prior to this pandemic

Cites @LGOmbudsman evidence, the apex of the complaints system

lgo.org.uk/information-ce…

#CovidSEND

SB: 'A system in crisis... with severe delays up to 90 weeks' we say that's highly relevant context to the decisions we challenge here. the decisions being taken by the defendant were taken in relation to a system already in crisis prior to the pandemic

#CovidSEND

SB: Quotes @ADCStweets 'nationally the SEND system is already at the point of collapse... because of unintended consequences of that legislation'

#CovidSEND

SB: So the defendant was being told by @ADCStweets Directors of Children's Services for a substantial region was SEND system was already at point of collapse. We say that's highly relevant context #CovidSEND

Discussion about cross referencing

SB: We've sought to cross reference; perhaps we could assist his Lordship with a version of the skeleton that has the cross references

#CovidSEND

SB: Moving onto 10C, I was going to go to the @ChildrensComm statement E192 (?) this is the public statement on the 12 May childrenscommissioner.gov.uk/2020/05/12/res…

Updated on 10/6, no significant changes as we understand #CovidSEND

SB: What the @childrenscomm says is she has serious concerns... fully acknowledge LA and CCGs working in extremely challenging conditions... however, I'm off the view the downgrading towards children with SEND is disproportionate... #CovidSEND

SB reads: The Government, LAs and CCGs should set out their reasons and evidence for implementing or making use of the changes. The Government should also publish as soon as possible an assessment of the impact of these changes on children’s rights.

#CovidSEND

SB: The @ChildrensComm is a statutory office holder raising concerns your Honour...

#CovidSEND

SB: At bottom of that page, the final paragraph, the concern expressed that we may find LA start issuing blanket policies to all children with SEND even though the guidance says they should not do this.

That is born out in Ms Wright's statement @sos_sen we see next

#CovidSEND

SB: 1191 heading 'why does suspension of these timescales matter' highlighting number of cases that go to these tribunals, the lengthy process... at that stage the guidance didn't recognise the timescales were binding.

#CovidSEND

SB: That's an issue of particular concern to @ChildrensComm and to one of my client's who may need to go to tribunal

#CovidSEND

SB invites Mr JK to turn to 1246 for statement of Ms Wright @sos_sen

SB: She's a practising solicitor... we've never been asked to provide this information to the @educationgovuk

Para 6 summaries who @sos_sen are and how they operate

#CovidSEND

SB: It goes on to explain widespread use of unlawful practice by LAs before the pandemic... examples, breaches of time limits, severe breach of S42 with children going without provision for long periods

#CovidSEND

SB: 90% of cases settled pre-action, over 92% successful appeals by parents to tribunal... [suggestion is that authorities know they are in breach of law]

Could I invite your Lordship to read her examples, impact of the decisions

#CovidSEND

Mr JK: She starts by saying [can't hear]

SB: Yes my Lord

Mr JK reads

#CovidSEND

SB: I'll pick out some highlights, or rather low lights... after the issue of the notices we were increasingly receiving reports where LA or school were modifying without given reasons... some issued blanket statements, the concern the @ChildrensComm raised

#CovidSEND

SB: We say the defendant ought to have known this was a real risk given this was a system already in crisis

#CovidSEND

SB: She goes on to say a number of LA and schools were continuing to act on basis notice suspended all duties; she then refers to sending out of standard letters in response to EHCP requests to assess... indicating blanket policies

#CovidSEND

SB: Far too many children have had little or no support since school's have closed down and in a number of cases this will have caused damage that is irreversible...

Some specific examples given from particular areas

#CovidSEND

SB: Ms Wright @sos_sen describes 'few indications matters were improving for children with SEN or disability'... parents told could not send children... other reasons given may be unlawful, demonstrate breadth of the problem

#CovidSEND

SB: provision only included in EHC plans when tribunal or LA has decided it's necessary to meet child's needs... so this isn't desirable provision, it's essential

#CovidSEND

SB: Para 17, concern families have about what would happen if they send their children to school without legal guarantee about what provision would happen [??]

#CovidSEND

SB: She gives ongoing evidence about impact of easements.. considerable delay which might jeopardise specialist places for the child... altho tribunal operated moderately successfully during lockdown... bottleneck, which will continue to grow and create further delay

#CovidSEND

SB: Notices were issued at very late stage with very little advance warning... planning very difficult

para 24 she's easily aware, despite best efforts of @sos_sen and other organisations, we're only seeing the tip of the iceberg

#CovidSEND

SB reads Ms Wright @Sos_SEN statement: Not appropriate for parents or charities to be left to challenge these decisions

#CovidSEND

SB: Widespread problem for considerable time... she says, we submit, that @educationgovuk must have been aware providing a new excuse for avoiding statutory duties would lead to substantial further worsening [my paraphrase]

#CovidSEND

SB turns to chronology: decision in principle to making amendment regulations 23/3, we've now a statement from defendant on 25/3

[Can't hear]

#CovidSEND

SB: We only got this on Tuesday, maybe Monday... in additional papers

F1826

#CovidSEND

Mr JK: It's quite short

SB: Yes, its clearly a preliminary submission... its a note to the whole team at @educationgovuk purpose is to update on notices proposing to make as result of #Covid19

#CovidSEND

SB discusses document

We're told priority is those who have direct right of individuals... all children related legislation

Mr JK: not just special needs

SB: no, all legislation. We're told timing will depend on complexity of amendments to be made

#CovidSEND

SB: F1289 third row in second column, SEND needs assessment... I'll rotate my view so I don't crick my neck... amend provision to relax time... we can add a #Covid19 specific amendment.. which is what @educationgovuk did

#CovidSEND

SB: The second key document is 9/4 submission at C441... just flag key points, again its to decide by the Minister, what's sought is agreement to modify various deadlines... to note further advice will follow recommending temporary relaxing of S42 duties

#CovidSEND

SB: These will come into effect immediately, without standard 21 day lead time.. that decision been made already

Changes aim to help LA deploy their resources more flexibly, while still ensuring they provide appropriate level of service to children and young ppl

#CovidSEND

SB: Neither of those statements [changes supported by sector/parents will have more certainty ??] are supported by evidence

#CovidSEND

SB: On timing it said would be able to be done by end of the month, was urgent, there more detailed background rationale for changing the law 'a significant mismatch between statutory duties on LA to take action... and current reality on ground'

#CovidSEND

SB: 'Changing the law would therefore not have significant impact on families with EHC plans' we say that is not an evidence based submission that changing the law would not have a major impact

#CovidSEND

Mr JK: [can't hear]

SB: That is not an accurate summary, if @educationgovuk had explored properly and actually spoken to sector, they'd have known by reducing duties they'd have reduced provision further, they'd have known... that gets to the essence of the dispute

#CovidSEND

SB: Position seems what mattered was bring the law in line with reality.. wouldn't have implications on children and young people.. we say that's irrational and wrong, a system already in crisis, if you give opportunity to do even less in a pandemic, it will be taken

#CovidSEND

SB: Changes to law unlikely to be controversial... families understand.... LAs already being threatened by judicial review.... we will show your Lordship there's no reliable evidence of that, certainly no evidence of unreasonable threat of judicial review

#CovidSEND

SB reads: Critical to get messaging on these changes right... NNPCF parent bodies...

These receive funding from LA to be voice of parents in their area... national representative of local forums...

SB reads: we've already had conversations with these stakeholders....

SB: We see at 21A certain ethnic minority groups have an above average level... all protected characteristics are considered.... we say he relies on this....

Mr JK: in the end you say he's relying on an impact assessment...

#CovidSEND

SB: You could in principle but in practice there's nothing that goes to the statutory issue about the need to protect and promote the welfare of children

#CovidSEND

SB: C we have all the reasons why a change in the law is appropriate....

Minister is invited to note changes will temporarily disadvantage children and young people with SEN and other protected characteristics

#CovidSEND

SB: We make no challenge to this, except not incidentally complying with Section 7 [I think, connection dropped out]

#CovidSEND

SB: Discussion in so far as it goes is limited to the communications handling issues in Para 25

Mr JK: and [can't hear]

SB: yes and the action is to provide guidance in relation to handling

#CovidSEND

SB: One children's sector body noted [Council for Disabled Children I think he said]...

In para 29 we say, under financial implications, the rationale for these changes is to free up LA and health bodies to free up their resources...

#CovidSEND

SB: there's nothing in the rationale that suggests its intended to support or benefit children and young people with SEND

#CovidSEND

[Discussion can't hear]

SB: Nothing we say to promote the interests of children with SEND were driving force for these changes

#CovidSEND

SB: Annex A gives your Lordship what's proposed, we point out para 5 [?] the department @educationgovuk knew would be a huge backlog as result of the outbreak and also, we say, as diverting resources away

We say pandemic plus your modifications

#CovidSEND

SB: The defendant didn't elect to modify S44 of Children and Families Act to review an EHCP

We say it's striking no equivalent analysis was conducted for the changes to S42

#CovidSEND

SB: Para 7 detriment to protected groups being outweighed by public interest in being able to respond to a national public health emergency

[I think; sound keeps dropping out]

#CovidSEND

SB: 21/4 this was submission promised on 9/4, it's not said whether it's to comment or decide but we assume must be for decision....

#CovidSEND

[Sound keeps dropping out, apologies for gaps]

SB: Then we get to para 19, what's relevant, the issuing of this application and modification

#CovidSEND

SB: This should take into account stakeholders views... extent to which necessary.... that's not a distinction that we accept

#CovidSEND

SB: We know modification allows the duty to be discharged, para 20 exercises need to consider is proportionate... for each statutory provisions submissions set out why they say its met.... para 26 tells us what S42 does, LA and health bodies secure provision

#CovidSEND

SB: In essence my lord the examples given, reduced resources... some redeployed staff.... many children now at home making it impossible for LA to secure provision.... remotely might be partially successful, some families wont be able to access such provision

#CovidSEND

SB: I'll come back to that if I may rather than make submission on that point now

We have communications again... interest around two sections, the second of which is ours... in order to control the narrative....

#CovidSEND

SB: Largest risk associated with this change is parents are concerned their children won't get the provision they need.... at this point the only reference to stakeholders is @ADCStweets... the risk of any negative impact is solely in relation to reputation [?] issue

#CovidSEND

SB: Then we have the public sector equality assessment

[Discussion hard to hear, I think about DH risk assessment, but children's social care sits in education]

#CovidSEND

SB: Point, this is not in our submission, anything like a summary of affects, the actual affects...

Mr JK: you could say [can't hear]

SB: Yes it seems to be in contrast to the overall thrust of the position... we say the department wouldn't have known the actual impact

SB: They should have consulted for example and received evidence from people like @eleanorjwright @sos_sen

#CovidSEND

SB: Behind that we have the template request forms... rather more detailed reasoning in relation to the notice

#CovidSEND

Mr JK asks question [can't hear]

SB: My understanding was this was attached to the submission.... what the minister himself knew is highly relevant...

SH: That wasn't placed before the Minister, it was the precursor drawn upon to create the ministerial submission

#CovidSEND

[Can't hear discussion that follows]

SB: I'll proceed on basis that those documents were not in front of the Minister, if I'm wrong we'll return to them

SH: I've had confirmation that's the definitive position

#CovidSEND

SB: Regulations laid on 30/4 and came in force on 1/5 so next is 22/5 in relation to June notice

Para 2.1

Mr JK checks timing/documents being referred to

#CovidSEND

SB: 13 or 30/6 [can't hear which] in para 2, similar background to para 4, I've not done a line by line comparison but it all looks very familiar and we make no criticism of that because it's the relevant background

#CovidSEND

[Sound keeps dropping out, apologies]

Discussion about certain year groups returning to school; children with EHC plans always considered vulnerable

#CovidSEND

SB: p3547 you'll see there's redacted text, I'm not sure why it's redacted, I believe it's to protect individual's or legal privilege [??]

