rightsinreality

Thoughts on the crossroads of law, politics and society – for when 140 characters just won't do. This blog contains general information and commentary on legal matters. It is not intended to provide legal advice. This blog discusses the law in England, unless otherwise stated.

Month: August, 2014

Why Judicial Review is a real remedy in SEN and disability cases

A large part of my contribution to social media involves suggesting that people consider judicial review as a way turning their rights into reality. However I recognise that for most people the prospect of taking the state to the High Court is seriously off-putting. The point of this post is to try to show that judicial review isn’t remote and terrifying but instead is a real way to get a remedy for unlawful conduct by the state – with a particular focus on how this applies to disabled children and adults and their families.

To start at the beginning. Judicial review is the process by which the High Court supervises the conduct of public bodies and makes sure they act in accordance with the law. In line with a wonderful quote from Lord Justice Sedley, judicial review isn’t in fact so much about ‘rights’ as it is about ‘wrongs’. What the Administrative Court (the part of the High Court which hears judicial review cases) is looking to do is identify where public bodies have got the law wrong and ensure this is put right. So every judicial review case in fact promotes the ‘rule of law’ – the essential principle that everyone is governed by the same law and must comply with their legal obligations.

What does a judicial review case involve? Well, it firstly almost certainly needs to involve lawyers. In theory a disabled person or family member could make an application for judicial review without legal advice but there are two main reasons why this would be likely to be an extremely bad move:

  1. Public law (the law governing the conduct of public bodies) is complicated. Not only will there be a web of statutes, regulations, guidance and case law covering the relevant dispute but there are likely to be important ‘common law’ principles in play too. The common law is judge-made law developed over the decades to reflect the standards of our society. An important example in many SEN and disability cases is the common law duty to carry out a fair consultation. Disabled people and families simply will not be able to identify all the relevant legal issues in their case – or indeed whether they actually have a case – without legal advice.
  2. Unlike the Tribunal (on which see more below) applications for judicial review generate significant legal costs which in the vast majority of cases have to be paid by the party who loses – for both sides. So even if a disabled person or family found a pro bono advocate to help them with a judicial review application it would still be dangerous to issue the application without legal advice and representation (and legal aid – again see below) because of the risk of having to pay the other side’s legal costs – which could be tens of thousands of pounds.

So disabled people and families need lawyers for judicial review. Despite the government’s best efforts, we still just about have a functioning legal aid system in England and Wales and thankfully judicial review is one of the things it will pay for – because in technical terms, all applications for judicial review remain ‘within scope’. Legal aid is subject to two tests – means and merits. Firstly, applicants have to show that they have very little money (‘means’) in terms of both income and savings. The legal aid means test is complicated and specialist solicitors will help with it. It is important to note that in children’s cases, it will very often be the means of the child that are assessed rather than the parent(s) – so ‘ordinary’ families can often access legal aid. Of course sadly many disabled adults and many families with disabled children live in poverty and so legal aid eligibility may not be a problem. The second test for legal aid relates to the merits of the proposed case and that is something lawyers can and will address.

What does legal aid bring if it’s granted? Firstly, it pays your own lawyers fees. Secondly and more importantly, it provides ‘cost protection’ – meaning that if you lose then you won’t have to pay anything towards the other side’s legal costs, unless you or your lawyers have done something unbelievably stupid (in the hundreds of cases I’ve been involved in I’ve never known a costs order to be made personally against a claimant who has legal aid, although it’s important to note that it is possible). So legal aid is almost essential to bringing a claim for judicial review. I say ‘almost’ because there are some other innovative ways to fund judicial review cases and get costs protection – there is a concept called a ‘protective costs order’ where the court can limit or remove the costs a party has to pay if it loses, and lawyers may still sometimes act on a ‘no win no fee’ basis. Specialist solicitors can advise on these issues.

What does an application for judicial review involve? Well in many ways I’d suggest it is far less onerous for the claimant(s) than appealing to the Tribunal – something far too many families with disabled children end up doing at least once. Most of the legwork will be done by the lawyers and it is up to each claimant to decide the extent to which he or she wants to be involved in the claim beyond ‘giving instructions’ (telling the lawyers what you want them to do for you). 

Judicial review cases are almost always decided ‘on the papers’ – i.e. there is no oral evidence. So disabled people and families will provide their evidence to the court in the form of a written witness statement which their lawyers will produce and will not have to give evidence orally in court. The process for the application has two stages. First the court decides whether it will grant ‘permission’ – ie allow the claim to proceed to a full hearing. Permission should be granted where the claim is arguable and there is no other reason like delay (see below) to refuse permission. At the permission stage (or even earlier, perhaps on the day the case is issued) the court can grant ‘interim relief’, requiring something to be done or not done by the public body until the claim is finally heard. A good example of interim relief is the order reported this week requiring Salford to continue to provide transport for disabled people to services. This is the kind of interim relief which is often granted – an order to preserve the ‘status quo’, in other words keep things as they were before the decision was taken until the application can be heard.

If permission is granted then there will be a substantive hearing of the claim, usually lasting one day in simpler cases, stretching up to perhaps a week or longer in the most complex cases. After the hearing, the court will either dismiss (meaning the decision challenged stands) or allow the application. If the application is allowed (i.e. the claimant wins) then the court moves on to decide what ‘relief’ to grant. This often involves a declaration of what the law requires which the public body is expected to (and almost always does) comply with. The court also frequently issues ‘quashing orders’, which essentially delete the decision challenged and put things back how they were before the decision was taken. In rare cases the court may make a ‘mandatory order’ requiring the public body to act in a certain way (for example to provide speech and language therapy specified in a statement / EHC Plan) or require the state to pay damages – generally only where there has been a breach of a claimant’s human rights as protected by the Human Rights Act 1998 and then only in relatively modest sums. 

