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: Cuts

The duty to provide a full five-day post 16 education programme

I’m very pleased to host this guest post from Rachel Adam-Smith, whose successful legal challenge in relation to her daughter Francesca’s post-16 education shows yet again that judicial review can be a real remedy for children, young people and families. Rachel explains below why she was forced to pursue a judicial review claim to get Francesca full time education post 16 and gives some tips for others considering legal action.

The problem

In March 2017 I arrived home to a letter from school. This letter detailed the cuts that were going to be made to post 16 education, for children with disabilities attending West Oaks Special School (Leeds Local Authority).

These cuts were totally unexpected, and I immediately felt upset and anxious, because I knew I was about to face another battle. I was determined not to allow Francesca and her peers to lose their vital provision. Francesca had every right to receive a full five-day education.

The letter from the Headmaster stated that my daughter’s education from 16 plus would be cut to three days a week. The letter stated that children would be able to volunteer, do work experience or have private care on the two days they would not be in school. It was clear no thought had been given as to how a child with severe disabilities would be capable of doing work experience or volunteering. Francesca certainly would not have been capable due to the complexity of her needs. Francesca is unable to speak, read or write and requires constant one to one support. Furthermore, Francesca’s choice to be educated and her entitlement to stay in full time education, as per mainstream children had seemingly disappeared.  Realistically, I would have been left to fund private care on those two days or look after her myself. I thought that these cuts were discriminatory.

For many working parents, these cuts would mean a reduction in their working hours (if they are able to work) or they may have to give up work, which will leave them caring for their child with no educational input to enable them to reach their potential. The educational provision in Francesca’s EHCP would not have fitted into a three-day timetable. As far as I was aware, the local authority cuts to provision were decided without carrying out an equality impact assessment or consultation. It seemed to me to be a decision made by people with little or no experience of caring for a child with special needs.

From previous battles I have had (four tribunals and two panel hearings), I have often felt that the council view children with disabilities as ‘not worth it’ and an ‘easy target’ to take provision from.  The argument always centres around funding rather than what the child needs.  Moreover, it seems that there is no thought given to how the cuts to education would impact not only the children but also the parents. The cuts would leave children isolated and drive parents into poverty. Coping financially with a severely disabled child with no or little support, disadvantages most parents.

Judicial Review as the solution

The letter from school stated that a meeting would take place in around two months to discuss the reduction in education in more detail. At the time, I was in the first year of my law degree at The University of York and ironically that very week, I had attended a lecture on judicial review. I did not realise I would be calling upon my learning quite so soon.

My learning enabled me to understand that judicial review might be a possibility to challenge these cuts. If I had not been doing a law degree, it is highly likely that I would have waited the two months for the meeting, by which time the opportunity to bring proceedings would have passed. Other parents I spoke with had no idea what to do, had not heard of judicial review and were seemingly happy to wait the two months for the meeting. However, I knew that the cuts to education could not be lawful and set about finding a solicitor who was willing to help us.

Francesca’s lawyers

It was suggested via a twitter source that I contact the Public Law Project (PLP) and I spoke with solicitor Katy Watts. From the beginning Katy was very understanding, listened to what I had to say and acted upon it. Katy really understood my financial situation, appreciated the arguments I put forward and the importance of ensuring Francesca’s education was not subjected to these cuts. She was extremely thorough, travelling up to Leeds to meet with me to ensure she understood Francesca and the importance of her education.  Initially, it was unclear how the case would be funded, I was not within the legal aid criteria but had no available capital to fund the case.  However, Katy applied for a legal aid certificate in Francesca’s name and we commenced proceedings.

The process

PLP sent three pre-action letters in total. The first one went to West Oaks School. West Oaks responded by agreeing to consult with parents about the changes, and disclosed several letters, minutes and meeting action notes from all the school’s meetings with Leeds about the changes. The disclosure revealed that Leeds had implemented top up funding to allow one more year of full time provision, but would not continue this beyond September 2018.  Based on this information PLP sent a further pre-action letter to Leeds, challenging their decision not to provide top-up funding for five days from September 2018.  Leeds responded, stating that their decision to provide three days was based on its new ‘Funding for Inclusion Handbook’, which set out that three days of education would be the norm, but that in exceptional cases additional days could be supported. PLP then sent a further pre-action letter challenging this lawfulness of the policy in the handbook, arguing that five days should not be provided only in exceptional cases.