#CovidSEND

SB: Over the page we see in deciding whether modification is proportionate we reviewed the following evidence... all about the provider side of the equation, statutory bodies and providers, ADCS, LAs, NHSE... no reference to children and young people or parents

#CovidSEND

SB: It may well be right, but its not the point, the task isn't to secure provision normally delivered, the task is to secure provision set out in EHC plans... that reason quite significantly misses the point

#CovidSEND

SB: What's striking is the absence of any consideration of the impact of the notices on young people, all that is set out there is why it's difficult to secure provision

#CovidSEND

SB: There's nothing radically new here, although some more recent considerations... similar again in relation to communications, again there's a redaction, may well be a reference to this claim. Discussion of concerns

#CovidSEND

SB: It says under communications that the @childrenscomm is critical, but there's no analysis in relation to the decision

#CovidSEND

SB: All of that is in context of what said at end of second para, that period notice is in force, children with EHC plans are less likely to receive the support specified in their plans... we say that it recognises some detriment but far too little

#CovidSEND

SB: The same I believe reasoning in relation to proportionality at the end...

[connection dropped out again]

#CovidSEND

SB: As a result of that the June notice was signed on 29/5 and came into place on 1/6. This claim was issued on ??/6 then there is submission to minister in relation to the July notice

#CovidSEND

SB: This is the submission that deals with the discharge of the duty to keep under review

Mr JK: [can't hear]

SB: In our submission no, we don't challenge any breach of that duty

#CovidSEND

[Connection dropped out]

SB: Para 4 summarises chronology to date, paragraph 5 process of determining whether test is met

Mr JK: Can I just get ?? This is 23/6

SB: Yes My Lord

Mr JK: it's after half term [??]

[Really hard/impossible to hear the judge]

#CovidSEND

SB: We completely understand and we'll try to help his Lordship with that as best we can... this again is consideration of what was in the mind's of the officials in making this decision...

#CovidSEND

SB: Consider whether case to take more nuanced approach, and there's a new children's right impact assessment as well this time...

#CovidSEND

SB: Academic year identified as running until end July which is why it remains in force

#CovidSEND

SB: We consider temporary changes to legislation are appropriate, proportionate to the extraordinary circumstances the country is facing... we'd question whether at that stage the circumstances were quite so extraordinary

#CovidSEND

SB: There's a little more reference to engagement with the family side of the equation, although we say significantly limited, none of the organisations giving evidence in this claim were consulted including @autism @IPSEAcharity and so on

#CovidSEND

SB: The postcode lottery point is picked up, given @NHSEngland position, guidance had been changed to ensure that children and young people with EHC plans were a priority... we consider LA and health commissioning bodies are still unable to meet these duties

#CovidSEND

SB: consideration for the first time whether or not

[connection dropped out, apologies]

#CovidSEND

[Can't hear anything from court, the line sounds live still but no speech. Chat function with court clerk is not available]

#CovidSEND

[Still no connection - my apologies.

I'll not keep tweeting that there's no connection, that will be as irritating for you as it is for me; will tweet when reconnects]

SB reads: We then most strongly recommend option 3, then there's discussion whether modifications should be limited by areas.... reasons apply across all of England in all settings

#CovidSEND

SB: Government has made public commitment to consideration of the rights of the child, so we've conducted a risk assessment

Mr JK: its non statutory?

#CovidSEND

SB: Yes, so the July notice recognised it appropriate to consider... [dropped out]... they specifically address outcomes in relation to our issue, adverse impact on children with EHC plans...

We say that entirely understates the impact

#CovidSEND

Mr JK: Where is the public commitment?

SB: I believe it's a long standing commitment to give consideration to the Rights of the Child, it's not directly related to our issue or the pandemic

#CovidSEND

SB: Para 20, public criticism increasing, reference to media, @childrencomm statement, a number of parliamentary questions, then reference to the 50 charities letter nnpcf.org.uk/wp-content/upl…

#CovidSEND

Discussion about when schools closed

SB: Fact notice extended across whole month, that's why...

#CovidSEND

SB reads from document outlining considerations for making third notice [I think]

Then we have Annex B which is new of course

#CovidSEND

Court breaks for lunch; we'll return at 2pm, technology allowing

#CovidSEND

We're back in court for afternoon of Day 1 #CovidSEND

Legal team for claimants @polly_sweeney @SteveBroach @AliceLIrving

Legal team for SOS @educationgovuk is @SarahHannett Nathan Roberts and Mark Davies

Connection intermittent; tweets as often and as accurately as possible

SB: Annex B for July notice, that being rationale for issuing notice... yr Lordship has the first substantive paragraphs of that, discussions as to why children with EHCPs would not be attending educational settings; there's no consideration whether that [drops out]

#CovidSEND

SB: Finally, we see a discussion continuing to modify the duties as reasonable endeavours...

Mr JK: Is any of this new?

SB: Only in my submission that second paragraph, I don't think it new in its entirety but I dont think we've seen that wording

#CovidSEND

SB: We say it ignores the elephant in the room of what is the implication of changing the law...

What isnt considered here in any detail is whether there should be an all practicable steps duty, which we saw brief consideration of earlier

#CovidSEND

SB: Annex C is Children's Rights Impact Assessment, we have over page

You'll note under heading, its conversion [draft] 23/6, we don't have a final version.

As of 1/5 the laws change in a few ways... we regard this is a renegade [?] action two months after change

#CovidSEND

SB: The law simply says they must use their reasonable endeavours, examples from the guidance of what type of provision may come under that rubric

#CovidSEND

SB: These changes are likely to have some adverse impact on some young people, however they're justified...

So some broad consideration in very broad terms

#CovidSEND

SB: Best interests of child must be top priority... the government takes its responsibility for children with SEND seriously [missed it].... pausing there my Lord that has nothing to do with these circumstances [?]

[2nd example] Again nothing to do with these

#CovidSEND

SB: There's nothing there my Lord that explains why in the claimants views, had the best interests of children with SEND... we consider it an entirely unacceptable attempt to consider in retrospect [paraphrase]

#CovidSEND

Mr JK: I can't now find reference to the more generic CRIA

SB: Exactly; we take it, we may be wrong

Mr JK: So 17 is generic, 18 gets straight to

SB: We read Annex C being extracts of CRIA specific to this situation

#CovidSEND

SH: ...you only have in the bundle the relevant extracts

[Missed it]

SB: If we go back to the Annex, Article 6 right to life, understandably focus is on protecting children from the spread of #Covid19 no objection to that

#CovidSEND

SB: Guidance is clear effective communication with children and their families is key at this time etc

We do acknowledge the changes may have impact on children's ability to express their views... we think that's the right balance but no explanation as to why

#CovidSEND

SB: What isn't set out there, because it didn't happen, is anything to do with considering the views of children in the first place, or in relation to the July notice. So we say that misses the point #CovidSEND

SB: Nothing on parent's views being taken into account on making decisions

It says the changes are temporary, proportionate response... that's not in fact a response to the question which is what have you changed.... that, in our submission, begs the question

#CovidSEND

SB: Your Lordship has our submission of how weak that threshold [reasonable endeavours] is

We say the guidance has clearly been of limited affect... there's nothing there in relation to why decision making itself was to protect children's rights

#CovidSEND

SB: No is the short answer, we haven't considered any alternative options, we think this response is necessary

Reference to discussion in March and April with stakeholders, paragraph 9 monitoring we don't any allege breach of duty in that regard

#CovidSEND

SB: That is the trawl through the primary evidence, I'm grateful to his Lordship's patience as we go through that.

#CovidSEND

SB: I'll turn to the law and ask his Lordship to pick up paragraphs 11 to 16. That refers to the Children and Families 2014 Act

#CovidSEND

Discussion about changes to Act to incorporate health [I think] and extension of age range

Mr JK: Just tell me the changes

#CovidSEND

SB: I think 21 is identical, where there is an important difference is S21 definitions of special educational provision, healthcare provision and social care provision

#CovidSEND

SB: S36 is the gateway provision in relation to the EHCP process in relation to assessment

Bodies that can request assessment, what it is, various other specific provisions we don't need to trouble ourselves with

#CovidSEND

SB is talking through this legislation legislation.gov.uk/ukpga/2014/6/p….

The plan is defined as being an Education, Health and Care plan

#CovidSEND

SB: We submit its the crowning glory, Section 42 is that it's a mandatory duty

#CovidSEND

SB takes to case law: it's a dispute around way Speech and Language Therapy (SLT) would be provided to child... by time case reached Court of Appeal the LA accepted their decision was wrong, provision had to be made in way set out in statement

#CovidSEND

SB: Paragraph 17 helps us, first of all there is no best endeavour defence [?], if the situation changes there's need to revisit, annual review process, duty stands its for LA to implement it... it's an absolute duty, that's why it's so important

#CovidSEND

SB: In normal times would be a marginal case where Court might not...

[cut out]

#CovidSEND

SB: in the case of a pandemic the court would be very reluctant to make mandatory orders if impossible, or too difficult...

#CovidSEND

SB: we say built into Section 42 in mandatory nature of its obligation is a safety valve that recognises in margin of cases it can't be enforced, we say its significant that the defendant has repeatedly ignored that

#CovidSEND

SB takes to coronavirus act and connection cuts out

#CovidSEND

SB: ...we see at 5.2 may limit this notification... built into power of notice is power to limit its application but not to change the nature of modification

#CovidSEND

SB: Para 6 is the modifications table, I'm afraid the text is rather small my Lord, over the top on p4 we have the relevant row in relation to our claim, just above para 7

#CovidSEND

SB: I'll help your Lord find it, it's very important, the very last row is our duty

Mr JK: Ah yes, an absolute duty...

SB: That's right, the primary legislation here specifies the nature of modification the Minister can make; the Minister has a binary choice, either leave the duty as is, or change it

#CovidSEND

SB: The important point my Lord is paragraph 6 and that's where we see, 6.1, the SOS may by regulation amend the list in para 5 or table in 6, so as to add an enactment, or vary or remove an entry - that's the power to vary the entries in the table

#CovidSEND

[Discussion about primary and secondary legislation, Henry 8th power... I've no idea, apologies]

SB: That power was there and we say there was no consideration of that power until the July notice

#CovidSEND

SB: That My Lord is the Coronavirus Act

Then we look at the notices themselves gov.uk/government/pub… one of the overarching points we make is how similar the notices are

#CovidSEND

SB reads: Reasons given for why decision is proportionate in May notice

#CovidSEND

SB: June notice relies on the same two reasons

#CovidSEND

SB: f is different this time though

SB reads

SB: that's first time reference is made to detriment to children and young people; secondly that no way accurately or adequately reflects the detriment

#CovidSEND

SB continues to talk through amendments made

SB: We're particularly concerned with amendments to SEND guidance

SB reads legislation.gov.uk/uksi/2020/471/…

#CovidSEND

SB: Theres two reasonably practicable in there; if the LA asserts its not reasonably practicable then they must do that as soon as is reasonably practicable. That's incredibly difficult challenge for parent or young person, to prove that time taken is not appropriate

#CovidSEND

SB: It's not been suggested that this aspect of the claim is in any way academic, that's only in relation to the notices

Mr JK: [can't here]

SB: Yes of course my Lord

#CovidSEND

SB: Your Lordship sees 2a, subsection 3... I do not intend to take my lordship to all of these, I would flag 3n, regulations that require compliance with first tier tribunal... it only has to do so as soon as is practically possible if the coronavirus act applies

#CovidSEND

SB: Same applies throughout my Lord, the only other one I'd highlight in particular was regulation 11

#CovidSEND

SB: The amended regulations is in part X of the bundle if your Lordship would like to see it in its amended form

That takes me onto the grounds; the first ground is the failure to consult

#CovidSEND

SB: There's no dispute that the defendant did not consult, the question is whether he was required to do so, with families and their representative organisations

We say the test is whether its conspicuously unfair for the defendant not to consult

#CovidSEND

SB takes to case law [I think - connection dropped out again]

SB: there are 4 statements about where a duty to consult should be followed [paraphrase], where it's...

