CHO, R (on the application of) v Governing Body of Lonsdale School & Ors [2026] EWHC 166 (Admin)

[2026] EWHC 166 (Admin)

Case No AC-2025-LON-002614

IN THE HIGH COURT OF JUSTICE

KING’S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 30 January 2026

Before

ROBERT PALMER KC

sitting as a Deputy Judge of the High Court

THE KING

on the application of CHO

Between

(1) GOVERNING BODY OF LONSDALE SCHOOLDefendants

(2) HERTFORDSHIRE COUNTY COUNCILDefendant

(3) SECRETARY OF STATE FOR EDUCATIONDefendant

Hannah Slarks and Oliver Jackson (instructed by Deighton Pierce Glynn) for Claimant

David Lawson (instructed by Hertfordshire County Council SEN Lawyer) for First Defendant

Anna Tkaczynska and Jake Rylatt (instructed by Hertfordshire County Council Legal Services Department) for Second Defendant

Leon Glenister and Siân McGibbon (instructed by the Government Legal Department) for Third Defendant

Hearing Hearing date: 19-20 November 2025

Approved Judgment

This judgment was handed down remotely on 30 th January 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

ROBERT PALMER KC sitting as a Deputy Judge of the High Court:

[1]The Claimant (“CHO”) attends Lonsdale School in Stevenage, Hertfordshire (“the School”), a state-maintained community special school. The First Defendant is the Governing Body of the School (“the Governing Body”). The Second Defendant is the local authority responsible for the School, Hertfordshire County Council (“the Local Authority”). The Third Defendant is the Secretary of State for Education. The Secretary of State published non-statutory guidance entitled “Length of the school week” (“the Guidance”) in July 2023.

[2]On 20 May 2025, the School’s Governing Body decided to close the School at 1.30pm on Fridays for the Autumn Term of 2025 (“the Decision”). The Decision followed two earlier decisions to close the school on Fridays at 1.30pm for each of the two preceding terms, the Spring and Summer Terms of 2025, instead of at 3.00pm as had previously been the position. It also followed the withdrawal by the Governing Body of a proposal initially made on 2 April 2025 to close at 1.30pm on Fridays on a permanent basis: following consultation with parents, that proposal was abandoned and replaced with the Decision that the closure would be temporary only.

[3]On 6 August 2025, the Claimant applied (by his mother and litigation friend, “CRL”) for permission to claim judicial review of the Decision. On 11 September 2025, Lang J ordered that the application for permission be adjourned to be listed as a “rolled-up” hearing, with the court to proceed immediately to determine the claim if permission is granted. She ordered that the claim was to be expedited to the extent that it be listed in mid or late November. The intent of that order was to allow the claim to be heard before the end of the Autumn Term. In the event, as I shall describe in more detail below, the School has reverted to ordinary school hours, closing at 3pm on Fridays, with effect from 3 November 2025. That development has given rise to a preliminary issue raised by the Defendants: they contend that permission to apply for judicial should be refused on the grounds that the challenge is now academic.

[4]The grounds upon which the Claimant challenges the Decision are, in summary, as follows: i) Ground 1: The Local Authority has authorised cutting costs by reducing hours only at schools that serve exclusively disabled children, including the School, and not at schools that predominantly serve non-disabled children, i.e. mainstream schools. This is either direct or indirect disability discrimination which is not objectively justified, contrary to the Equality Act 2010 and the Human Rights Act 1998. ii) Ground 2: The Decision seeks to take advantage of an exception in the Guidance, which directs a minimum number of school hours for mainstream schools and an ambition that all schools will increase their hours. As an exception, it permits reduced hours in special schools for reasons that concern the disability related needs of the children in those schools. It cannot be lawful for local authorities and schools to exploit this exception as a loophole that allows them to cut hours as a way of making costs savings only in schools that serve disabled children. The School and the Local Authority have breached the Guidance without good or proper reason and/or taken into account a legally immaterial consideration in the context of the Guidance. iii) Ground 3: In the alternative to Ground 2, if the Guidance permits reductions in hours for the purpose of cutting costs in special schools but not in mainstream schools, then the Secretary of State’s Guidance itself is discriminatory and/or authorises discriminatory conduct contrary to the Equality Act 2010 and the Human Rights Act 1998. iv) Ground 4: By regulation 3 of the Education (School Day and School Year) (England) Regulations 1999 (“the 1999 Regulations”), the School is obliged to offer at least 380 sessions of education a year and two sessions a day (ten sessions a week), where a “session” is a morning or afternoon of education. By failing to provide education after Friday lunchtime, the School is in breach of regulation 3. v) Ground 5: The Guidance also directs that “all schools should deliver substantive high quality morning and afternoon sessions in every school day”. The School is in breach of this clear requirement of the Guidance.

[5]As is apparent from the above summary, the different Grounds are directed at different defendants. Ground 1 is directed only at the Local Authority. Ground 2 is directed at both the School and the Local Authority, while Ground 3 is directed only at the Secretary of State. Grounds 4 and 5 are directed only at the School.

[6]The Claimant was represented by Hannah Slarks, leading Oliver Jackson. David Lawson appeared for the School. Anna Tkaczynska, leading Jake Rylatt, appeared for the Local Authority. Leon Glenister, leading Siân McGibbon, appeared for the Secretary of State. I am grateful to all counsel for their helpful written and oral submissions.

Preliminary matters

[7]The evidence before me included: i) on behalf of the Claimant, witness statements from CHO and CRL dated 5 August 2025, and a witness statement dated 15 October 2025 from Polly Glynn of Deighton Pierce Glynn, the Claimant’s solicitor, filed in reply to the Defendants’ evidence; ii) on behalf of the School, a witness statement dated 8 October 2025 from Chandra Green, Chair of Governors, and three witness statements from Claudia Thiele, Headteacher of the School, dated 8 October 2025, 9 October 2025 and 13 November 2025 respectively; iii) on behalf of the Local Authority, witness statements dated 26 August 2025 from Tania Rawle, Head of School Standards and Accountability (Children’s Services), and Edward Chaloner, Head of Finance (Children and Schools), and a second witness statement of Mrs Rawle filed on 5 November 2025 in reply to Ms Glynn’s witness statement; iv) on behalf of the Secretary of State, a witness statement dated 7 October 2025 from Jacquie Spatcher, Deputy Director for High Quality Curriculum Division in the Department for Education; and v) a bundle of over 1160 pages of disclosure.

[8]There were a number of outstanding applications before me at the time of the hearing.

[9]The statement of Polly Glynn, the third statement of Claudia Thiele and the Second Statement of Tania Rawle were each accompanied by applications seeking their admission. There was no substantive objection to any of those applications, which I granted at the hearing without prejudice to anything that might be said as to the relevance of any of their contents.

[10]On 1 September 2025, the Claimant applied for permission to file an amended Statement of Facts and Grounds. Although there was initially some opposition to that application from the Secretary of State, by the time of the hearing it was apparent that the application gave rise to no prejudice, and I granted that application. By the same application notice, the Claimant sought an extension of time to bring his claim against the Secretary of State, without prejudice to his primary position that no such application was necessary. I will address that application when I deal with Ground 3 below.

[11]Claudia Thiele’s first witness statement dated 8 October 2025 was filed in support of an application of that date by the School that the court should determine the Claimant’s application for permission on the papers (notwithstanding Lang J’s order that there should be a rolled-up hearing), and refuse permission on the grounds that the claim was now academic. Mrs Thiele’s statement explained that the School had now announced that it would revert to ordinary Friday hours until 3pm with effect from the week commencing 3 November 2025. That application was followed by a further application dated 20 October 2025 to the same effect, requesting that the application be dealt with within 7 days and without a hearing. Neither application was made on an urgent basis using Form N463, however, and the application was not put before a judge until it was put before me, three working days before the date of the rolled-up hearing. I directed that the listing date for the rolled-up hearing would be maintained, without prejudice to the Defendants’ right to argue at the hearing that the claim was now academic and that permission should be refused for that reason. The parties had fully prepared for the rolled-up hearing, and it would have been an inefficient use of court time to reduce the rolled-up hearing to a permission hearing at that late stage.

The statutory framework

[12]A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special education provision to be made for him or her: section 20(1) of the Children and Families Act 2014. “Special educational provision” means, so far as material for present purposes, educational provision that is “additional to, or different from, that made generally for others of the same age in mainstream schools in England”: section 21(1) of the same Act.

[13]A “community special school” is a school which is maintained by a local authority and is specially organised to make special educational provisions for pupils with special educational needs: see (in combination) section 337(1) of the Education Act 1996 and section 20 of the School Standards and Framework Act 1998.

[14]Section 32(1) of the Education Act 2002 provides that in the case of a community special school in England:

“(a) the local authority shall determine the dates when the school terms and holidays are to begin and end, and (b) the governing body shall determine the times of the school sessions.”

[15]Section 551 of the Education Act 1996 provides for regulations to be made as to the duration of the school day:

“(1) Regulations may make provision with respect to the duration of the school day and school year at, and the granting of leave of absence from, any schools to which this section applies. (1A) In subsection (1) the reference to the duration of the school year at any such schools is a reference to the number of school sessions that must be held during any such year. (2) The schools to which this section applies are– (a) any school maintained by a local authority; ...”

[16]The Secretary of State made such provision in the Education (School Day and School Year) (England) Regulations 1999 (“the 1999 Regulations”). Regulation 3, so far as is material for present purposes, provides as follows:

“(1) … every day on which a school meets shall be divided into two sessions which shall be separated by a break in the middle of the day unless exceptional circumstances make this undesirable. (2) At least 380 sessions shall be held at a school during any school year so however that nothing in this paragraph shall require a nursery class to meet for that number of sessions. (3) Where at any time a school is prevented from meeting for one or more sessions for which it was intended that it should meet, and it is not reasonably practicable for arrangements to be made for it to meet at an alternative time for those sessions, the school should be treated for the purposes of paragraph (2) as if it had met as intended.”

The non-statutory Guidance

[17]In July 2023, the Guidance was published. As is explained in its introductory Summary, it provided non-statutory guidance from the Department for Education. It was produced to help schools in England that were currently delivering a school week below 32.5 hours to increase the length of their school week to the minimum expectation of 32.5 hours that had been announced in the Schools White Paper in March 2022. In a witness statement provided on behalf of the Secretary of State, Jacquie Spatcher (Deputy Director for High Quality Curriculum Division in the Department for Education) explained:

“This policy aimed to address differences between mainstream schools in terms of their opening hours, which meant that pupils in some schools had access to less time in school than others. Left unaddressed, it was considered that this time lost would accumulate and increase the disparity between pupils by the time they leave school. The policy aimed to ensure all children have fair access to high-quality time in school regardless of where they live. It was intended that schools should use any increases in time to support the delivery of a rich, broad and balanced curriculum. The 32.5 hour minimum week was considered reasonable and realistic, because DfE analysis showed that most mainstream schools were already delivering a school week of at least 32.5 hours within their existing budgets. This meant the policy did not require changes for the majority of schools; that any increase in hours needed would be relatively minor; and that the expectation was realistic in the context of mainstream school budgets.”

