rightsinreality

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.

Tag: Children and Families Act

New Tribunal powers for health and social care – key points from the guidance

So from April* the SEN and Disability Tribunal will have new powers to make ‘non binding recommendations’ on health and social care needs and provision in EHC Plans for disabled children and young people. There is an excellent overview of the Tribunal’s new powers on the Contact website.

This is potentially a very significant development, as previously the only legal remedy in these areas was judicial review. While judicial review can be a very effective remedy in serious and urgent cases and cases involving unlawful policies, it is not so effective in cases involving disputes as to the detail of care and support for children and young people. Whereas the Tribunal, with specialist judges and expert members, really can and does get deep into the detail of what a child or young person needs and what provision is required to meet those needs.

All good so far. But…(1) this new right only extends to children and young people with significant special educational needs, because a gateway to an EHC Plan remains (in essence) having SEN which are not being met / cannot be met appropriately from a school or college’s own resources**, and (2) how are local authorities and clinical commissioning groups going to react to a ‘non-binding recommendation’ to spend more money at a time of cuts?

The devil of any new scheme is of course in the detail, and for the detail we need to go to the guidance newly published (on a supermarket-style just-in-time basis) by the Department for Education. The guidance describes the new scheme as the ‘single route of redress national trial’. Even for children and young people with EHC plans this may be slightly optimistic, as (for example) school transport still remains outside this scheme and has its own separate appeals process. However it is clear from the guidance that the DfE expects that the Tribunal will now be able to resolve disputes across education, health and social care.

The guidance is non-statutory so has no formal legal force – although I anticipate that a court will still expect it to be taken into account by local authorities and others as a ‘relevant consideration’. Its purpose is to explain the new powers enjoyed by the Tribunal under the regulations which establish the national trial. The guidance says that the (laudable) policy aims of the national trial are to: create a more holistic, person-centred view of the child or young person’s needs at the Tribunal, bring appeal rights in line with the wider remit of EHC plans, encourage joint working between education, health and social care commissioners, bring about positive benefits to children, young people and parents.

These are the 10 key points I’ve picked up from the first read of the guidance:

  1. The Tribunal’s new powers are helpfully summarised against the different types of appeal at p8. The Tribunal can make health and social care recommendations in any type of appeal except an appeal against a refusal to carry out an EHC needs assessment.
  2. There is an interesting note that ‘the Tribunal will only make a recommendation about health and social care needs or provision related to a child or young person’s learning difficulties or disabilities which result in them having special educational needs, with the exception of any social care provision made under Section 2 of the Chronically Sick and Disabled Persons Act 1970.’ This of course immediately begs the question – what is this ancient Act and what provision does it require? See my ‘mystery duty’ blog post for the answers – but in short, the CSDPA requires local authorities to provide any of an extensive list of services where these are ‘necessary’ to meet the child’s needs. This requires the local authority to carry out a child ‘in need’ assessment under section 17 of the Children Act 1989 to determine what the child’s needs are, so they can decide (applying any eligibility criteria) whether it is ‘necessary’ to meet them. This must surely spell the end of requests for advice from social care during the EHC needs assessment process coming back with ‘child not known to social care’.
  3. Another interesting note on the health side is ‘The Tribunal will not make decisions relating to conflicting clinical diagnosis from medical professionals concerning health needs or health provision.’ I think what this means is that the Tribunal will focus on the child or young person’s presenting health needs and the provision required to meet those needs, rather than on the particular diagnosis the child or young person may or may not have.
  4. The orders and recommendations the Tribunal can make in relation to health and social care are summarised at p14. The guidance states that ‘Although any recommendations made by the Tribunal on health and social care elements of an EHC plan are non-binding and there is no requirement to follow them, they should not be ignored or rejected without careful consideration. Any reasons for not following them must be explained and set out in writing to the parent or young person.’ In public law terms, this makes the Tribunal’s recommendations a form of ‘mandatory relevant consideration’ for the local authority or CCG.
  5. This section of the guidance also includes the following; ‘It is important to be aware that, should an LA or responsible health commissioning body decide not to follow the recommendations of the Tribunal, parents and young people can complain to the Ombudsmen or seek to have the decision judicially reviewed.’ This is a welcome reference to the ability of the High Court to control how local authorities and CCGs respond to Tribunal recommendations through judicial review – ensuring that they are properly taken into account in decision making, that the process for deciding whether to follow them is fair and so on.
  6. In terms of evidence, the guidance states at p16 that ‘For a trial appeal, the LA will be required to provide evidence from the health and/or social care commissioners.’ The Tribunal will have the discretion to allow the parties to bring additional witnesses to address health and social care issues. As such parents and young people will need to consider whether they need evidence from (for example) an independent social worker to supplement the education- focused evidence they may have obtained from (for example) an educational psychologist. This of course will add to the costs of the appeal for parents and young people (other than those who may get the costs of expert reports met through legal aid). However the Tribunal has always (rightly) been heavily influenced in its decisions by good quality expert evidence and I do not anticipate that this will change in relation to health and social care recommendations. Note that the Tribunal expects to publish new guidance for professional witnesses shortly on how to present their evidence.
  7. There is a helpful note in the guidance, by reference to how witnesses present their evidence, that ‘ Specification means being clear what needs a child or young person has and quantifying and qualifying what provision they require, including who will deliver that provision, when, how often, for how long and the arrangements that should be in place to monitor its effectiveness.’
  8. The high point of the guidance, at p18, is the statement that local authorities and CCGs are ‘generally expected’ to follow the Tribunal’s recommendations on health and social care.
  9. One issue in the guidance which has already caused understandable controversy is the section on funding (p22); ‘LAs and CCGs will be reimbursed for reasonable costs incurred in taking part in the trial. A grant will be awarded for SEND Tribunal trial activity up to the total value of £4,000 per case for the period of the trial.’ There is of course no equivalent grant for parents and young people facing the additional costs of trying to have their child’s needs or their own needs properly identified and met.
  10. Section 5 of the guidance deals with ‘Implications of not following recommendations’. The strong message running through this section is that DfE desperately wants the Tribunal’s recommendations to be followed. The guidance emphasises that ‘should an LA or responsible health commissioning body decide not to follow the recommendations of the Tribunal, parents and young people can use a range of alternative routes of complaint, including complaining to the Ombudsmen or seeking to have the decision judicially reviewed.’ After a detailed description of the powers of the various Ombudsmen, there then follows a rare and welcome exposition of what judicial review is and how it can be used to ensure Tribunal recommendations are properly considered. The emphasis of the potential for local authorities and CCGs to be judicially reviewed seems to me to be the clearest steer that DfE is urging them simply to follow the Tribunal’s recommendations. Responses to Tribunal recommendations will also be considered by Ofsted and the CQC as part of the inspection process.

One critically important point remains. Nothing in the national trial alters the basic legal position under section 21(5) of the Children and Families Act 2014, being that all provision which ‘educates or trains’ a child or young person becomes educational provision for the purposes of EHC plans, rather than health or social care provision. It is therefore vital that before getting in to whether to make recommendations on health and social care, the Tribunal properly assesses whether the contested provision is in fact educational provision and should go in Section F of the plan, which the Tribunal has the power to re-write. Given the breadth of the concepts of ‘education’ and ‘training’ it seems to me that most of the provision that children and young people require will be ‘educational’ provision in their plans, even if it is usually commissioned by health or social care or delivered by health or social care staff.

The next few months will begin to make clear whether the new trial is an effective remedy for families in relation to health and social care needs and provision or a damp squib. I’m cautiously optimistic that it will be the former, at least for the minority of children and young people with significant SEN who have the benefit of a joined up plan. Other disabled children and young people will continue to need to rely on the social care and health complaints processes, and judicial review in serious and urgent cases or where a policy issue is involved.

*The trial applies to local authority decisions and EHC plans issued or amended from 3 April 2018.

**The educational-led nature of the system is also emphasised by this extract from the guidance, correctly summarising the legal position; ‘If mediation resolves the appealable educational issues, the parent or young person will not be able to ask the Tribunal to make recommendations on any health and/or social care aspects of the EHC plan’.