#CovidSEND

SB: 1) statutory duty 2) where there's a promise 3) where it's an established practice or 4) where in exceptional cases failure to consult would lead to conspicuous unfairness... we say this is firmly in 4

#CovidSEND

SB discusses consultation for introduction of new legislation around 2014 Act

SB: this is very different but we do say its relevant, in ordinary times the defendant would consult, we say is it conspicuously unfair not to have consulted in this situation

#CovidSEND

SB: We accept its high pressure, but following Supreme Court's judgement in Gallagher [?] this might be substantive [dropped out]

#CovidSEND

SB: The discussion at paragraph 14 of this judgement, as always in context, is a discussion of case law at para 34 of broader concept of unfairness amounting to excess or abuse of power.

#CovidSEND

SB discusses case law

SB: The specific is about elevating substantiative unfairness to a distinct legal test... that doesn't have any impact on ordinary process of judicial review... the procedural fairness is well understood.

#CovidSEND

SB: We assert if your Lordship finds it was conspicuously unfair not to have consulted, we consider it would be irrational

#CovidSEND

Discussion of case law

SB: That's why we say substantive unfairness is not simply grounds for judicial review... [?? dropped out]

[missed Mr JK's comments and discussion]

SB: In para 20 of Gallagher [?] there's discussion of how claimants put case in relation to fairness, the expression conspicuous unfairness was derived from judgement in Unilever [?]

#CovidSEND

SB: That's the background, that amounts to the same thing we say, we don't try and suggest there's a gap between whatever test your Lordship applies, we consider conspicuous unfairness amounts to irrationality

#CovidSEND

Further discussion of case law

Connection poor; will tweet light here

#CovidSEND

SB: We invite your Lordship to focus very much on what was happening here and for his Lordship to decide whether it was conspicuously unfair

#CovidSEND

SB: We say we're entirely in that place, my clients had expectation that these policies would continue to provide them benefit therefore the change can not be made abruptly without consultation

#CovidSEND

SB discussion on Haringey case relating to council tax [I think]

SB: There's an important need to consider the objectives of consultation; first reason likely result in better decisions; second it avoids sense of injustice and 3rd reflects democratic principles at heart of our society

#CovidSEND

SB: Sorry my Lord I gave you a false promise, there is one more case I'd like to rely on [Bristol case, challenge to LA budget decision relating to SEN]

#CovidSEND

SB: This is looking at common law requirement to consult... that we say is analogous to our case, its not the provision, its the legal requirement... children in that case had substantial grounds to believe provision would continue

#CovidSEND

SB: He asks was it fair. The original court was concerned, what was said in Hollow [?]... we're saying he is following established authority in asking if it's fair

Mr JK: [can't hear]

SB: It was accepted would have direct impact on provision... [cuts out]

#CovidSEND

SB: This is another example we say #CovidSEND

#CovidSEND

SB: If I can ask my Lord to pick up the skeleton, we emphasise points at e and f... there may be a time when the needs of children with SEND might increase as a result of the pandemic, thats the @ChildrensComm point

#CovidSEND

[#CovidSEND keeps dropping out - apologies]

SB: SEND advisors in LAs contacted by telephone; these conversations took part with advisors, ?? / ?? were compiled in a spreadsheet; your Lordship has the summary of these conversations

SB: Table summarises relevant material... long list, all of these calls, discussed cases directly relevant to the decision... looking at [cut out]

#CovidSEND

SB: We say in context where defendants officers could have 127 structured conversations with the LAs it was obviously unfair not to have consulted with children and young people and/or their families and/or representative bodies.

#CovidSEND

SB: There was no attempt to engage with @autism or @SOS_SEN or an of the other bodies as well

The only engagement with my clients side was with the Council for Disabled Children in relation to the guidance, not in relation to the notifications

#CovidSEND

SB: It's a charity, not a statutory body... the reliance of urgency is hopeless in context of extensive engagement with LAs... it would have been possible for the defendant to run for example a two week online consultation

#CovidSEND

SB: @IPSEAcharity were expressly not consulted on these changes; only sent guidance for comment

#CovidSEND

SB: There was no engagement on this side at all. The position was obviously also far less urgent, even if your Lordship found it wasn't unfair to consult for May, it couldn't stand for June and July we submit

#CovidSEND

SB: By July the defendant did have more information but we say firstly it was incomplete and secondly it was slanted towards the LA

#CovidSEND

SB: Series of surveys in May, into June, into July

Draft findings are exhibited, if you look at 15, 115 primary and 135 secondary pupils, so sample size of 250, this is a general survey not targeted in any way. We see no question asked about the relevant [drops out]

#CovidSEND

SB: Very grateful to my learned friend; these are the results of the survey being referred to, wave one data 28/5 to 31/6

Mr JK: [cant hear]

SB: That's right, that's what the defendant is relying on in terms of data before the officials at time July notice is made

#CovidSEND

SB: Caution is raised in relation to sample size; some caution raised... none of that data that runs till C940 has anything to do with the implications of these decisions; they're broad questions in relation to experiences of families during #Covid19

#CovidSEND

SB: We compare what's done by the @educationgovuk here to what the voluntary organisations were able to do, for example @SpcialNdsJungle

Quotes their survey results, ran most of June, over 1000 completed responses specialneedsjungle.com/coronavirus-se…

#CovidSEND

SB: Statement of @RenataBplus3 @SpcialNdsJungle

We don't say there's anything magic in this, we say it's striking a voluntary organisation can find that information in relation to a thousand parents, while @educationgovuk relied on a sample size a quarter of that

#CovidSEND

SB: We make a submission about what this organisation were able to achieve

Mr JK: Was it all parents or SEN parents?

SB: As I understand it all of those parents would be SEN parents, it was a targeted survey of @SpcialNdsJungle community

#CovidSEND

SB: At C714 what settings to settings with SEND attend, 946 responses, 50% mainstream, 39% special, others presumably at home or other settings

#CovidSEND

SB move to statement from @autism

para 21 in relation to impact of changes on autistic children and young people, para 23 refers to unpublished survey conducted in June with responses from 1,075 parents of autistic children and young people

#CovidSEND

SB: 36% of parents who responded said they were unable to access provision set out in EHC plans

Two organisations able to survey 1000 parents during this period, we say it highlights deficiency in SOS @educationgovuk approach

#CovidSEND

SB: We say changes may not have been made at same time, or in same way, if the defendant @GavinWilliamson SOS @educationgovuk had consulted

#CovidSEND

SB: We say threshold remains a high one. We say its not necessarily an exceptionality test but its a high threshold that the defendant doesn't come near too

#CovidSEND

SB: ...secondly, we say core duty has been in place for decades, thirdly the cohort here are particularly vulnerable and their needs would predictably increase during #Covid19... [dropped out] finally, abruptly

#CovidSEND

[Apologies connection dropped out again]

SB: We show your Lordship briefly that evidence; first statement of Ms Knight @SOS_SEN, one of the two issues summarised in relation to evidence gathering was the threat of legal action

#CovidSEND

SB: If I've misunderstood and my learned friends accept the possibility of legal action was a consideration...

I'll quickly take my Lordship to C143, this is the Ministerial submission, paragraph 12 we understand LA already threatened with judicial review

#CovidSEND

SB: p418 my Lord

We'd understood legal action clearly was a concern, that's clear throughout the evidence, it may be suffice that I give his lordship some references

If I could just go then to [dropped out]

#CovidSEND

SB: It clearly was very much in the mind of the officials, its in the submission to the Minister

Mr JK: It was an absolute right to have and parents aren't getting it, it wouldn't be a surprise that legal challenges might follow

#CovidSEND

SB: That's right my Lord but we say the defendant failed to consider that

#CovidSEND

SB: Systemic failure to meet duties pre pandemic we describe as relevant context

The defendant says 'whatever position historically it's inevitable there would be new challenge, so it's not relevant' [paraphrase]

#CovidSEND

SB: We say if its obvious the system was in crisis before pandemic then it is far likely to lead to more detriment and should have been considered

[dropped out]

#CovidSEND

SB: There's a forward to the @ADCStweets email, the 7/4 following email of 6/4...

SB reads from email [can't hear it]

#CovidSEND

SB reads: the whole system should stop and we should focus on those with most vulnerable needs

Two of the people ADCS are reflecting to the department are calling for the whole system to cease or stop

#CovidSEND

SB: We say its particularly unfair and irrational of the department @educationgovuk not to have considered this

#CovidSEND

SB: It was both possible and reasonable for other consultation to be undertaken, such as adding a line to the calls to LAs

Mr JK: Am I correct that SEN children were entitled to attend throughout, they didn't have to be children of key workers?

#CovidSEND

SB: They had to have a EHCP and there had to be a risk assessment

Mr JK: So if you had a child with a plan you could take them to school [I think, hard to hear]

SB: Subject to the guidance and risk assessment

#CovidSEND

Mr JK: Key workers, if they couldn't.... [can't hear]

SB: It depends on what the key worker role was... I'm not in a position to assist your Lordship on my feet

#CovidSEND

SB: We say there was simply no inquiry into the changes and the impact of timescales

#CovidSEND

SB: Decision is taken in principle to make amendments to regulations, it's after that 30/3 we see the first engagement, there's another meeting 31/3 this is all after decision in principle has already been taken, we say again that goes to lack of reasonable inquiry

#CovidSEND

SB: We say none of the considerations were taken into account properly, or at all. It's instructive we say that Children's Rights Impact Assessment defines defendants task was, to balance the needs of children with SEND with... he simply didn't have that information

#CovidSEND

SB: We say that by July the information wasn't offered [I think, hard to hear]

We rely on XX case saying what is relevant for minister to know, was enough to enable him to make an informed judgement

#CovidSEND

SB references letter from 49 organisations sent on 29 May to @vickyford

nnpcf.org.uk/wp-content/upl…

#CovidSEND

SB: Officials also had note of NCPF [?] showing some LA applying blanket withdrawal... many families report they're getting little help or support, many families report children with SEND are not getting a differentiated curriculum

#CovidSEND

SB: Third piece of evidence is email chain between National Children's Bureau, @contactfamilies and the Department @educationgovuk

< Lists other evidence available >

The ministerial submission does not summarise in any way the level of the impact of these changes

#CovidSEND

SB: Key stakeholders raising concerns about the impact... but no information is given to the Minister about what those concerns were, or the gravity of them

#CovidSEND

SB: Concerns of Disabled Children's Partnerships that have criticised publicly... no discussion of what those concerns were, just of managing communications

#CovidSEND

SB: No mention is made of the evidence now available, no alternative [drops out] we say in summary there's a stark and obvious difference here between the presentation to the Minister @educationgovuk through his officials and the reality

#CovidSEND

SB: We say is wrong and irrational... we say its telling that it reflects the true position, that was the extent of the defendants inquiry, having satisfied at times LAs would not be able to meet their duties, that was the end of it

#CovidSEND

SB: Defendant says nothing about May and June notices... they say is adequately captured in ministerial submissions, we say that is wrong... it doesn't begin to capture the extent of the impact

#CovidSEND

SB: We say they should have made inquiry in relation to detriment likely to be suffered (for May notice) or actually in June and July notice as @SpcialNdsJungle @Autism managed to do

#CovidSEND

SB: It's not said how this can say the decisions were made... in conclusion we'd like your Lordship to find all decisions were taken in breach of reasonable inquiry

#CovidSEND

SB: Moving onto timing, decision to lay decision one day before came into force, denying any chance for parliamentary scrutiny

#CovidSEND

SB: This is a challenge to decision of the defendants, not any decision in parliament; which is why their reliance on Article 9 is wholly incorrect

Mr JK: Is it a real person?

SH: Yes, I can assure you it's a real person.

#CovidSEND

SB: The Speaker's final position, letter of 27/7, very recent. She says she's writing on behalf of the Speaker of the HOC

SH confirms spelling of author

#CovidSEND

Discussion about rationality of timing of laying guidance in parliament before enactment

#CovidSEND

SB: We do not invite his Lordship to grant any relief that would in any way prohibit the defendant from laying the regulations; we're not seeking anything that will impact on his ability to lay things in parliament

#CovidSEND

SB: The short point my Lord is this, what matters is the challenge... always been to an executive decision on the timing of when to lay the regulations, it's the speaker's view and has been our position throughout

#CovidSEND

SB: and it's disappointing that the defendant seeks to put his decision making outwith the court [my paraphrase]

#CovidSEND

SB: The decision on timing is a government decision; that's our case, it can be put as simply as that. Your Lordship can and should look at whether the timing was irrational

#CovidSEND

SB discusses case law and pure irrationality

She made point the threshold for irrationality is very high but not insuperable

#CovidSEND

SB: We say parliament was denied any opportunity to scrutinise the decision; no opportunity for anyone in the sector to scrutinise.