[18]The Guidance stated that it was based on good practice currently in use in many schools and was intended for, amongst others, governing bodies in all maintained schools, and local authorities in England. Under the heading “Main points” it explained as follows (emphasis added):

“In March 2022, the Government introduced a non-statutory expectation of a 32.5 hour minimum core school week by September 2023. In July 2023 the deadline to meet this expectation was deferred to September 2024 at the latest, in recognition of the pressures facing schools. This applies to all mainstream, state-funded schools in England. It does not include pupils in early years settings, 16-19 provision (including school sixth forms) or specialist settings, such as special schools and alternative provision, but specialist settings and alternative provision are also encouraged to consider extending their core week where appropriate. A core school week is the time from morning registration to the official end of the school day for all pupils (including breaks). It does not include optional activities, or those that are only available for some pupils.”

[19]The first main section of the Guidance is entitled “Minimum Length of School Week”. It provides, insofar as is material, as follows (emphasis added):

“The time pupils spend in school varies across the country. Over time this difference accumulates, increasing the disparity between pupils by the time they leave secondary school. The Government is determined that all pupils have the opportunity to achieve their full academic potential. To support this, on 28 March 2022 the Government announced, through the White Paper ‘Opportunity for all: strong schools with great teachers for your child’, a new minimum expectation on the length of the school week of 32.5 hoursfor all mainstream, state-funded schools. Data from July 2021 showed that 80% of secondary schools and 78% of primary schools were delivering a school week of at least 32 hours, and 16% of secondary schools and 7% of primary schools were delivering 35 hours or more. Some schools will already have increased their hours in response to the expectation set in the White Paper. Any mainstream state-funded school that does not yet meet the minimum expectation of 32.5 hours should be working towards doing so by September 2024 at the latest. The expectation does not apply to pupils in: • early years (including in school settings) due to the age of pupils • 16-19 education (including school sixth forms) due to the variation in their courses and having different guided learning hours • specialist settings (special schools and alternative provision), due to the varying needs of their pupil cohorts and the particular operational challenges they may face. The 32.5 hour minimum expectation includes the time in each day from the official start of the school day (i.e. morning registration) to the official end of the compulsory school day (i.e. official home time). The 32.5 hour minimum includes lunch times and other breaks as well as teaching time and any enrichment activities that all pupils are expected to attend. It does not include optional before or after school provision. All schools should deliver a substantive high-quality morning and afternoon session in every school day. Some schools may wish to finish earlier on specific days, for example to allow pupils to attend religious observances. In those circumstances, these schools should offer longer hours on the remaining days so that they meet the minimum expectation over the course of the week.”

The expectation does not apply to pupils in:

[20]The second main section of the Guidance is entitled “Delivering additional time”. Under the heading “Specialist settings”, the Guidance further provides as follows (emphasis added):

“Specialist settings, including special schools and alternative provision, support a wide range of pupils with diverse needs and therefore currently structure their school week in more varied ways than mainstream schools. Therefore, the expectation for a minimum school week of 32.5 hours does not apply to these settings. However, specialist settings should share the overall ambition to increase the length of the school week, where it is beneficial for their pupils to do so. When considering any increase in the length of their school week, leaders of specialist settings should make an assessment of what is most appropriate for the needs of their pupils and should take into account operational and financial considerations. For example, they should consider what can be achieved within the existing budget, transport considerations given the larger catchment areas, and staffing arrangements (recognising that these settings tend to utilise higher numbers of staff compared to mainstream schools). Special units within mainstream schools, and pupils with SEND in mainstream settings, should continue to follow the same length of school week as set by the mainstream school.”

[21]It is immediately apparent from the terms of the Guidance that the “expectation” of a 32.5 hour school week does not apply in the case of special schools. The most that can be said is that special schools should share the overall “ambition” to increase the school week. The position in relation to special schools (as it is for other specialist settings) is distinguished from that of mainstream schools by reason of “the varying needs of their pupil cohorts and the particular operational challenges they may face”. The Guidance recognises that special schools currently structure their school week in more varied ways than mainstream schools, because they support a wide range of pupils with diverse needs.

The facts

[22]There are a number of differences between the parties as to the proper characterisation of the basis upon which the Decision was arrived at and by whom. Those differences explain both the way in which the grounds of claim have been pleaded by the Claimant, and the nature of the Defendants’ response to them. Two fundamental issues between the parties concern: i) The identity of the decision-maker: the Claimant’s pleaded claim is that the Decision was made by the School and the Local Authority together, in that the Local Authority had “authorised” the School to make it. The School and the Local Authority respond that the Decision was taken by the School, having sought advice and support from the Local Authority. While that response led Ms Slarks to develop an alternative submission that the Local Authority’s “advice and support” had in itself been unlawful, she did not abandon the Claimant’s primary case that the Local Authority was the joint decision-maker. ii) The reasons for the Decision: the Claimant’s pleaded claim is that the Decision was taken “explicitly due to financial constraints, which the School has said have been caused by long-term underfunding by the Council”, and that the Local Authority authorised “cutting costs by reducing hours”. The School denies that this is correct: rather, it contends, the Decision was taken in response to an ongoing staffing crisis which had led to unanticipated vacancies at short notice, which it had proved very difficult to fill, and not by reason of any financial constraints or cost cutting exercise.

[23]In a claim for judicial review, the identity of the decision-maker and the reasons for the decision under challenge are fundamental. It will therefore be necessary to set out a relatively full account of the evidence, as it appears from the witness statements filed in the case and from the contemporaneous documents, before setting out my conclusions as to the basis upon which the Decision was arrived at and by whom.

The Claimant

[24]CHO has significant physical medical conditions, including Duchenne Muscular Dystrophy (a muscle wasting condition). He stopped being able to walk at the age of 11, and lost the ability to independently transfer at the age of 13. His mother explains that the muscles in his arm are currently fading, and that he has autistic traits or possible autism, as to which an assessment is awaited.

[25]CHO enjoys school. He is now in Year 10, and is studying for his GCSEs. As well as Maths and English, he is particularly interested in Science, and would like to go to college / university. His mother reports that he has thrived at the School, where he has been helped in dealing with his anxiety, gaining confidence and developing a strong friendship group. She says that there has never been any question that he would be able to cope in a mainstream school, and that the School is the best option in Hertfordshire to allow him to gain an appropriate education, notwithstanding that he has to miss out on the broader and more challenging curriculum with a full range of GCSEs that would be available in a mainstream school. However, this makes it all the more important that he has as much teaching as can be provided to him at Lonsdale.

The School

[26]The School provides for children and young people aged from 3 to 18 years with physical and/or neurological impairments. It has 132 pupils on its roll. The students have a wide range of cognitive profiles; each has unique and sometimes complex needs. All the students at the School have an Education, Health and Care Plan (“EHCP”), being the statutory document which sets out their needs and the provision required to meet those needs. All pupils at the School have a wide range of physical and/or neurological impairments and additional needs, including cerebral palsy, muscular dystrophy, spina bifida, epilepsy, genetic conditions, varying degrees of sight and/or hearing loss and speech, language and communication needs. About 65% of the pupils use a wheelchair for some or all of their mobility. About 35% do not communicate solely or at all through speech.

[27]The School’s Headteacher, Mrs Claudia Thiele, explains in her main witness statement that the disabilities and additional needs of pupils affect all aspects of education, not just the curriculum and staff ratios. The School employs 60.8 full-time equivalent (FTE) staff to meet the needs of those pupils. This number includes (amongst others) 5 FTE senior leaders, 15.8 FTE teachers, 24.9 FTE learning support assistants, and 8.5 FTE clinical care workers.

[28]The School provides direct teaching of many skills that pupils in mainstream schools are expected to take on from the world around them, like self-care, communication and interacting with other people, and physical control. Lots of learning does not take place in classrooms. Staff give pupils a lot of assistance to help them learn, such as recording things with them (e.g. writing or using a computer etc) or helping them use equipment. Staff carry out many care activities, which sometimes require complex staff training. The staffing required to keep the School open differs from a mainstream school. Further, one member of staff cannot always be substituted for another.

[29]The school budget has to cover not only their educational needs, but also the pupils’ care and support needs. This includes staff to provide medical support and specialist care. It also includes the provision of specialist equipment like communication devices for non-verbal students, and posture or management equipment. In order to meet the varied and often complex needs of children at the School, all staff receive specialist training in a wide range of skills.

[30]The School is open from Monday to Friday. The school day starts each day at 8.45am when school opens, with morning registration at 8.45am - 9.00am. The first timetabled lesson starts at 9.00am. Until the end of 2024, the school day finished at 3.30pm from Monday to Thursday, and at 3pm on Fridays. The Guidance makes clear that the start of the day is to be taken from the time of morning registration, which in the case of the School is 8.45am. That is the approach that the School has consistently taken in its own internal calculations of the length of its school week, in accordance with the Guidance. There were therefore 33.25 hours in the school week at this time. (The Claimant disputed this, contending that there were only 32 hours in the school week at this time: it was argued that the school day did not begin until 9.00am because the school’s absence policy provides for a “start time window” between 8.45am and 9.15am, with an expectation that all pupils are in class by 9.00am. However, this merely reflects the fact that the registration period is 8.45am-9.00am; the fact that registration concludes at 9.00am does not mean that the school day does not start until then. The School is entitled to treat its school day as beginning with the start of the registration period at 8.45am, from which time the students are welcomed into the School.)

[31]After the morning session on each day from Monday to Thursday, there is a break for lunch from 12:30pm to 1.10pm. There then follows “Social time” from 1:10-1.50pm. Sometimes the lunch and social time has been grouped together and referred to as “Lunch” on school timetables, but it has always included social time in practice, not just time to eat lunch. Afternoon registration follows at 1.50pm to 2.00pm before afternoon lessons until 3.30pm, when pupils leave for home.

[32]Until the end of 2024, Friday followed the same pattern, albeit that the day finished at the slightly earlier time of 3.00pm. The Friday afternoon lessons were used by all classes to learn about the School’s values of ambition, community and empowerment (called “ACE afternoons”), and not (for example) for delivery of the GCSE curriculum. Teachers planned activities which required collaborative work, goal-setting, or new activities which may build self-confidence and resilience. Secondary pupils may discuss a personal challenge and try to support one another with suggestions to overcome the challenge. CHO comments that this was sometimes useful, if for example there had been any fallouts in the class.

[33]Following the various decisions (described below) to temporarily restrict opening hours, the school day ended at 1.30pm on Fridays. Lunch was taken at the earlier time of 12.00pm, with social time from 12.40pm to 1.20pm, and final registration at 1.20pm to 1.30pm. The result is that there were 31.75 hours per week of school time provided following the decision to shorten hours on a Friday.

[34]Some students access some of the national curriculum and take GCSEs, some take other accredited qualifications designed for people with additional needs, and some do not take formal qualifications. All of the School’s students need help to physically access their learning and most have high medical and care needs.

[35]As well as academic lessons, pupils need teaching in wider non-academic areas of learning, such as communication, physical skills, and life skills like self-regulating, showing resilience, making choices and decisions, or advocating for themselves. Alongside well established assessment tools used to measure and track pupil progress in their academic learning across all national curriculum subjects, the School has developed its own system to measure and track progress in areas of non-academic learning, called ‘New Horizons’. It allows the School to set targets for pupils in all areas of non-academic learning and link them directly to the outcomes in pupils’ EHCPs.