As this did not persuade Leeds to change their minds the judicial review application was then issued. It was disappointing that Leeds were not able to recognise the unlawfulness of their decision and that it was necessary to issue JR proceedings.  It is costly for both sides to proceed to JR; this money would be better spent on the children’s education. Furthermore, at a critical time in Francesca’s education, I found myself in the midst of court proceedings, which created uncertainty for the future for both of us. It is totally unacceptable that I find myself having to repeatedly challenge the local authority for their unlawful decisions. Most parents have the security of knowing their child’s education is safeguarded until 18, I and other parents whose children have SEN do not have the same privilege.

Outcome

The outcome of the case is that Leeds have accepted that it cannot restrict funding to three days, where more education is required by an EHCP. Leeds have refused to amend their handbook, but it is clear that the handbook is no longer the sole basis for funding decisions. The extra two days for Francesca are going to be funded from the social care budget, but Leeds have agreed that the two days that are funded will be education, not social care. I hope that this successful outcome for Francesca will also help other young people, both in Leeds and elsewhere, given that councils must be consistent in their decision making.

Tips

Go with your gut instinct, if you think something does not seem right then start asking questions, contact IPSEA or a solicitor for initial advice.  Do not just believe everything that the school or other parents tell you. It is easy to just be swept along believing that someone else will do something to put it right. Do not feel defeated. I appreciate it is easy to feel defeated, particularly, given our role as carers, we are often exhausted, but time is often crucially important for bringing a case.

Parents can often feel intimidated by either the school, the council or solicitors but you must try and put any fear aside.  By way of example, following the letter, I attended the meeting at the school that was promised.  The request for judicial review had been submitted to the court that week but PLP advised me to attend to see whether anything had changed. During the meeting parents were told there was no legal argument and if there was, the school would be arguing it. Please do not always believe what is said, take advice, even if other parents are saying there is no point. In my case the school was wrong, and my gut instinct was right. Ensure you stand up for your child’s rights, so that you can be 100 percent sure you have done all that you can.

Final thoughts

I wish that it was not necessary to have to give tips on challenging cuts to education. A parent caring for a child with disabilities should not find themselves repeatedly in this position. I would love to just be able to spend time with my daughter without constantly fearing the next letter that arrives. Our caring role is already demanding enough without having to constantly challenge the local authority. A parent’s wellbeing is equally as important as the child’s, if parents are exhausted from constantly challenging, how are we expected to be energised to care for our child. It is time that we are able to be ‘just parents’.

In my opinion the local authority should support parents and challenge Government cuts, rather than just accepting them. A child’s rights should be of paramount consideration. The local authority has a duty to uphold children and young people’s human rights (section 6 of the Human Rights Act 1998). There is a strong argument in my view that councils making cuts are in breach of the Human Rights Act by not taking action to prevent this (right to education in Article 2, Protocol 1 ECHR combined with Article 14 requiring non-discrimination).

Thank you to Francesca’s lawyers, Katy Watts at the Public Law Project, David Wolfe QC, and to the York Law School for their lecture on judicial review which coincided perfectly with the arrival of ‘the letter’.

Rachel Adam-Smith, mum to Francesca.

https://publiclawproject.org.uk/latest/plps-client-wins-fight-for-education/

 

 

 

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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.

It’s not funny, to cut SEND money

I have shamelessly stolen the title for this blog post from Milo, a young man involved in the successful campaigning on SEN cuts in Hackney. Milo chose a donation from me to the fund to help save the Kids playground in Hackney as the price of this theft. Milo explained why as follows: ‘I am choosing the Kids adventure playground because I like it and it’s really cool to play in because disabled children can play there with their brothers and sisters.’ Please support the playground if you can.

So local authorities across England have now set their budgets for 2018-19 or will do so in the coming weeks. Some have taken every possible step to protect the services that matter to disabled children, young people and their families. Others, not so much. This blog post highlights some points of interest for all concerned with saving these vital services and challenging cuts.

First, I’m taking part in a webinar with Contact and Alex Rook from  Irwin Mitchell solicitors on ‘Using the law to challenge cuts’. The webinar is now fully subscribed but will be available to view through Contact online after the event – details tbc. If you can’t attend the webinar but have questions for us please either leave comments here or tweet me (@stevebroach). There is also very helpful advance reading in a guest blog from Alex’s colleague Mathieu Culverhouse dealing with the practicalities of using the law to challenge cuts.

Alex was the solicitor for the amazing families in #NascotLawnJR. In the unlikely event that there is anyone reading this blog who doesn’t already know, this case involved a number of families whose children have complex health needs who came together and fought the decision by their Clinical Commissioning Group (the local NHS) to pull funding for an overnight short break centre. The CCG’s funding decision has now been held unlawful and quashed by the court not once, but twice.

