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.

Category: Children

Time to fight the removal of children’s rights through the Children and Social Work Bill

There are bad ideas. There are really bad ideas. And then there’s clauses 29-33 of the Children and Social Work Bill 2016.

This handful of clauses, if approved by Parliament, will allow the Secretary of State to exempt local authorities in England from the requirements of children’s social care legislation in the guise of ‘test[ing] different ways of working’. At a stroke the Secretary of State could say that Durham doesn’t have to meet disabled children’s needs under section 2 of the Chronically Sick and Disabled Persons Act 1970, Doncaster can forget about parent carers’ needs assessments or Dudley can ignore the duties owed to young carers. In the alternative, the Secretary of State could modify the way in which these requirements apply rather than exempt them entirely, just to increase the overall level of confusion.

I’m struggling to know where to start in explaining why this would be a bad idea. But here goes…This post is written from the perspective of the impact on disabled children, but similar concerns will apply across all children ‘in need’. For example, the clauses would seem to allow the Secretary of State to disapply every single requirement of the care planning regulations for looked-after children.

The law on support for disabled children, young people and families is already a mess. It derives from a patchwork of legislation enacted over the past decades, with duties and powers piled one on top of the other. The only saving grace is that it is the same mess everywhere – wherever a disabled child lives in England, their legal entitlements are the same.

If these clauses go through, even that saving grace will be lost. Rights and entitlements will vary across the country, depending on which exemptions or modifications the Secretary of State has granted to a particular local authority. This reduces rather than increases the transparency that is so badly needed if families are to enforce their rights.

What’s more, I simply do not understand why a local authority would need to be exempt from any of the baseline statutory duties governing support for disabled children in order to innovate or test different ways of working. The legislation governing children’s welfare creates a safety net which should never be removed or undermined in this way. Any specific amendments to the statutory scheme should require express and explicit Parliamentary approval, not the Secretary of State’s say-so.

All of the above is true at any time. However the statutory safety net is even more important at a time like this, when many local authorities feel constrained to cut services to the bone to balance their budgets.

The Bill comes back to the House of Lords for Report stage on 18 October – details of the Bill’s progress are on the excellent Parliament website. A coalition of individuals and organisations has come together to oppose these clauses under the banner of Together for Children. Please sign up to show your support – and please see this excellent article from Sara Ogilvie from Liberty for some of the wider concerns.

Hopefully the Lords will ensure that clauses 29-33 are removed from the Bill. However if they do not and they reach the statute book, it seems to me that there is a real issue here under Article 14 of the European Convention on Human Rights, given that disabled adults will continue to have the benefit of coherent legislation in the form of the Care Act 2014 whereas the patchwork of disabled children’s law will simply acquire more holes. It is very hard to see how this differential treatment can be justified, given that the needs of a 17 year old disabled child will be very similar to those of that young adult at 19.

Final point – all this shows how urgently we need the Law Commission to review children’s social care law

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Law Commission consults on review of children’s social care law – please respond

The Law Commission is consulting until 31 October 2016 on its next programme of law reform. One of the issues it is considering reviewing is children’s social care.

There will be competition for what goes into the Commission’s next programme. If, like me, you think children’s social care law is badly in need of an overhaul then please respond to the consultation before the end of next month – see the end of the final link above. One option would be to respond to say – ‘yes please, the current law is a mess’. However I’m sure the Commission would be assisted by slightly fuller responses. Here are some outline thoughts on the issues raised by the Commission in its consultation.

Firstly, the Commission must be right that many of the factors which required new legislation on care for adults in the Care Act 2014 also apply equally to children’s social care. As previously for adults, the law in relation to children’s social care is piecemeal and patchy. Although it centres around Part 3 of the Children Act 1989, the 1989 Act has been repeatedly and confusingly amended in the intervening years and there are other important statutes, not least the Chronically Sick and Disabled Persons Act (CSDPA) 1970 for disabled children. There must be a compelling case for a simpler, more streamlined scheme for children as for adults.

Secondly, it is noteworthy that the first two specific issues identified by the Commission concern disabled children. This reflects in my view the fact that the current statutory scheme works particularly badly for disabled children. It is very difficult if not impossible for families and professionals to understand the links between the CSDPA 1970, the Children Act 1989 and the Children and Families Act 2014. The way social care law operates (or fails to operate) for disabled children therefore seems to me to be particularly ripe for review.

I will post my full response to the Commission nearer the time, but I hope the above is helpful as a starter for 10. Please do respond to the consultation and spread the word to others who may be interested. The Commission has an excellent track record of getting its proposals into law and so this is likely to be a worthwhile investment of time.