So judicial review is a powerful remedy. Yes, the main ‘relief’ granted does not force the state to act in a particular way – but in practice it is rare for a public body to lose a judicial review claim and then try to re-make the decision and go ahead regardless. A notable example of a successful judicial review stopping a public body in its tracks is the challenge to Birmingham’s decision to move to ‘critical only’ adult social care. As a result of a claim brought by four disabled people and their carers and the court’s orders, tens of thousands of severely disabled people in Birmingham with ‘substantial’ needs are still getting vital services. 

Which cases are suitable for judicial review? In short, cases which are serious and urgent and where there is no other effective remedy. Judicial review is the ‘remedy of last resort’ – so if there is another effective way to get a problem resolved it must be used. The most obvious example here is the Tribunal – the Administrative Court will almost never grant permission in a claim where there is a right of appeal to a Tribunal. The new SEN scheme has (bizarrely) preserved the approach to the Tribunal of the old system – so there is only an appeal right to the Tribunal in relation to whether a child or young person needs an EHC Plan and the educational contents of the Plan. If your dispute relates to one of the matters specified in section 51 of the Children and Families Act then you must appeal to the Tribunal – otherwise the Tribunal has no power to resolve the dispute. So to emphasise – there is no appeal right in relation to disputes concerning health or social care provision in EHC Plans, nor other related issues such as whether a Direct Payment should be made to the young person or family.

What about complaints? There are formal complaints processes for Local Authorities and health bodies, ending up with the Local Government Ombudsman and Parliamentary and Health Services Ombudsman respectively. Complaints can be very effective and are particularly appropriate for getting redress (including financial compensation) when things have gone wrong in the past. However:

  1. The Ombudsmen are not well placed to resolve disputes about what the law requires. For example, it will need to be the court not the Local Government Ombudsman that decides how wide the get-out clause is for Local Authorities in relation to the new SEN Direct Payments
  2. Complaints processes take a very long time to resolve.
  3. The powers of the Ombudsmen are much more limited than those of the court – for example, there is no power to order or recommend any kind of interim relief while a complaint is progressed.

Every case needs to be carefully considered on its own merits to decide whether judicial review is appropriate, with specialist advice taken. However as a very general rule, in my view judicial review would be likely to be the appropriate remedy where there is a serious and urgent ‘live’ dispute which relates not just to ‘maladministration’ but to an arguable error of law on the part of the public body.

A key reason not to get the right remedy from the outset is that judicial review is supposed to be a speedy process and there is a burden on the claimant to issue proceedings as quickly as possible and no later than three months from the date of the decision being challenged (note – the date it was taken, not the date the claimant knew about it). Claimants also need to comply with the ‘Pre-Action Protocol’, which in particular requires a ‘letter before action’ to be sent to the defendant giving them (typically) 14 days to respond and put things right before the application is issued.  It is possible to get the deadline extended but the court will only allow this if there is good reason and it is not unfair to the defendant.

So the essential message is that disabled people and families should take specialist advice on whether they have a claim for judicial review as quickly as possible. I have never known a disabled person or family take legal advice too soon, but sadly I’ve known many wait far too long to get advice. It’s hard enough taking the state to court without also having to persuade the court to hear the application ‘out of time’ if this can possibly be avoided. 

Where should this advice come from? It needs to come from a specialist solicitor who spends their time advising and representing disabled people and families in applications for judicial review. I have put together a list of some of the specialist solicitors with disability expertise at the end of the ‘Using the Law to Fight the Cuts’ paper I wrote with Kate Whittaker. This list is now a little out-of-date (an update to the paper is due this autumn) but many of the main firms are on there with their contact details. 

I hope this (long) post has shown that judicial review can play a vital role in making rights real for disabled people and families. I would love there to be no need for disabled people and families to take the state to court – but back in the real world of cuts and flawed decision making it will always be necessary to have this safeguard. Not only can judicial review achieve a remedy in individual cases, but also those bringing judicial review applications are performing a wider public service. Applications for judicial review often result in major policy changes (like the Birmingham case above) – and even where they don’t, there is a general public interest in promoting the rule of law by making sure decisions and actions of the state are subject to proper scrutiny. Judicial review is a good thing, notwithstanding what the current Lord Chancellor might think.

More information on how judicial review works is available from the fantastic Public Law Project. I also found this great short guide on the Leigh Day website.

As always comments and questions are welcome below.

Easier read – #LBBill – what happens after June 2015

This is the easier read version of my second post on the process and timeline for #LBBill – thanks as always to Anne at Barod CIC.

 

My last blog says what will happen with #LBBill from now until June 2015.

This blog is about what happens after June 2015.

 

Why is June 2015 important?

June 2015 is when the ballot happens.

The ballot is when the names of 20 MPs are pulled out of a hat.

Only these 20 MPs can have a Private Members Bill.

The first MP gets to go first with his or her Private Members Bill.

The second MP gets to go next.

Usually, there is only time for the first 6 MPs to get a go at changing the law.

 

Here is what may happen in the ballot.

 

    1. None of the 20 MPs support #LBBill

We start planning for the 2016 ballot.

 

  1. An MP outside the top 6 supports #LBBill

We try to get a lot of publicity for #LBBill.

We try to get the Government to support #LBBill.

Then we start planning for the 2016 ballot.

 

  1. An MP in the top 6 supports #LBBill

We help the MP to make the Bill into a new law.