[36]Mrs Thiele explains in her witness statement that one way in which the School delivers non-academic education to support those targets and outcomes is through timetabled “social interaction times”. During this time classes, pupils and staff mix, and pupils can use physical and communication/interaction skills in more natural settings:

“Pupils socialise beyond their class group, learn how to communicate effectively with different people, make their wants and needs known, develop friendships and learn to mediate and compromise. They work on their physical fine and gross motor skills whilst engaging with building bricks, sand or creative art tools. They learn to play and develop their own interests. This time is different from a break time in a mainstream school because we structure, plan and support these times in the school day to build in those learning opportunities. We set targets with pupils and parents, which link directly to the outcomes in pupils’ EHCPs, and we monitor progress made against those targets. This target setting and monitoring specifically includes social interaction time.”

[37]During these times, pupils may be engaged in activities or clubs, or may choose to play football, socialise with friends, share music, or play a game. These may be common “break time” activities in a mainstream school, but in a specialised environment such as the School, such activities form a substantive part of the children’s non-academic education, and are treated as such by staff. Staff supervise, facilitate engagement, and encourage pupils to try new activities, model communication and behaviour, and observe pupils working towards set targets, logging their progress on the pupils’ New Horizons Target sheets, which are reviewed and assessed half-termly.

[38]CHO describes in his own witness statement that during this time he socialises, and has participated in a Dungeons & Dragons club. While he suggests that he has not noticed staff supervising, observing or encouraging him to try any activities, Mrs Thiele’s evidence is clear that this understates the level of staff planning and engagement. She herself has had regular conversations with him during social interaction sessions to encourage him to widen his engagement with new activities or to include other peers in chosen activities: he has outcomes in his EHCP linked to social interactions with peers and targets set for social interactions and communication. He had participated in playtime leader training and supported primary pupils on Mondays during Spring Term 2025, helping younger pupils to access and engage with games and toys shared with their peers in the primary playground. Since September 2024, additional activities had been offered during social interaction time, drawing on elements of the ACE afternoons, like Lego, yoga and the use of remote-controlled cars, which had previously been planned learning activities for ACE afternoon lessons.

The background of funding challenges for the School

[39]In her witness statement, Mrs Chandra Green, the chair of governors, describes increasing financial pressure on the schools budget since 2013.

[40]On 10 May 2024, Mrs Green wrote to Tania Rawle, at that stage the Local Authority’s Interim Director of Education, inviting a review of the School’s funding. She cited huge pressures on the School’s budget. She noted that pupils’ needs at Lonsdale were becoming increasingly complex, mainly due to medical advancements. She noted that while the School’s classes had approximately 8-10 learners with one teacher and on average two Learning Support Assistants (“LSAs”), some students required 3-to-1 support for moving and handling, and Clinical Care Workers (“CCWs”) were now supporting 1-to-1 for clinically high needs of some of the children. Staff recruitment remained a challenge despite paying support staff in line with the Local Authority’s special schools’ pay for support staff. Some of the LSAs moved on to work in schools where they could support learning rather than provide the physically challenging support required of them at Lonsdale. Mrs Green described the budget as being “stretched to breaking point”, and that the School would struggle to balance its finances without cutting staff – yet they were unable to cut any more staff as current staffing levels were needed to keep the children safe. Different strategies and solutions to enable training of staff and safe running of the school day would now have to be examined by the governing body. Mrs Green observed:

“Our Headteacher had to ask some parents last term to not send their children to school as we didn't have the correct staff ratio to meet their high clinical needs.”

She sought additional top-up funding, noting that the Local Authority was conducting a review of funding for special schools. She concluded:

“We have cut as much as possible, but we are at the bone.”

[41]On 20 May 2024, a consultant commissioned by the Local Authority produced a financial review report in respect of the School. The report noted that a consultation was underway to remove the residential educational provision currently being funded, due to NHS staffing restrictions. The plan was to convert the residential space to allow for an increase in the number of day pupils. The number of pupils would increase from the then current roll of 112 to 132 pupils by January 2025. The report concluded as follows:

“The budget is well thought out and appears to accurately represent expected income and expenditure. … Financial benchmarking indicates this school is well run and manages costs effectively.”

It made a number of recommendations including questioning whether it was realistic not to budget for agency staff, when costs the previous year had been £30,000. Its final recommendation was:

“The current bandings of students at Lonsdale are either Specialist or Specialist+ which would mean an average top up rate of £19,240.39. The current top up rate applied to Lonsdale by HCC of £13,993 is inappropriate considering the level of needs of students.”

[42]On 24 May 2024, Ms Rawle replied to Mrs Green, noting that the Local Authority’s review of special school funding was ongoing. She referred to funding support that had been given to the School over its transition from providing residential provision. She noted that the School’s average top up funding was similar to the average across all Hertfordshire special schools, and disputed the approach to the calculation of the proposed top up rates sought by Mrs Green.

[43]Mrs Green sent further letters to the Local Authority on 16 July 2024 and 4 October 2024, making the School’s case for additional funding. The 4 October letter concluded by asserting that the School was now at a critical point and may soon need to ask some students to stay home.

[44]On 8 October 2024, the Local Authority replied maintaining its position that no further funding could be provided for that school year (2024/25) as there were simply no surplus funds at its disposal. It noted that the funding formula for 2025/26 remained under discussion, and that the Local Authority was “aware of a need to develop the funding arrangements, so that they are more considered (sic) with the level of need required”. The following day, the Local Authority sent a letter to all MPs in Hertfordshire asking for their support for funding reform for special needs education, including changes to the funding formula for children with high needs.

[45]By letter dated 6 December 2024, the Local Authority’s Director of Education provided the School with a further explanation of the funding model. In particular, he stated that the basis upon which the consultant had identified a shortfall in funding (and in particular the suggestion that the children’s needs justified top-up funding of £19,240.39) had not been based upon an appropriate calculation.

[46]The Local Authority’s Head of Finance (Children and Schools), Edward Chaloner, stresses in a witness statement that the School’s budget had not been cut, albeit top up levels for the School did not increase in 2024/25. Its budget as at 1 April 2025 was in surplus, and the surplus is forecast to grow during the 2025/26 financial year. The funding model for special schools remains under review. The Local Authority currently plans to introduce a new funding model in April 2027, subject to consultation and other matters.

The School’s decision to restrict opening hours on Fridays for Spring Term 2025

[47]On 14 November 2024, it was reported to the School Development Board that the School had been told that a teacher was taking earlier than planned maternity leave, another teacher who had been appointed to start in January had now dropped out, and a third teacher had informed the School that they would be leaving. Agency staff would be recruited in the short term, as even if new teachers were appointed straightaway, any employed teacher could not be in place until Easter, given their need to give their existing employer notice. The Headteacher would draft a risk assessment and speak to the Local Authority about reducing the School’s opening hours to include a half-day on Friday, on a temporary basis for one term. A proposal would be brought to the Full Governing Body (“FGB”) in December.

[48]The School’s Leadership Team developed curriculum models to explore existing available and missing teaching capacity in a variety of scenarios from January 2025. It became clear to the team that the number of teaching periods required was much greater than the available ones, even with additional teaching periods offered by part-time teachers and the Senior Leadership Team. Their response was to consider a variety of potential measures, with the aim to keep negative impact on learning, staff and family arrangements to a minimum. The options included imposing home learning on pupils on a rotational basis, or merging class groups together, or having additional support staff supervising lessons where a teacher vacancy occurred. However, the first would be disruptive to pupils and families and provide inequality in access for pupils, the second was not practical when class groups were already at capacity with 9-10 pupils per class which was the maximum safe capacity, and the third was also unworkable given the insufficient additional capacity from trained LSAs to oversee lessons in the absence of a teacher. Lunchtimes could not be shortened as many of the children at the school needed the full time provided to eat lunch. Nor could other days be lengthened to compensate for a shortened Friday, due to restrictions in support staff availability.

[49]The favoured option was determined to be a combination of three measures, namely: i) the recruitment of two agency staff, with additional trained Lonsdale support staff present in classes to safely meet pupils’ needs; ii) not to open the planned sixteenth class, as had been intended as part of the school’s expansion in January 2025; and iii) to temporarily finish the school day at 1.30pm on Fridays, to allow teachers’ planning, preparation and assessment time (“PPA time”) to take place on Friday afternoons, and hence to free them to cover other classes during the week.

[50]On 19 November 2024, there was a meeting of the School’s Resources Board. The agenda included a Staffing and Personnel update. This is the first time that the prospect of a cut to School opening hours on Fridays was substantively discussed. It is important to read the full minutes to understand the context in which the decision was made (with emphasis added):

“Staffing and Personnel update Q. How are we doing on vacancies? A. We returned from half-term to face some significant challenges we were not able to anticipate. A member of staff told us they were no longer taking up a post. Another teacher has had to relocate for personal reasons. Our apprentice will need to move to a half-term placement from January. Our maternity leave teacher has gone on leave early and has just informed us of the conditions of their maternity. The resignation deadline for teachers was 31st October so now we find ourselves with significant vacancies which will be impossible to fill unless we find people relocating or not already in work. The next possible start date for employed teachers is Easter. We are looking at out of the box ways to deal with the vacancies, to continue teaching the students, keep them safe and keep the teachers’ PPA time. We are looking at sending the children home at 1.30pm on Friday for that term. Governors were told that the absent staff represent a fifth of the school’s teaching capability. The early finish would not be enough to cover the vacancies, and the school will need to take other actions on top of that. The proposals to tackle the staffing shortage will need to be cleared by the local Authority and then will come to the FGB to be agreed by Governors. It was noted that when school started in September they had hardly any cover time as the school could not afford it. The SLT are already covering teaching roles and have covered over 70 hours this term. This is a great expense to the school. These provisions mean that the school can keep the existing 15 classes open whilst slotting in new children, so classes are larger than normal. The proposed solution of an early finish on Fridays would be an interim measure for a term. It was noted that it will be important to minimise the impact to families and learning. The Government requires children at mainstream schools to be at school for 32.5 hours a week and children at Lonsdale are currently at school for slightly over that time. If they move to a reduced time table on Fridays, children will be at school for 45 minutes a week less than those hours.However, it was noted that at special schools there are no requirements to do proscribed (sic) hours. Transport will be able to pick up the children at the new time as they currently do this at the end of each term. Q. Have we communicated any of this to parents? A. We have to report this to the SPW Board, the Local Authority and the School Effectiveness Adviser before we can communicate this to the parents. The Headteacher confirmed that she has spoken to the SEA who has put her in touch with the correct person in the Local Authority. Once the changes have been agreed with Governors the school will speak to transport to let them know of the changes and they will then let parents know a month ahead of Christmas. The high amount of staff sickness is compounding the problem of staff absence. Flu jabs have been offered to staff to assist with this. CG will update the board with the solution they plan to put in place and let them know if any new teachers have been recruited. If the school haven’t appointed new staff members by the half-term another plan will need to be put in place. Governors agreed that a teacher can be allocated do the extra planning so that it frees up SLT to do their jobs.”