 

New case law updates on disabled children’s rights

Quick post (first for some time) to flag the new case law updates published by the Council for Disabled Children with its Summer Digest. These will hopefully be of interest to disabled young people, families and professionals.

The first covers two Upper Tribunal appeals brought by Hillingdon and Buckinghamshire. Both appeals considered the appeal rights for young people (aged 16-25) and the approach to be taken where a young person lacks capacity to bring their own appeal. The Buckinghamshire decision gives important guidance on the meaning of ‘education’ for young people.

The second is about another important Upper Tribunal decision (this time in an appeal by Staffordshire) which gives clarity about school transport entitlements for young people. It is important for young people and families to note the conclusion that the Tribunal cannot resolve disputes in relation to school transport and that the correct remedy is judicial review.

The third concerns a successful human rights claim against Kent in the context of care proceedings. The judgment suggests that serious failures to comply with the duties owed to disabled children under the Children Act 1989 may result in breaches of the Human Rights Act 1998, which may in turn lead to damages being awarded.

All three updates are themselves summarised in the main CDC Digest (see p14 onwards).

Safer homes for disabled children – crowdfunding cases for disabled children’s rights

Disabled children need safe and suitable homes – but with the housing crisis in parts of the country it is unsurprising that many disabled children have neither. The families of two disabled children (M and A) are challenging Islington council for failing to provide them with accommodation where they will be safe from falling and have sufficient space to meet their needs.

The challenge failed in the High Court. In particular the Judge held that the duty to co-operate between housing and children’s services in section 27 of the Children Act 1989 did not apply to ‘unitary’ authorities, for example London councils. Secondly the Judge held that the failure to put in place a child in need plan for M or A was not unlawful – despite the clear terms of the statutory guidance requiring such plans. Both these findings may reduce the protection of the Children Act scheme for disabled children if left unchallenged.

To their credit M and A’s families are willing to carry on the fight to the Court of Appeal. The issues their cases raise are obviously of very wide importance, potentially affecting thousands of families with disabled children. As such their legal team has worked with the organisation Crowdjustice to see if money can be raised from the community. The initial target is 3,000 pounds, which will allow the appeal to proceed to the next stage.

In my view the attempt to crowdfund M and A’s appeal is hugely significant. If it works in this case it can work in other cases – and be an answer in the right cases to the problems caused by the restrictions on legal aid.

Please consider supporting this important appeal by donating through Crowdjustice Please also spread the link throughout your networks.

For information on disabled children’s rights to housing see chapter 7 of the second edition of Disabled Children: A Legal Handbook. The section of this chapter in relation to accessing suitable housing for disabled children and families was written by M and A’s solicitor Rebekah Carrier.

Disclaimer – I work closely with the legal team for M and A. However I am not instructed on this particular case.

Can local authorities lawfully close all their children’s centres?

This post is prompted by recent reports that some local authorities are considering closing all their children’s centres in this round of cuts. See by way of example this recent article by Polly Toynbee.

There is of course a ‘sufficiency’ duty in relation to children’s centres, found in section 5A of the Childcare Act 2006 (inserted by an amendment in 2009). Sub-section 1 of section 5A states that:

‘Arrangements made by an English local authority under section 3(2) must, so far as is reasonably practicable, include arrangements for sufficient provision of children’s centres to meet local need’.

Section 3(2) (to which section 5A(1) refers) says that ‘The authority must make arrangements to secure that early childhood services in their area are provided in an integrated manner which is calculated to (a) facilitate access to those services, and (b) maximise the benefit of those services to parents, prospective parents and young children’.

A ‘children’s centre’ is defined in section 5A(4) as ‘a place, or a group of places (a) which is managed by or on behalf of, or under arrangements made with, an English local authority, with a view to securing that early childhood services in their area are made available in an integrated manner, (b) through which each of the early childhood services is made available, and (c) at which activities for young children are provided, whether by way of early years provision or otherwise’.

Despite the overly complex drafting, it seems clear that there is a duty on English local authorities to have sufficient children’s centres, being places managed for or on behalf of a local authority to provide integrated early childhood services and activities for young children. These centres must physically exist, i.e. not simply be ‘virtual’ centres (a network of services without a physical centre).

The duty in section 5A(1) is though subject to an important qualification. The duty must be carried out ‘so far as is reasonably practicable’. This begs the question – can a local authority which intends to close all its children’s centres say that it is not ‘reasonably practicable’ for it to operate any centres?

It may well be that this question is tested in court. My provisional answer to it is ‘yes in principle’ – but the authority would need to have:

  1. Understood the local need for such centres
  2. Considered what level of provision would be sufficient to meet that need
  3. Analysed to what extent it is reasonably practicable for it to make that provision, given the reduction in its overall resources and other pressures on its budget
  4. Complied with its wider public law obligations, for example the public sector equality duty in section 149 of the Equality Act 2010 and the duty to have regard to the need to safeguard and promote the welfare of children in section 11 of the Children Act 2004. These duties are considered in my general blog post on legal issues relating to cuts.