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All the key ‘sufficiency’ duties for disabled children and young people

When looking a public bodies’ proposals to cut funding, one of the key legal questions which arises is whether there is a ‘sufficiency’ duty in the relevant area. I thought it might be helpful if I set out all the key sufficiency duties for disabled children and young people in one place, so here goes:

  1. Education and care provision for disabled children and young peoplesection 27 of the Children and Families Act 2004 states that as well as keeping education and care provision under review, local authorities must ‘consider the extent to which the provision…is sufficient to meet the educational needs, training needs and social care needs of the children and young people concerned’. In considering this local authorities have to consult with (amongst others) children, young people and parents. Section 27 is therefore likely to be important in any case involving cuts to education or care services for children and young people.
  2. Adult social care servicessection 5 of the Care Act 2014 is often described as the ‘market shaping’ duty on local authorities. However as well as generally promoting an effective market in services, every local authority must ‘also have regard to the need to ensure that sufficient services are available for meeting the needs for care and support of adults in its area and the needs for support of carers in its area.’
  3. Short breaksregulation 4 of the Breaks for Carers of Disabled Children Regulations 2011 requires local authorities to provide ‘so far as is reasonably practicable, a range of services which is sufficient to assist carers to continue to provide care or to do so more effectively.’ This is a key duty in relation to the provision of short breaks.
  4. Childcaresection 6 of the Childcare Act 2006 mandates that local authorities must provide ‘secure, so far as is reasonably practicable, that the provision of childcare (whether or not by them) is sufficient to meet the requirements of parents in their area who require childcare in order to enable them to [work or study]’. This requirement extends up to 18 in relation to childcare for disabled children.
  5. Children’s Centressection 5A of the Childcare Act 2006 states that childcare arrangements must ‘must, so far as is reasonably practicable, include arrangements for sufficient provision of children’s centres to meet local need.’ These have to be physical centres, as per the definition in sub-section 4. This is why it would be very unlikely to be lawful for a local authority to decide to close all its children’s centres.

It is obvious that all of these duties are subject to important qualifications. The first two duties listed above are ‘regard’ duties, which require local authorities to ‘think about’ the need for sufficiency rather than actually achieve sufficiency. The final three duties are focused more on outcomes, but are qualified by reference to reasonable practicability. This means that local authorities can take account of their own resources when deciding what level of provision to make. However in my view it is clear that when contemplating cuts in these areas local authorities must understand the level of demand for a particular service and assess the extent to which the remaining service will be sufficient to meet local needs if the cut is to be made lawfully. Very often in my experience this fundamental requirement of lawful decision making is not met. Those who have concerns about cuts in their area which may breach one or more of these sufficiency duties will need to get advice ASAP.

No doubt there are other important sufficiency duties for disabled children and young people than those listed above – suggestions for other duties to include in this post are welcome using the comments below.

Book review – Special educational needs and disability discrimination in schools

Disclaimer – I was sent a free review copy of this book by the publishers, Legal Action Group (LAG), and I am also a LAG author. This is still a really good book though, honest.

As education budgets are cut and pressures on schools mount, it is ever more important that parents, children and young people know the law and use the law (copyright Senior Tribunal Judge McConnell). That task has been made significantly easier by the publication last year of Special educational needs and disability discrimination in schools: a legal handbook (Legal Action Group). Written by three highly expert education barristers from Matrix Chambers, the book is a very practical guide to some of the key areas in the SEND system.

I was struck by the fact that the book gives only four pages to the position of children with SEN but without an EHC plan, while EHC assessments and plans (rightly) get two full chapters. This reflects the fact that the detailed legal scheme for SEN really only kicks in at the stage of EHC assessment. The importance of the EHC process in law needs to be kept in mind when some local authorities are considering adopting forms of extra-statutory replacements for this process. The book provides expert guidance on how to navigate the process mandated by the law.

It is great to see that the book devotes a whole chapter to the position of children and young people with SEN in detention. We know the rates of SEN amongst the detained population are sky high and one of the most welcome innovations under the Children and Families Act 2014 was a focus on their needs. The book helps explain how to make those rights real.

There are also chapters on appeals to the Tribunal (including onward appeals to the Upper Tribunal), disability discrimination, school transport and inter-authority disputes – the last being particularly welcome as a tool to help families avoid getting lost in a maze of local authorities seeking to avoid responsibility for the child or young person.