The outcome of Nascot Lawn is powerful evidence that judicial review can achieve real benefits for disabled children, young people and families – ensuring cuts cannot be made unless and until a lawful process has been adopted. It is important to emphasise that even ‘process’ challenges – for example concerning a failure to consult lawfully or to discharge the ‘public sector equality duty’ – can have real and lasting benefits. Where a cut is quashed because it was adopted following an unlawful process it routinely happens that the public body do not remake the decision but instead find the necessary savings another way. This is supported by excellent research from the Public Law Project which found that ‘Claimants for JR gained a wide range of tangible benefits: the most common of which were conferment or retention of a service by a public body…’.

However in relation to the coming round of cuts it may well be possible to go beyond the typical ‘process’ challenges in judicial review. In fact Nascot Lawn itself was more than a ‘process’ challenge – the CCG’s funding decision was held to be unlawful in substance as the CCG had failed to appreciate that Nascot Lawn was a ‘health service’ under the NHS Act. As this blog post explains, services for disabled children, young people and families are supported by a range of ‘specific’, ‘sufficiency; and ‘due regard’ duties. It may well be that some of the proposed cuts are unlawful in substance because they will result in the local authority (or CCG) breaching one or more of these duties. This will not then just be a question of the decision being quashed and the local authority or CCG being required to think again – if any of these kinds of challenges succeed then the cut would not be able to be made at , or at least not in the form held to be unlawful by the court.

Of course local challenges will only be able to do so much in the current context. Local authorities cannot magic up sufficient money to replace the central government funds they have lost. This is why campaigning efforts towards central government such as this petition by the Disabled Children’s Partnership are so important. It is only through work like this that we can move away from making sure that cuts are lawful to a focus on the kind of investment and expansion in services and support that families really need to see.

A final point – I wanted to emphasise that cuts are a human rights issue. The ‘socio-economic’ rights under the UN Conventions on children’s rights and disabled people’s rights all require ‘progressive realisation’ – as the Disability Convention states (Article 4(2)), the government has undertaken to ‘take measures to the maximum of its available resources…with a view to achieving progressively the full realization of these rights’. In simple terms that there should be ongoing progress towards achieving the rights to education, health, independent living and so on for disabled children and young people. This is why the UN Committee, in its General Comment on the right to education, states that ‘any deliberately retrogressive measures’ on education funding ‘must not disproportionately target learners with disabilities at any level of education’. In my view the same must hold true for health, social care and all other areas of public life which matter to disabled children and young people (i.e. everything).

If this post leads you to want to consider challenging cuts in your area, you may want to contact a specialist solicitor – and you will need to move quickly, as if funding is to be restored a judicial review would need to be heard within a matter of weeks if at all possible.

Guest blog – using the law to challenge cuts – Mathieu Culverhouse, Irwin Mitchell solicitors

I’m very pleased to have a guest post on rightsinreality from Mathieu Culverhouse at Irwin Mitchell solicitors, one of the leading public law solicitors involved in challenges against cuts. I’ve written a number of times on the blog about the law that can be used to challenge cuts. I asked Mathieu to focus on a related issue – the practicalities of how to bring such cases to court. The questions were sourced on social media, with thanks to all those who responded. Over to Mathieu…

1.Parents who know their children’s rights can contest individual decisions at Tribunal, but what collective options are available to contest cuts?

Challenges to cuts are generally brought as applications for judicial review. Whilst ‘group actions’ are common in the US, and increasingly in the UK in relation to consumer and personal injury claims, for practical reasons they have not to date been used to bring legal challenges to cuts.

The main practical reason for this is that, with the availability of legal aid for individuals, and the advent of crowd funding (see further below), it is far simpler and easier for an individual, or a small number of individuals, to bring a cuts challenge.

However, collective action still plays an important part in bringing cuts challenges to court.  Having an organised campaign group from an early stage can be extremely helpful in identifying a suitable individual or individuals to act as claimants in an application for judicial review.  The campaign group can also assist in gathering witness evidence from others, in addition to the claimants, who are affected by the decision.  And of course, where a claim is being paid for through crowd funding, an active campaign group is vital for raising awareness and funds.

2. When is the right time to try to bring legal challenges to cuts?

The sooner the better.  A claim for judicial review must be brought promptly and not later than three months after the grounds for the claim first arose. The need for a claim to be brought ‘promptly’ can mean that where a case involves a challenge to a particularly significant decision (for example a challenge to a council’s budget), a court might still say that a claim has been left too late even if it is issued within three months.

It is therefore vital to start the process of seeking expert legal advice as soon as possible.  A solicitor will be able to help you identify the decision which needs to be challenged, the date of that decision, and whether there are good legal grounds to challenge it.