It may be that local authorities could find a way through this process such that it would be lawful to reduce their level of children’s centres to zero, though I have my doubts. It would seem to require a local authority to justify why the other pressures on its budget are such that it cannot afford to operate even a single children’s centre. If the local authority is spending anything above the minimum required to meet its statutory duties in other areas (for example, collecting the bins) this may prove difficult. It is important that the wording is ‘so far as is reasonably practical’ – emphasising that the local authority should go as far as it reasonably can to provide sufficient children’s centres to meet local need.

The law requires local authorities to have regard to the need to safeguard and promote children’s welfare when tough spending decisions are made. What is clear is that a local authority which simply says ‘we are closing our children’s centres because our budget has been reduced’ will not have complied with the required process and would in my view be vulnerable to legal challenge.

If the section 5A(1) duty simply required the provision of ‘sufficient’ children’s centres then it is obvious that the answer to the question in the title of the post would be ‘no’. However Parliament has chosen to qualify the duty by reference to ‘reasonable practicability’. We may well see how the courts treat this qualification relatively shortly after local authority budgets are set for the next financial year, if decisions to close all their children’s centres are indeed taken by some local authorities. I hope though for the sake of the children and families affected that this question never needs to be answered by the courts.

Disabled Children: A Legal Handbook – second edition now available

I’m thrilled / relieved to say that the second edition of Disabled Children: A Legal Handbook is now available online.

Legal Action Group published the first edition in 2010. It is astonishing how much of the text has had to be rewritten some five years later. We have had a wholly new SEN scheme under the Children and Families Act 2014, major changes to social care for disabled young people and those in transition to adulthood under the Care Act 2014 and a massive reorganisation of the health service under the Health and Social Care Act 2012. All this change has basically made the first edition a museum piece.

As well as covering these headline Acts and the relevant regulations and guidance as best we can, we also have some fantastic new content for the second edition. Camilla Parker has produced the definitive guide to decision making and issues in relation to capacity and competence. Polly Sweeney has given us an incredibly useful resource by way of a chapter on all the forms of remedies available to disabled children, young people and families (as well as updating the Education chapter). Rebekah Carrier led on major improvements to the Housing chapter, including new content on how to help make sure families get a home which is suitable for their needs.

We also had the benefit of excellent input from Martha Spurrier who updated the Health chapter and Louise Price who updated the Equality and Non-Discrimination chapter.

The co-authors remain myself, Prof Luke Clements and Dr Janet Read. If (when) people discover we’ve got anything wrong, it’s our fault.

The law affecting disabled children, young people and families is excessively and unnecessarily complex. The complexity has been made worse by the new legislation, which sits on top of old law dating back at least until 1970. We have done our best to make the book as accessible as possible while accurately stating the law. We hope the extensive cross-referencing will help non-lawyers find their way around the text.

As with the first edition, all the chapters of the book will again be published online free of charge by the Council for Disabled Children – I’ll confirm when the downloads are available. I hope anyone who would print the whole thing out would consider buying the book instead (!)

Above all, I hope the book continues to make a contribution to ensuring that disabled children, young people and families get the services and support to which they are entitled by law.

Final thought – as I tweeted earlier, we are very proud to have part of the Justice Quilt on the cover (see image above). I hope anyone who buys the book will also sign up to show their support for the Justice for LB campaign as they continue to struggle to get justice from the system.

Challenging local cuts – some key legal questions

Following the political choices set out in the recent Spending Review, it would seem inevitable that local authorities are going to need to make cuts to important services next year, including those provided to children and disabled people. Recent Kings Fund analysis shows that the 2% precept on council tax is a totally inadequate solution to the funding crisis for adult social care. No-one seems to be talking about what the Spending Review means for children’s social care, which wasn’t even mentioned on the Department for Education press release – but it is unlikely to be good news.

The issue now is not whether there should be cuts, but whether the cuts which have to be made are lawful, both in terms of their effect on services and those who use them and the process by which the decisions were made. As Mr Justice Blake said in R (Rahman) v Birmingham City Council (para 46) in relation to the ‘public sector equality duty’ (PSED) found in section 149 of the Equality Act 2010:

Even where the context of decision making is financial resources in a tight budget, that does not excuse compliance with the PSEDs and indeed there is much to be said for the proposition that even in the straightened times the need for clear, well-informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater.