 

This is what happens if an MP who supports #LBBill gets chosen in the ballot.

 

June 2015 to Autumn 2015

We must work hard to get the Government to support #LBBill.

We must work hard to get all the MPs to support #LBBill.

We will need everyone to talk to their MP.

We will help you to do this.

 

In Autumn 2015, the MPs get to say what they think about #LBBill.

If the MPs vote to support #LBBill, we go to the next step.

If the MPs do not support #LBBill, the Bill stops.

 

Autumn 2015 to Spring 2016

Next step is to go to the House of Lords.

We need to get:

  • a member of the House of Lords to be in charge of #LBBill
  • all members of the House of Lords to support #LBBill

 

If the House of Lords votes to support #LBBill, we go back to the House of Commons.

Then we need to talk with the Government.

If we are lucky, we will end up with a #LBBill that does what we want and that the Government will support.

 

If everything works well, #LBBill could become law in Spring 2016.

BUT

  • There are a lot of steps for #LBBill
  • All the steps are hard
  • #LBBill has to get through all the steps to become law
  • It is very rare for a Private Members Bill to become law

 

There is a lot of support for #JusticeforLB and #LBBill

I think this means we have a real chance to change the law.

 

Please ask me questions.

You can use the comments below.

You can use Twitter (@stevebroach).

 

My next #LBBill blog will be about some more ideas about what to put into #LBBill.

 

#JusticeforLB

#Justiceforallthedudes

Why SEN Direct Payments are a legal damp squib

Anyone who’s read my post on the five best things in the new SEN framework will notice that there is no reference to SEN direct payments. That’s because in my view there is a very broad legal get-out clause that Local Authorities can use if they want to avoid making direct payments to pay for special educational provision. I don’t think the legal position is explained fully in the new Code of Practice – so that’s the reason for this post.

The Children and Families Act deals with direct payments and personal budgets at section 49. Section 49(1) is clear; ‘A local authority that maintains an EHC plan, or is securing the preparation of an EHC plan, for a child or young person must prepare a personal budget for him or her if asked to do so by the child’s parent or the young person’. So far so good.

However, it is critically important to understand the distinction between personal budgets and direct payments. A ‘personal budget’ is simply an amount of money ‘available to secure particular provision that is specified, or proposed to be specified, in the EHC plan’, see section 49(2). As the Code of Practice states, the personal budget can be ‘notional’, in other words the money will still be held by the Local Authority – the only practical benefit for the family being transparency about how much money is being spent. Alternatively the personal budget can be held by a third party – in other words the Local Authority could identify the amount of money to be used to commission a therapy service from a local voluntary group and label this a personal budget.

So the important question is – when does a personal budget have to result in a ‘direct payment’ – in other words when does the money have to move from the Local Authority to the family? Well, that’s where unfortunately there is a huge loophole in the scheme. 

The loophole arises not from the Act but from regulations made under the Act (regulations are a type of ‘secondary legislation’, made by a Minister but carrying the authority of Parliament. Regulations are law – as opposed to guidance, which merely describes the law). The relevant regulations here are the Special Educational Needs (Personal Budgets) Regulations 2014. The problem comes from regulation 6, which is important enough for me to paste in full (emphasis added):

Decision to make direct payments

6.  (1)  A local authority may only make direct payments where a request has been made for direct payments to be made and the authority is satisfied that—

(a) the recipient will use them to secure the agreed provision in an appropriate way;

(b) where the recipient is the child’s parent or a nominee, that person will act in the best interests of the child or the young person when securing the proposed agreed provision;

(c) the direct payments will not have an adverse impact on other services which the local authority provides or arranges for children and young people with an EHC plan which the authority maintains; and

(d) securing the proposed agreed provision by direct payments is an efficient use of the authority’s resources. 

So the problem is sub-paragraphs (c) and (d). Taking (d) first – a Local Authority can refuse to make an SEN direct payment if it would be an ‘inefficient’ use of its resources. Not only is this a very broad get-out clause, it will also be very difficult for parents or young people to challenge.

However if anything (c) is worse from the family perspective. A Local Authority is only allowed to make SEN direct payments where it is satisfied that to do so will not adversely impact on other services for children or young people with EHC Plans. It seems to me that on a strict reading this means that if there is any additional expenditure incurred by the making of a direct payment which reduces the amount of money available to provide for other children and young people the Local Authority does not have the power to make the direct payment. Also, the legal standard is relatively high – before making the direct payment the Local Authority has to be ‘satisfied’ (reasonably sure) that they ‘will not have an adverse impact on other services…’. 

The most obvious situation where sub-paragraphs (c) and (d) will prevent a direct payment being made is where the Local Authority has ‘block commissioned’ a particular service. Take the example of speech and language therapy – a Local Authority has commissioned a block of therapy hours from a local charity. A parent or young person who falls under that Local Authority wants a direct payment to employ their own therapist. However unless the block hours will be used up by other young people this will result in double expenditure – which is likely to breach both the sub-paragraphs above. As such the Local Authority will have no power to make a direct payment.

It may be that Local Authorities and / or the courts take a more liberal approach than my reading of the scheme. I certainly hope that this is the case. However unless they do it seems certain to me that SEN direct payments will be a legal damp squib. Why it has to be this way is not clear – there is no equivalent to these get-outs in the regulations governing social care direct payments. This is another sorry example of how the new scheme is not the properly joined-up system that it could (and should) have been. 

Comments welcome, particularly if you have experience of how SEN direct payments have been operating in the pilot areas. 