It may be that your solicitor will advise that it is too soon to bring a judicial review challenge (for example if a final decision on the issue has yet to be made), and that you need to wait before bringing a formal challenge. But this is a complex and technical area of law, and it is therefore crucial to get specialist advice from the outset, rather than risk missing the opportunity to bring a challenge by leaving it too late

3. What does being a ‘claimant’ in a cuts challenge actually involve?

The ‘claimant’ in a cuts challenge is the person who is bringing the claim, and will usually be someone who uses the service which is being cut.

In order to bring a challenge the claimant will need to instruct lawyers (often funded by legal aid – see below), who will then prepare the necessary paperwork for the court.

Where the service user is a child or an adult who does not have the mental capacity to instruct lawyers, a ‘litigation friend’ can instruct the lawyers on their behalf.  This could be a family member, a carer, a friend or any other suitable person. Legal aid can still often be obtained for the child or adult who actually uses the service.

Once the claimant has instructed lawyers, the lawyers will do the vast majority of the work involved in bringing the case to court.  Depending on the type of case, the lawyers might need the claimant to provide documents (such as letters, emails or care assessments), and the lawyers are also likely to want to take a statement from the claimant or the litigation friend.  Again, the work of taking a statement will be carried out by the lawyer.

Although the claimant will usually provide a written statement to the court, it is extremely unlikely that the claimant will be required to speak in court.  These kinds of cases are usually very dry, technical affairs, and all the talking in court is done by lawyers rather than witnesses.

This kind of case is nearly always held in public, which means that supporters of your case are able to attend the hearing.  This can often be helpful, to show the judge the strength of public feeling about the issue. However, if a large number of people are expected to attend, it will usually be a good idea to let the court know in advance so that they can make any necessary arrangements (e.g. holding the hearing in a big enough court room).

Some claimants might find that the idea of attending court is too much for them, or they may simply be unable to because of the nature of their disability.  Whilst it is always good to have the claimant in court for the hearing, it is equally fine if they are unable to attend, and the court will be sympathetic and understanding about this.

If a claimant is particularly vulnerable, for example in the case of a child or an adult who lacks the mental capacity to instruct lawyers, the court can be asked to make an order for anonymity, meaning that the claimant’s name will not appear in the published court papers and cannot be reported in the media. This request will usually be accepted although it is not guaranteed – but the issue of anonymity can be resolved before any public hearing so the claimant does not have to proceed if anonymity is refused.

4. Can you still get legal aid to challenge cuts?

Shout it from the rooftops – legal aid is still available to challenge cuts.  Many people are under the mistaken impression that legal aid has been abolished altogether, but that is not the case.  Although legal aid has been restricted (or removed altogether) for a number of areas of law, it is still available for ‘community care’ and ‘public law’ challenges, which in practice means that it is available to challenge cuts to public services.

Legal aid for these cases is means tested, but it is important to understand that where there is a potential court challenge, the means test is based on the service user’s means (whether that is a child or an adult) and not their parents’ or carers’ means.  The means test for legal aid is complicated, but in general terms people whose only income is from state benefits, or who are otherwise on a low income, and who have limited capital, will usually qualify. Specialist solicitors will be able to advise on the detailed requirements of the legal aid system.

 And, whilst in recent years the number of lawyers working in legal aid has reduced significantly, there remains a small but dedicated community of solicitors and barristers working in this field.  See here for a non-exhaustive list of specialist solicitors. 

5. How can you fund a cuts challenge if you can’t get legal aid?

In recent years more and more people have turned to crowd funding in order to bring legal challenges.  A number of online platforms have been set up to assist with this, the most popular of which is currently CrowdJustice.

By launching a crowd funding campaign, donations can be sought from the community affected by the decision under challenge, as well as from members of the general public who wish to support the cause.

If you cannot get legal aid, and you do not wish to pursue crowd funding, the options for funding a challenge are unfortunately limited.  Because of the particular rules which apply to judicial review cases, it is very rare for these cases to be run on a ‘no win, no fee’ basis.

One option is of course funding the challenge privately from your own resources, but challenges of this kind are very expensive and so this is unlikely to be a realistic option for most people.  Another option is to find lawyers who will agree to act ‘pro bono’ (ie free of charge). However even then the problem is that the usual costs rules apply to judicial review, so it is likely that an unsuccessful claimant will have to pay the public body’s legal costs. One of the key benefits of legal aid is that it comes with pretty effective ‘costs protection’ from the other side’s costs, meaning that usually legally aided claimants have to pay nothing towards the costs of the claim. A ‘protective costs order’ can be sought for non-legally aided claimants, limiting their exposure to costs, but the rules around these orders are complex and specialist advice will be needed.