In rather an Alice in Wonderland way, Parliament has continued to impose new duties on local authorities at the same time as central government has taken their funding away to comply with them. However this means that councils need to take the hard decisions that will be made in their budgets for 2016-17 and beyond with a crystal clear understanding of their legal obligations. Although there may come a time where a local authority is unable to set a budget which allows it to meet all its legal duties, I doubt we are there yet.

Councils are currently working up and consulting on their budgets for 2016-17, so now is the time when residents and local groups may want to ask some of these legal questions:

Will the council be able to meet all its ‘specific’ statutory duties owed to individual residents? For example:

  1. The duty to meet all ‘eligible’ needs for disabled adults and their carers under the Care Act 2014
  2. The duty to meet ‘eligible’ needs for disabled children under section 2 of the Chronically Sick and Disabled Persons Act 1970
  3. The duty to provide free suitable home to school travel arrangements for all ‘eligible’ disabled children under section 508B of the Education Act 1996
  4. The duty to secure special education provision in education, health and care plans for disabled children and young people in section 42 of the Children and Families Act 2014
  5. The duty to provide advocacy to disabled people and carers during the care and support assessment and planning process under section 67 of the Care Act 2014.

Will the council be able to meet its ‘sufficiency’ duties to have a sufficient level of particular services to meet local needs? For example:

  1. Childcare, including childcare for disabled children up to the age of 18, under section 6 of the Childcare Act 2006
  2. Short breaks for disabled children under regulation 4 of the Breaks for Carers of Disabled Children Regulations 2011
  3. Education and care services for disabled children, under section 27(2) of the Children and Families Act 2014
  4. Children’s centres, under section 5A of the Childcare Act 2006
  5. Services for disabled adults and their carers, under the ‘market shaping’ duty in section 5 of the Care Act 2014

Has the council had ‘due regard’ to the needs specified in the PSED (see above) – for example the need to advance equality of opportunity for disabled people (children and adults)?

Will the proposed cuts give rise to unlawful discrimination between different groups, contrary either to the Equality Act 2010 or Article 14 of the European Convention on Human Rights?

Has the council had regard to the need to safeguard and promote the welfare of children under section 11 of the Children Act 2004?

Has the council treated children’s best interests as a primary consideration in its decision making, as required by Article 3 of the UN Convention on the Rights of the Child?*

Has there been ‘fair’ consultation on the proposals? In particular (quotes are from the leading consultation case of ex parte Coughlan:

  1. Has consultation taken place at a ‘formative stage’, i.e. sufficiently early in the decision making to influence the outcome?
  2. Have consultees been provided with ‘sufficient reasons for any proposal to permit of intelligent consideration and response’ – i.e. do residents know what cuts are being proposed and why?
  3. Have consultees had ‘adequate time’ for consideration and response?
  4. Once the consultation has finished, has ‘the product of consultation’ been ‘conscientiously taken into account’ in the final decision.

Several of these legal principles – for example consultation, non-discrimination and the PSED – apply equally to NHS bodies such as clinical commissioning groups who may also be contemplating cuts to valued services.

If residents and local groups are not getting answers to these questions, or are unhappy with the answers coming back, then the next step may be to consult a specialist solicitor who can advise on whether there may be a challenge via judicial review. It is essential that any challenge to financial decision making is brought extremely promptly – so advice should be obtained before any final decision is made if possible, or otherwise straight after the decision.

It is also important to bear in mind that not all councils are equal – particularly given the increased focus on councils raising revenue from their own areas. Residents and local groups may want to ask questions about what level of reserves their particular council holds – particularly ‘free’ or unallocated reserves. Although spending reserves is obviously only a short term solution, it may be possible to use reserves to mitigate some of the cuts and help with transition to alternative forms of provision.

It is unlikely that legal challenge alone is going to be sufficient where cuts are proposed – there also needs to be political pressure. There are a number of guides for local groups on how to campaign, including campaigning against cuts or to save services. I really like this one from the Every Disabled Child Matters campaign.

Local politics will still come down to local priorities, although the choices will get harder than ever. In the light of the duties above, the law requires councils to give significant priority to services for children and disabled people. It is hoped that the decision by Hampshire not to cut its short breaks budget for 2016-17 is therefore one that other local authorities will follow to the extent they can.

*We can save detailed arguments about whether and why the UN CRC has to be followed when it is not directly incorporated into English law for any case that goes to court.

The health / social care divide for disabled children – consultation on draft National Framework for continuing care

If the dividing line between local authority and NHS responsibilities for meeting the needs of disabled adults is hard to find, the line for disabled children is practically invisible. In my experience this can cause real problems as agencies argue about who is responsible for meeting severely disabled children’s needs. Alternatively it may result in one agency (usually the local authority) taking on responsibilities which go beyond its legal duties or powers.