Mr JK: On the one day was parliament sitting?

SB: I believe so, we'll check that

Mr JK: how many days would suffice?

#CovidSEND

SB: There's no magic number of days, we say, for example two weeks in terms of assisting your Lorship

We put it the other way around, they offer no evidence for why they left it at one day [I think - hard to hear]

#CovidSEND

SB: We see, this is the reasoning given, under matters special interests of parliament in relation to non compliance of 21 day rule; reason given is decision forms part of government response to #Covid19 to reduce pressures on LAs and focus on coronavirus

#CovidSEND

SB: We say there was no reasonable evidence base for the defendant to decide the urgency was so great parliament couldn't be given any chance to scrutinise

We say a day was irrational

#CovidSEND

SB: We say simply no evidence that a greater period of time could not be given, even if 21 days was too great

#CovidSEND

SB: We now know submissions were made to the minister on ?? of March so we now know there was time

#CovidSEND

SB: Says they are responding to needs of family for greater certainty... the suggestion families were being asked for these decisions to be made in this way, there's entirely no evidence before his Lordship of that

#CovidSEND

SB: Where it's said in the memorandum they could come in earlier, it's difficult to understand that statement because as of 25 March they'd decided to do it and the SOS approved that

#CovidSEND

SB: Even if that's correct, that still doesn't answer question of why they couldn't bring into force later

We say it's simply irrational in the purest sense

#CovidSEND

Mr JK discusses chronology [can't hear]

SB: It's extremely difficult, no one is suggesting otherwise but we do know there were 4.5 weeks between making the decision in principle and making changes, so we suggest there was time

#CovidSEND

SB: We do emphasise the value of laying before parliament would include advance warning that the changes were coming

There's no evidence before the court for the floodgate issue - nothing to say this decision making process has any impact on other decision making [?]

#CovidSEND

SB: Ground D is challenge to decision that appropriate and proportionate to make each of the notices; this is a challenge to the rationality

#CovidSEND

SB: The defendant seeks to limit to July notice; we say that's wrong, guidance given would be relevant to future notices but as your Lordship has already seen the reasoning of July notice builds on those of May and June. We say this is a perfectly orthodox challenge.

#CovidSEND

SB: What matters is the abundancy of the impact of the decision and on that basis a high degree of scrutiny is required

#CovidSEND

SB: We say reasoning is irrational because relies on staffing [missed it]... second point is that most children will be at home, there's no evidence of unreasonable attempts to enforce duty by parents, only was about timing of annual reviews

#CovidSEND

SB: His lordship has tweet from Mr Best, solicitor, where he was talking about judicial review as result of xxx [didn't catch it]

There's a RT there, the actual content is Mr Best's tweet

#CovidSEND

SB: We say none of the reasons, on their own or taken together, explain why its necessary to have a global downgrading

#CovidSEND

SB: We say there's no consideration of whether a less drastic change could be made; the officials at that stage, wrongly thought that the decision was set in stone

< takes to email exchange >

#CovidSEND

SB: Appears to be question minister is asked, Ms P answers saying 'coronavirus act allows S42 to be made, there is no power to modify this duty in any other way'

Well that is simply wrong.

#CovidSEND

SB: There's nothing in this email that recognises it was open to the defendant to change the notice the Minister was being invited to make.

#CovidSEND

SB: Had the use of Henry VIII powers were taken into account... of course it wasn't taken into account, the department @educationgovuk simply didn't ask themselves the question of whether they should modify the legislation [I think]

#CovidSEND

SB takes to case law, residency test challenged by @publiclawprojct and others

In judgement of Supreme Court...

paragraph 26 power to make legislation, in case of amendments... altho Henry VIII powers are cast in very wide terms

Mr JK: no I've not got it

#CovidSEND

Pause while Mr JK tries to find judgement

SB: Altho Henry VIII powers cast in general terms...

[can't hear]

#CovidSEND

SB: We say court is discussing... doesn't tell us anything about whether a Henry VIII power can be... the defendant has misdirected himself

[sorry not really getting this bit/sound and my weary brain]

#CovidSEND

Mr JK: There was a sort of consensus... the idea civil servants can... [can't hear]

SB: They needed advice, clearly, we say they simply didn't know they had the power... by the time July meeting

Mr JK: [can't hear]

#CovidSEND

SB: We say its clear they didn't ask themselves the question, she's saying 'if we had asked ourselves this is what we'd have said' so it's very clear it was not expressed.

That's the first error, they didn't consider it at all for May and June notices

#CovidSEND

SB: By July they say they can't do it, which is wrong [I think]

We say the fact they wrongly thought was set in stone was an error; if your Lordship looks at proportionality reasons... B1345 paragraph D modification was proportionate for following reasons

#CovidSEND

SB: If I'm right m'Lord the same features at 149 paragraph F, if we go forward... its exactly, there's no change in consideration of proportionality between May and June notices. There's no balancing act at all.

#CovidSEND

SB: There's simply no consideration at all as to what this will do to children and young people with EHC plans

#CovidSEND

SB: At least, you are concerned with at least...

#CovidSEND

SB: I probably need perhaps another 20minutes

Discussion about whether to continue.

@SarahHannett has no objection to that: If we are sitting at 10, I'd like to start my submissions at 10:30. I'm sure @SteveBroach would like the right to reply tomorrow as well

#CovidSEND

SB: A couple documentary points I wish to make m'Lord; guidance from 3/6, almost a month before July notice was made, guidance issued by @NHSEngland on how to prioritise community health services

#CovidSEND

SB: Second phase of NHS response; signed by eminent figures within @NHSEngland we then have a table at C849 on restoration framework, two things still stopped eg child measurement programme... if your Lordship goes onto green, fully restored services, row 21

#CovidSEND

SB: Specific reference to children and young people with EHC plans; continuous services, SEND community services must be prioritised for children with EHC plan in place... reasonable endeavours duty, altho erroneously suggesting Act amends that duty

SB reads

#CovidSEND

SB: What we derive from this, as of 3 June, almost a month before July notice, @NHSEngland are saying fully restored services and priority must be given to children and young people with EHC plans in place

Well before issue of July notice

#CovidSEND

SB: Second document, C918, to emphasise by this stage decision making is still being driven by fear of legal action by parents

#CovidSEND

SB: Officials attending [lists] external attendees... the point we rely on here, an official explained decision making process behind the reasonable endeavours duty

Mr JK: Could you tell me what is happening here?

#CovidSEND

SB: Yes its a stakeholder roundtable; as part of information gathering exercise

Discussion about difficulty to follow due to redaction

#CovidSEND

SB: We're not sure who any of these people are

SH: We have various redaction policies about third parties, I can't tell you why Ms Lenehan is not redacted but I'm sure there's some reason for it.

#CovidSEND

SB: We are certain X must be a government official, explaining decision making process

Mr JK: It cld be someone from a LA?

SB: It could be but as far as we're aware there isn't anyone there, it looks like a meeting between @educationgovuk and voluntary sector.

#CovidSEND

SB: We take the view it's an employee of @educationgovuk and we've never been told otherwise.

We were told there was no written record as to why Section 19 duty was not modified [education otherwise than in school - I think, connection dropped]

#CovidSEND

SB: Para 62 of skeleton highlights proportionality is same in July as for May and June notices, save the preamble.

We say it doesn't begin to grapple with the reality of the evidence base; wholesale failure to negate impact on children and young people with ECHPs

#CovidSEND

SB: Late in June C925, there's recognition that they could have changed

For all those reasons we say the reasoning was purely irrational

#CovidSEND

Discussion about how will continue tomorrow

Mr JK: For those attending remotely thank you for your attendance an patience, we'll return again tomorrow at 10:15

Court is adjourned #CovidSEND

Two housekeeping corrections/edits from me:

> the statement from @SpcialNdsJungle was from @TaniaLT

> the tweet from a solicitor was from @jabetts123 not Mr Best

[Apologies for errors and gaps. Have a nice evening and see everyone tomorrow]

#CovidSEND

Day 2 #CovidSEND

@polly_sweeney of @scottmoncrief, @SteveBroach of
@39publiclaw and @AliceLIrving for claimants Amber and
@1985Deanne Shaw + anon claimant ABC thru XYZ

@sarahhannett, Nathan Roberts @matrixchambers, Mark Davies @6PumpCourt for defendant SOS @educationgovuk

SB discusses ministerial submission: SOS not told what serious considerations are, it's an important acknowledgement but there's no content to issue

Para 10, directly relevant to next ground... pressure from opposition in parliamentary questions and @childrenscomm

#CovidSEND

SB: The earliest reference we could find in relation to the government giving due consideration of the UN Convention Rights Child was ministerial statement discussion in 6/12/2010

#CovidSEND

SB: Said we'd give due consideration to UN Convention... it was a written ministerial statement to Parliament

#CovidSEND

SB: Third point para 13, dealing with impact of amended duties, obviously there m'Lord is consideration in terms of monitoring of impact on children, young people and families... you'll gather information from LAs

[drops out]

#CovidSEND

SB: We of course say in relation to grounds A and B, that precise exercise should have been done before decisions were taken, not as a review exercise

#CovidSEND

Mr JK: You have 10 minutes

SB: I'm grateful m'Lord I will be 10 minutes

[drops out]

#CovidSEND

SB: Can I show yr Lordship the response to @childrenscomm at 671 penultimate paragraph, says 'LAs and CCGs report to us etc... to be held to account through the usual regress processes'... we say that's the department washing their hands and you need to deal with that #CovidSEND

SB: Altho its our final ground, there's no suggestion its any less important, in short where are the needs of children and young people in any of the decisions you've seen; the duty we rely on is Section 7 of Children and Young Person's Act 2008

#CovidSEND

SB discusses statutory duty with regards to wellbeing of children

#CovidSEND

SB: If you go to Simone [?] the main reference to this... context is this was challenge to funding of SENs, tab 33

#CovidSEND

SB: Discussion at S7, para 79 of the judgement, my learned friend relies on para 81... but we say it did in that place it did not [?] give rise to SOS to give particular funding but in para 82 it says does have duty to express wellbeing of children more generally...

#CovidSEND

[Still very hard to hear, connection drops out, apologies]

#CovidSEND

SB: We say the SOS has failed to keep in mind the welfare of children with SEND

#CovidSEND

SB: An appropriate summary of the nature of this duty... 7 lines up from the end of para 83 m'Lord. Mr Justice Lewis is saying duty identifies general objectives by which SOS must function, mandatory obligation...

#CovidSEND

SB: the difference between this case and Simone... we relying entirely on para 83 as to what the nature of the duty does involve...

#CovidSEND

SB: the question for your Lordship is straight forward, did the defendant have the welfare of children in mind when the decisions were taken and we say no, and the reasons for that are in our skeleton

#CovidSEND

SB: It's not simply sufficient to look at what his officials knew, which is why we specifically reference the Minister [??]

#CovidSEND

SB: D80, para 47-48, this is the claim that there had been unlawfulness in decision to cut short breaks to disabled children... in short the decision was the LA had simply not considered a number of duties, one of them was S11 of Childrens 2004

#CovidSEND

SB: It's possible for people to comply with the law unconsciously.. we say same applies in current case... in the absence of any construction or suggestion to him from his officials he should consider, it's highly unsurprising that he did not

#CovidSEND

SB relies on more case law [KE case?]: Consideration is not self proving.. we say the same must apply here, there must be evidence my learned friends can point to that show the SOS had considered the wellbeing of children

#CovidSEND

SB: None of the documents m'Lordship has seen, including the ?? assessment dated June... there's nothing that considers the welfare needs of children.

I'm grateful m'Lord unless I can assist further

#CovidSEND

SH: M'Lord I'm going to take things as follows...