As can be expected with a LAG handbook, this book is an essential reference point for families, advisers and professionals. I cannot imagine that there is anyone who is involved in the SEN process at any level who would not benefit from a copy. Not only is there the expert commentary from the three authors, reviewing the legislation and case law, but the book also contains the key provisions of the legislation and Code of Practice, making it a handy reference guide. Each chapter begins with a very helpful summary of key points, which can act as a ‘myth buster’ in relation to the relevant area of law.

The law is stated as at January 2017 but there has been little if any substantive change in this area of law since then – the only obvious thing missing from the book as the result of the passage of time will be the guidance from the Upper Tribunal in a couple of recent cases, which will hopefully feature in a second edition. As there is nothing to suggest that there will be any wholesale changes to SEND law soon (answers on a postcard as to whether that is a good or bad thing), it seems to me that it is well worth investing in this book even though it is a year old.

Finally – shameless plug alert – this book is an excellent companion to Disabled Children: A Legal Handbook, which I co-author for LAG. Our book provides an overview of a wide range of legal issues affecting disabled children and young people, for instance social care, housing and mental capacity as well as SEN, whereas this book focuses on the SEN system created by the Children and Families Act. The absence of properly joined up legislation to meet the needs of all disabled children and young people perhaps explains why two books are necessary rather than one.

Special educational needs and disability discrimination in schools: a legal handbook is available from the Legal Action Group website (£45 – hard copy and ebook).

Disabled Children: A Legal Handbook is available from the Legal Action Group website (£50 – hard copy and ebook). The chapters can also be downloaded free of charge from the Council for Disabled Children website.

(These books concern the law in England. Not only is the law in Scotland very different but Welsh SEND law also now has significant differences to England, as I believe does Northern Irish law. I do not know of any similar books in relation to Scotland, Wales or Northern Ireland but if any readers are aware of such books please leave a comment with a link).

SEND Tribunal health and social care powers – still no parity with education

A parent of an autistic child once told me that the real ‘triad of impairments’ experienced by her family was education, health and social care. Disabled children’s needs don’t exist within neat service boxes, but there remain deep silos between these three different agencies.

The Children and Families Act 2014 went some limited way to addressing this problem, particularly through the creation of Education, Health and Care Plans (EHCPs). However even within the context of EHCPs real divisions between the three service areas remain. For example, the trigger for an EHC needs assessment is only (in short) significant levels of educational need. A child could have the most complex health or social care needs and still not qualify even for this form of assessment if their educational needs are modest.

Even for those children who do qualify for an EHCP, the duties to implement the provision in the plan are different across the different agencies. Section 42 of the 2014 Act imposes duties on local authorities to ‘secure the specified special educational provision for the child or young person’ and on CCGs to ‘arrange the specified health care provision for the child or young person’. Section 42 doesn’t say anything about social care provision, so this area of provision is underpinned only by the previously existing law, in particular section 2 of the Chronically Sick and Disabled Persons Act 1970 which is horribly out of date.

The fact that it continues to matter greatly whether needs or provision are educational, health or social care is demonstrated by section 20(5) of the 2014 Act. This put into statute a rule that ‘Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision)’. This ‘deeming provision’ turns (for example) a host of therapy services which might generally be the responsibility of the NHS into ‘educational provision’ for children with EHCPs, meaning that such provision becomes the responsibility of the local authority for those children.

All this brings us on to the latest innovation in the SEN system – the nationwide extension of the pilot allowing the Tribunal to make recommendations in relation to health and social care provision (i.e. all health and social care provision that isn’t ‘deemed’ to be educational provision). This is brought about by the SEND (First-tier Tribunal Recommendations Power) Regulations 2017. There is an excellent background article on the Tribunal’s new powers on the Special Needs Jungle website, including a link to the analysis by CEDAR of the very limited earlier trial.

A few things to note:

  1. These regulations come into force on 3 April 2018 and only apply to appeals (a) against decisions of local authorities made on or after that date or (b) relating to an EHCP made or amended on or after that date. It is expected that this nationwide trial will last two years.
  2. Unlike in relation to the SEN sections of an EHCP which the Tribunal can require to be rewritten, the Tribunal’s powers in relation to health and social care needs and provision are limited to making ‘recommendations’ .
  3. By their nature recommendations are non-binding. There may well therefore be cases where the local authority or CCG consider and reject the Tribunal’s recommendations. The remedy in such cases would be a complaint to the Ombudsman or (in serious and urgent cases) an application for judicial review (JR). However a successful JR would need to show an error of law in the approach of the local authority and / or CCG, for example irrationality or a failure to take all material considerations into account.
  4. The duty on the CCG or local authority is to respond to any relevant recommendations, including giving written reasons for any decision not to follow all or part of the recommendation.