Rotherham and the legal duty to keep children close to home

The fallout from the horrific child protection failings in Rotherham (expertly analysed on Twitter by @itsmotherswork) requires urgent attention to one of the key duties in the Children Act (CA) 1989.

Section 22C (CA) 1989 governs placements made by Local Authorities in England and Wales for children that they are looking after. The duty applies in the same way both to children ‘in care’ and those who are looked after by the Local Authority by voluntary agreements with parents made under section 20 CA 1989 – including many disabled children living away from home. The section 22C duty was part of a set of tougher new duties in relation to looked after children introduced by the Children and Young Persons Act 2008. Sadly, despite the intervening six years it is still widely misunderstood or ignored.

Section 22C first requires that looked after children should be placed with their parent(s) or a person with a residence order if that is reasonably practicable and consistent with the child’s welfare (section 22C(2)). So yes, Parliament has said that the first port of call for children ‘in care’ is to live with their parents, if necessary with an intensive package of support. As the statutory guidance (see below) states at para 3.2, ‘state intervention in family life should be kept to the minimum necessary to protect the child from harm – ultimately a child should be brought up by his/her family if that is a safe place for him/her to be’.

If the child can’t live with their parents in a way which promotes their welfare, then the Local Authority must place the child ‘in the placement which is, in their opinion, the most appropriate placement available‘ (section 22C(5) – emphasis added). Clearly then the judgment about the ‘most appropriate placement’ is one for the Local Authority officers to make – but as with all public authority judgments it has to be exercised rationally, reasonably and fairly while taking account of all relevant factors. All placement decisions are subject to the duty set out in CA 1989 section 22(3) that the placement is the most appropriate way to safeguard and promote the child’s welfare.

Furthermore Parliament has in relation to this duty set out a series of factors which Local Authorities must take into account when deciding which placement is ‘most appropriate’. Firstly, the Local Authority should look to place the child with a person who is a ‘relative, friend or other person connected with the child and who is also a local authority foster parent’ (section 22C(6)(c)). If that is not possible, then the placement must be one which, if reasonably practicable:

  • allows the child to live near the child’s family home;
  • does not disrupt the child’s education or training;
  • enables the child to live with any sibing(s) they may have;
  • is suitable to the particular needs arising from any disability the child may have; and
  • is within the local authority’s area. (section 22C(8) and (9))

There is no hierarchy within these factors – if possible all of them should be complied with, but if not then the Local Authority must make a judgment as to which available placement is most appropriate for that particular child, bearing all these matters in mind (see statutory guidance at 3.10). The overriding principle, as the statutory guidance states at 3.4, is that ‘children should, wherever possible be brought up in their families and communities, if they cannot remain with their parents’.

It is obvious that what Parliament is emphasising here is continuity – of geographical location, family ties and education. Looked after children are inherently vulnerable and Parliament is seeking to make sure that the disruption children face is minimised when they are placed outside their families by the state.

Two of the mandatory factors relate to geography; the ‘most appropriate’ placement is one which allows the child to live near their family home and is within the Local Authority’s area, unless this is not reasonably practicable for the particular child. Indeed there are specific additional requirements to be complied with it a placement is proposed outside a Local Authority’s own area – see statutory guidance at 3.28-3.40.

Which begs the question – how do thousands of children end up placed hundreds of miles away from home – for example, in Rochdale? Because a careful assessment of their needs showed that a placement there was ‘most appropriate’ for them notwithstanding the distance? Or because it was the simplest and most cost effective solution to do so? If the answer is the latter, as I suspect is the case, then we have serial and wholesale non-compliance with the law – in relation to some of our most vulnerable children. Tackling this defiance of the law should be an important priority for anyone who wants to stop these children being abused once they are placed.

There is more on what the law requires on placements of looked after children in the Volume 2 Children Act guidance on care planning, placement and case review – see in particular chapter 3 from p38 of this statutory guidance.

As an aside, after the Court of Appeal’s judgment in R (O) v East Riding it is clear that many disabled children in residential special schools are placed under CA 1989 section 20 as a matter of law and their placements are therefore also subject to the section 22C duty described in this post. This places an important gloss on the approach of the SEN and Disability Tribunal to educational placement issues, which is merely to ensure that the placement is ‘suitable’ – not the ‘most appropriate’ available, which as set out above is what CA 1989 section 22C requires. Anyone who thinks this might make a difference in their case should seek expert legal advice as CA 1989 section 22C is not within the jurisdiction of the Tribunal – the remedy here is judicial review.

I would suggest that anyone with concerns about placements of looked after children contacts Coram Children’s Legal Centre or any of the solicitors at the end of my Using the Law to Fight the Cuts paper for advice.

Please post any views on why children continue to be placed hundreds of miles away from home in direct contradiction to what the law requires – and what we can do to stop this happening – in the comments below.

Disabled children’s right to a holiday (where ‘necessary’)

As an important aside to my last post on disabled children’s social care – there is a little-known duty on Local Authorities under the CSDPA 1970 to help disabled children and their families take holidays. Read on for more…

As set out in my last post, section 2 of the CSDPA 1970 contains a ‘service list’ of the types of services and support which Local Authorities must provide if the criteria are met. One of the specified items in the list is ‘facilitating the taking of holidays’ by the disabled child or adult.

What does that mean? Well, ‘facilitating’ means ‘helping to make happen’ in plain English. So there is a duty on Local Authorities to help make sure (some – see below) disabled children get holidays. That doesn’t mean the Local Authority necessarily has to pay for the holiday itself – it might ‘facilitate’ the holiday (as was helpfully suggested by Natasha on Twitter earlier) by supporting the family to access a grant from a charity to pay for the holiday. However it would not be enough in my view for the Local Authority just to hand over some application forms for a grant – this is not what ‘facilitate’ means, it means that the Local Authority should actually make sure the holiday happens. The most straightforward way for a Local Authority to do this would be to provide funds to the child’s parents to pay for some or all of the holiday by way of a direct payment.

