Whitehall “braced for private schools collapse” 4

[ICouldBeVioletSky]

Continuing the discussion about the impact of VAT on independent schools…

It will be tax lawyers @twistyizzy They cannot fathom a situation where a Government cannot impose any tax it wants, as a matter of public policy. However, the HR lawyers clearly seem to have a different view of the matter.

Besides, as I have always said, this is a political nightmare and the press can dine out on it regardless. Because some convicted criminals are not being sent to their country of origin on HR grounds, but kids with SEND here may not be protected by the HR Act?
So either way the Labour Party may have undermined the HR Act, Reform style, and should hang their heads in shame.

@EHCPerhaps it doesn’t need to be tried out in court. It isn’t the first time a setting has closed which pupils with EHCPs attend. An early review of the EHCP would need to be held. This is the route for amending the school named in section I. The new school in section I can be out of area. It is a myth that out of area schools can’t be funded. In the meantime, the LA is still responsible for the provision in F of the EHCP as per section 42 of the Children and Families Act 2014, and for CSA pupils, responsible for ensuring they still receive a suitable full-time education as per section 19 of the Education Act 1996.

Yes, I don't think the govt successfully seeing off the legal challenge is as much of a done deal as some suppose. Pannick's advice to the labour party before they hung their hat on this policy was that they shouldn't do it as it would likely prove unlawful, on HR grounds. That's not something he'll have said lightly. They ignored that advice and are now paying a fortune in legal fees to try to cover their arses. They're on very dodgy ground.

They even paid him for his advice 🤣🤣

At least I now can see where the VAT I paid is going...!

If it was a done deal, why pay for 4 KC's - wouldn't one be enough?

It's going on the 4 x KCs they've hired to defend it! Approx £1million

I had only a brief conversation with a colleague who is a tax litigator and he said he’s not looked at the case in detail. But in essence he, and the lawyer of a friend who has just taken an EHCP case to tribunal, have both said that it’s extremely difficult to challenge tax legislation and SEND provision on human rights grounds.

My colleague said that if the argument for a SEND child is that there VAT is discriminatory because it forces them from an indy when the state sector cannot meet the needs of the child, then the issue is with the lack of provision in the state sector not with the VAT law per se.

The case is being brought on behalf of other groups too, not just SEND, but the arguments are probably similar.

Dan Neidle is the former head of tax law at a large City firm - he wrote this thread last summer which gives some more detailed views, it may be worth checking to see if he’s said anything more recently, since the claim was brought.

https://x.com/danneidle/status/1806732361838592115?s=46&t=2EsGZ65GlV8q56e-Wgy6AQ

Ah but the lead KC is Lord Pannick who specialises in HRA. I can understand why a tax lawyer would advise it is unlikely to succeed but the claim isn't against tax law.

Dan Niedle has a heavy political bias and, again, he isn't a HRA expert.

It’s not a done deal, it’s just the odds as very much against those bringing the challenge.

I’ve not looked at the credentials of all 4 KCs but as the case involves aspects of tax, HR, discrimination, education, and wider public/administrative law and policy I expect they’ve brought in people with different specialties to cover all bases.

It’s a challenge against tax law on human rights grounds. As Neidle notes, such challenges have been attempted before and always/almost always fail.

Agreed that Neidle had his own political biases, but I’m hearing similar views on the merits from others.

No, it's a challenge under 2 articles of the HRA against government interference of parental choice + damage purposely inflicted.

Even if its not a myth its not easy logistically and could well mean that a new school provision isn't in place by September.

I don’t want to rain on anyone’s parade - I’d love to see the VAT law revoked, But it’s worth being realistic about the fact that the chances are definitely less than 50/50, and even if it does succeed that doesn’t mean the law will be struck down and everyone will get a refund for any VAT paid.

I'm still not clear, after over 3000 posts, whether the purpose of this policy is to raise £££ VAT bonanza moolah or to curtail the purchase of educational privilege.

Seems to me that the two ideals are by definition mutually exclusive - and even the government's somebody's best man's report essentially concluded that only a small %age of people switching sectors would shift the finances into negative territory.

The latter aim would at least make more sense, as there is plenty of precedent for (the sometimes unintended effect) of people changing their behaviour in response to financial incentives. See for example the Window Tax of 1696 or the Duty on Hair Powder Act of 1795. Arguably, powdered wigs were already starting to go out of fashion, and there were many other social and political circumstances, but it seems uncontroversial to conclude that the powder tax accelerated their demise (sounds familiar ). And of course, changing behaviour is the stated aim behind our modern Sugar Tax and the long-stalled Fuel Duty Escalator.

@Hoppinggreen from the point of view of amending an EHCP and naming a school in section I (and thus funding that placement), a school being out of area makes absolutely no difference to the timescales for amending the EHCP.

But the every day experience of SEND parents is that local authorities are not funded sufficiently to uphold the law. At any stage of the EHCP process. Even emergency reviews etc can take ages to happen due to the overburdened system .

The highly unequal situation is that parents of SEND children have to either find money and time and emotional resource for individual legal action regarding their children- and many can’t find that or can’t find accessible help elsewhere-or, they have to let the authorities get away with it. So where else but court can they challenge it? Genuine question.

Of course it is a gamble but it's a gamble worth taking!
I don't want a refund, I want to end the policy or limit it to such an extent that it becomes meaningless + futile and therefore exposes Labour's spiteful reasoning for bringing it in.
Just to re-iterate though, it isn't a challenge under tax laws, it is a challenge under parental choice free of targeted government interference which is enshrined in HRA. The Act is a negative right ie government doesn't have to allow access to certain types of education, but it can't interfere in parental rights by (for example) taxing 1 type of education but not others.

@EHCPerhaps LAs acting unlawfully is a separate matter as to whether something needs to be tried in court to see what should happen when a school closes. The process for amending EHCPs is already set out in law as is the LAs absolute duty to provide the SEP in F and the LAs duty under s19, but, yes, the law may need to be enforced. Any enforcement action via way of JR would be brought in the child’s name for these matters, therefore the child can be eligible for legal aid in their own right for proceedings themselves. Parents don’t need to fund it. That doesn’t cover a pre-action letter. That is in the parent’s name so legal aid is only possible if the parent is eligible. SOSSEN can help with a pre-action letter.

Thats good news, as I said I am not personally affected but I know some who are
Do you know the timescales on amending an ECHP?

I'd suspect the best that can be hoped for is a finding of incompatibility albeit perhaps heavily limited/caveated, and for the government to be thoroughly embarrassed in court / the media and forced into some kind of limited fudge but not a full reversal. I don't think we'll ever see the money again.

@Hoppinggreen within a maximum of 4 weeks of the review meeting, the LA must inform the parents whether they intend to maintain as is (obviously not possible in those cases), cease to maintain or amend. If the LA proposes to amend, they must send the proposed amendments at the same time (when I say proposed amendments, I don’t mean proposed amendments to section I. I must be blank because this is when parents can state their preferred placement). Then, within a maximum of a further 8 weeks, they must finalise. This was established in R (L, M, and P) v Devon County Council [2022] EWHC 493 (Admin).

Thank you
Are there also time limits on when Review meetings must be held?
I know in other areas related to schools meetings must be held within a number of days after an event

"The DfE said today that the money has been allocated to local authorities to encourage them to adapt mainstream schools for pupils with SEND and to create new places in special schools."

"It said funding could be used in mainstream schools to provide an inclusive environment in which all pupils can be supported; “for example, by creating breakout spaces where children can go to self-regulate or by investing in assistive technology”."

This is nuts. What real use is a breakout space? That is not proper SEN provision.