Q. How are we doing on vacancies?

Q. Have we communicated any of this to parents?

[51]On the same evening, Mrs Thiele reported the proposed shortened day on Fridays for one term to Tania Rawle, now the Local Authority’s Head of Schools Standards and Accountability, again explaining the context for the proposal as being that there had been several unforeseeable teacher vacancies, and that there was a low chance that they could be filled in time for January. There was no suggestion that the vacancies would not be refilled for lack of resources. She requested a meeting with Ms Rawle to discuss the proposal. In her witness statement, Mrs Thiele explains that the purpose was to ask for support and advice.

[52]Ms Rawle promptly agreed to meet “to discuss the challenges you’re facing in more detail” by return of email the following day. On 25 November 2024, the meeting duly took place. Immediately afterwards, Mrs Thiele provided a written summary of the matters discussed at the meeting to Ms Rawle, emphasising that there would be four unplanned and unexpected teacher vacancies after Christmas, which had only become apparent at the end of October 2024: i) one newly recruited teacher had emailed on 28 October to withdraw from the post they had previously accepted; ii) one teacher had emailed on 30 October to say that she was resigning to relocate to be closer to her parents; iii) one teacher had emailed on 31 October to say that she would not return but would start her maternity early (and not as planned in December); iv) the School had been informed on the last day before half term that it would not receive an apprentice teacher for placement at the School whilst the School’s existing apprentice was away from school on their placement during the first half of the Spring Term.

[53]The School had considered its options as to how to respond to this unanticipated challenge. Various curriculum models had been developed in a spreadsheet and assessed against teacher availability. A risk assessment had been undertaken, which identified the relevant challenges exclusively in terms of the staffing difficulties which had been encountered, and the steps that the School could take to respond to those difficulties. A number of measures were proposed to mitigate the situation and avoid closure of the School, including the shortened day on Friday. The spreadsheet and risk assessment were provided to Ms Rawle.

[54]On 26 November 2024, Ms Rawle responded, observing that “Recruitment and retention is such a challenge for schools at the moment and I’m sorry that Lonsdale is experiencing these challenges so severely. I can see, however that you have considered your options very carefully and unavoidably arrived at the only sensible proposal which is to run a shorter day on Fridays for the spring term, from January.” She added:

“Good luck with your recruitment drive in the new year, hopefully interest will pick up.”

[55]Mrs Thiele makes clear in her witness statement that she did not consider that this was the Local Authority making the decision about what to do. She adds that she does not doubt that the School would have reconsidered had the Local Authority been opposed. Contrary to the Claimant’s submission, however, this evidence goes no further than acknowledging that the School would have taken into account the Local Authority’s response before making a final decision: it does not indicate that the Local Authority was itself responsible for the decision.

[56]On 28 November 2024, the School sent a letter to all parents stating that it would temporarily close at 1:30pm every Friday for the 2025 Spring Term. The letter explained the background of funding constraints on the School which meant that the staff had already been overstretched. However, its focus was on the temporary staffing challenges that the School was under, which were (at that stage) expected to last until Easter 2025. Hence the letter explained:

“We have been advertising to recruit to fill the teaching positions, but new teachers will not be in place until Easter 2025, at the earliest, due to the notice period teaching staff have to give their current setting.”

The letter further explained that the use of agency teachers was only a partial answer, in that whilst it would help to mitigate some of the risks, it did not do enough to ensure the school was keeping the education provided to its students at a high standard and to prioritise safety and well-being. It explained that to be able to safely open the school in January and to ensure that people continue their learning through a high quality curriculum delivered by consistent teaching staff, the decision had been taken to shorten the school day on Fridays for the Spring Term, to end at 1.30pm. It concluded:

“we will continue to recruit for the teaching posts so that the above interim arrangement can come to an end when teacher vacancies have been filled.”

[57]In notes prepared by Mrs Thiele for her presentation at a school meeting on 4 December 2024 to explain the change to parents, she referred to the Guidance and to the Government’s expectation of a 32.5 hour minimum school week in mainstream schools, and the fact that while this did not apply in special schools, there was encouragement to consider extending the core week where appropriate. She recorded that the School’s existing school week was one of 33.25 hours (45 minutes over the 32.5 hour ambition), but that in Spring this would drop to 31.75 hours (45 minutes under that level).

[58]A copy of the letter was sent to the Local Authority’s Director of Education, Tony Fitzpatrick. In his letter of 6 December 2024, Mr Fitzpatrick replied:

“Thank you also for your letter dated 29 November 2024 informing me of the difficult decisions the school has had to make, there is no statutory minimum number of hours a special school should comply with and as you explain in your letter the agreement for the shortened day was due to the difficulties of recruiting staff to replace those members of staff that have recently left. [Mrs Thiele] explained the exceptional circumstances leading to this decision and [Ms Rawle] felt that [Mrs Thiele] had considered all options very carefully and had reluctantly arrived at the decision to shorten the school day on Fridays for the spring term when it is hoped there will be a more buoyant recruitment market.”

[59]In her witness statement, Mrs Thiele confirms that the decision to temporarily amend the timetable from January 2025 “was not a decision based on finances but resulted from the loss of four teaching staff with effect from the start of January 2025. This resulted in a deficit of over fifty 90-minute teaching periods per week from January 2025, compared to what was required to teach and staff our 15 classes. These were unprecedented circumstances, with four teaching positions suddenly becoming vacant, almost one quarter of our teaching staff. I have worked at Lonsdale for over 21 years, and I cannot recall a similar situation in all the years I taught and worked at the School. … The School was not trying to make cuts. This issue arose in the context of a constrained budget but the School was able to use funds to use agency teachers and to recruit, and the particular problem we faced from January 2025 was a staffing problem and not a financial one.”

The School’s decision to continue restricted opening hours for Summer Term 2025

[60]On 25 February 2025, Mrs Thiele emailed Ms Rawle to explain that the School planned to continue to close at lunchtime on Fridays for the Summer Term. It was now past half term in the Spring Term, and so past the point where any staff leaving another school would be able to give notice in sufficient time to join the School at the start of the Summer Term. She explained:

“Recruitment has been on-going and challenging since our return in January, and interest in our posts has been limited. Two shortlisted candidates withdrew from the interview process due to not wanting to take up post before September 2025. We held one round of interviews and filled one position for the primary teacher who left Lonsdale in January. We are now recruiting for a September start and have two vacancies remaining. In order to ensure that we are able to adequately staff all lessons for pupils and allow all classes to be taught a full week at school, our only available option is to continue the current arrangement of running a slightly shortened school day on Fridays, sending pupils home at 1.30pm during the Summer Term. We currently continue to use an agency teacher to complement our teaching team. I have shared our situation and forward-planning with governors, who are in agreement with the above plan. I would need to share this with parents and transport team as soon as possible to give all parties adequate notice. Please let me know if you have any questions or need to discuss this with me in more detail.”

[61]On 28 February 2025, Mrs Thiele chased for a response. She did so again on 10 March 2025, stressing that she “would like to inform parents and teams with adequate notice”. She indicated that she would also like to discuss a longer term plan involving a consultation with parents over maintaining the earlier finish on Fridays whilst lengthening the other school days slightly. But “Immediately, I would need to carry on the current arrangements as we have not been able to recruit in the four and a half weeks since our return after Christmas. The new recruitment window is now for teachers to start in September.”

[62]On 13 March 2025, Caroline Inglis, an Education Liaison Officer at the Local Authority, replied on behalf of Tania Rawle and apologised for the delay. She said:

“Tania has reviewed your email and has agreed to the current arrangement of closing early on Friday to continue until the end of this academic year.”

[63]In her witness statement, Ms Rawle clarifies this response as follows:

“I cannot remember the exact conversation or events, but I believe I would have been contacted by Ms Inglis to request my response to the School’s emails, and I would have said that I support the School’s decision. I do not think I would have used the word ‘agreed’ in my conversation with Ms Inglis, but recognise that this is the word in the email. Had I written the email myself, I would have said ‘supported’ rather than ‘agreed’ as, again, it was not the Council’s decision to make. My understanding was that the School was contacting me at this time to provide an update on the recruitment challenges and to inform the Council that the temporary arrangement of a shorter Friday would continue into the Spring term.”

[64]On 14 March 2025, the School wrote to parents to inform them of the decision to continue to run the shortened school days on Fridays during the Summer Term. The reasons for that decision, as communicated to parents, were squarely linked with the continued difficulties in filling the staff vacancies:

“We are writing to you today to update you on our recruitment, remaining challenges and how we continue to work together to ensure we are keeping the education for our young people at a high standard, prioritising safety and mitigating risks while minimising the impact these challenges have on everyone. Returning after Christmas, we advertised our available teacher positions and received some applications. We ran interviews at the beginning of February, and we were able to recruit one full-time teacher who will start at Lonsdale after the Easter break and replaces Miss Sumner, who departed at the end of the Autumn Term. Applications from suitable candidates for the remaining positions have remained sparse, and some applicants withdrew as they were unable to take up post in April. Recruitment is ongoing, and we are now recruiting for teachers starting for the new school year as the deadline for teachers to give notice in their current settings will now only allow for a September start. The school continues to use part-time colleagues to support through additional hours, and we currently still employ one teacher through an agency. While this helps to temporarily close the gap, it also means that challenges remain. The Headteacher met with the Chair of Governors and the Local Authority to discuss the ongoing challenges we are facing, as well as sharing suggestions to overcome these, and they are in support of the planned actions we are taking. Firstly, the school is continuing to recruit to fill the remaining vacancies to be at full complement for September 2025. To be able to safely open the school and to ensure that pupils continue their learning through a high-quality curriculum delivered by consistent teaching staff, we have taken the decision to continue to run the shortened school days on Fridays during the Summer Term.”

The School’s consideration of permanent closure after 1.30pm on Fridays

[65]On 2 April 2025, the School’s Governing Body met and agreed to consult parents on a proposal to change school hours to close at 1.30pm on Fridays on a permanent basis.

[66]On 7 May 2025, the School wrote to parents to consult them over the proposal to permanently shorten the school day on Fridays. The letter reminded parents that decisions to date to shorten hours on Fridays had been forced on the School by staff resignations and recruitment gaps, and had been taken as a last resort. It recalled that the School remained under significant financial pressure. It continued that having operated the revised timetable, the School had discovered unexpected benefits. The School now judged, with the support of the Governors and the Local Authority, that the permanently shortened Fridays would deliver key benefits for the pupils, staff and school environment. Seven such key benefits were listed. They included benefits to pupil wellbeing (many of whom reported being less tired with the shorter week), enhanced staff training and development (leading to higher quality learning experiences and care for pupils), more consistency of staffing during high-absence periods, increased collaboration and meeting time, the ability to re-invest funds into additional staffing, and benefits for staff workload and well-being. Parents were invited to provide their input and submit questions.

[67]Some parents, including CRL, strongly objected to the proposed changes, arguing in written letters dated 13 May 2025 that this would create a disparity of the approach applying to mainstream schools, where children could expect a morning and afternoon session five days a week regardless of any funding difficulties. Ninety minutes less education per week on a permanent basis would have a significant cumulative effect over time.