Since 2010 we have had a National Framework in place for children and young people’s continuing care. This sets out the point at which the NHS should take lead responsibility for meeting disabled children’s needs and the process by which packages of support should be put together – although troublingly it is merely guidance and has no express legal force.

The Department of Health is currently consulting on a revised draft Framework. The consultation closes next Friday, 23 October 2015 (very precisely, at 11.45pm that day). I would urge everyone who is concerned to see that the needs of the most severely disabled children are properly met to engage with the consultation and comment on the draft. There doesn’t appear to be an Easy Read version of the consultation which is an issue that people may want to take up with the Department.

From my perspective I’m concerned that the draft Framework doesn’t properly address the health / social care dividing line. It seems to assume that in every case there will be a mixed package of care – but some disabled children have care needs which are the sole responsibility of the NHS following the Haringey judgment.

There are several other concerns I have with the draft Framework, not least the focus on children who have Education, Health and Care Plans which will only be a small minority of disabled children, and far from all those who are eligible for continuing care. All these concerns are summarised in my response to the consultation – I’ve pasted sections of this below in case it helps others who are yet to respond.

There are some very good things about the draft Framework – not least the clear statement at para 21 that ‘A decision on the package of continuing care that may be provided should not be budget or finance-led: the primary consideration should be supporting the child or young person’s assessed needs and outcomes’. I hope the Department will make the necessary amendments to the draft Framework and issue a new final Framework as quickly as possible. The current Framework from 2010 is no longer fit for purpose in the light of the massive change in NHS structures and processes since that date.

These are the key parts of my response to the consultation:

4. Does the framework adequately define the scope of children and young people’s continuing care?

No.

The draft Framework begins at para 1, p6 by defining continuing care by reference to cases where a child has ‘complex needs which cannot be met from the health services routinely commissioned by clinical commissioning groups (CCGs) or NHS England’.

The problem with this approach is that it ignores the complex issue of the dividing line between local authority and NHS responsibilities for disabled children with complex needs. The sole focus on whether the child’s needs are such that they cannot be met from universal health services obscures what is often a very important issue, being whether the responsibility for meeting those needs falls to the local authority or the NHS body (normally the CCG).

The current Framework (2010) contains (at Annex D) a summary of the leading case on this issue, being R (T, D and B) v Haringey LBC and Haringey Teaching PCT [2005] EWHC 2235 (Admin). There is guidance in the 2010 Framework that ‘PCTs and local authorities should take into account this piece of case law in their processes for deciding on and putting in place packages of continuing care.’ On p9 of the 2010 Framework, it is said that the Haringey judgment ‘determined that the Coughlan criteria, used to determine whether a local authority or a primary care trust should provide required services to an adult in need of NHS continuing care, applied equally to children.’ However there is no mention of the Haringey judgment in the current draft Framework. This is in my view a surprising and unhelpful omission, as a key function of guidance must be to distil the principles from complex case law into useful advice for professionals.

In my view the key question determined by in the Haringey judgment is the limit of the scope of local authority responsibilities for disabled children. The High Court held (para 68) that it was not permissible for the broad duty in section 17 of the Children Act 1989 to extend to meeting ‘essentially medical needs’. This would turn local authorities into a ‘substitute or additional NHS for children’ which was an ‘impermissibly wide interpretation, creating obligations on a social services authority which are far too broad in the context of other statutory bodies and provisions covering the needs of children’.

As such there is clearly a line across which local authorities must not provide services for disabled children, and the responsibility for providing those services falls solely on the NHS. However it is entirely unclear from the current draft Framework where the Department considers that line to lie. What is said at para 8, p7 is that ‘Where appropriate, continuing care should be part of a wider package of care, agreed and delivered by collaboration between health, education and social care’. Similarly at para 27, p9 it is said that ‘a child…with continuing care needs may require services commissioned by the local authority’.

In my view the Framework needs to give guidance as to when this is appropriate and when the needs should be met solely by the CCG or NHS England. At the very least reference needs to be made to para 68 of the Haringey judgment and the touchstone that the local authority must not act as a ‘substitute or additional NHS for children’. Consideration should be given to including an updated version of the summary of the Haringey judgment in Annex D to the 2010 Framework as an annex to the updated Framework.

5. Does the Framework set out a clear process?

No.

The process for determining eligibility for children’s continuing care remains relatively clear – although serious concerns remain that this process has no statutory force as the Framework will not (as I understand it) be backed by directions.

However what is unclear is the relationship between the Framework and the reformed scheme for meeting the wider needs of children with special educational needs and disabled children introduced by Part 3 of the Children and Families Act 2014. In particular there appears to be an assumption that children who are eligible for continuing care will have an Education, Health and Care (EHC) Plan – see para 2 of the Executive Summary on p5.