1) claims that academic
2) factual background and chronology
3) the grounds in the order Mr SB dealt with them

#CovidSEND

SH: May and June notices have now expired... the July notice is still as of today it stands but expires on Friday and we're also in context where most schools have broken for summer holidays, by time your notice is given that will have almost certainly expired

#CovidSEND

SH: Current situation of SOS is to issue no further notices... that's the factual context

#CovidSEND

SH: Takes to zoo life case [?]... inspection of an aquarium... becoming aware of information... it had become academic because by time case reached Mr Justice Silver the inspection had taken place... the judge looks at authorities on whether claim was academic

#CovidSEND

SH: He makes point that the starting point as to whether academic... Mr Justice Silver looks at other authorities... I'll not take your through the extracts but the judges use the language of academic and hypothetical somewhat interchangeably...

#CovidSEND

SH: The distinction of my learned friend yesterday between academic and hypothetical may not in fact be a very useful one as they're used interchangeably

#CovidSEND

SH: while very different context they were in the administrative court [I think]

...he notes policy point that if courts do entertain academic pursuits there would be a waste of valuable court time

#CovidsEND

[Connection drops out]

SH: This was a decision by Mr Justice Lewis on 6/7/20, very recent case, a challenge to the coronavirus regulations and system of lockdown they introduced

#CovidSEND

Discussion about case and whether judgement reserved

Mr JK: [can't hear]

All counsel discuss [can't hear]

SB: It's a very curious feature

#CovidSEND

SH: To cut through that, I simply draw your attention to it as judgement given in analogous situation, judgement in case of this type

By time court was looking regulation was no longer in force.. therefore was academic

#CovidSEND

SH: Consideration by judge in para 32, half way thru he says 'why the courts may entertain academic cases if there's a good reason to do so, there's none here...' he makes point factual context may change in due course

#CovidSEND

SH: Two further cases my learned friend took you to, my learned friend took you to para 10 as I understand it in support of a proposition, guidance from the court may be reason to hear academic claim...

#CovidSEND

SH: this case doesn't provide authority for that proposition, this was an active appeal... the court of appeal there was considering consequences if SOS appeal was dismissed

Mr JK: Why was it academic?

SH: It wasn't academic my Lord...

#CovidSEND

Mr JK: [can't hear]

SH: The decision to refuse to admit him was squashed by Mr Justice Turner, this was the SOS appeal against that decision... it wasn't academic in any sense of the word, it was very live

#CovidSEND

SH: My position on the claim being academic relies only to the notices, the regulations remain in place until September

Mr JK: [can't hear]

SH: Even if you're against me and see it fit to look at the notices, it must be right that the May and June notices are purely academic

Mr JK: [can't hear]

SH: I accept that but its an important point you are being asked to rule on legality....

Mr JK:... [can't hear]

SH: I accept that

Mr JK:... [can't hear]

SH: that's a matter for you

#CovidsEND

SH: My Lord I accept that's a common way of doing that I don't accept you have to do that, even if you were minded to find any of the notices unlawful it's certainly academic for the court to issue any relief in relation to those aspects that are academic

#CovidSEND

SH: My Lord will recall Mr Broach took us to a case where an assessment hadn't been disclosed to the young person and there was a discussion about that.

#CovidSEND

SH: My learned friend relied on the point that Mr S said it may be in the public interest to hear a claim when short term interference with rights...

#CovidSEND

SH: it didn't arise in this case, that proposition appears to buy no support in any of the authorities that we've just travelled through

Mr JK checks where are in skeleton

#CovidSEND

SH: Very briefly, I take my Lords point I dont want to take up time with this, my learned friend gave three reasons why the claim is not academic... none is a good reason, they seem to accept they're not in Salem examples, I don't say they have to be

#CovidSEND

SH: I say none of the reasons given by Mr Broach gets over that hurdle, the possibility of a future notice is merely a possibility...

#CovidSEND

SH: the second is this case raises issues of real importance to children with SEN, I don't deign to say that, judicial reviews it often comes with territory, that can't on its own be reason to hear an academic claim...

#CovidSEND

SH: third reason my learned friend said it wasn't possible to hear a claim in the month, I don't accept that

Mr JK: [can't hear]

SH: I accept that but I've done cases where that has happened

#CovidSEND

Mr JK: If you have a series of measures lasting two days each... [can't hear]

SH: In this claim there have been a series of notices lasting three months... I accept my Lords point but the practical reality is that the claim has been heard

#CovidSEND

Mr JK: You're saying it's too late?

SH: I am saying it's too late... m'Lord that is also a function of the fact the notices were in place for a short period of time

Mr JK: Exactly, yes

#CovidSEND

SH: Those are my submissions on academic unless I can assist you further on any of those points; I'll move onto the facts, I propose to identify some of the key facts in chronology and make observations on them

#CovidSEND

SH: Take to statement of Ms @1985Deanne Shaw; I'll start by looking at para 6 and on of her witness statement, para 7 she notes on 3/3 government published its action plan

#CovidSEND

SH: para 8 she notes on 18/3 PM announced as of 20/3 except children of key workers and vulnerable children, and vulnerable children include those with EHC plan with a risk assessment....

#CovidSEND

In the run up to making the regulations, in terms of LAs that's dealt with at para 18 and on in her witness statement [I think this is a different witness statement; maybe they didn't say it was @1985Deanne sorry very hard to hear]

#CovidSEND

SH: Aware some CCGs considering frontline clinical capacity... making assessments... [cant hear sorry]

#CovidSEND

SH: Next notes that SOS will take legal advice on what reasonable endeavours are... my Lord will note in respect of first and last of those those aren't SOS... there was significant pressure being brought to bear on LAs, those concerns then passed to SOS

#CovidSEND

SH: At para 24-25 of the witness statement Ms Lang [?] explains how intelligence from local authorities was gathered

#CovidSEND

SH: On p342 you'll see that the explanation of the table, is effectively pulled together from larger spreadsheet setting out the content of the conversations, these are simply examples

#CovidSEND

SH: by way of example, East of England at bottom three rows on right hand column, health staff not available for statutory EHCP work, social care staff not available for statutory EHCP work

Mr JK: Was that because they weren't working or something else?

#CovidSEND

SH: Two fold, redeployed elsewhere more urgent and some shielding, I'll take you to the workforce issues

Further example West Midlands 2, assessment traditionally done in good timescales now grinding to a halt [I think]

#CovidSEND

SH: This finishes reports from LAs m'Lord... para 30 summarise document I've just shown you into themes or issues, claims of the calls there were 112 cases of concern in respect of EHCP assessment, 31 in annual reviews....

#CovidSEND

SH: Reminding the court where we are in time, at end of March, where department @educationgovuk are effectively trying to disaster plan

#CovidSEND

SH: In terms of position of @NHSEngland bodies... notes that impact of #Covid19 clear in two ways, redeployment of dedicated medical officers who are responsible for undertaking EHCP assessments and plans... and redeployment of health professionals

#CovidSEND

SH: NHS guidance sets out redeployment of resources to deal with pandemic... that then attaches two tables, one concerning children and young people, 388, and one concerning adults

#CovidSEND

SH discusses partial and complete suspension of services

Mr JK: Is this facts or a decision?

SH: This is guidance issued by @NHSEngland

Mr JK: So it's a decision of what to sacrifice?

SH: Yes, it's decision on what to prioritise

#CovidSEND

SH: medium and lower priority work stopped... the final piece of that jigsaw is school attendance, at this time, late March, early April, there's an email at 582 that sets out school attendance

#CovidSEND

SH: An internal email within @educationgovuk it concerns attendance data for pupils with EHCPs, the overarching message is % attending school is very low, daily average 3.9%

#CovidSEND

SH: That is despite the fact that children with EHCPs were in vulnerable group when schools remained open where risk assessment deemed appropriate.

Mr JK [can't hear]

SH: Was risk assessment about whether better for children to remain home

#CovidSEND

SH: I say that information....

Mr JK: 3.9% doesn't tell us where [can't hear]

SH: I'll come back to that. It does show a very small number of children with EHCPs were in school

#CovidSEND

SH: I say that information maps across to the reasons given in making May notice, reduced LA workforce, children even with EHC plans at home, even when attending school likely to be disruption, health bodies redeployed staff

#CovidSEND

SH: maps to reasons given in May notice, and for making 2020 regulations

#CovidSEND

SH: With regards what's done about SEND organisations, there's an open letter sent 24/3 from the minister, circulated as widely as possible

Purpose of letter to take stock, say what plans are...

#CovidSEND

SH: She explains Coronavirus Act in place with ability to modify the duty

Mr JK: [can't hear]

SH: Penultimate paragraph, 284, she recognises impact on this group particularly acute so asked Council for Disabled Children and @contactfamilies to maintain updated [??]

#CovidSEND

SH: She effectively invites queries to be channelled through those organisations... going back to the chronology there are then meetings with the CDC and others on 30/3, a second meeting with wider group of organisations

#CovidSEND

SH: A third meeting on 31/3 and a further on 1/4, not minuted that meeting. By end of March there had been 4 meetings with SEND organisations with intention set out that concerns of sector be provided to CDC in order that DfE may be informed

#CovidSEND

Mr JK: Who's XX?

SH: I'm sorry, XX should be redacted, she's from @educationgovuk

#CovidSEND

Mr JK: [can't hear] so it's internal and the bottom email is external?

SH: Yes, it's incoming and raises a concern that they're already hearing worrying stories from parent forums around the country about LAs.... parents told annual reviews delayed and timescales no longer apply

#CovidSEND

SH: Makes it clear if @educationgovuk are made aware of illegal practices they will follow up with LAs on the ground

#CovidSEND

SH: Incoming email again she raises concerns, that parents being told LAs will not comply with their duties, telling parents they won't consider new requests....

#CovidSEND

SH: The response 'as ever welcome you recording any examples of LAs acting out of line, we've had conversations this week with a small number' DfE were taking steps where it could to speak to LAs

Mr JK: this was before the telephone calls?

SH: yes... [can't hear]

#CovidSEND

SH: As in any situation there's a judgement to be made, on one side of the line who consider that LA duties should be completely suspended and those such as the claimants who think otherwise [I think, paraphrase]

#CovidSEND

Mr JK: From this email you're making me aware those on the children's side are also being heard?

#CovidSEND

SH: My Lord exactly, it is also part of an intelligence gathering exercise, very active attempts by those in department to reach out to those on the frontline in the provider side and the children side

#CovidSEND

SH: I'm going to address you on the evidence of where there was a need for clarity for parents... two examples,

#CovidSEND

SH: CDC told Minister people wanted clarity, confusion around LAs, anything put out for parents helpful in simple language. There was a need for clarity for reasons I've just traced out m'Lord.

Another meeting with CDC

#CovidSEND

SH: What the evidence discloses at that point is a variety of practices amongst LAs, some of whom are jumping the gun, and parents and carers uncertain of their legal rights in the process because of the pandemic

#CovidSEND

SH reads minutes from meeting with Council for Disabled Children

Mr JK: This is a meeting?

SH: One of meetings that took place between CDC and DfE on 30/3

#CovidSEND

SH: Third bullet point from bottom and penultimate bullet

Mr JK: this is just confirmation of what we've said [?]

SH: The quote was from subsequent page, 280 and over, that's a meeting that took place on 31/3, the day after

#CovidSEND

Mr JK: 259 in witness statement he quotes minister 31/3 [?? hard to hear]

So somebody told the Minister that 'quote' and there is a quote, reference to page SL2 but I don't know what that is

SH: It may help to have bundle with page numbers inserted [I think]

Discussion about cross referencing

[Connection dropped out]

#CovidSEND

SH: In terms of chronology, on p3 then, one sees on 9/4 you have submissions sent to Ministers to modify timescales in regulations. After that there's regular meetings with representatives of LAs, health bodies and social care

#CovidSEND

SH: On 16/4 the draft guidance is circulated for comments; various comments summarised in table in bundle at C607

Further meeting with SEND stakeholders on 17/4 not minuted

Through period correspondence with @ChildrensComm

#CovidSEND

Mr JK: @IPSEAcharity were sent a copy of the draft guidance?