It is therefore crystal clear that even when this new power comes into force the appeal rights available to parents and young people will be weaker in relation to health and social care than presently exist in relation to SEN. The Department for Education has stated that ‘we would generally expect that recommendations are followed’, however such an expectation has no legal force. It is though likely that many Tribunal recommendations on health and / or social care provision will be followed by local authorities and CCGs, at least in part. If they are not, then the requirement to provide written reasons will give young people and parents a sound foundation for further challenge in appropriate cases. This represents progress, even if we remain a long way from a properly joined up system for disabled children, young people and families.

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.

 

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.

The rights of siblings of disabled children

This post considers the rights of an often-neglected group of children – siblings of disabled children (also known as ‘brothers and sisters’ off Planet Social Care). Given there are 700,000 disabled children, that’s an awful lot of siblings whose interests are being neglected.

I’d been meaning to write this post for a while as the issue comes up regularly when I speak to parent forums, but it went to the top of the list after I saw this powerful article from Saba Salman, focusing on adult siblings (who have new rights as carers under the Care Act 2014). For this post I’ll use the shorthand ‘siblings’ to mean a child who is the brother or sister of at least one disabled child.

The starting point is of course that siblings have the same rights to access universal and mainstream services as all other children – schools, playgroups, children’s centres and so on. Siblings also have the right to access these services without discrimination ‘by association’ – meaning they cannot be discriminated against because of their connection to a disabled child. There is an example of this in government guidance:

Sonali is refused a place at her local playgroup because the management committee knows that her younger brother has cerebral palsy. They operate a policy of automatically offering places to siblings and they are concerned that looking after her brother would take too much time. This is direct discrimination against Sonali because of her association with her brother.

However, it appears that discrimination by association only covers instances of direct discrimination and harassment – for example, the Court of Appeal has held that there is no entitlement to reasonable adjustments by association with a disabled person.

What about entitlements to additional support for siblings, over and above the services available to other children? There are two potential routes to access this support – the ‘child in need’ route and the young carers’ route. Both routes are linked and are considered in turn below.

Firstly in relation to the child ‘in need’ route, it is important to bear in mind that under section 17(3) of the Children Act 1989 services can be provided to any member of a child in need’s family, if it is provided with a view to safeguarding or promoting the welfare of the child in need. As all disabled children are children in need*, a local authority may therefore provide any services it wishes to a disabled child’s sibling(s) where these would safeguard or promote the disabled child’s welfare. An example might be to fund a regular activity session for the sibling to help reduce tension where the relationship between the sibling and the disabled child is deteriorating.

Secondly, siblings may themselves be children in need – not least because of the impact of them of the needs of their disabled brother or sister (or more accurately perhaps the lack of support their disabled brother or sister receives). Assuming the sibling is not themselves disabled* then they would need to meet the tests in section 17(10)(a) or (b) to qualify as ‘in need’. These are that:

a. he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; or

b. his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services.

Either or both of these tests may well be met where, for example, a sibling is living with a child with autism in unsuitable or overcrowded accommodation and is unable to study or play as a result. In many cases, the only way in which the local authority will be able rationally to determine whether either of these tests is met is to carry out an assessment under the Working Together statutory guidance.

So many (most?) siblings of disabled children will be entitled to a child in need assessment in their own right to determine whether they are ‘in need’ and if so what if any services the local authority ought to provide to them. That decision will have to be taken rationally, reasonably and fairly and with all the relevant information considered, including of course the child’s own views. There is however no absolute right to support under section 17 of the Children Act 1989 – by contrast to the Chronically Sick and Disabled Persons Act 1970 which imposes the key duty to support disabled children.

The second route to additional support for siblings is the new set of rights given to young carers under section 94 of the Children and Families Act 2014. Section 94 inserts new sections 17ZA-17ZC (bear with me…) into the Children Act 1989. These create a new right to a ‘young carers’ needs assessment’ which has significant parallels with the parent carers’ needs assessment about which I have previously blogged.

