Thoughts on the crossroads of law, politics and society – for when a tweet isn't enough. 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.

Local transition plans – another SEN duty being ignored?

In 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 Authorities may not also have their ‘local transition plan’ in place yet. So what is this plan, why does it matter and what precisely do Local Authorities have a duty to do here?

The need for a local transition plan arises from the fact that Parliament has left some of the detail on how and when to implement the new SEN system in England down to individual Local Authorities. Given the strong emphasis of the Children and Families Act 2014 on transparency and partnership with families, it is obviously necessary for each Local Authority to set out these arrangements in a local plan.

I haven’t been able to find anything about local transition plans in any of the regulations or orders – please let me know if I’ve missed something. So the requirement to have one and their contents comes from the statutory guidance, with the catchy title ‘Transition to the new 0 to 25 special educational needs and disability system’. I’d suggest this is essential reading for anyone who wants to know how the process of change to the new SEN system in England is supposed to work. This is statutory guidance – and so as it says ‘This means that recipients must have regard to it when carrying out duties relating to children and young people with special educational needs and (SEN) in England. The word ‘should’ reflects the Government’s expectations of how local authorities and other organisations will go about transferring all children and young people with SEN to the new system. Local authorities will be expected to explain any departure from these expectations.’

The guidance deals with local transition plans at paras 5.5-5.8. The guidance sets out what should be included in the plans and when they should be published. Taking ‘when’ first, the guidance says at 5.7 that the plans should be published in ‘September 2014’. So unlike the Local Offer, it does not seem that the local transition plan has to be in place by 1 September, so long as it is published during September. However the guidance also states that the plan should be published ‘alongside’ the Local Offer – so it should be published on the same website and if possible published at the same time.

In terms of ‘what’, para 5.6 of the guidance sets out in detail what each plan has to cover, including:

  • the order in which children and young people with statements will be transferred to the new system (within the national parameters, see paras 5.9-5.26 of the guidance)
  • how and when parents of children with SEN and young people with SEN, and their educational institution, will be made aware of the arrangements for a child or young person’s transfer
  • details of the ‘transfer review’ (EHC Needs Assessment) process
  • the arrangements for the transfer of young people who receive support as a result of a Learning Difficulty Assessment (LDA)
  • sources of impartial SEN information and advice
  • who parents and young people can contact if they have queries about transition to the new system 

This list shows just how important the local transition plan is – because without it, families cannot know whether the complex arrangements for transition to the new system in their local area are fair, reasonable and comply with what the legislation requires.

Final important point – at para 5.5, the guidance correctly emphasises that Local Authorities should consult with children, young people and parents in preparing their local transition plan. This is because preparing the plan is a ‘function’ under the Children and Families Act 2014 and so section 19 of that Act applies to its preparation. Section 19 requires Local Authorities in carrying out relevant functions to have regard (amongst other things) to ‘the views, wishes and feelings of the child and his or her parent, or the young person’ and ‘the importance of the child and his or her parent, or the young person, participating as fully as possible’. In order to do this, it is clear that Local Authorities will need to engage in proper consultation before finalising their local transition plans – by the end of this month.

Comments on how the transition plan is shaping up in your local area welcome below.

The strange case of the missing Local Offers

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
    • 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 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.

Judicial review – some greatest hits

I blogged over the weekend about judicial review as a key tool for making SEN and disability rights real. I thought it might be helpful to set out a few ‘greatest hits’ – cases which show different aspects of the way judicial review works as a force for good. 

Before my hit list though – I’m grateful to @bendygirl for highlighting on twitter something I forget to say in yesterday’s blog. The vast majority of judicial review cases never get anywhere near a hearing. Very many get sorted by one or more letters sent by the claimant’s solicitors to the defendant. You would be amazed how many cases I see where there have been disputes between disabled people or families and public bodies running over many years which are suddenly resolved when a formal letter before action gets sent. 