SH: Yes I put it no higher than that they were sent the draft guidance for comment, they were not invited for comment on the decision [paraphrase]

#CovidSEND

SH: The next decision was on 22/5, decision for June notice, during that meeting, ongoing meetings with LA, NHS Bodies, Ofsted.

Further correspondence with @childrenscomm and that decision was sent up.

The next decision is on 23/6 where sent up for July notice

#CovidSEND

SH: You can see significant engagement with LAs, NHS bodies, and of course the context at this stage, the context in the run up to the decision of 23/6 is that schools have started to open up on 1 June, for reception, Yr 1 and Yr 6

#CovidSEND

SH: Wider opening of schools on 1 June, slightly wider opening again on 15/6, secondary some face to face for years 10 and 12

[Dropped out]

#CovidSEND

SH: Increased number of children back in school, certainly not all... this point is picked up in 23/6 submission, if I can turn up p755

#CovidSEND

SH: This is a section of the submission that has been pretty well traversed, one part not so closely looked at. Sets out reasoning why further notice should be made for July.

#CovidSEND

SH: Sets out arguments why need further notice... children with EHCPs still for most part at home... turning up Annex B, p764

#CovidSEND

SH: My learned friend took you to the first para, you'll note on 16/6 only 23% of pupils with EHC plans were in school. The submission there is various reasons for that and sets them out.

Mr JK: this is new?

#CovidSEND

SH: Yes it's a new bit; second para notes even when are attending likely that provision will be disrupted.

Mr JK: Mr Broach says [can't hear]

#CovidSEND

SH: Was this something caused by legal changes or in all or part by the pandemic. Answer to that in second legal statement from Ms Lunn [thanks @CaptainK77]

#CovidSEND

SH: People at home... accepted is a factor in risk assessments... where provision available more influenced by staff available at that point, redeployment.. shielding... for example surveys [drops out]

#CovidSEND

SH: Last sentence, department also see various health provision being withdrawn... parents, children and young person have concerns about attendance at the setting, even after risk assessments...

42% [?] offered place but chosen to keep them at home

#CovidSEND

SH: combination of health risk from pandemic and [??] response to it... vast majority not attending... number of children and young people with EHC plans increased in recent weeks, at 16/7

#CovidSEND

SH: You'll recall @educationgovuk is monitoring attendance rates; this sets out on basis of evidence why that was judgement reached

Mr JK: [can't hear]

#CovidSEND

SH: I accept entirely this is not an exact science, the point is there's a combination of factors at work here. It simply can not be right to suggest the lack of attendance at school is caused by a lack of provision, there are other factors at play

#CovidSEND

Mr JK: I can imagine a parent saying a) it's not safe and b) there's no provision

SH: I appreciate its not hard edged but its not the case there is no provision.

#CovidSEND

SH: I may well accept there may well be parents who have decided not to send their children back to school because not all provision is available to them, but it can not be the case that the only reason children are not returning is due to lack of provision

#CovidSEND

SH turns to guidance [connection keeps dropping out]

SH: Guidance emphasises the importance of what's called coproduction, effectively working together... that emphasises in third paragraph down where changes in law affect what families experience they need clarity

#CovidSEND

SH: and clarity on when decisions will be made

Mr JK: [can't hear]

SH: No my Lord its a sector term [coproduction] it means working together in effect

#CovidSEND

SH: Over page, consideration of specific local circumstances, needs affecting child and young person etc, in next paragraph emphasises importance of keeping a record of provision, communicating with parents what's decided and keeping that under review

#CovidSEND

Mr JK: this is how to modify the duty?

SH: yes m'Lord that's correct... that section of the guidance is a consideration of things when applying duty [paraphrase] and examples of alternative arrangements that might be made

#CovidSEND

SH: What follows at 1208 and on is guidance as the amendments to time in the regulations

Mr JK: [can't hear]... May notice that's about to begin

SH: Yes that's right

#CovidSEND

SH: 1202 guidance about what is not changed, eg must still consider request for assessment, any blanket policies saying they wont do so is unlawful

Making clear there are certain obligations that carry on
#CovidSEND

SH: Finally some points on review [drops out] strategies the SOS was going to adopt to review regulations and keep notices under review, regulations continues if I can just show you current position in respect review of regulations

#CovidSEND

SH: Email from my instructing solicitor to Mr Broach's solicitor, you can see its been sent to various stakeholders on each side on 23/7

#CovidSEND

SH: First paragraph is writing to seek how long amendments need to be in force

Mr JK: can't hear

#CovidSEND

SH: Requests a response by 31/7

[Connection keeps dropping out - sorry, very partial here]

#CovidSEND

SH: The point is review is ongoing and regulations in place until September but whether that is necessary is...

Mr JK: Day after tomorrow the notice expires but the regulations remain

SH: That's right.

#CovidSEND

Mr JK: Sector 42 duty will return to its original form so no more reasonable endeavours

SH: Yes M'Lord, they're separate, not entirely separate

#CovidSEND

Mr JK: So the absolute obligations will be in place

SH: yes in theory from Monday but most schools are closed so in reality will be from September

#CovidSEND

[Discussion can't hear]

SH: They aren't points that particularly arise other than what's in my skeleton argument; they're points to bear in mind when one is looking at the submissions that follow

#CovidSEND

SH: All decisions made in response to pandemic, hardly needs saying that is unprecedented event, at outset taken at speed and rapidly changing position in schools

#CovidSEND

Second is that SOS recognises in some of the documents make that clear, that the effect of pandemic and measures taken have had a greater impact on particular groups in society, including children with SEND.

#CovidSEND

SH: The overarching aim throughout all decisions has been to balance the support that children and young people with SEND need and the unprecedented demands placed on LAs and CCGs during the pandemic.

#CovidSEND

SH: Some LAs wanted greater relaxation of those duties, children and young people wanted less relaxation... it's a question of judgement, there isn't a right or wrong answer to that... on best balance, it's really difficult.

#CovidSEND

SH: Third point is these are temporary decisions, kept under review, notices were lifted as soon as SOS felt it was possible to do that.

#CovidSEND

SH: Those three points lead to overarching fourth submission, that this is situation in which when considering judgement of SOS, margin of discretion could hardly be higher.

#CovidSEND

Mr JK: [can't hear]

SH: Affect of pandemic, particular impact on children and young people, third temporary and under review; first three lead to overarching fourth.

#CovidSEND

SH: Consultation, first of all I make submission no duty to consult arises, and second even if there had been breach it wouldn't have resulted in substantially different outcome

#CovidSEND

SH: We attempt to reformulate test taking into account Gallagher [?] and conspicuous unfairness

Mr JK: It's not for me to rewrite Mr ...

SH: I accept that... I dont think either @stevebroach or myself are inviting you take a different take Lord XX

[can't hear]

#CovidSEND

SH: To extent suggested by claimant in skeleton argument that past conduct is not necessary we say past conduct of a LA is an essential part in my submission [paraphrase]

#CovidSEND

SH: Finally duty to consult is contingent on circumstances, perhaps that's putting a little high, on reflection we'd say when my Lord is considering whether it's rational for the SOS to have not consulted... the urgency of the situation is a relevant factor

#CovidSEND

[Connection keeps dropping]

SH: I think it's just a different way of putting the point... whether you look at urgency....

Mr JK: [can't hear]

SH: Indeed, perhaps it's two sides of the same coin, in any event it is relevant whichever way one comes at it

#CovidSEND

SH: My learned friend took you to Murphy [?] and I would invite you to read from para XX on... all of the context informs the findings he makes in relation to the test

#CovidSEND

SH: It is the conduct of the public authority that forms... [drops out] thats my submission on his judgement taken as a whole

#CovidSEND

SH: Those three points lead to overarching fourth submission, that this is situation in which when considering judgement of SOS, margin of discretion could hardly be higher.

#CovidSEND

SH: Moseley is concerned with the stage beyond us, duty has been established.... it's quite clear that fairness may be somewhat higher when authority contemplates depriving someone of existing benefit... aimed at content of duty, not whether arises or not

#CovidSEND

SH: Finally my Lord KE, we say that does not take the legal analysis any further... the comments Mr @SteveBroach relies upon, arise after judge already found statutory duty to consult...

Mr JK: [can't hear]

#CovidSEND

Mr JK: that's indirect

SH: yes, by the time he reaches that he's already decided the common law duty to consult [I think]

#CovidSEND

SH: That's the legal background, applying law to this case, what's noticeable about claimants case is there's very little attempt to explain why past conduct or performance of SOS is... [can't hear]

#CovidSEND

SH: I say knock out blows... the right to EHCPs doesn't arise from SOS but from primary legislation...

in particular my Lord, fourth point on our list Parliament recently granted power to amend S42 and didn't include requirement for consultation

#CovidSEND

[Connection keeps dropping]

SH: If a power is conferred

Mr JK: it's a different statute

SH: It is, but if power is conferred on SOS but no requirement for consultation, powerful reason why common law duty...

Mr JK: [can't hear]

#CovidSEND

SH: Last sentence of para 88. Briefly dealing with reasons claimants claim duty arises, was consultation on 2014 amendments... in my submission that can't be enough, it can't be a factor that tips the balance, you can't get in through the back door

#CovidSEND

SH: That ducks the Bhatt-Murphy [?] test on past conduct... there's a point about unbalanced levels of engagement, my submission is that doesn't engage with BM test and ducks the past conduct

#CovidSEND

SH: Finally points made about surveys conducted by SOS as opposed to surveys conducted by SEND organisations; as I understood it was relevant to urgency and no time for consultation, if no duty arises the reason why no exercise is carried out is irrelevant

#CovidSEND

Mr JK: I think one of the facts was it was feasible and was shown to be feasible by other organisations doing so

SH: Addressing that point, of course surveys were carried out by organisations but that can't be equated by carrying out a formal consultation exercise

#CovidSEND

SH: you'll be aware of case law, if you're to embark on consultation it has to be done fully and properly... my respectful submission is not's comparable to compare, as useful as that intelligence is, to lawful consultation exercise conducted by the SOS

#CovidSEND

[Connection dropped]

SH: Unless I can make any further points on duty those are my submissions in that respect

#CovidSEND

SH discusses thresholds: nevertheless we say here that's being met, connection to points leading up to June notice, I took you through engagement undertaken with provider side and SEND organisation side as it were

#CovidSEND

SH: In respect July notice, same point m'Lord, to some extent almost appears accepted by my learned friend, by this point considerable information in front of the SOS.... by time notice was made, in my submission, the SOS had information available that was out there

#CovidSEND

SH: Therefore a formal consultation exercise was highly unlikely to have produced any information that would have made any substantial difference

#CovidSEND

[Connection keeps dropping - apologies]

SH: first four place particular reliance on, m'Lord the second case I can take you to is the National Association of XXX case, this deals with July notice that DfE had seen a lot of information but hadn't been past to the SOS

#CovidSEND

SH discusses case law about passing information from officials to minister [kartoma principle?]

SH: discussion followed on level of detail needs to be in place for a decision maker to ensure all relevant details taken into account

#covidSEND

SH: Court discusses decision of High Court of Australia, submission advanced on behalf the government that ministers broadly delegate fact finding to officials... that's context in which it arises

#CovidSEND

SH: Not unreasonable for Minister to rely on summary from department [my paraphrase]

Mr JK: [can't hear]

#CovidSEND

SH: that's right, two issues really, one can knowledge of individuals be imputed to minister, answer no; second issue, in any event even tho minister wasn't told did that make his decision lawful. That's the two issues arise in case.

#CovidSEND

SH: Second issue picked up, did Minister [can't hear] from fairly extensive discussion of information, picked up para 59, might have been very much better if additional information had been part of submission to minister...

#CovidSEND

SH: but in end unable accept Minister had less information than the law required...

Mr JK: so in the end it didn't matter that the Minister didn't have the information?

SH: Yes, that may be fact sensitive. Was it irrational, no.... [can't hear]

#CovidSEND

[Connection dropped again]

SH: Christian Concern, 19/5 very recent course...