To make sense of this new right (since April 2015) we first need to understand who is a ‘young carer’. The definition is very broad – it is a person under 18 who provides or intends to provide care for another person and is not doing so under a contract or as voluntary work.** This would clearly include a sibling who provides any level of care to a disabled child. It is also important to note that ‘care’ includes the provision of practical or emotional support (section 17ZB(5)). So any sibling who does any practical tasks for their disabled brother or sister or who provides them with any emotional support is a ‘young carer’.

The duty on local authorities is to ‘assess whether a young carer within their area has needs for support and, if so, what those needs are’ (section 17ZA(1)). The bar for when a local authority must carry out such an assessment is set very low – either the appearance of need for support or a request for an assessment from a young carer or a parent of a young carer is sufficient to trigger the duty to assess.

Importantly, section 17ZA(7) reads as follows: ‘A young carer’s needs assessment must include an assessment of whether it is appropriate for the young carer to provide, or continue to provide, care for the person in question, in the light of the young carer’s needs for support, other needs and wishes.’

This seems to me to be an absolutely central consideration. I am very uncomfortable about any assumption that a child should be providing care for another person. There is certainly no legal requirement on a sibling to provide care – although I recognise that the practical reality is that many siblings who provide care may feel they have little choice. Section 17ZA(7) should make sure that any child providing care is actively choosing to do so and is properly supported in the caring role.

There are a number of links between the young carers’ needs assessment and the child in need assessment of the disabled child. Firstly, these assessments can be combined if both children agree (section 17ZB(7)). 

Secondly, the point of a young carers’ needs assessment is to determine whether services should be provided to the young carer under section 17 of the Children Act 1989 – this presumably being a reference to the power under section 17(3) discussed above, although this still requires the services to safeguard or promote the disabled child’s welfare.

There is also a power for a young carers needs assessment of a sibling to be done at the same time as any other assessment of the sibling – which would include a child in need assessment (section 17ZB(6)). So it would seem to make sense to request a combined young carers assessment to look at the siblings care related needs and child in need assessment to look at wider needs. The local authority would need to have good reason to refuse a request to take this joined up approach.

Regulations have been made which expand on the young carers’ needs assessment duty. Regulation 2 sets out general requirements of the assessment process, starting with the principle that the assessment should be ‘appropriate and proportionate to the needs and circumstances of the young carer’. Regulation 3 mandates the training and expertise required of those carrying out assessments.

Regulation 4 is particularly important, because it sets out a startlingly long list of decisions the local authority must make at the conclusion of the assessment process. This includes determining ‘whether any of the young carer’s needs for support could be prevented by providing services to (i) the person cared for, or another member of the young carer’s family’ (Regulation 4(2)(e)). Further, regulation 4(2)(h) requires the decision to be taken at the conclusion of a young carer’s needs assessment as to whether the sibling is a child ‘in need’ themselves. Any lawful assessment will need to result in decisions in relation to all the matters specified in regulation 4, which must of course then be shared in writing with the sibling and their parent(s) (section 17ZA(10)). 

So the scheme under the Children Act 1989 (as amended) clearly provides for careful consideration by local authorities of the additional needs of siblings, particularly where they meet the low threshold to be treated as ‘young carers’. However even siblings who are not involved at all in the care of their disabled brother or sister may still have a right to assessment and may potentially receive services as a child ‘in need’. The Children Act therefore reflects the positive obligation in Article 8 of the European Convention on Human Rights to provide support to enable family life to continue for families with disabled children. Indeed in certain cases Article 8 and the relevant international conventions may create the duty to provide such support following an assessment.

I hope this review of a typically complex area of social welfare law is some help for families looking for additional support. Any comments welcome, including where people have tried to access support for siblings using either of these legal routes.

For support and advice generally for siblings of disabled children (and adults), check out the website for the excellent charity Sibs – and their Youngsibs website for siblings themselves.

* see Children Act 1989 section 17(10)(c) and (11) for the very broad definition of ‘disabled’.

** Children Act 1989 section 17ZA(3) and 17ZB(3). A local authority may choose to treat ‘professional’ child carers as young carers, see section 17ZB(4) – but I find it hard to imagine when it would exercise this power.

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