The test for an EHC Plan to be issued is that it is ‘it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan’; section 37(1) CFA 2014. As such it is only those children with significant special education needs who will benefit from a new joined-up plan – no matter how complex their health needs may be.

It is therefore essential that the Framework gives guidance on how the Department anticipates that children’s health, educational and care needs are co-ordinated in cases where the child is eligible for continuing care but not eligible for an EHC Plan. This should include more detailed reference to the duty (mentioned at para 40, p11 of the draft Framework) under section 26 CFA 2014 to have in place joint commissioning arrangements for all disabled children and children with SEN, not just those with EHC plans.

10. Does the framework explain how the Education, Health and Care plan process relates to the continuing care process?

No.

Firstly, it does not deal with the situation where a child has complex health needs and some special educational needs, but not a sufficient level of special educational needs to require an EHC Plan to be in place – see answer to question 5 above.

Secondly, the guidance at paras 44-49, p12 is unclear in several important respects:

  • If it is not of benefit to ‘completely integrate’ the EHC plan assessment and the continuing care assessment given the wildly different timeframes for these processes (para 45), how should the two processes inter-relate?
  • At para 46 it is said that the ‘health assessor’ is responsible for ‘social care and health input to the co-ordinated process’. However for EHC assessments the social care input is the responsibility of the local authority under regulation 6(1)(3) of the SEN and Disability Regulations 2014.
  • The suggestion at para 48 is that because the new SEND arrangements extend up to 25, there will be young people aged 18 or over governed by the adult Continuing Healthcare framework where ‘The local authority may not have any responsibility towards the young person’. However by virtue of the SEND arrangements continuing to apply the local authority will still have responsibility for securing the special educational provision in the EHC Plan, see section 42(2) CFA 2014. It is suggested at para 48 that ‘The local authority would still take the lead in co-ordinating the EHC plan but the services they were ultimately responsible for securing would be negligible’. Is the Department suggesting that the CCG or NHS England would take on the responsibility for securing the special educational provision in those cases? This would seem to me to be a highly surprising conclusion and also plainly wrong.

System change for disabled children – the Local Offer and SEND reforms one year on

We are now one year on from implementation of the SEN and disability reforms introduced by Part 3 of the Children and Families Act 2014 (‘CFA’). To no-one’s surprise the picture on progress is at best mixed. Introducing wholesale system change at a time when local authority budgets have been reduced by 40% over the past five years was never going to be straightforward. As the report on the pathfinder programme was only published this July I imagine we will need to wait a while before any official evidence on progress made under the CFA.

At an individual level I continue to hear utterly depressing accounts of the new Education, Health and Care Plan (‘EHC Plan’) process resulting in absolutely no benefit for children and families. Plans are being issued with no outcomes or outcomes drafted in the blandest terms, social care sections simply saying ‘not known to social care’ and no engagement at all from health. This survey by Special Needs Jungle should help show how widespread are these problems. While there may well be excellent EHC Plans being issued, flagrantly unlawful ones are certainly far from unique.

The Department for Education has just issued new advice to confirm that local authorities are being given longer to complete the transfer process and produce EHC Plans – as introduced by secondary legislation. The main change is that the maximum time for a transfer review for the move from a statement to an EHC Plan has been extended from 14 to 18 weeks. As I suggested this as an urgent action the new government needed to take, I obviously welcome this as a sensible move. However it remains to be seen whether local authorities will now be able to carry out proper EHC assessments and take new advice in every transfer case unless all parties including the parents agree that previous advice is sufficient, as the regulations require; see IPSEA’s summary of the transfer process.

The focus for this post though is one of the key system level reforms introduced 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 highly compliant with the statutory requirements and as a result provide a valuable guide to local provision for children, young people and families. Other local areas, shall we say, haven’t done this.

The next question is whether these Local Offers can fulfill their second purpose – ‘To make provision more responsive to local needs and aspirations’ (see the SEND Code of Practice at para 4.2). The mechanism to achieve this is the requirement for local authorities to publish comments on the Local Offer. This requirement is imposed by regulation 56 of the SEN and Disability Regulations 2014.

Regulation 56 imposes a positive duty on local authorities to ‘seek’ comments on its Local Offer from children, young people and parents. Importantly, comments should be sought not just on the Local Offer itself (e.g. is it searchable, is all the information accurate) but also on ‘the content of its local offer, including the quality of the provision that is included and any provision that is not included’. These comments must then be taken into account when the local authority carries out its review of the sufficiency of provision in its area, as required by section 27 CFA.