Three other big questions:

  1. Which disabled children are entitled to help to get a holiday? Answer – all those children for whom the Local Authority accepts a holiday is ‘necessary’ to meet their needs and who would not get one without the support of the Local Authority. See the discussion on my last post for how that question is to be answered – in short, after a lawful Children Act assessment and taking account of the Local Authority’s resources. However if the Local Authority accepts that it is necessary for the child to have a holiday then this must be ‘facilitated’. Importantly, since 1990 an annual week’s holiday has been accepted to be ‘one of the necessities which made life worth living’. A Local Authority would have to take this into account when deciding whether it is ‘necessary’ to facilitate a holiday for a particular disabled child.
  2. Who can the Local Authority pay for or help find funds to pay for to go on the the holiday? Answer – the child and any member of their family who the Local Authority accepts it would promote the child’s welfare to have come on the holiday with them. This is because Local Authorities discharge their CSDPA duties to children by carrying out their functions under the Children Act 1989 (trust me on this – or if you don’t trust me, read the Court of Appeal’s judgment in Spink which says this in a fairly tortuous way). Under section 17(3) of the Children Act 1989, Local Authorities may provide services support to any member of the family of a child ‘in need’, which includes all disabled children.
  3. What costs should the Local Authority ‘facilitate’? The helpful answer to this from the perspective of children and families is that the Local Authority may have to fund or arrange funding for the basic cost of the holiday, not just the additional disability-related expenses. This was decided by the High Court in R v North Yorkshire CC ex parte Hargreaves (no 2) (can’t find the full transcript of the judgment free of charge but this media report has the highlights).

All this is a bit late for the current summer holidays – but I’m sure lots of disabled children and their families would like a holiday at half term or Christmas – or a disabled child or young person might like an adventure with their mates or on their own…

And by the way – exactly the same duty applies to disabled adults, at least until next April when the Care Act 2014 comes into force.

I’d welcome comments below with the experiences of people who have asked for help with holidays under the CSDPA or who work for Local Authorities and may have considered such requests.

CSDPA – the mystery duty for disabled children’s social care

I wrote last week about the positive changes to the SEN framework that I see coming from the new Children and Families Act. One of these changes I called ‘the attempt to deal with social care’. This post seeks to explain that cryptic title with particular reference to the key duty to provide social care to disabled children.

Despite the promise of a joined-up system, when the Children and Families Bill was published it was hopeless on social care. Many organisations working with the Special Educational Consortium and the Every Disabled Child Matters campaign made a massive fuss about this. I tried to help with the fuss by providing legal opinions with Ian Wise QC and Irwin Mitchell solicitors, one of which you can access here if you want the background. The first part of this opinion (paras 3-17) contains legal analysis of the key social care duty in the Chronically Sick and Disabled Persons Act 1970, which is explained in plain(ish) language below.

The result in the final Children and Families Act is the amended section 37(2)(e), which states that an EHC Plan must specify ‘any social care provision which must be made for [the child or young person under 18] by the local authority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970…’. This provision must be included in section H1 of the child or young person’s Plan. Furthermore section 37(2)(f) requires Plans to specify ‘any social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs, to the extent that the provision is not already specified in the plan under paragraph (e).’

So there is clearly now a duty to specify social care provision in EHC Plans – although we don’t yet know what provision must actually be specified. But is there a duty to actually provide the provision? Well, not from the Children and Families Act (CFA). Section 42 of the CFA imposes the duties on Local Authorities and Clinical Commissioning Groups to put in place specified education and health provision in the Plan – but section 42 says nothing about social care provision.

This can only be because Parliament (or more realistically the Ministers and officials in the Department for Education) think that this duty is covered elsewhere. So where is it? Well, as the title of this post suggests, it’s in the CSDPA – or in section 2 of the Chronically Sick and Disabled Persons Act 1970, to set it out in full. Until the Care Act 2014 comes into force, the CSDPA is also the key duty in relation to adult social care – but it will remain in force for children and young people under 18 even once the Care Act is in force next April.

So how does it work? A quick glance at the section shows that it contains a lengthy ‘service list’ – a somewhat outdated list of a wide range of services that a disabled child or adult might need. Often these services are very broadly defined – ‘practical assistance in [the] home’ covers all kinds of domiciliary care including short breaks in the home, while ‘the provision…of lectures, games, outings or other recreational facilities outside [the] home’ covers the full range of community based short breaks. In fact, as was shown in the magisterial judgment of Mrs Justice Black (now Lady Justice Black) in R (JL) v Islington LBC, the CSDPA covers pretty much any specialist service a disabled child might need except residential short breaks (which will have to be the subject of another post).

So when is there a duty to provide these services? Answer – when it is necessary to do so to meet the child’s needs.

How do we know whether it is necessary to provide a service to meet the child’s needs? Answer – by carrying out an assessment under section 17 of the Children Act 1989, a process now governed by the reissued Working Together to Safeguard Children statutory guidance. As the new Code of Practice repeatedly emphasises there is no need for this to be  separate assessment – a Children Act assessment can (and should) be completed as part of the EHC assessment process. The judgment as to whether it is necessary to provide a service for a particular child or young person under the CSDPA must be informed by a lawful Children Act assessment.