[68]These letters of complaint were met with an invitation to discuss the matter further at parent/school meetings on 20 May 2025 and 4 June 2025. Mrs Thiele also wrote on 13 May 2025 to all parents and carers highlighting the financial circumstances most schools were facing, noting that external pressures continued to strain the school’s resources, meaning that maintaining financial balance was difficult. She stated that after careful consideration “we believe that shortening the school day on Fridays by 90 minutes is the only viable option to ensure that the school's budget is spent in the most effective way to have and maintain sufficient staffing numbers in order to still be able to provide a broad and balanced curriculum, sustain high-quality education, and achieve the best outcomes for our pupils.” Some parents, including CRL, continued to object that their disabled children had a right to full-time education. One contacted her local MP. Some other parents expressed support for the School’s plans.

[69]On 14 May 2025, at a meeting of the full governing body, Mrs Thiele reported on parents’ varied responses to the letter of 7 May 2025, both in support and opposed. At this stage, she was dismissive of the objections. She noted that there were no statutory guidelines for minimum hours in special schools, and that the Local Authority had “approved” the changes to the timetable. It was said that any complaints that parents made would not change the situation.

[70]Nonetheless, on 15 May 2025, the School sought further advice from the Local Authority in light of the objections it had received, which included allegations of unlawfulness. This led to a Teams meeting on 19 May 2025 between Mrs Thiele for the School, and Ms Rawle and Mr Fitzpatrick for the Local Authority, in which it appears advice was given by the Local Authority as to how the decision could best be presented to parents. The possibility of judicial review was also discussed, and the number of a legal helpline for schools was provided. Mrs Thiele was unable to obtain any legal advice from that number on that day.

[71]Meanwhile, on 18 May 2025, Mrs Thiele and Mrs Green, Chairman of the Governors, had discussed parental feedback and were inclined not to go ahead with the proposal to shorten Friday afternoons indefinitely. Following the Teams meeting with the Local Authority on 19 May 2025, Mrs Thiele spoke with her Senior Leadership Team and Mrs Green. They decided not to make any permanent change to Friday hours at that time. They did not rule out making such a decision in future, following a full consultation with parents. However, for now the decision was only to continue with the temporary hours for the Autumn Term. This Decision was communicated to parents on 20 May 2025.

The Decision under challenge: continued early closure for the Autumn Term 2025

[72]On 20 May 2025, the School wrote to parents to confirm that it had reconsidered its decision to permanently close on Friday afternoons in light of feedback from parents. Instead, in the interim, the School would “continue with the temporary arrangement of a Friday afternoon finishing at 1.30pm for pupils in the Autumn Term whilst we navigate the challenges we are facing in terms of recruitment and school budget constraints. We commit to not extending the arrangement, whether permanent or temporary, beyond the Autumn Term without a thorough consultation with all stakeholders, and we hope that you will be able to work with us.”

[73]At the parent/school meeting that day, slides were presented which confirmed that the School had decided not to make the amended time on Friday permanent. The bulk of the slides which followed, however, had originally been prepared in support of the decision to make the change permanent, and so continued to put some emphasis on the funding challenges facing the School. Nonetheless, so far as the recruitment challenges were concerned, they were clear that they remained: the School had only been able to recruit one teacher who had started in April 2025. The School remained committed to filling the gaps in the teaching team.

[74]Mrs Thiele also informed the Local Authority of the School’s Decision by email later that day, including that although no permanent closure was being pursued for the time being, the temporary arrangements would be kept in place for the Autumn Term “to allow us to recruit”. Mr Fitzpatrick thanked her for the update, and commented that this sounded like a very sensible approach. I note that this email exchange is inconsistent with any notion that the Decision was in fact made by the Local Authority (or jointly with it).

Subsequent developments: restoration of ordinary Friday hours

[75]On 25 June 2025, the School provided an update to parents and carers on the temporary amendment to its timetable. The School explained:

“Following our persistent recruitment efforts, we have now received teacher applications and will be conducting interviews soon, with the intention of welcoming a new teacher from January. Furthermore, staffing developments at the conclusion of the Autumn Term 2025 will enhance our overall teaching capacity. As a result, we are now in a position to confirm that the school will resume a full day of teaching on Fridays, with a 3.00pm finish reinstated from January 2026.”

[76]Mrs Thiele informed the Local Authority of that development, by email of the same date.

[77]On 23 July 2025, Mrs Thiele wrote to parents and carers again with an end of school year letter which included the following:

“We are looking forward to reverting back to our usual opening times after the Autumn Term. In the interim, we have made some changes to our learning offer for pupils throughout the week since the Spring Term to ensure that the temporary earlier finish on Fridays at 1.30pm does not adversely impact pupils’ learning. Friday afternoons had always been reserved for our ‘ACE Afternoons’, which was an opportunity to take part in learning activities embracing the school’s values of ambition, community and empowerment. We have re-modelled our lunch social interaction times throughout the week to offer more structured and varied learning activities for our pupils linked to their EHCP targets, social communication and interaction and the school’s values. Pupils embrace and enjoy this daily offer after they have eaten their lunch.”

[78]On 8 October 2025, shortly after the start of the new school year, Mrs Thiele updated parents and carers with a further letter. She informed them that having tried to recruit to fill the vacant teaching positions throughout the previous school year, the School was pleased to announce that following teacher interviews in September, it had been successful in recruiting an enthusiastic and committed teacher, who would be ready to start teaching after the October half term, following two weeks of training from 13 October 2025. With the return of another teacher from maternity leave as well, the School would now be in a position to resume its timetable with a 3pm finish on Fridays from the week commencing 3 November 2025 onwards (that is, immediately after the October half term).

[79]In the event, the School has indeed now returned to its normal 3pm finish on Fridays, as announced.

Conclusions on the factual issues

[80]I return to the two main factual issues that I identified at paragraph 22 above, and which I accept (as all parties submitted) it is necessary that I should resolve. In so doing, I apply the approach set out by Chamberlain J in R (F) v Surrey County Council

[2023] EWHC 980 (Admin)

[2023] 4 WLR 45

at [50]. I note that there was no application to cross-examine any of the Defendants’ witnesses. Nonetheless, I have considered whether any aspect of their witness statements should not be accepted in light of any inconsistency with the contemporaneous documents.

(i) The identity of the decision-maker

[81]As a matter of law, the Decision was for the School to make, not the Local Authority. It is clear that any decision as to the times of the School’s sessions was one for the School’s Governing Body to take: section 32(1)(b) of the Education Act 2002. I reject Ms Slarks’ submission that the Local Authority could have had vires to “authorise” the School’s Decision under its general local authority powers under section 1 of the Localism Act 2011 and/or section 111 of the Local Government Act 1972. Neither provides a source of power to assert jurisdiction over a decision entrusted by Parliament to a different public body.

[82]Moreover, as a matter of fact, the Decision was indeed taken by the School. I accept the witness evidence of Mrs Thiele and Ms Rawle that the School sought advice and support from the Local Authority, in particular in respect of the initial decision to close early on Friday in the Spring Term, and also in respect of the consultation over the question of whether to restrict opening hours on Fridays on an indefinite basis. Each is clear that in seeking such advice, the School understood that it was their decision to make as to whether to close early on Fridays. The reason for the School to have asked Ms Rawle and/or Mr Fitzpatrick for their views (and/or checked whether it was necessary to discuss the continued shortened week) was not because it was thought either by the School or by the Local Authority that it was the Local Authority’s decision to make, but because the School wished to test its proposals with them: it wished ideally to be in a position where it could tell parents (as it did on each occasion) that the decision had the support of the Local Authority. At the very least, the School wished to be able to take into account in its own decision-making any adverse response which the Local Authority expressed. In the event, the Local Authority provided nothing but full support for the School’s actions, given the exceptional position it was in and the ongoing efforts it was making to recruit staff to fill the permanent positions.

[83]Ms Slarks’ submissions to the contrary relied heavily on various contemporaneous minutes and emails which she suggested showed that the Decision was in reality taken jointly by the Local Authority. However, those emails must be read in their proper context and not in isolation. i) So far as the initial decision temporarily to shorten hours for Spring Term 2025 is concerned, the minutes of the meeting of the School Resources Board dated 19 November 2024 stated that the proposals to tackle the staffing shortage would need to be “cleared by the local authority”, but were equally clear that the proposals would then come to the Full Governing Body to be agreed by governors: see paragraph 50 above. What in fact followed was not a “clearance” procedure, but a discussion with Ms Rawle in which support and advice was provided, rather than any process of clearance: see paragraphs 51-55 and 58 above. The decision remained that of the Full Governing Body. ii) As to the decision in respect of Summer Term 2025, the School once again contacted Ms Rawle in order to “discuss” the proposed temporary extension of shortened hours on a Friday. While the ultimate email in response stated that Ms Rawle had “agreed” to that arrangement, it was not sent by Ms Rawle herself, and she has explained that she would not have used that word: see paragraphs 60-63 above. iii) The decision not to proceed with a permanent shortening of hours on a Friday but to shorten hours temporarily for Autumn Term 2025 was discussed with the Local Authority on 19 May 2025, following “urgent” chasing emails on 14 and 15 May 2025. Ms Slarks contends that the Decision was then made at that meeting. In fact, the handwritten note of the meeting is consistent with advice having been given and contact details with which to obtain legal advice being provided. The decision making remained firmly in the hands of the School, as its subsequent communication of the Decision on 20 May 2025 clearly showed: see paragraphs 71-72 above.

[84]It is undoubtedly the case that the Local Authority provided support and advice to the School, as was entirely appropriate given the maintained status of the School. The contemporaneous evidence does not undermine the clear account provided in the School’s and the Local Authority’s witness evidence that the decision-making remained at all times with the School. (ii). The reasons for the Decision

[85]The decision to shorten hours on a Friday for Spring Term 2025 arose as a direct result of the unanticipated staffing challenges, and not from any need to cut funds. The School was already providing more than 32.5 hours per week of education within its existing budget, and would have continued to do so were it not for the unanticipated staffing challenges it faced. The initial decision to temporarily reduce hours on Friday afternoon was always intended to last only until new staff had been recruited to fill the unanticipated teacher vacancies. Although staffing had already been reduced to a minimum level to operate safely owing to funding constraints, there was no intention to reduce staffing levels further or to operate a shorter week so as to save money. To the contrary, the School was keen to recruit replacement staff and to re-open on Friday afternoons until 3pm as soon as it could.

[86]The decision of 14 March 2025 to continue a temporary restriction on Friday hours for the Summer Term 2025 was similarly driven by the difficulty of replacing permanent staff members, and not by any need to make budgetary cuts.

[87]The proposal to restrict Friday hours indefinitely was short-lived, and having been first proposed on 2 April 2025 was abandoned on 20 May 2025. It was proposed against a background of significant financial constraint, and was intended to maximise the prospects of being able to deliver a high quality of education to the School’s pupils on a consistent basis, in the belief that this would be in the best interests of the children. However, it was dropped by the School following strongly expressed opposition from some parents (notwithstanding support from others), amid some uncertainty as to the lawfulness of the proposed course in the absence of legal advice. A strong commitment was given not to reintroduce the proposal in future without full consultation of the parent body.