Why is this particularly relevant now? Because regulation 56 requires that local authorities must publish the comments they receive on their Local Offers ‘at least annually’, on an anonymised basis. Given that Part 3 CFA and the regulations came into force on 1 September 2014, that means every local authority should now have published its first set of Local Offer comments ‘on its website, with the local offer’.

If you are a child, young person or parent who has made a comment on your Local Offer, then now would be the time to check that it is up in lights. If it isn’t, then you may want to highlight to officers and Members that publication is overdue.

If you haven’t yet commented on your Local Offer but have something to say about ‘the quality of the provision that is included and any provision that is not included’, please do comment. It seems to me that effective use of the Local Offer comments facility is the best tool we have to hold local authorities to account in the services and support provided to children, young people and families.

Two important points to note on the Local Offer comment facility. Firstly, it must not be used as a way to make complaints about ‘services provided to a particular individual’. The local authority and NHS complaints process exist for this purpose. Secondly, a local authority is not required to publish any comment which it ‘considers to be vexatious’. The term ‘vexatious’ is not defined in the regulations; under the general legal approach a vexatious comment would be one where the purpose is purely to annoy the local authority and its officers. This is plainly a high bar and means that the vast majority of comments which relate to services generally, including highly negative comments, should be published.

I would be keen to hear about experiences of using the Local Offer comments facility – whether you could find out how to make a comment on your Local Offer easily, whether your local authority sought your comments as the regulations require whether your comment has been published and whether you have seen any difference as a result. Please leave any feedback on these issues below.

Kids Company – a symptom of system failure for children in need

Charities deliver some of the most innovative and highest quality services to children and families. But we can’t have charities taking on the responsibility for ensuring children’s needs are met – for the simple reason that it’s 2015, not 1890.

That responsibility must sit with statutory bodies, in particular local authority children’s services and the local NHS in the form of the new clinical commissioning groups. Yet the reality is that these bodies are overwhelmed and are unable to meet a fraction of the needs of the children for whom they are responsible. My colleagues who wrote this letter to the Guardian are plainly right that it is ‘pure fantasy’ that with the closure of Kids Company the statutory bodies will suddenly be able to meet these children’s needs.

It’s now 25 years since the Children Act 1989 (‘CA 1989’) came into force. It would therefore be reasonable to assume that we would have a secure legal duty which would require the state to ensure that the additional needs of children are met. Yet this simply isn’t the case; in fact, the majority of children who require extra help do not have an enforceable right to this help.

Part III of the CA 1989 is headed ‘Local authority support for children and families’. It begins with section 17, titled ‘Provision of services for children in need, their families and others’.

So to understand what section 17 does we need to know who ‘children in need’ are – and the definition is in sub-section 10. There are three sub-groups of children in need. One of these groups is ‘disabled’ children. The other two groups are:

  • children who are ‘unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision…of services by a local authority under this Part’; and
  • children whose ‘health or development is likely to be significantly impaired, or further impaired, without the provision…of such services’.

So children are ‘in need’, in short, if they need additional help from their local authority to safeguard or promote their welfare. This is a low threshold and most if not all of the children previously helped by Kids Company would meet it.

So far so good. The problem arises when we look at what it is said local authorities must do for children in need. Sub-section 17(1) reads:

It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)

(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children’s needs.

So local authorities have to provide ‘a range and level of services’ for children in need. But does this give an individual child a right to a service? By a majority of 3-2 the House of Lords in R (G) v Barnet said not. At para 91, Lord Hope held that section 17(1) ‘sets out duties of a general character which are intended to be for the benefit of children in need in the local social services authority’s area in general’. The contrast here is with a ‘specific’ duty, which is owed to individuals and gives those individuals an enforceable legal right to whatever it is that the duty mandates.

So the position is clear. Following the Barnet case, although there is a duty to assess the needs of children in need there is ‘not…a duty to provide the assessed services’ for any individual child; see Lord Justice Munby in R (VC) v Newcastle at para 21.

In the Barnet case, Lord Nicholls (who was in the minority) said that the majority’s interpretation of section 17 made it ‘a poor sort of additional general duty’ (para 28). I would go further; the absence of a specific right to services means the statutory scheme for children in need is not fit for purpose.

What does this mean in practice? It means that local authorities must have services and support available for children in need generally in their area. Some children in need must be able to access those services and support. The decision as to which children are supported must be made rationally, reasonably and fairly. However local authorities will be entitled to refuse to meet the assessed needs of some children in need, including on resource grounds.