Mr JK: [can't hear]

SH: Not a judgement handed down then... it is a covid case about abortion procedures... whether both pills be taken at home, that's the context

#CovidSEND

SH: Submission made in claimants that breach in Tameside duty to make sufficient enquiries and in particular, submission advice given to SOS by his officials was incomplete and misleading because didn't include steps in para 65

I invite my Lord to read it

#CovidSEND

SH: That's the context, the principles of law to apply, the Tameside enquiry, law on ministerial submissions or failure to include it was irrational.

First point... failure to make enquiries on risk of litigation

#CovidSEND

[Connection drops]

SH: My learned friend suggests a surprising admission in second sentence, to clarify what is meant, the risk of litigation was not a reason given in any of the notices but was a consideration of the Minister

#CovidSEND

Mr JK: You say risk of litigation is self evident?

SH: ....yes, it is inevitable if those can't be met on the ground. The evidence before the SOS at time, was if LAs couldn't meet duties that inevitable leads to risk of litigation

#CovidSEND

SH: Does inevitably lead to pressure from parents, quite understandably, saying I have an absolute right to X, Y, Z and I want that to be provided.

#CovidSEND

SH: Whether that leads to pre-action letters or not... there is time and effort taken up by LA and health bodies dealing with these issues

#CovidSEND

SH: My submission is care needs to be taken about what could reasonably be expected to know prior to making decisions, and intelligence that comes out as result of them being in place.

#CovidSEND

SH: As to what could reasonably be known, SOS is entitled to take view that LAs must comply with duties. SOS issued guidance to ensure scope and extent of duties was as clear as could be.

#CovidSEND

SH: SOS also took action where LA were identified as not complying with duties, took action to address [paraphrase]

By time July notice is decided, notice in place for 6wks, as to what reasonable enquiries could be made at that stage, is necessarily limited

#CovidSEND

SH: In my submission this was a long way off Tameside

#CovidSEND

SH: My learned friend relies on Ms Wright's statement @SOS_SEN, she says she was present at three roundtables since lockdown commenced... so SOS put itself in position to acquire that information, looking at Tameside duty reasonable steps were taken

#CovidSEND

SH: Impact on children... my learned friend took you through many admissions yesterday... in all of them there was concession that effects on children and young people with SEND were negative.

#CovidSEND

In my submission looking at the test of what does the minister need to know to make the decision, the headlines was these will have adverse effect on children and young people, the minister could have been in no doubt about that

#CovidSEND

SH: I don't want to put too fine a point, it's self-evident in my submission that diluting timescales and so on is negative [??]

#CovidSEND

SH: Adverse impact recorded in this July notice; headlines clear, Minister could be in no doubt children may not get EHCP entitlement or may get something different; repeated references to the impact being detrimental

#CovidSEND

SH: In my submission Mr Broach's submission falls in what could be provided, but is not required to be provided

Differential approach of LAs also drawn to Minister's attention

#CovidSEND

SH: Pulling those threads together, in terms of July notice, Tameside point, my submission is its simply not arguable because the headlines are contained in that submission

#CovidSEND

SH: Final point is historical position... leaving aside whether is extent... position middle of March SOS is faced with pandemic, LAs and CCGs unable to discharge statutory obligations, question then is whether or not alleged fact of non-compliance is mandatory consideration.

SH: Answer my Lord no, one simply can't derive that from legislation, coronavirus fact... is it irrational, my submission is...

Mr JK: [can't hear]

#CovidSEND

SH: No My Lord, respectfully my submission is there's a difference.. I think it's harder edged, I don't think it matters or arises in this case.

#CovidSEND

SH: My Lord that deals with Tameside, ground C irrational decisions made...

Mr JK: [can't hear]

Court adjourned, we return at 13:50

#CovidSEND

We're back in court #CovidSEND

@SarahHannett of @matrixchambers addressing The Hon Mr Justice Kerr (on behalf of SOS @educationgovuk)

Full parties and representatives as attached

SH: Just to make the chronology good, regulations were made on 28/4, laid before Parliament on 29 or 30/4 [didn't catch] came into force on 1/5

#CovidSEND

SH: My Lord will see some correspondence between speaker's counsel and parties, I have no objection with her letter being placed before you and it's a matter for you whether she's correct and I'll take you to why SOS has taken a different view and why she's incorrect

#CovidSEND

SH: Regulations subject to XXX [cut out], Section 4 of Statutory Instruments Act 1946 applies, authorities bundle 1. S4 provides whereby any Act.... [can't hear]

#CovidSEND

SH: Once an instrument is made, Section 5 applies, there are 40 days...

#CovidSEND

SH: Whatever parent legislation says, Parliament always has the right to annul statutory instrument in question

[cut out]

Sorry, may I just correct that, it's only in respect of negative

Mr JK: [can't hear]

#CovidSEND

SH: Apologies

Mr JK: Not at all, I've not looked at this for many years

SH: There's parliamentary convention that statutes should be laid 21 days in advance... if not complied with explanatory memorandum must explain why hasn't been 21 days in this case

#CovidSEND

Mr JK: [can't hear]

SH: My Lord I'd have to take instructions but my understanding is there are a large number of coronavirus legislation where 21 days were not complied with

#CovidSEND

Mr JK: They could have been annulled in 40 days

SH: Assuming negative XXX procedure, is backstop... the 40 days is up

Mr JK: Correct my Lord

#CovidSEND

SH: To sum up, its not required to lay legislation before Parliament, it has 40 days to annul and 21 days is a matter of good practice

#CovidSEND

SH: M'Lord, Article 9, two arguments... it can't be justiciable when the case is that...

[cut out, sorry]

#CovidSEND

SH: Letter from Speaker's counsel make it clear laying of legislation is matter of parliament. SOS maintains the timing, the date of the SI is made is also procedure of parliament whereas Speaker's counsel maintain it's an act of department [paraphrase]

#CovidSEND

SH discusses case law, didn't catch: Power is there but defendant didn't exercise the power, claim by claimant in this case was failure of SOS to consult on exercising power and in fact making an order under Section 28

#CovidSEND

SH: challenge was altho the power was there, failure lay.. [cut out]

Mr JK: All the SOS has to do is consider... [cut out]

SH: Yes my Lord you can see in relief the claimant is seeking, started off as being mandatory order requiring SOS to lay...

#CovidSEND

SH: What then happened is Speaker's counsel made some objection to that; you can't properly make a mandatory order

#CovidSEND

SH: The claimant then sought relief saying that the SOS ought to make that consideration and you can see in broad terms the defendant supported by Speaker's counsel, said that transgressed Article 9

#CovidSEND

SH: Principle of separation of powers... judge continues through authorities, Weiner [?] comes back to that in due course...

[connection dropped]

#CovidSEND

SH: 49 she goes onto the second point, whether or not requiring defendant to lay order before Parliament would breach Art9, she sets out.. this is all primary legislation... challenge, if successful would require SOS to delay entering health bill until consulted on it

#CovidSEND

Mr JK: This is definitely not academic is it, this part of the claim

SH: No, my Lord. I appreciate I have arguments made on merits of point too, but the Article 9 point is of some importance to my submission

#CovidSEND

SH reads from case law [I think... too fast to catch]

#CovidSEND

Mr JK: Might there be a simpler solution to this, that the SOS is no longer.... [can't hear]

All this is a precursor and it's fascinating and saves me having to search old cases but...

SH: It does go on

Mr JK: [can't hear]

#CovidSEND

SH continues explaining relevance of case law [I think]

Mr JK: I think I've got your point really, you're saying if the Courts can't say whether to lay legislation then they can't say when [I think - hard to hear]

#CovidSEND

SH: Just to push the point a little further on.... sorry just lost my thread

Mr JK: Sorry

#CovidSEND

SH: Not at all. There may be circumstances where legislation is justiciable, for example if parent legislation required it laid by a certain time...

#CovidSEND

SH: its not intended to be a far reaching submission; its simply saying by looking at timing of legislation and scrutinising how long Parliament had to look at something you're scrutinising Parliament

#CovidSEND

Mr JK: [can't hear]

SH: No, because the court is entitled to look at procedural matters of primary legislation; has Parliament complied with procedure of legislation

#CovidSEND

SH discusses letter from Speaker's counsel [ too fast, can't catch]

SH: My Lord, the reality is, this is a consequential argument, if SOS sought to make secondary legislation without laying it through Parliament...

#CovidSEND

SH: it is likely, this is hypothetical, that it may be a breach of the empowering legislation... my submission is it simply wouldn't apply in practice because there are steps in place through parent legislation or statutory instruments act...

#CovidSEND

SH: or it would be inadmissible if it did arise due to the issues raised [my bad paraphrase at end]

#CovidSEND

SH: It's a necessary consequence of declaration this is unlawful that court is effectively telling Parliament that next time there must be time for consultation, in my submission that's the same point raised in HS [?]

#CovidSEND

SH: Basis of challenge is parliament could not, or did not, scrutinise the legislation properly; it invites the court to consider what is reasonable period...

#CovidSEND

SH: my Lord had discussion yesterday of how long was needed. Mr @SteveBroach said no magic period but then settled on two weeks

#CovidSEND

SH: The asking of those questions is revealing... even if in principle timing might be justiciable its not in this case, because the irrationality is said to be insufficient time parliament had to consider the legislation

Mr JK: [can't hear]

#CovidSEND

SH: That may be so, if theres no distinction between the two then so be it, the point I was pushing my Lord was the bottom line is the court is enquiring what is a suitable period of time for parliament to have considered this legislation and that is in my point in breach of Art9

SH: Speaker's counsel does not address that point in her letter and I make no criticism of that

Mr JK: S I'm clear, 69 sets out your reasoning for submitting that the timing of laying this instrument is a proceeding and therefore.... [can't hear]

SH: Yes

#CovidSEND

Mr JK: Then you have a separate point that its not...

SH: Apologies if the skeleton is not sufficiently clear; it deals with it in the general sense, makes point at para 67 thru to 70 that in general timing is not justiciable.

#CovidSEND

SH: But then we also make the point at para 72 that even if timing is in principle justiciable its impossible to deal with the claimants challenge without offending Article 9

Mr JK: If timing is justiciable there will always be.... [can't hear]

#CovidSEND

SH: There may be a variety of reasons why timing is challenged; in this case it's expressly challenged as irrational to not give parliament time

#CovidSEND

[Sorry connection dropped out]

#CovidSEND

SH: My Lord I do see your point

Mr JK: Thank you very much. Just for public record, there's an exception in Statutory Instruments Act where [can't hear] am I right [cant hear]

SH: It would still need to be laid

#CovidSEND

Mr JK: At some time, but it would already have come into force

SH: Yes, I don't see that that affects the analysis

Mr JK: Probably best not to complicate things

SH: No, we're not going to rely on that

#CovidSEND

SH: The other piece of the jigsaw is there are XXX in parliament

Mr JK: [can't hear]

SH: Indeed.

#CovidSEND

SH: Parking Article 9 the question then is whether or not the claim is arguable, a fairly straight forward submission, the reasons for doing so set out in explanatory memorandum that drives one back to the context of the pandemic.

#CovidSEND

SH: Those in my submission are simply not capable of being characterised as irrational. My Lord in any event Parliament has had the opportunity under the 40 day rule to annul the SI if it had any difficulty with it and it hasn't done so

#CovidSEND

Mr JK: [can't hear]

SH: I could say that yes

Mr JK: Do you have a view?

SH: Umm, can I ask for instructions on the WhatsApp group we have please

#CovidSEND

Mr JK: It's very interesting

SH: I accept if you're with me on the second point the first point does fall away but I expect the answer is its a matter for my Lord

#CovidSEND

SH: Three points I say this is a claim that should be dismissed; this is an area where a wide discretion should be given to the SOS, in pandemic I'd say that's self evidence; second claimants accept not all provision in EHC plans can be made

#CovidSEND

SH: Acceptance that not everything can be provided, no agreement on scale... but court in my submission should give wide XX to that solution.... third between Mr @SteveBroach and myself we've taken you through a large amount of submissions

#CovidSEND

SH: Given all that, taking all of that into account, I'm applying my submission of being careful not to apply hindsight.... its simply inarguable to say those decisions were irrational and not relying on evidence

#CovidSEND

SH: My learned friend went to the reasons in the notice and said the reasons didn't equate to downgrade of duties... that's simply a difference in opinion to SOS [I think; paraphrase]

#CovidSEND

SH: The downgrading is temporary, kept under review. In respect of notices, as soon as SOS was satisfied there's no need for them to be in place he's given indication no further notices unless evidence changes.