And perhaps most importantly – are a Local Authority allowed to take account of their resources in deciding whether it is ‘necessary’ to provide a disabled child with a service? Yes they are, but only in a very specific way. This is complicated – but critically important. As we have seen, a Local Authority can decide what level of need it considers it to be ‘necessary’ to meet. Until the Care Act 2014 comes into force, it does this for adult social care by picking one of the eligibility thresholds set out in the Prioritising Need statutory guidance (first set out in FACS – Fair Access to Care Services) – ie ‘critical’, ‘substantial’, ‘moderate’ or ‘low’ (the Care Act will introduce a national eligibility threshold for adult social care).

However for children’s social care there is no statutory guidance on eligibility thresholds. As such, each Local Authority is entitled to set its own threshold for eligibility for disabled children’s social care, so long as that threshold is rational, reasonable and fair and consistent with the purpose of the Children Act 1989, which is to promote the well-being of children within their families.

From the perspective of children and families, this is the bad news – because some disabled children can lawfully be excluded from entitlement to social care services under the CSDPA. However the good news is that if a Local Authority accepts that a child has eligible needs, it must meet those needs – no matter how much this costs. This is true whether it is providing services itself, commissioning them from a third party or transferring funds to the child’s family by way of a direct payment. As such the ‘deal’ mandated by Parliament is that Local Authorities may only choose to meet the needs of the most severely disabled children, but they must ensure that the needs of children who they do deem eligible are properly met. Local Authorities may choose to meet needs in the most cost-effective way – but if the eligible need requires (say) four hours of support, it would be unlawful to provide or fund only three hours.

So what does the CFA add to this complex picture on disabled children’s social care? In truth, not a huge amount. What changes is that the decision about what (if) any social care services will be provided under the CSDPA 1970 to a child with an EHC Plan now must be recorded and set out in the Plan. This helps with transparency and should give families an increased opportunity to challenge under-provision or non-provision. It is essential to remember that the Tribunal has no jurisdiction to deal with disputes in relation to the health or social care elements of EHC Plans, so any challenge will be by way of a complaint or, in serious and urgent cases, judicial review. Given the amount of smoke and mirrors around about judicial review at the moment I will devote a blog post to how such a challenge would work shortly.

So what about section H2 of the EHC Plan, dealing with any other social care provision which the Local Authority accepts is ‘reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs’? Well, it’s hard to see what this would be – apart from residential short breaks. It is obvious that if provision is ‘reasonably required’ a Local Authority is entitled to take account of how much it costs. As such, any provision which is accepted to be needed once costs are factored into the equation is highly likely to fall within the CSDPA duty, as set out above. Also, in the hard-to-imagine case where a service could not be provided under the CSDPA it would be provided under section 17 of the Children Act 1989 – and there is no right to services for any particular child under this general duty.

So what the CFA has done in practice is shine a spotlight on the CSDPA, which for too long has been the ‘mystery duty’ governing the provision of social care to disabled children. Whether it is appropriate for such vital services to be governed by a statute written 44 years ago and aimed at disabled adults is another matter – I think what we actually need is a new Disabled Children’s Rights Act, but for now I believe we can make the CSDPA work, at least for the more severely disabled children. However children’s rights under the CSDPA will not become a reality unless everyone in the system understands how it is supposed to work – hence this post.

I hope this summary of a complex legal area is helpful. Here are some more resources if you want to delve further into the law in this area:

  • The children’s services chapter of Disabled Children: A Legal Handbook has a lot about the CSDPA. Please note the chapter is not up to date but it contains useful background as to how the duty operates. We are working on a second edition of the Handbook at the moment and it should be published in early 2015.
  • The judgment of the High Court in R (JL) v Islington LBC has a fantastic summary of how all the key legal duties, including the CSDPA, work in relation to disabled children. It is essential reading for anyone who wants to understand properly the law in this area.
  • Why are Local Authorities allowed to take into account their resources when deciding whether it is necessary to meet a person’s needs under the CSDPA? Because the House of Lords decided by the narrowest possible majority (3-2) that they could in R v Gloucestershire CC ex parte Barry. Anyone who manages to read Barry all the way through and understand it will join a very select bunch of social care law geeks.
  • Many Local Authorities, in deciding how much funding is required by way of a direct payment to meet a person’s needs under the CSDPA, will use a ‘RAS’ – a Resource Allocation Scheme (or System). In R (KM) v Cambridgshire CC the Supreme Court decided that RASes can be used as a ‘starting point’ to generate an indicative sum for direct payments, but there remains an absolute duty to ensure that the sum finally provided is sufficient to meet a person’s needs. KM is a slightly easier read than Barry and summarises the ratio from the earlier judgment (the ratio is the binding legal findings of the earlier court).

As always, comments and questions welcome below.

#LBBill – thoughts on process and timeline (part 2)

So in an earlier post I set out some thoughts on how the process and timeline for #LBBill might work, up to the ballot for Private Members Bills which takes place in June 2015. Below are some thoughts on what might happen next after the ballot.

There are three potential outcomes from the June 2015 ballot:

  1. No MP out of the 20 selected in the ballot wants to take the Bill. If this happens, then we regroup, work out why and start planning for the 2016 ballot. In it for the long haul…
  2. An MP ranked below the top 6 (ie someone who comes between 7 and 20 in the ballot) takes the Bill. This will be great in terms of publicity and getting the government to respond to the issue, but that MP has no realistic chance of getting their Bill into law because it will not be given enough Parliamentary time. So unless the government decides to legislate, we will be in the same situation as 1. above – planning for the 2016 ballot.
  3. An MP ranked 1-6 in the ballot wants to take the Bill. This is obviously the outcome we will be working and hoping for. This MP has a real chance of getting the Bill into law with all our support.