Other cases get sorted out between the parties after the case has been ‘issued’ (meaning the claimant’s papers setting out their case are sent to the court) but before a final hearing. Sometimes this happens on the same day, sometimes the same week, sometimes a few months later – but these cases generally do settle, and almost always with the claimant getting some kind of benefit from the deal.

I can think off the top of my head of cases which settled post-issue in areas as different as SEN transport, social care assessment and care planning and cuts to short break services for disabled children. Although it’s great when cases settle one problem it causes is a lack of publicity – ‘Disabled person and local authority sort things out sensibly between themselves’ not being the greatest newspaper headline.

So the point I’d want to stress is that these cases are just the tip of the judicial review iceberg, and each stands for many others where the judicial review process helped sort things out without the drama of a court hearing in the case. There is also a huge pool of cases I could have chosen where judicial review has worked to resolve the problem which led the case to come to court. Now, for that list:

  1. R (W, M and others) v Birmingham CC – I’ve put the Birmingham case first because I think it may be the recent judicial review case that has had the most dramatic wider impact. Birmingham had decided to move its adult social care threshold to ‘critical only’. This would mean that all disabled adults whose needs were rated as ‘substantial’ under the statutory guidance (which is extremely high) would no longer get those needs met. Four disabled adults and their parents challenged the decision on the basis of breach of the public sector equality duty (Equality Act 2010 section 149) and a flawed consultation process and won their case on both grounds. Having fought the case hard, Birmingham decided not to appeal, reinstated the services for people with ‘substantial’ needs – and never attempted to move to ‘critical only’ again. Solicitors for the claimants were Polly Sweeney at Irwin Mitchell and Karen Ashton at Public Law Solicitors.
  2. R (JL) v Islington LBC – JL is the case that finally made everyone realise that disabled children had a right to social care services. Islington had introduced new eligibility criteria which resulted in a massive cut to JL’s short break care package. The High Court held that this was unlawful for a wide variety of reasons – but perhaps most importantly because the criteria did not recognise that JL had a right to the services he was receiving under section 2 of the Chronically Sick and Disabled Persons Act 1970. Not only did the judgment result in JL getting his care package restored, but also Islington and pretty much every other Local Authority has had to review its eligibility criteria to make sure it complies with the law. Solicitor for JL was Mitchell Woolf at SCOMO.
  3. R (KM) v Cambridgshire CC – I’ve put in KM because it’s a case which went to the Supreme Court (extremely rare) and because it’s a great example of a case where the claimant lost (just) but the judgment has had a positive wider impact. KM and his mother challenged the amount of money offered to him as a social care Direct Payment which had been generated using a ‘RAS’ – Resource Allocation System. The Supreme Court held that the amount of money paid to KM was more than sufficient to meet his needs and so the decision in his case was not unlawful despite the flaws in the decision making process. However the wider importance of KM is that it confines the use of ‘RASes’ to being merely a ‘starting point’ in the process of working out how much funding a disabled person requires and re-emphasises the absolute legal duty to ensure all ‘eligible’ social care needs are met – ie the CSDPA 1970 duty which is brilliantly summarised by Lord Wilson in the judgment. Solicitor for the claimant was again Mitchell Woolf at SCOMO.  
  4. R (G) v Southwark LBC – G’s case changed the law on Local Authority duties to homeless teenagers and other children who need accommodation away from their families (including disabled children). It is also a great example of how you sometimes need to ‘dig in’ to get success – G had his judicial review application dismissed in the High Court and lost his appeal 2-1 in the Court of Appeal, but all five members of the House of Lords (now the Supreme Court) who heard his case agreed with him that Southwark had acted unlawfully in refusing to accept that he was owed the duty under section 20 of the Children Act 1989. This is a key case for disabled children because it shows that they have an absolute right to be accommodated and ‘looked after’ by their Local Authority if their needs can’t be met at home for whatever reason. Solicitor for was Oliver Studdert at Maxwell Gillott.  
  5. R (Ali) v LB Newham – I chose Mr Ali’s case not because of the subject (although accessible paving is clearly very important for people with visual impairments) but because of what the Judge says in the judgment about non-statutory guidance. There is a vast amount of SEN and disability guidance which is non-statutory, i.e. issued by a Minister but not backed by an Act of Parliament giving it legal force. Does this guidance have to be followed? The answer was always thought to be no – but in Ali the court held it did, because of its very particular features – see paragraphs 39-41 of the judgment to find out why. Solicitors for Mr Ali were Leigh Day.
  6. R (RO) v East Riding of Yorkshire – RO is a great example of the courts cutting through what seems like a complex legal issue to make a very simple finding. The dispute in RO was about whether a disabled child who was moving to a residential special school was still accommodated under section 20 of the Children Act 1989 and therefore entitled to be treated as a ‘looked after’ child who would then have the leaving care entitlements once he turned 18. The Court of Appeal said yes – and the reasons given mean that the majority of residential special school placements where there is social care involvement in the placement and / or funding will also be made under section 20 – a very important right for this group of disabled children. Solicitors for the claimant were Coram Children’s Legal Centre.
  7. Birmingham CC v Clue – Clue is about a particularly vulnerable group of families, those with no recourse to public funds as a result of their immigration status. In a genuinely groundbreaking judgment, the Court of Appeal decided that all these families have a right to basic Children Act accommodation and support from Local Authorities, so long as they had outstanding immigration applications which were not obviously abusive or hopeless. Clue is part of a run of recent cases (see most notably ZH (Tanzania), the leading case on children’s best interests) where the courts have been prepared to put the welfare of children above other factors, for example immigration control. Solicitors for the claimants were again Public Law Solicitors
  8. McDonald v UK – Mrs McDonald’s case is another example that at least some justice can be done when you ‘dig in’ and keep fighting. Mrs McDonald is a former prima ballerina who now has a medical condition which means she needs to go to the toilet frequently at night. Her Local Authority decided to take away funding for her nighttime carer and provide her instead with incontinence pads. Mrs McDonald’s judicial review challenge failed in the High Court, the Court of Appeal and the Supreme Court. However she took the part of her case which alleged a breach of Article 8 ECHR to the European Court of Human Rights and won on part of that case and was awarded damages. The finding that it is a breach of a person’s human rights to withdraw care from them without a lawful re-assessment is in my view very important for the wider disability movement and the fight against social care cuts. Solicitors for Mrs McDonald were Disability Law Service