Section 17 is not the end of the legal story in relation to the children previously helped by Kids Company. For example:

  • ‘Disabled’ children (including children with learning disabilities and mental health conditions) have a specific right to services under section 2 of the Chronically Sick and Disabled Persons Act 1970, which I have written about here and here.
  • Children who do not have a parental figure who can provide them with suitable accommodation and / or care must be accommodated by the local authority under section 20 of the Children Act 1989. These children then become ‘looked after’ by the local authority in the same way as children in care and have a specific right to services and support to safeguard and promote their welfare. The resource consequences of this must be why, more than six years after the landmark Southwark judgment, we still see local authorities trying to avoid their duties under section 20 by reference to less onerous statutory obligations.
  • Where a child is suffering or is likely to suffer ‘significant harm’ then the local authority must investigate under section 47 of the CA 1989 and take appropriate action, which may include steps to take the child into care.
  • Section 11 of the Children Act 2004 requires local authorities to have regard to the need to safeguard and promote children’s welfare in everything they do. This duty can easily be breached when decisions are taken which affect children, for example Westminster’s decision to accommodate a homeless family in Milton Keynes.
  • There may be human rights obligations to provide support to children. Both Article 3 (right to freedom from inhuman and degrading treatment) and Article 8 (right to respect for family and private life) of the European Convention on Human Rights may require services to be provided to secure a child’s welfare – and these rights are embedded in English law through the Human Right Act 1998. Moreover the Supreme Court has recently emphasised the importance of the obligation in Article 3 of the UN Convention on the Rights of the Child to treat children’s best interests as a primary consideration in decisions affecting them – see my posts on the benefit cap case and Mathieson (the ‘DLA takeaway’ case) for more on this developing area.

All of these sources of legal obligations on local authorities are important. But none of them make up for the lack of a clear enforceable right to support for all children in need. Take Article 3 of the UN CRC as an example; a local authority considering whether to provide services to a child in need must take that child’s best interests as a starting point (‘primary consideration’) but may ultimately decide that other considerations (i.e. its budget) mean that services will not be provided. Is that really good enough as a legal scheme to protect children’s basic rights?

Many of the children helped by Kids Company will have complex mental health needs, some with formal diagnoses and others without. Yet the legal duties in relation to the provision of child and adolescent mental health services (CAMHS) are even less clear than those on local authorities in relation to children in need. This timeline from Young Minds sets out a host of reports, strategies and task groups to improve CAMHS services. Yet the reality is cuts to funding coupled with the absence of any clear legal rights for children and young people to access mental health services. NHS bodies provide CAMHS services under the NHS Act 2006 (as amended by the Health and Social Care Act 2012 to put the focus on clinical commissioning groups in relation to the provision of services) and the Mental Health Act 1983 and local authority input is underpinned by the Children Acts. None of this legislation creates any rights for an individual child to access CAMHS services.

There has been plenty written in recent weeks about the closure of Kids Company. The most clear-sighted article I’ve read was Zoe Williams’ Guardian interview with Camilla Batmanghelidjh. However for me the most telling part of the article was not anything said by Ms Batmanghelidjh but the comments of Mike Gee, the charity’s safeguarding manager. Zoe Williams’ summary of Mr Gee’s position is that ‘Kids Company didn’t have an adversarial relationship with the statutory services, but that those services were under so much pressure that they couldn’t afford to recognise the intensity of the need many children were in’. For anyone who has represented children in need and their families struggling to get support from a local authority this will have a huge ring of truth.

Despite the absence of the kind of specific duty that would give proper protection to all children in need, this article still suggests blatantly unlawful practice by public authorities. It is said that:

  • Statutory services ‘couldn’t treat those without a significant mental-health diagnosis’. This isn’t a legal eligibility criteria for support either from local authorities or the NHS.
  • Statutory services ‘wouldn’t recognise the illegal ones (trafficked and migrant children) as even real’. Trafficked and migrant children cannot lawfully be excluded from support on the basis of their immigration status. Indeed a prime purpose of the section 17 duty is to provide support to children and families who cannot access mainstream housing or other services by reason of immigration problems – see the Court of Appeal’s judgment in Birmingham CC v Clue.
  • ‘Without criticising Camhs, the window for statutory help – ill enough for a diagnosis, but not so ill that your behaviour is unacceptable – seems rather narrow’. If that were the window then CAMHS should surely be criticised – but it isn’t. CAMHS is a tiered service (graded 1-4), and children and young people with greater levels of need should be helped at a higher tier. Nor should there be any need for a formal diagnosis for low level support.

It is blindingly obvious that local authorities and NHS bodies don’t have the resources required to meet the needs of the children who were previously supported by Kids Company. What is perhaps more surprising is that the law doesn’t require them to do so. Without a proper framework of rights for these children to access the services and support they need from the state it is impossible to see how the services they require will ever be effectively resourced. And as a society we will continue to outsource the responsibility for meeting the needs of our children to charities, with all the risk this entails.

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