Assuming we have a Bill going forward (outcome 2 or 3 above), we will then need to persuade the government and all other MPs that this is a Bill they should support. This is particularly important if we have a high-ranked MP taking the Bill (outcome 3), as their chances of getting it through can be ended at very early stage if there is sufficient objection.

In terms of timeline – the next key date will be the Second Reading of the Bill in the House of Commons at some point in Autumn 2015. This is the point in the Parliamentary process where the Bill is first debated by MPs and where the government will state its position on the Bill for the first time. I haven’t got the stats, but I would guess that most Private Members Bills fail at this stage.

Just like the process to get MPs to pledge to take the Bill if chosen in the ballot, we will need everyone who supports #LBBill to contact their MPs in advance of Second Reading to request their support – and we will of course help with this at the right time.

If the Bill gets through Second Reading, then we will be up and running. We will need to have a Peer (a Member of the House of Lords) to take the Bill through the process in the House of Lords. I doubt this will be difficult given the number of fantastic disability campaigners in the upper house.

It is then likely that there would be significant negotiations with the government about content of the Bill and there may be numerous amendments put forward – or the government may offer to deal with the issues in the Bill in a piece of its own legislation. If all goes well #LBBill may become law in or around spring 2016.

I want to be clear about our expectations here. Each stage of this process is difficult and it is far from certain any Bill we put forward will become law. However I think we have a real chance to change the law with the momentum that #JusticeforLB has built behind us. If not in 2015, then in 2016, or in 2017, or…

That’s all I plan to write for now about process issues in relation to #LBBill. If anyone has any questions please ask them via the comments below or on Twitter. My next #LBBill post will about some of the excellent ideas that have been circulating on its potential contents.

#JusticeforLB

#Justiceforallthedudes

Five reasons why the new SEN system improves on the present

My first non #LBBill post is on the equally pressing issue of the major system reforms to SEN and disability provision for children and young people in England. These have been introduced through the Children and Families Act 2014 and the majority of them come into force on 1 September.

I am no cheerleader for the fact we have a new system. I strongly supported the conclusion of the Lamb Inquiry set up by the last Labour government that although ‘radical reform’ was needed to the approach to meeting children’s special educational needs this did not require wholesale legislative system change. I am particularly concerned about system change in a time of austerity; it is obvious that new wheels need to be greased with sufficient cash to make them turn and I do not think that the government has properly addressed the need for additional funding.

However – I also believe that the new legal framework, after vast amounts of work by charities, parents, disabled people, peers and MPs on amendments to the Bill, is a significant improvement on the current framework. It is, as I said on twitter recently, a million miles from perfect. It falls a long way short of requiring a genuinely seamless approach to the health, education and social care needs of every disabled child – and I fail to understand why this should not be achievable in law. But I don’t see many ways in which the new system is worse than the old, and I see a number of ways in which it is significantly and obviously better.

Law reform always provides an opportunity for improved practice. A new Act of Parliament gets people’s attention, brings some new resources (if far too little here) and provides a focus for those who want to make things better. So in the spirit of assisting that effort, here are the top five ways (roughly in order) that I think the Children and Families Act 2014 improves on the SEN system:

  1. The genuine 0-25 approach. Learning Difficulty Assessments (LDAs) for young people at college were nowhere near as useless as many people (including worryingly the Department for Education) appear to have thought – the statutory guidance and case law gives them a force which doesn’t fall far short of a statement for school age children. However in my experience, practice in relation to LDAs varied from adequate through poor to absolutely atrocious. So to have an entitlement to educational support through EHC Plans which does not vary very significantly pre- and post-18 is for me a big win. I also think the extension of ‘SEN Support’ to 25 could help improve accessibility of FE generally to young people with additional needs – although time will tell whether this latter point is overly optimistic.
  2. The new duty to provide health services. Section 42 of the CFA imposes the same duty on Clinical Commissioning Groups to provide health services specified in an EHC Plan as is imposed on Local Authorities in relation to special educational provision (I don’t see any legal difference between the terms ‘secure’ and ‘arrange’ which are used in the respective LA / CCG duties). As such from 1 September some disabled children and young people will, for the first time, have a clear enforceable right to some health provision. There are a number of sticking points here – will health provision get in the plan in the first place and what on earth does the requirement for health provision to be linked to SEN actually mean are two of the most obvious. However the principle that the NHS does not ‘do’ specifically enforceable duties has now been breached and for me this alone makes the CFA worth having.
  3. The attempt to deal with social care. This is one of the places where the lobby fought hardest, and the main prize for this effort is that EHC Plans must now contain social care provision which is required by section 2 of the Chronically Sick and Disabled Persons Act (CSDPA) 1970 – see section 37(2). This is good – except the CFA doesn’t tell anyone what this provision is and sadly the Code of Practice isn’t much better. The CSDPA is complicated and poorly understood but it is and will remain (bizarrely) the key statute giving social care rights to disabled children. I wouldn’t have done it this way, but at least the CFA does require local authorities to include certain provision to meet the social care needs of disabled children whose SEN is sufficiently complex to merit an EHC Plan – and that’s a gain worth having.
  4. The general principles. Section 19 of the CFA sets out general principles that a Local Authority must have regard to when exercising a function under the SEN part of the Act. They are all important, but my favourite is the final one – the need to ‘support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes’. So in everything they do Local Authorities must keep in mind the need to support children and young people not only adequately or sufficiently, but so that they can achieve the ‘best possible outcomes’. This is a ‘have regard’ duty, not a duty to achieve results – but then so is the Public Sector Equality Duty, and that has founded dozens of successful legal challenges. Watch this space…
  5. The Local Offer. I thought hard about number 5 – a good candidate was the duty on academies to admit children where named in EHC Plans – but despite my initial scepticism I’ve come to view the Local Offer as a potential force for real change. Firstly, it is obviously helpful for families for there to be very detailed requirements on Local Authorities to publish information on services which are expected to be available – a duty which I think goes far higher than if the wording was ‘may be available’. This should allow families an easy route to the information they need about what is on offer locally – which might just be more than they were expecting to find. Secondly and perhaps more importantly, the Local Offer should provide essential information for local lobbying. Local Offers will be comparable not just between neighbouring authorities but also between ‘statistical neighbours’ – ie areas with similar demographic profiles where all things being equal services should look roughly the same. I am actutely aware of the unfair burden which falls on families to drive up standards but it was ever thus – I helped write this nine years ago and nothing has or will change in this regard. However at least now families should get the information they need to challenge any assertion by a Local Authority that “it’s all very difficult and we are doing our best” – by reference to a similar authority which may be doing quite a lot better. This should help shine a spotlight on the local political choices which often see disabled children and young people pushed to the back of the queue when resources are allocated.