Those paying attention will note that I have not included many cases in the list dealing with education issues. There are several reasons for this. Firstly, most SEN cases go through the Tribunal system (First-tier and Upper Tribunals) rather than being brought via judicial review. There are lots of good Upper Tribunal SEN cases too but they will have to wait for another blog. Secondly, in my experience very many education cases get sorted out in advance of any final hearing – this happens even more often than in other cases I take on. If anyone can think of good recent education judicial reviews which made a difference to the claimant and / or others, please post details in the comments below. 

A note on judicial review case names. The recent cases all start with R (Name). The R stands for ‘Regina’ and shows that the application is brought in the name of the Queen – a legal formality. The name in brackets is the name of the claimant – or in our world generally the initials, because (important point) most claimants in SEN or disability cases will get anonymity ordered by the court if they want it. The defendant’s name then follows on the other side of the ‘v’ (it’s said ‘and’ by the way, not ‘versus’ – so R (JL) v Islington is said ‘JL and Islington’). In the SEN and disability world, the defendant will often by the Local Authority, and the letters after their name explains what type of authority they are – so Birmingham is a ‘City Council’ (CC), Islington is a ‘London Borough Council’ (LBC) and so on.

 Thoughts on the ‘hit list’ and other judicial reviews in our area which merit wider attention welcome in the comments below.

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