[88]The Decision under challenge of 20 May 2025 was adopted instead, to reflect the School’s ongoing inability to recruit replacement staff members to make up for the deficit in teaching staff caused by the unanticipated departures, not from any decision to cut funding or to save money. The School continued to judge, as it had since November 2024, that the appropriate response to the teacher shortage was to temporarily restrict opening hours on Friday until the staffing shortages could be resolved, as (of all the available options) that was the one which would best serve the pupils’ educational interests and maintain a safe environment for them with suitably trained staff familiar with their needs.

[89]I do not find support for the Claimant’s essential claim that the Decision was caused by the need to cut costs. It is true that the School had been operating subject to financial constraints for some time, and had argued its case strongly with the Local Authority that extra funding was needed. Despite that, the School had continued to operate successfully, and would have continued to do so absent the unanticipated staffing crisis that arose following the half term of October 2024. While the Claimant argues that the problem would not have arisen so acutely had the School been able to employ additional staff from the outset, that is an unrealistic position to take: the School was under no obligation to duplicate staff requirements for this (unanticipated) eventuality, just in case it unexpectedly arose. The fact that it (understandably) did not do so does not mean that the Decision taken when the unprecedented staffing shortage arose was made as part of a “cost cutting” exercise. Funding had not in fact been cut, as the Local Authority confirmed, and Ms Slarks confirmed that it was no part of her case that the Local Authority was required as a matter of law to fund the School to a greater extent than it did. That being so, it is in my judgment impossible to contend that the Decision was taken “explicitly due to financial constraints” and to “cut costs”, as the Claimant contended.

[90]Nor was the Local Authority’s advice and support to the School to the effect that it could or should temporarily restrict opening hours in order to cut costs. The School’s explanation to it of the need for the temporarily shortened hours on Fridays was expressly based upon the staffing shortages and the ongoing challenges the School was facing in recruiting replacement teachers. The Local Authority’s advice was responsive to that explanation, and provided reassurance that the School had properly evaluated the various options open to it, and had made a series of sensible decisions in the circumstances. It did not provide advice that the School should temporarily cut opening hours in order to resolve the undoubted pressures on its budget that it was also facing, or that cutting costs in this way was appropriate for special schools generally. Instead, it provided responsive, case-specific advice and support to the School relating to the very specific challenge it faced in relation to staff shortages which limited the extent to which it could safely deliver a full week’s education of 32.5 school hours, and which it was at all times attempting to resolve with further recruitment.

[91]Ms Slarks submitted that nonetheless the Decision was attributable to a lack of funding, as ultimately all resource pressures could be resolved with enough funding. I do not accept that submission. The “resource pressures” in this case were caused by the sudden departure of staff who could not be easily replaced: the budget remained available at all times to replace them, but the real difficulty lay in recruitment of suitable staff in light of a dearth of applications from suitably qualified teachers. Ms Slarks’ response was that the School could have employed more agency staff. However, that amounts to a substantial oversimplification of the position. The School did recruit two agency staff, but their value in the circumstances was limited. There was no straightforward solution to the problems facing the School which could simply be solved by recruiting further agency staff: i) Agency staff cannot provide the same consistency of care and knowledge of their pupils’ needs as can permanent members of staff. As the School recorded in a June 2025 risk assessment, while the recruitment of agency staff (as was done in January 2025) reduced loss in learning to some degree, “Agency teachers do not know the children and are missing school-specific/pupil-specific training to be left without Lonsdale staff present; agency staff can change depending on availability.” ii) Mrs Thiele further explains in her witness statement that mandatory training must be completed by staff before they are able to fully support the School’s pupils. Much of the training is directly linked to the specialist provision at the School; training for particular pupil- or cohort-specific needs may also be needed. Whilst staff are undergoing mandatory and specific training, they must work alongside experienced and fully-trained staff members to gain experience of the practical aspects of training (including moving, handling and hoisting). Staff members who have not completed all of their training and been signed off as competent cannot work unsupervised or unsupported with the School’s pupils, to ensure that both the staff member and the pupils are kept safe and that the pupils’ needs are fully met. iii) While the School did use two agency teachers in Spring Term 2025, therefore, Mrs Thiele explains that this was “of limited assistance”, given the need for additional trained members of Lonsdale staff to be in the room with the agency workers due to the complex medical, learning and communication needs of the School’s pupils. The agency teachers did not know the pupils well, and so relied heavily on the School’s support staff members to be able to deliver lessons. The use of agency teachers ended at the end of Spring Term with one of the two staff being recruited as a full-time staff member, and the other not having their contract renewed.

[92]As I explain below, my findings that the Decision was one taken by the School (and not the Local Authority), and was taken by reason of a staffing crisis which the School was at all times attempting to resolve (and not simply to cut costs) removes the essential basis upon which the first three grounds of challenge are premised.

Is the claim academic?

[93]The Defendants submit that the claim is now academic, in light of the fact that the School returned to its normal Friday hours after the October 2025 half-term, and that permission to apply for judicial review should be refused for that reason.

[94]A claim will be academic in circumstances where there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. It is well established that academic issues should not be determined by courts unless there are exceptional circumstances, such as where other similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future and where the decision in the academic case is not fact-sensitive: see R (Zoolife International Ltd) v Secretary of State for the Environment, Food and Rural Affairs

[2007] EWHC 2995 (Admin)

at [32]-[37], where Silber J so stated having reviewed long-standing authorities to that effect, including in particular the speech of Lord Slynn in R v Secretary of State for the Home Department, ex p Salem

[1999] 1 AC 450

at 457. The essential rationale is that the court should not decide hypothetical questions. As Elisabeth Laing LJ put it in R (L, M and P) v Devon County Council

[2021] ELR 817

at [50]: “Judicial review is a flexible and practical procedure. All remedies in judicial review are discretionary, including declarations (a substantial topic on which we received no distinct submissions). The Administrative Court has at its disposal a range of doctrines, with discretionary elements, to control access to its scarce resources. … The discipline of not entertaining academic claims is part of this armoury. It enables to the court to avoid hearings in cases in which, although the issue may be arguable, the court’s intervention is not required, because the claimant has obtained, by one means or another, all the practical relief for which they had asked…”.

[95]The mere fact that a judicial review claim concerns past conduct which has concluded does not automatically mean that the claim has become academic: it may still have continuing significance both in respect of the public authority’s future actions and in respect of any declaratory relief or just satisfaction that the Claimant continues to seek. See, for example, R (Gardner) v Secretary of State for Health and Social Care

[2022] EWHC 967 (Admin)

;

[2022] PTSR 1338

at [139] per Bean LJ, and more recently R (Lindsey Smith) v Chief Constable of Northumbria Police

[2025] EWHC 1805 (Admin)

at [85], per Linden J.

[96]I do not accept the School’s submission that the issues in the present case have become academic by reason that with effect from 3 November 2025 (just two weeks before the hearing of this matter) the School had returned to its full timetable. The School did so while maintaining that it had acted wholly lawfully over the course of 2025 until then. The Claimant maintains that the reduction in school hours was unlawful. The Claimant wrote to the School on 10 October 2025 (after the news had been announced of the return to the full timetable after half-term) inviting it to accept that the Decision had been unlawful, to guarantee that it will not restrict the hours of schooling provided in future, even if similar circumstances arise, and to undertake that the School would take all necessary steps to deliver a full school week. The School has unsurprisingly declined to give any such confirmation, guarantee or undertaking. The Claimant remains concerned that the School continues to operate a “at the bone” and that such circumstances could re-occur with little warning. He continues to seek declaratory relief as to the unlawfulness of the School’s and the Local Authority’s past conduct, as well as just satisfaction in respect of the Human Rights Act claim under Ground 1. In my judgment, there therefore remains a lis to be decided which will directly affect the rights and obligations of the parties inter se. The claim is not academic.

Ground 1

[97]Ground 1 is a complaint of direct or indirect discrimination contrary to the Equality Act 2010 and/or the Human Rights Act 1998 (relying on

Article 14 ECHR

in combination with Article 2 of the First Protocol). Each complaint of discrimination is targeted at the Local Authority alone and not the School. That is because the Claimant has always acknowledged that the School has not discriminated against any disabled child in deciding temporarily to restrict its opening hours on Friday afternoon.

[98]Instead, the unlawful discrimination is said to have been committed by the Local Authority. As formulated in the Claimant’s Statement of Facts and Grounds, it was founded upon the premise that the Local Authority had “authorised cutting costs by reducing hours only at schools that serve exclusively disabled children.” Hence: i) The complaint of direct discrimination was put on the basis that the Local Authority had subjected the children at the School to less favourable treatment by approving and/or agreeing to a shortened timetable, where it would not have subjected children at a mainstream school to that treatment, in that it would not have accepted that a desire to cut costs would provide justification for shortening school hours at a maintained school. ii) The alternative complaint of indirect discrimination was founded upon the premise that the Local Authority applied a provision, criterion or practice (“PCP”) of permitting, authorising and/or endorsing maintained schools in its area to cut costs by reducing school hours only if they are special schools, and not if they are mainstream schools.

[99]Ground 1 is therefore founded upon the dual premises that: i) the Decision to shorten school hours on Friday afternoons during the Autumn Term 2025 was jointly made or authorised by the Local Authority; and ii) the Decision was made in order to cut costs.

[100]However, once it is acknowledged that the Local Authority did not make or authorise the Decision of which complaint is made, the first premise falls away. Further, once it is acknowledged that the School’s Decision was not made to cut costs, the second premise also falls away.

[101]In order to provide a fallback position in respect of the first premise, Ms Slarks developed an alternative position in her skeleton argument and oral submissions: it was said that the Local Authority provided “advice and guidance” to the School which it would not have provided to a mainstream school, namely that as a special school it could restrict hours in order to cut costs. Ms Slarks submits that in so doing: i) by advising positively in favour of such action being taken in order to cut costs, the Local Authority directly discriminated against the Claimant; ii) alternatively, the Local Authority applied a PCP to the Claimant of providing advice and guidance to that effect which was in itself indirectly discriminatory;

[102]The difficulty for the Claimant is that even taken at its highest, this reformulation of the case does not overcome the problem that the second premise is unfounded. It is incorrect to suggest that the Local Authority gave advice and guidance to the effect that special schools could restrict opening hours in order “to cut costs”: see paragraphs 89-90 above.

[103]The Claimant did not advance any case to the effect that the Decision, if made by the School and if made for the true reasons that I have identified above, amounted to unlawful discrimination by the Local Authority. There is therefore nothing remaining under this ground that can survive, whether it is framed as a complaint of direct or of indirect discrimination, and whether under the Equality Act 2010 or under the Human Rights Act 1998.