#CovidSEND

SH: That's in context there's gradual increase in return of children to school and intention all will return in September... the reason its not irrational, the argument simply doesn't get off the ground

#CovidSEND

SH: Second point is SOS had ability to modify, this is the Henry VIII point so was it irrational for SOS not to take that into account prior to July notice?

I pick up our skeleton argument at 88, I do accept it would be exceptional course for it to be considered..

#CovidSEND

SH: For extent there's arguments about reasonable endeavours, the same must be said for all practicable steps

#CovidSEND

SH: Suggestion its irrational once redeployment had begun on 3/6, can I ask my Lordship to turn to XXX, this is the later version, 3/6 updated version from beginning of June. Table starts at 849, similar set up, red maintain, stop, partial restoration

#CovidSEND

SH: What's now moved into green, continue essential services, this is SEND duties. From the note, third bullet point makes reference to requires reasonable endeavours to be made, the starting point is having that in mind. There was also intelligence sought

#CovidSEND

SH: You can see that person is an NHS person by the tail end of their email address; you can see the question is then asked on p867

#CovidSEND

SH: 'in light of this i'd be really grateful if you could.... specific reasons as to why not possible... any examples of alternative arrangements put in place' .. questions asked of NHS

You can see helpfully the questions from DfE @educationgovuk on left and answers next to it

Mr JK: Who are the people on this call?

SH: 867, you see top paragraph request capture intelligence from @NHSEngland regional SEND leads about returning to business as usual. You can see they say that's a problem.

Then question asked why and various reasons given

Mr JK: This is NHS on call to discuss were NHS able to go back to [can't hear]

SH: This is the nurse lead reporting back to @educationgovuk on whether NHS SEND Leads were ready to return to business as usual

#CovidSEND

SH: The answer is negative, they don't support lifting of notice [I think]

You'll see in response to update on redeployment... moving in right direction...

#CovidSEND

Discussion [can't hear]

Mr JK: Report feedback from call that that evidence... [can't hear, reading from email I think]

SH: The point is a short one... on the ground those responsible for delivering SEND in the NHS were broadly saying some difficulties here

#CovidSEND

SH: The point is advice was given and decision made not to take it; there was advice given verbally and there isn't a read out of that advice

#CovidSEND

SH: Content of advice not before you because advice given verbally; advice was not taken

Confirmed in email to my instructing solicitor on XXX

#CovidSEND

SH: The way the point arose, at bottom of 1272 there's an email from @polly_sweeney making reference to point in witness statement, asking to be disclosed, there's a too and fro, ends up in email confirming verbal, no record

#CovidSEND

Mr JK: [can't hear]

SB: Duty to provide education other than at school

SH: My Lord that's my point, that we decided not to modify S19 but did S42, different statutory duties, different evidential basis on needs of sector m'Lord

#CovidSEND

SH: I can take I think my Lord largely from Simone [?] which is authority tab 33, relevant submission set out at 79, that it is general duty of SOS to promote the wellbeing of children in England

Mr JK: Was it the budget cut case?

#CovidSEND

SH: yes it was. This is provision Mr @SteveBroach says gives rise to mandatory provision, I say language of general duty is very long way from language one sees in Equality Act, a public authority must have due regard...

#CovidSEND

SH: some useful comparison could also be made from looking at S10 of C&F Act 'each LA in England must make' ... I say its indicative of a target duty [?]

#CovidSEND

SH: I say by analogy what Mr Justice Lewis said provides no security for suggestion that sets out mandatory considerations [?? hard to hear]

#CovidSEND

SH: If I'm wrong about that my Lord and Section 7 does give rise for something like SXXX I do say in any event SOS had discharged that duty, there can't possibly be a requirement to make express reference to it

#CovidSEND

SH: The July notice my Lord there was a children's rights assessment; throughout that and equality impact assessment, it was acknowledged throughout these measures were going to be adverse to children with ECH plans.

#CovidSEND

SH: That acknowledgment, that fact was acknowledged and confronted and said in present circumstances that was an appropriate step to take.

#CovidSEND

SH: It said it would have a detrimental impact on children with EHC plans or waiting for them, it was acknowledged, its difficult to see having confronted that squarely... [drops out]

#CovidSEND

SH: May I just turn my back on you for a moment?

Mr JK: Yes

#CovidSEND

SH: My instructions are if my Lord wishes to deal with the... it's a matter for my Lord

I also said uncertainly when 40 day period expired, I was right it was 20/6

#CovidSEND

SH: Final point, I'm rightly reminded, you asked me about regulations in pandemic that had been made for less than 21 days, there are some examples at footnote 4 on p21 of our skeleton argument

#CovidSEND

Mr JK: I'm not suggesting two wrongs make a right [can't hear]

SH: We're more than happy to do that my Lord, I would want to be very clear I don't consider this to be a complete set of examples, I dont know if there may be very many more

#CovidSEND

We return to Mr @SteveBroach

Firstly in terms of notices, we say My Lordship should look at them as a whole, because they're similar. We say its not academic or hypothetical, or if it is it should still be heard due to exceptional public interest

#CovidSEND

SB: We submit these are issues of the greatest importance. On the impracticality of getting a judgement in time, we submit this is an access to justice issue; if we'd not gone through the pre-action protocol we could not have inquired whether decisions were rational

#CovidSEND

SB: On XXX we say its factually not similar case [can't hear]

#CovidSEND

SB: We say more importantly, the breadth of the challenge there is different case, wholly indistinguishable on the facts

Whether practice decisions is citable... [cant hear]

#CovidSEND

SB: On the facts, my learned friend began with Ms Lunn's statement that LAs unable to fulfil statutory duties, we say in some cases LAs may be unable to but what underpins this dispute is the approach they took

#CovidSEND

SB: Where was consultation on the receiver side, your Lordship made distinction of supplier and receiver side.... we say simply no attempt to balance these

#CovidSEND

SB: The non availability of health staff, again in some cases may meant not possible to provide, but not wholesale reduction... not case after XXX... not reason to downgrade education duties

#CovidSEND

[Lost bunch of tweets inc where @SteveBroach quoted @SpcialNdsJungle survey]

SB: Clarity was necessary... it was never the claim that children not in school was solely due to changes, that would be absurd...

#CovidSEND

[Also lost tweets included @LGAcomms survey showing no considerable disruption to staffing levels in LAs by July]

SB: it was assumption they could safely downgrade the law we say is wholly unsafe...

#CovidSEND

SB: Of course the realities of the pandemic were relevant too... on guidance we say its irrelevant, in any event the evidence from charities was that it was simply not followed

#CovidSEND

SB: Why wasn't this [stakeholder consultation] done before, in the time available before each notice... there was time which was saw by reference of what was done with the local authorities

#CovidSEND

SB: In terms of SOS recognising particular affect on children and young people with SEND, overall attempts of balance... where is the evidence of any such balancing act? #CovidSEND

SB: That balancing act is precisely what wasn't done to enable the SOS to make a balanced decision

#CovidSEND

SB: On assumption it's ok because they're temporary we refer you to Ms @eleanorjwright evidence about the long term and irreversible damage done

#CovidSEND

SB: Consultation, the question must be whether this is an exceptional case... of course we accept threshold is high, of course Bhatt Murphy is an important judgement but its not legislation... in Brooke Energy[?] there's a mandatory requirement of past conduct

#CovidSEND

SB: We say we fall entirely under Bhatt Murphy... [cant hear]

#CovidSEND

SB: We refer your Lordship with respect to 21 of our skeleton... on the point that there's no parliamentary expression of duty, we wouldn't need the common law if there was, that's a circular argument

#CovidSEND

SB: We must bear in mind how quickly coronavirus act went through parliament... long standing nature of duty, vulnerability of cohort, abruptness... of course it was important to consult with LAs, but equally important to know what impact wld be

#CovidSEND

SB: We say the defendant had no evidence on impact before him in May and June and the information by July was partial

#CovidSEND

SB: This case, we say, is obviously exceptional public interest case. That's consultation.

On grounds B, whether defendant made sufficient inquiry in relation to whether threat of litigation was real, impact on welfare on children

#CovidSEND

SB: We accept pandemic was relevant context, but we also say that preceding context was important... as of January there are in excess of 390k children and young people with EHCPs

SH: Its a @educationgovuk document, I dont have an objection to my Lord looking at it

#CovidSEND

SB: In terms of July notice we reiterate submission that ministerial submission failed to summarise the gravity or impact on children with SEND

#CovidSEND

SB: Striking evidence building up at that time, there's simply nothing in the ministerial submission that begins to capture that

#CovidSEND

SB: The minister wasn't told the expert stakeholders had such grave concerns about the impact of the notices

Mr JK: That's Director of the National Children's Bureau

SB: She's the Director of the Council for Disabled Children situated under the umbrella of NCB

#CovidSEND

SB: We say this isn't a case where there was any point of detail left out, we say the impact on children and young people with SEND was entirely left out

#CovidSEND

SB: We say its absolutely not self evidence litigation would be brought... its not simply a question... any claim brought that's unreasonable wouldn't get permission [I think]

#CovidSEND

SB: My learned friend suggested a second point whether LAs would comply with duty; we do say the defendant knew, or officials knew or ought to have known that the system was in crisis, which is clear enough from the Ombudsman

#CovidSEND

SB: The Minister needed to know what the impact would be in broad terms, and how bad it would be.

We say it can't be right... there is a requirement at least for the bare bones to be put to the minister to make an informed decision.

#CovidSEND

SB: How could he decide proportionality without it?

#CovidSEND

SB: Speaker's counsel works for parliament, does not seek privilege, is saying this is not a privileged matter. It's up to his Lordship to say if she's wrong...

Mr JK: [Can't hear]

#CovidSEND

SB: I accept it's a question of law for His Lordship to decide. Our one sentence response on Article 9 is that this challenge is to an executive decision not an act of parliament [?]

#CovidSEND

Mr JK: [can't hear]

SB: I make no comment

Mr JK: I hope it wasn't me?

SB: I checked my Lord and it wasn't

#CovidSEND

SB: Can't say whether and when... when is qualitatively different to when, which is why we say Speaker's Counsel has got it right; the distinction about timing is not... its an executive decision susceptible to challenge in usual ways

#CovidSEND

SB: We're at pre-parliamentary process of deciding when to lay legislation... on the facts My Lord we say its impossible for parliament to have considered the legislation on the same day it was laid.

#CovidSEND

SB: The question then is whether the reasoning is irrational in the explanatory memorandum; we say they're wholly irrational. I don't need to repeat myself

#CovidSEND

SB: That takes me to ground D my Lord, challenge to reasoning and rationality in notices

My learned friend made points about width of discretion, we say not... not all provision made, we say is no way rational to downgrade all duties

#CovidsEND

SB: Not disagreement on merits we say.. his intention or otherwise as to what to do in September is not the point; I don't wish to labour the Henry VIII point but invite your Lordship to return to the notice and reiterate every point... no exceptionality argument [?]

#CovidSEND

SB: New @NHSEngland guidance on 3/6, previous guidance didn't address EHCPs at all. This said provision must be prioritised... the email on 10/6 was three weeks before July notice... reasoning doesn't even recognise existence of new guidance #CovidSEND

SB: We say whether defendant held wellbeing in mind... [case law didnt catch]... we put the point precisely how Mr Justice Lewis found...

#CovidSEND

SB: SOS has to have in mind, doesn't have to have regard to matters save for what the statute says, the wellbeing of children when he makes decisions, there's no evidence at all that this was done.

#CovidSEND

SB: For all those reasons we invite his Lordship to allow permission and then find judicial review on all these grounds [???]

Mr JK: [can't hear]

#CovidSEND

Court clerk confirmed that Mr Justice Kerr has yet to decide whether judgement will be handed down via Skype

Am sure @polly_sweeney @SteveBroach and @AliceLIrving will keep us updated on the #CovidSEND hashtag in due course.