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
    • 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.