[104]That is not the only difficulty that the Claimant’s case would face, even were it otherwise sustainable on the evidence. It assumes that the provision of advice to the School could amount to unlawful discrimination against the Claimant by the Local Authority, even when the Decision itself is accepted not to amount to unlawful discrimination by the School. As Ms Tkaczynska points out for the Local Authority, no successful complaint to that effect could be pleaded under section 111 of the Equality Act 2010, which prohibits a person(a) (A) from instructing, causing or inducing another person

(b) (B) to do in relation to a third person

(c) (C) anything which amounts to direct or indirect discrimination: it would fail in this case because the act done by B (the School) is accepted by the Claimant (C) not to amount to direct or indirect discrimination against him. Ms Slarks submits that the provision of advice to the School in the present case was nonetheless a free-standing act of unlawful discrimination against the Claimant; but this assumes that the Local Authority’s provision of (bespoke) advice to the School either amounted to “treatment” of the Claimant for the purposes of the complaint of direct discrimination, or amounted to the application of a PCP to the Claimant by the Local Authority for the purposes of the complaint of indirect discrimination. I would have great difficulty in accepting either proposition: in either case, it is in substance another way of contending that the Decision was in effect made by the Local Authority and not by the School, thus restating the first incorrect premise of the argument.

[105]The difficulties would not end there. There remain substantial difficulties in conceptualising how the provision of the advice in the present case could have been said to have been given because of the Claimant’s (or any other disabled pupil’s) disability for the purposes of the direct discrimination claim, or precisely what PCP was being applied to persons with whom the Claimant does not share the protected characteristic of disability for the purposes of the indirect discrimination claim. However, for the reasons I have already given, it is not necessary to work through those issues in this judgment: they do not arise on the facts.

[106]Ground 1 therefore fails.

Ground 2

[107]By Ground 2, the Claimant alleges that in making the Decision, both the School and the Local Authority departed from the Guidance without taking it properly into account or providing clear reasons for doing so.

[108]The Guidance was addressed to (amongst others) the governing bodies in all maintained schools and to local authorities in England. Ms Slarks submitted that both the School and the Local Authority were therefore bound to take account of it, and should only exercise their discretion to depart from it for good reason: R (DXK) v Secretary of State for the Home Department

[2024] EWHC 579 (Admin)

;

[2024] 4 WLR 46

at [132]. This was so notwithstanding that the Guidance was non-statutory: R (MP) v Secretary of State for Health

[2020] EWCA Civ 1634

;

[2021] PTSR 1122

at [17]-[19].

[109]Ms Slarks submitted that the Decision was taken for the sole or primary purpose of resource efficiencies including cost cutting, but that the Guidance does not allow special schools to reduce hours to cut costs. The Guidance only exempted special schools from the otherwise applicable “expectation” and replaced it with an “overall ambition” that they provide a minimum of 32.5 hours, because of “the varying needs of their pupil cohorts and the particular operational challenges they may face.” The Guidance permitted financial considerations to be taken into account only when special schools were considering any increase in the length of their school week, as was apparent from the statement that “When considering any increase in the length of their school week, leaders of specialist settings should make an assessment of what is most appropriate for the needs of their pupils and should take into account operational and financial considerations.” It followed that reductions in hours in special schools are only justified in the Guidance by reference to the particular needs of the cohorts and special schools themselves, which arise from the children’s disabilities. The Guidance cannot have been intended to give special schools and local authorities carte blanche to cut their school hours for reasons that did not arise from the children’s disabilities, in circumstances where it prohibits such cuts in mainstream schools. No good reason had been provided to justify departing from the Guidance in this respect.

[110]In my judgment, the short answer to this ground is once again that it is based upon a false premise: the Decision temporarily to reduce hours was not taken to cut costs, but to manage the safe delivery of education to the School’s pupils while attempts were made to recruit replacement staff and return to the previously established full timetable.

[111]The Guidance does not directly address this situation. It recognises that there are good reasons why a 32.5 hour week may not be appropriate in specialist settings. In stating that there is an overall “ambition” for special schools to increase hours to this level, the Guidance expressly recognises that there may be good reasons why such hours should not be delivered in a special school – hence the absence of any “expectation” to that effect. The Guidance states that when considering any increase in the length of the school week, an assessment should be made of what is most appropriate for the (diverse) needs of the pupils and should take into account operational and financial considerations. Amongst other things, leaders of special schools should consider what can be achieved within the existing budget and staffing arrangements. There is no assumption that the provision of a 32.5 hour school week in special schools will necessarily best meet the diverse needs of the pupils in a special school within such budget and staffing arrangements.

[112]Ms Slarks drew my attention to what she described as being the “premise” of the statutory guidance, drawn from two further sources, to seek to establish that a 32.5 hour week was necessarily beneficial. i) First, I was taken to a paper by the Education Policy Institute dated July 2019, “Education in England: Annual Report 2019”. This report found among other things that pupils with an Education, Health and Care Plan (EHCP) were 40 months behind their peers without Special Educational Needs and Disabilities by the end of secondary school. This paper did not address the length of the school week; still less did it identify any differences in lengths of the school week as between special schools and mainstream schools as being responsible for the gap between children with an EHCP and those without any SEND. ii) Second, I was taken to a paper dated October 2024 by the Education Policy Institute (which describes itself as an independent, impartial, and evidence-based research institute), “A longer school day: the attainment benefits of an extra hour a week”. Notably, the subject of its research was exclusively mainstream schools. In that context, the Education Policy Institute found that increased time in school was associated with higher academic attainment:

“effects at the margin were positive, albeit relatively modest”

. An extra hour of secondary school a week was found to be associated with a 0.17 improvement on one GCSE subject. The report concluded that further consideration should be given to what activities take place in any extra time and to whether the additional cost of increasing school time could be used on other interventions which in turn could result in larger impacts on attainment. It did not address the position in special schools at all.

[113]I do not find these reports to be anything but of very limited relevance to the interpretation of the Guidance, and do not accept that they provide the “premise” for that Guidance.

[114]Ms Slarks further submitted that the Guidance permits financial considerations to be taken into account only when special schools are considering any increase in the length of their school week, and that reductions in school hours can only be justified by reference to the particular needs of the cohorts and special schools themselves, which arise from the children’s disabilities. She submitted that the Guidance does not permit special schools and local authorities to cut their school hours for reasons that do not arise from the children’s disabilities: they may not do so in order to conserve their resources, in circumstances where that is prohibited in mainstream schools.

[115]This too seems to me to be a considerable gloss on the Guidance. Special schools’ resources are devoted entirely to the provision of education and care for their pupils. They will marshal those resources as best they can in order to deliver the best outcomes for the disabled children within their care in a safe environment. The Guidance says nothing at all as to whether or in what the circumstances special schools may judge that it is appropriate to shorten the school week in order to best serve their pupils’ needs having regard to the financial and operational constraints under which they may be operating. In particular, the Guidance does not refer to circumstances in which a special school which has met the ambition of a 32.5 hour week (as had the School in the present case) may subsequently need to reduce hours below that level. There is no reason, however, to read the Guidance as preventing special schools from doing so having regard to the very same sorts of considerations, including operational and financial ones, as they would when considering an increase.

[116]In the present case, the School focused on operational considerations, not financial ones. It was concerned that it could not provide appropriately staffed classes with suitably trained teachers, LSAs and other staff to ensure the safety of the pupils over the full length of its ordinary school week, until replacement teachers had been recruited. That is squarely an operational consideration which arises directly from the needs of the pupils. There is nothing in the Guidance which suggests that special schools cannot or should not have regard to such matters in deciding to temporarily adopt a shorter school week.

[117]There was therefore no departure from the Guidance by the School (still less the Local Authority), and no obligation to provide reasons for any such departure. It is plain that from the outset of the unanticipated staffing crisis in November 2024, the School had the Guidance and the ambition for which it provides squarely in mind: see paragraph 57 above. It does not directly address the situation the School found itself in; insofar as it could be applied by analogy, the School’s approach was consistent with it, and taken with the Guidance in mind.

[118]Ground 2 accordingly fails.

Ground 3

[119]Ground 3 proceeds in the alternative to Ground 2: if, contrary to the Claimant’s primary case, the Secretary of State’s Guidance does allow special schools to reduce hours to cut costs, then it is submitted that the Guidance is itself unlawful insofar as it fails to prohibit special schools from offering a shorter week where the reason is to cut resources and costs. The Claimant argues that if the Guidance is to be read in that way, it is itself discriminatory, as it would create a system of two different standards for mainstream and special schools to the detriment of disabled children.

[120]On my findings above, the present case is not one in which any decision was taken to reduce hours “to cut costs”, and so the question of whether or not the Guidance would permit such a decision to be made does not arise. Moreover, there is nothing in the Guidance which directly addresses the question of whether a specialist setting such as a special school may temporarily reduce hours in order to manage operational constraints caused by a staff shortage. All that remains is the fact that the Guidance sets an expectation for a school week of 32.5 hours in a mainstream school, whereas it sets no expectation but only an overall ambition in respect of specialist settings including (but not limited to) special schools, due to the varying needs of their pupil cohorts and the particular operational challenges they may face.

[121]There is nothing discriminatory in the approach taken by the Guidance in this respect. It acknowledges that in mainstream schools there is a strong interest in each individual school meeting a single minimum school week, in circumstances where that was a reasonable and realistic target that all such schools could meet: see the evidence of Jacquie Spatcher referred to at paragraph 17 above. As Ms Spatcher further explains, the Secretary of State rejected the option of applying a similar expectation in the case of specialist settings, because: i) Provision is significantly more complex and varied in specialist settings, due to a combination of higher staff to pupil ratios, more complex travel arrangements (due to a combination of pupil needs and wider catchment areas) and therapeutic interventions. It was considered that setting the same expectation as for mainstream settings would risk exacerbating these pressures. ii) The variation of different types of school and diverse pupil needs in specialist settings means that the range of total school time was greater than in mainstream schools; the particular primary need of the pupil cohort can impact on the time a setting is open and a one size fits all model was difficult to achieve in this sector. iii) Creating an expectation of 32.5 hours for specialist settings would have significant financial implications. Mainstream schools would be expected to deliver at least a 32.5 hour week as a minimum from their existing budgets. However, specialist settings deliver a wider range of hours and a higher proportion of their costs are spent on teaching assistants and specialist staff. Increasing the number of hours worked by these staff would incur additional costs for the school, which might therefore impose an additional cost on local authorities’ high needs budget at a time when they were already under pressure. However, it was recognised that this would not be the case for all specialist settings: the need for additional support staff depends on the needs of the pupils in the setting, therefore some settings might find this prohibitive, whereas other settings with pupils with less complex needs may be doing this already.

[122]Instead, Ms Spatcher explains that the option of including an overall ambition to increase time to 32.5 hours rather than any expectation was adopted in the Guidance, with the intention that specialist settings should explore the possibility of increasing their hours, but that they should only do so if they consider it to be in pupils’ best interests, operationally safe, and achievable within their existing funding arrangements.

