The strange case of the missing Local Offers
by stevebroach
It’s ‘New SEN System in England Day’ today – see the Special Needs Jungle website for a brilliant summary of the changes. My thoughts on the top five reforms are here.
One thing that is supposed to be different from today is that every Local Authority should have a ‘Local Offer’ – a key component of the reforms, setting out the services expected to be available in and around that area for disabled children and young people.
However – some brilliant research by Bringing Us Together suggests that only around a third of all Local Authorities have published anything resembling a Local Offer. Which begs the question – are the other two-thirds in breach of their legal duties?
The duty to publish a Local Offer stems from section 30 of the Children and Families Act 2014. That section was ‘commenced’ (brought into force) by the Children and Families Act 2014 (Commencement No. 2) Order as follows:
- 1 April 2014 for the purposes of making the regulations about the Local Offer, on which see more below (Article 3(a) of the Order)
- 1 September 2014 (i.e. today) in all other respects (Article 7(a) of the Order)
An Order is a type of ‘secondary legislation’ made by a Minister under an Act of Parliament – it has the full force of law. Orders are often used like this – Parliament passes a new law and then delegates to a Minister the responsibility of bringing it into force and specifying the date from which the law applies.
So it seems to me to be straightforward – every Local Authority has to have its Local Offer in place by today, 1 September 2014. However the Department of Education doesn’t quite see it that way. In its implementation guidance for Local Authorities, the DfE states instead that by 1 September Local Authorities must publish an ‘initial, accessible, local offer’ which should then be developed over time. The guidance doesn’t explain what an ‘initial, accessible local offer’ should look like or what the legal basis is for this advice.
I don’t share DfE’s view. In my view, the obligation on Local Authorities is to have their full Local Offer in place by 1 September 2014. That is the effect of the commencement order summarised above, bringing the Local Offer scheme fully into force as from today (1 September 2014).
So what must Local Authorities do in relation to their Local Offer by close of play today? Well, the answer is in the relevant regulations – being regulations 53-57 and schedule 2 of the Special Educational Needs and Disability Regulations 2014.
Schedule 2 of the regulations sets out the mandatory contents for every Local Offer. It is quite a list – in short, information about all local provision and processes for disabled children and young people and children and young people with SEN is required to be published. See further detail in chapter 4 of the new Code of Practice (also in force from today).
What about the process Local Authorities must go through in developing the Local Offer? This is dealt with in regulations 54-57. I have checked and each of these regulations is in force as from today (1 September 2014). Highlights include:
- In preparing the Local Offer, the Local Authority must consult with children, young people and parents, as well as a host of statutory and other bodies – regulation 54. Note – the duty is to consult with children, young people and parents, not simply any selected groups – in my view the consultation has to be open to everyone to comply with regulation 54.
- Further, the Local Authority has to consult with children, young people and parents about five specific things (regulation 55):
- the services children and young people with special educational needs or a disability
require; - how the information in the local offer is to be set out when published;
- how the information in the local offer will be available for those people without access to
the Internet; - how the information in the local offer will be accessible to those with special educational
needs or a disability; and - how they can provide comments on the local offer.
- the services children and young people with special educational needs or a disability
- The Local Authority must then publish the Local Offer on its website and set out arrangements for how people without internet access can obtain it (regulation 57).
These are onerous requirements on Local Authorities – one of the most detailed sets of requirements in relation to consultation that I have ever seen.
It is therefore obvious that a Local Authority cannot simply publish a Local Offer today or any other date in September and expect it to be accepted by the courts if challenged where there has not been a proper and detailed process of engagement with children, young people and parents prior to publication.
I hope we will see a significant flurry of lawful Local Offers published later today and during the remainder of this week. If your area does not seem to have a lawful Local Offer you may want to take advice from IPSEA or one of the specialist solicitors. I appreciate that the reforms have been rushed but we cannot simply allow mass non-compliance with the law in this potentially crucial area.