As the Lamb Inquiry found, ‘the education system is living with a legacy of a time when children with SEN were seen as uneducable’. The distance we need to travel is vast and the CFA takes us only a relatively small step along the way. Terrible decisions will still get made and the needs of some (sadly with austerity I fear many) children, young people and families will continue to go unmet. But the CFA still undoubtedly represents some progress – and the amount of progress it represents will be largely down to how well we all take the numerous opportunities it gives us to make things better, wherever we find ourselves in the SEN system.

Comments on the above and other candidates for positive changes from the new statutory scheme most welcome!

Easier read – what ‘we’ means

Thanks again to Anne at Barod CIC for these easier words.

When I blog, I keep saying “we”.

So who is “we”?

“We” means:

  • anyone who wants to change the law so disabled people have a right to live in the community and
  • people who are part of Justice for LB

 

What is Justice for LB?

Justice for LB is not an organization.

Justice for LB is a social movement.

A social movement means:

  • a lot of people believe the same thing
  • those people start to talk to each other
  • they try to change something

A social movement does not have a list of members.

You do not have to be invited. Anyone can choose to be part of the movement.

You are part of Justice for LB if:

  • you believe what happened to Connor was wrong
  • you talk to other people who think it was wrong
  • you want to stop it happening to other people

 

What is #LBBill?

#LBBill is not a project. No-one is the boss. No-one is getting paid.

#LBBill is a way for Justice for LB to try to change the law.

Anyone can be part of #LBBill. You do not have to be invited.  You are part of #LBBill if:

  • you tell people what you think about the Bill
  • you help other people to say what they think

You can do that by:

You could ask friends, family members or independent advocates to help you do any of these things.

Changing the law will not be easy.

I hope disabled people will want to work together to make the ideas for #LBBill into a law.

Easier read – #LBBill – how to make it happen

This is the easier read version of my post #LBBill – thoughts on process and timeline. Thanks so much again to Anne Collis at Barod CIC for these words.

 

Anyone can be part of writing #LBBill.

Here  is some information to help you get involved.

 

The Private Members Bills will be chosen in June 2015.

By then we must:

  • write the Bill
  • get lots of MPs to sign up to support the Bill

 

Writing the Bill

 

When we write the Bill, we must:

  • make sure everyone can have a say
  • make sure the Bill is what disabled people want

 

No-one can just sit down and write #LBBill.

#LBBill belongs to all of us, so we all need a say.

 

I think we can all have a say if we do this:

  • Write down our first ideas for a new law. We need to do this by September.
  • Send our ideas to lots of people
  • Lots of people tell us what they think
  • Have a go at writing #LBBill
  • Send #LBBill to lots of people
  • Lots of people tell us what they think
  • Have another go at writing #LBBill. We need to finish this by Christmas.

 

We do not have any money for the work on #LBBill.

This means we can’t pay for meetings or videos or Easy Read.

 

Some people are already helping for free.

Can you help for free?

Or maybe you have good ideas about how everyone can have a say?

 

If you can help other people to have their say, please:

You might want to ask a friend, family member or independent advocate to help you do these things.

 

Getting MPs to support the Bill

 

It is OK to start talking to your MP now. You can:

  • tell them about the problem
  • tell them we want a new law

 

By January 2015, we will have written #LBBill.

Then we can start asking MPs to sign up to support #LBBill.

 

We need as many MPs as possible to sign up because:

  • only 20 MPs get chosen for a Private Members Bill.

We must make sure some of the 20 MPs support our Bill.

  • for a Bill to become law, most MPs must support it.

It helps if the Government supports it too.

 

We will need to talk to:

  • all the political parties
  • civil servants who work for the Government

 

But for now it is more important to talk to the MPs.

If lots of MPs support #LBBill it is more likely that the government will support it.

 

Here are some free ways to get MPs to support #LBBill.

  • We can send emails
  • We can write letters
  • Local groups can ask to meet their MP.

 

If we can find some money, we can hold an event at the House of Commons.

 

We must make a lot of noise. We want to show MPs that people’s lives are important.

 

The May election

 

There is an election in May 2015.

We choose our MPs at the election.

The party with the most MPs gets to be the new Government.

 

This makes it harder for us.

We will need to talk to the MPs who are MPs now.

But we will need to talk to anyone who might get elected in May as well.

 

What do you think?

 

These are my ideas about what we need to do.

 

What do you think?

Please let us know!

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