[123]In my judgment, there is no legal fault in this approach. For the reasons given, mainstream schools and special schools are not in an equivalent position. The fact that mainstream schools should generally be expected to deliver 32.5 hours within their budget does not mean that all special schools will be able to do so, not least where in light of the particular needs of its pupil cohort, the maintenance of staff to pupil ratios may need to be prioritised over a longer school week. For that reason, it is too crude a proposition to contend that to allow special schools to run a shorter school week for operational or financial reasons is to subject its disabled pupils to a detriment of any kind: the shorter school week may be directly in their interests and to their benefit. The Guidance provides flexibility for special schools to adjust to their own circumstances, and is not proscriptive as to how the balance between the length of the school week and other aspects of their provision should be struck. I can see no merit in the proposition that the Guidance is unlawfully discriminatory insofar as it omits to include an expectation that special schools should not offer a shorter week for operational or financial reasons: i) It is not directly discriminatory, as it does not amount to less favourable treatment of any pupil (including the Claimant) because of their disability. ii) It is not indirectly discriminatory, as there is no identifiable PCP which is applied to any relevant pool of pupils which puts the Claimant (or any other disabled pupil) at a particular disadvantage when compared with pupils who are not disabled. Even if there were, it would be justified.

[124]In particular, the Claimant is wrong to suggest that the effect of the Guidance is “to create a system whereby the burden of saving resources is permitted to fall disproportionately on disabled children.” The Guidance does no such thing. Disabled children at special schools attract higher average rates of funding per pupil than do non-disabled children at mainstream schools. The sole effect of the Guidance is to encourage an ambition of longer school weeks, while preserving individual special schools’ ability to deploy those resources to best advantage to meet the particular needs of their pupil cohort. It provides no encouragement at all to cut costs by reducing school hours.

[125]Finally, I should record that the Claimant adduced a witness statement dated 15 October 2025 from his solicitor, Polly Glynn of Deighton Pierce Glynn. Ms Glynn sets out the results of various enquiries that she had made as to the extent to which other special schools in Hertfordshire and beyond offer school weeks below 32.5 hours and/or close early on one day a week, and the extent to which it was apparent what reasons had been given for adopting a shorter school week. It suggests that one of the primary reasons is to accommodate additional staff training. I do not consider that this evidence (whose accuracy is disputed by the Local Authority in any event) advances any of the Claimant’s grounds any further, including Ground 3. If anything, it reinforces the point made on behalf of the Secretary of State that the circumstances of different special schools vary widely, and that a single prescriptive approach to suit all such schools is not appropriate, still less required as a matter of law.

[126]Ground 3 must therefore fail also.

[127]The Secretary of State also took the further point that there had been delay in bringing this claim insofar as it was directed at the Guidance: it was said that the challenge was significantly out of time as the Guidance had been published in June 2023. Even if grounds for judicial review only arose when the Claimant was first affected by the application of the Guidance and hence had standing to bring the claim, in accordance with the principle in R (Badmus) v Secretary of State for the Home Department

[2020] EWCA Civ 657

;

[2020] 1 WLR 4609

at [77]-[78], those grounds first arose on 26 November 2024, when the School first amended the timetable. The claim was not issued until 6 August 2025, over six months out of time.

[128]If I had considered that there was any merit in Ground 3, I would not have refused permission for it or withheld relief on the grounds of delay. The principle in Badmus applies, with the result that time did not begin to run in June 2023. This was not a case equivalent to that in R (Delve) v Secretary of State for Work and Pensions

[2020] EWCA Civ 1199

, where time began to run as soon as the legislation under challenge was enacted because of the inevitability of the effect it would have on the claimants: there was nothing inevitable about the effect of the Guidance on the present Claimant.

[129]As to the fact that the first decision to restrict school hours was made in November 2024, that decision was in respect of the Spring Term 2025 only. The Claimant’s challenge was to the Decision in respect of the Autumn Term 2025. Whilst it would have been open to the Claimant to bring an earlier challenge to one of the earlier decisions, he was not thereby prevented from challenging the later decision. Time only began to run in respect of that later Decision on 20 May 2025. The Claimant then sought to challenge the effect of the Guidance only in the alternative, if his primary case under Ground 2 that the Decision was inconsistent with the Guidance failed. In my judgment, he was entitled to bring such a challenge to the Guidance within that context at that time. The claim was accordingly brought in time, but even if it were necessary to extend time, I would have done so. In the event, however, the Secretary of State does not need this additional point, as the challenge to the Guidance has failed on its merits.

Grounds 4 and 5

[130]By Ground 4, the Claimant contends that the School made the Decision in breach of regulation 3(1) of the 1999 Regulations, which so far as is material requires that “every day on which a school meets shall be divided into two sessions which shall be separated by a break in the middle of the day unless exceptional circumstances make this undesirable.” It is submitted that the new arrangements do not include a second session on a Friday: under the new timetable on a Friday, there is a break in the middle of the day consisting of lunch followed by breaktime. There is then a final check-in when the register is taken at 1.20pm, before home time at 1.30pm. No afternoon session is delivered. There are no exceptional circumstances which would make it undesirable to provide such a session.

[131]Ground 5 is closely allied to Ground 4. The Claimant refers again to the Guidance, which provides that “All schools should deliver a substantive high-quality morning and afternoon session in each school day.” It is submitted that in failing to provide any afternoon session on a Friday, or alternatively no high-quality session, the School has departed from that aspect of the Guidance without good reason.

[132]In response, the School submits that the Claimant ignores the provision of social interaction time. These sessions could not be dismissed as simply “break time”, but included the delivery of structured and varied activities which were designed and monitored by teaching and support staff with each pupil’s EHCP outcomes and Horizon targets in mind. Mrs Thiele explained in her witness statement that she considered as Headteacher of the School that these were high quality sessions. In the alternative, the School submitted that if the social interaction time did not amount to a “session”, there were exceptional circumstances which justified the non-provision of a session on Friday afternoons until suitable replacement teaching staff could be recruited and trained.

[133]In my judgment, the School’s Decision accords with regulation 3(1) and with the Guidance, for the following five reasons.

[134]First, I accept Ms Slarks’ submission that the two “sessions” into which the school day must be divided must mean periods of time during which meaningful education is provided to the school’s pupils. That is in turn reflected by the Secretary of State’s Guidance, which emphasises that the sessions should be “substantive high-quality morning and afternoon” sessions.

[135]Secondly, I also accept Mr Lawson’s submission on behalf of the School that a “session” is not restricted to classroom teaching, and may include sport, craft or other activities which take place outside the classroom – all such activities may amount to the provision of meaningful education.

[136]Thirdly, in the case of special educational provision, the activities which may amount to the delivery of education are particularly broad: they may include any activity which is provided in order to further the objective of meeting the outcomes set out in pupils’ EHCPs and/or in assessing their progress towards that objective. As Mr Lawson points out, it is well established that special educational provision goes well beyond simply working towards qualifications, that it may include multiple forms of therapy including physiotherapy, occupational therapy and speech and language therapy (see London Borough of Bromley v Special Educational Needs Tribunal

[1999] EWCA Civ 1490

;

[1999] ELR 260

at 296), and that it can further include learning self-care and communication skills (see, by way of illustration, A v Hertfordshire County Council

[2006] EWHC 3428 (Admin)

at [22]). As Sedley LJ put it in Bromley at 295, “Special educational provision is, in principle, whatever is called for by a child’s learning difficulty.”

[137]Fourthly, the learning activities which are provided by the School during social interaction time include, on Mrs Thiele’s evidence, structured and varied learning activities for the School’s pupils which are linked to their ECHP targets and which are monitored accordingly: see paragraphs 35 to 38 above where this evidence is more fully set out. In my judgment, this is plainly capable of amounting to the delivery of special educational provision. There is no reason to doubt Mrs Thiele’s assessment as Headteacher that its delivery meets the requirement of the provision of a substantive high-quality session. I reject Ms Slarks’ submission that it is simply a “breaktime”, even if it is described as such on some versions of the School’s timetable: what matters is the substance of what is delivered rather than how it is there described. The social interaction time at the School is qualitatively different in its design and delivery than a simple breaktime at a mainstream school, even if some of the individual activities available may not greatly differ: they are being used actively to meet the pupil cohort’s needs and in accordance with the identified outcomes in their ECHPs, and the pupils’ progress is duly assessed against those targets.

[138]Fifthly, I accept that regulation 3(1) of the 1999 Regulations makes no provision that the sessions must be of any particular duration, or of equal length to each other. To the contrary, pursuant to section 32(1)(b) of the Education Act 2002, it is for the governing body of the School to determine the times of the school sessions. The Guidance explicitly recognises that some schools may wish to finish earlier on specific days, providing the example that it may be desired to allow pupils to attend religious observances. It follows that the fact that the second session on Friday is a short one does not mean that it cannot amount to a “session” at all.

[139]For all of those reasons, the Friday afternoon provision at the School during the currency of the period of reduced hours was in my judgment consistent with regulation 3(1) of the 1999 Regulations, and consistent with the terms of the Guidance.

[140]In case I am wrong in that conclusion, I have also considered the School’s alternative submission that if their provision of social interaction time was incapable of amounting to a “session” for the purposes of the 1999 Regulations, then the failure to provide a second session on Fridays was nonetheless lawful, as exceptional circumstances made it undesirable to provide further education from 1.30pm to 3.00pm on Friday afternoon. I would accept that submission. The circumstances were in my judgment exceptional for as long as the staffing shortage remained and while active efforts to recruit and train replacement staff were at all times being pursued. It was also plainly undesirable to provide the normal timetable of 33.25 school hours per week, or even to meet the ambition of 32.5 hours, in circumstances where there were insufficient staff to deliver that education safely. Mrs Thiele has explained in her evidence that the School had an unexpected 25% vacancy rate in its teaching posts at a time where it proved to be very difficult to recruit to fill them. This went well beyond the ordinary events that any school may face of a teacher going on maternity leave or a staff member resigning: the extent and longevity of the period of absence of such a high proportion of the teaching staff was properly viewed as being exceptional. The School considered its options as to how to respond, and chose the least undesirable course out of the various undesirable options which might have been available to it (such as sending classes home for a week on a rolling basis, or merging classes at the expense of the staff to pupil ratio). In my judgment, the School was fully justified in taking that course.

[141]Further, in circumstances where it was consistent with regulation 3(1) not to provide a second session on Friday afternoons (on the continued assumption that I am wrong on my primary conclusion that such a session was in fact provided), I cannot accept that the Guidance reintroduces an obligation to provide a substantive high-quality session in the afternoon in any event: the fact that there were exceptional circumstances which made it undesirable to meet beyond 1.30pm on Friday afternoons within the meaning of regulation 3(1) must be taken to be reason enough to depart from the Guidance in that respect.

[142]I am less impressed with the School’s further alternative argument that the exception in regulation 3(3) applied, as the School was prevented from meeting for one or more sessions for which it was intended that it should meet, and it was not reasonably practicable for arrangements to be made for it to meet at an alternative time for those sessions. Following the School’s decision to change its opening hours, it could no longer be said that it intended to meet after 1.30pm on a Friday afternoon. However, it follows from my conclusions above that there is no need for the School to have to rely on that exception.

[143]It follows that Grounds 4 and 5 both fail.

Disposal

[144]Each of the five grounds of judicial review was fully and skilfully argued by counsel over the course of two days. The Defendants each produced full witness evidence and supporting disclosure in order to answer the case advanced by the Claimant. They have succeeded in their defence of the claim on the basis of that evidence. In the circumstances, it is appropriate to grant permission to apply for judicial review: the claim would not have been clearly unarguable in the absence of that full evidential response.

[145]However, for the reasons set out above, the claim must be dismissed.