Comments on the Local Offer (or its absence) in your local area welcome below.
rightsinreality 
A great post Steve and very interesting times. Something I am surprised is not being mentioned in any coverage is section 4.37 of the new code of practice stating that ”Local authorities must secure sufficient childcare for working parents.” This is an absolutely enormous change and is coming just after much written about Parliamentary Inquiry into Childcare for Disabled Children. I haven’t seen this issue addressed in any local offers, or any signs of funding be allocated to make this possible. This is particularly relevant for Early Years where many parents are being turned away from nurseries because the local authority will not fund a 1:1 Do we finally have a law to enable us to work?
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Great point Sarah. However I’d add that the Code of Practice here is merely reflecting existing law – check out section 6 of the Childcare Act 2006 and in particular section 6(2)(a)(ii) – http://www.legislation.gov.uk/ukpga/2006/21/section/6 – not sure if link will work in this comment but if not pls copy and paste!
One of the good things about an attempt to join things up is that the Code of Practice is now at least flagging up these important cross-cutting duties.
Do parents have a law enabling them to work? Possibly (sorry, horrible lawyer’s answer). What the law requires is for LAs to ‘secure, so far as is reasonably practicable, that the provision of childcare (whether or not by them) is sufficient to meet the requirements of parents in their area who require childcare in order to enable them [to work’ – and have particular regard to the need for this provision to be suitable for disabled children.
As such, at the very least childcare needs to be covered in all Local Offers – indeed it’s mandated by paragraph 15(d) of Schedule 2 to the SEN and Disability Regulations 2014, so any Local Offer which omits information about childcare is unlawful.
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[…] the discussion about my post on the Local Offer earlier, there was a very helpful point made by @iannoon on Twitter suggesting that many Local […]
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All Kent County Council’s information on SEND (aka local offer) can be found here http://www.kent.gov.uk/education-and-children/special-educational-needs
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Wow Steve – I wish I had read the Childcare Act last year! My then two year old was refused access to more than 6 hours per week of childcare by the local authority, leading to me loosing my job. I fought to get it up to 15 hours term time only by demonstrating breech of the Equalities Act (back then disabled children qualified for 15 hours of nursery under the 2 year funding scheme and he was being denied access to this due to disability). However, that wasn’t enough. I needed three days per week of childcare and my son needs a 1:1 staffing ratio. I was told an outright no and that I no longer worked – now wondering if that was legal! Our local offer does mention childcare, in that it references local nurseries and tells people to contact them (basically handing over responsibility to the SENCO). However, it offers no answers for preschool children who need a 1:1, no holiday schemes for under 5s and the childminder scheme for disabled children specifically says that it cannot be used for parents to work.
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The search engines couldn’t locate Derbyshire’s Local Offer yesterday but I did stumble across the authority’s draft Local Offer documents from 2013, weirdly. I emailed the Head of Commissioning requesting a link. Here it is:
http://www.derbyshiresendlocaloffer.org/
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Have just looked at HCC’s local offer website and it says it won’t be live until 8 September. I thought it had to be available on 1 September.
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Sandwell MBC has a Local Offer it is here http://www.sandwell.gov.uk/send
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We have written to every local authority asking to go in the local offer. Some said yes, some said maybe, some said no. More than 50% didn’t reply. Of those 50% many replies were out of the office replies. You can see some replies on our facebook page: peach4aba facebook.
Mandy
CEO Peach
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Very interesting Mandy. If a service is nationally available it should be included in every local offer. I’d suggest organisations that are being routinely excluded from local offers, and / or the families that use them, should get specialist legal advice.
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My LA have so far published nothing. Not even an initial, accessible local offer. Technical difficulties I am told.
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Simply not good enough. Technical issues can’t excuse non-compliance with a legal duty.
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And suddenly it has now appeared on line. I wonder why 🙂
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http://worcestershirelocaloffer.org.uk/
Worcestershire’s local offer!
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[…] information about accessible childcare is centrally important given its scarcity. I have written previously about the Local Offer under the Children and Families Act 2014. Schedule 2 to the SEN and […]
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[…] CSDPA 1970 section 1(5) – see para 20 of the Schedule. This seems to be a kind of tailored ‘local offer’ for individual children which could be very important. The Explanatory Memorandum says nothing about […]
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[…] by the CFA 2014 – the ‘Local Offer’, as required by section 30 CFA. I’ve written previously about the delays in introducing a lawful Local Offer in many areas. However since that time a number of local areas now have Local Offers which are […]
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