6. What actually happens if you win a cuts judicial review? Do they have to reinstate the funding?

It is important to understand that in a claim for judicial review, the court will generally look at whether the way in which the decision was made was lawful or not.  If it is found to be unlawful, the court is likely to make an order ‘quashing’ the decision in question.  This means that the decision is effectively cancelled and the situation restored to that before the decision was made.  If the decision being challenged was one to cut funding, this of course means that the cut will not be implemented, at least for the time being.

Whilst it is open to the public authority to go away and try to make the same decision again but in a way that is lawful, in many cases public authorities which have been on the losing end of judicial reviews have chosen not to attempt to re-make the decision under challenge.  This could be either because the court’s criticism of their decision has been so strong as to make it difficult for them to make the same decision lawfully, or because they have simply taken a strategic decision to drop the proposal under challenge and look at other options for saving money.

A good example of this is the 2011 challenge to Birmingham City Council’s decision to cut £51m from its budget for adult social care and to raise its threshold for eligibility for adult care.  After the judicial review succeeded and the decision was quashed by the High Court, the council decided not to pursue the budget cuts or the policy change any further.

7. How can parents use the law to challenge an LA’s decision only to provide services in accordance with their statutory duties?

With increased pressure on local authority budgets, many councils have indicated that they will soon only have enough money to meet their basic statutory duties (i.e. the services the law says they have to provide), and will therefore be unable to provide any “non-statutory” services.

However, even when a service is non-statutory, it may still be possible to challenge a decision to cut it if the public authority has not made its decision lawfully.

A challenge may be brought on the basis that no, or inadequate, consultation was carried out before the decision was made, or that the decision maker failed to take into account the impact of the decision on people with a ‘protected characteristic’, such as disability, in breach of the Equality Act 2010.

This means that, despite the pressure on local authority resources, they can still be held to account for decisions to cut non-statutory services. There is also often potential for argument as to whether services are really non-statutory. For example short breaks for disabled children are now a ‘statutory’ service under the Breaks for Carers of Disabled Children Regulations 2011.

See also some of the key legal questions identified in one of Steve’s earlier blog posts.

 8. Where there is a ‘sufficiency duty’ in a particular area, how can families best gather evidence that a service (such as short breaks) is not in fact ‘sufficient’?

Much of the evidence in this kind of challenge will centre around what steps the local authority has taken to establish what the local need for the service is and to balance this need against the other demands on its resources.

However, families involved in such challenges can assist by recording in writing their own experiences of asking for, and being denied, the service in question.

For example, a family could keep a diary over the course of several months recording all the occasions on which they have asked for a short break and have been told that no space is available.  One such diary on its own may be enough to demonstrate the lack of sufficient provision, but of course the more families that are able to provide this kind of evidence, the more powerful it will be.

9. Are there any other key points you want to make about the practicalities of using the law to challenge cuts?

We are lucky to live in a country where the law allows individuals to hold public bodies to account through the courts.  But the law is only any use if it is enforced, and all too often public authorities are able to get away with making unlawful decisions without being challenged.

This is why it is vital that bad decisions made by public authorities are challenged.  If bad decisions go unchallenged, this will only encourage bad practice and breed more bad decisions.  It is only by holding public authorities to account that we can make sure that the rule of law is upheld and our rights protected.

Why now is the time to engage with the next round of cuts

Two news stories that have popped up on my feed this morning highlight that now is the time for campaigners and local groups to start engaging with the next round of local cuts, for the financial year April 17-March 18.

Firstly, Essex is apparently consulting on potential cuts to children’s centres.

Secondly, Dorset is said to be considering a range of cuts to adult social care.

I have no doubt there are or will be similar stories across the country in the local media this week or in the near future. Local authority budgets are complex and require significant preparatory work followed by consultation and debate by members. So in order to have the budget ready to be approved next March, work on proposed cuts must be under way in every area.

But aren’t these cuts inevitable? Well, in short, no. There is no doubt that local authorities will be forced to cut services given the ongoing reductions in funding from central government. But the specific cuts they make must be made lawfully, taking into account all the relevant statutory duties. The recent West Berkshire short breaks judgment makes this clear.

There are still choices to be made by councils – not just between which services to cut but also (for example) what level of reserves to hold and where to fix the council tax. All these choices are hard but they are choices nonetheless.
So campaigners and local groups concerned about potential cuts to valued services need to start engaging with their council’s proposals now. I’d suggest:

  • Keeping a close eye on local papers, TV and radio. Proposed cuts often generate local media interest.
  • Check the council’s website. All formal consultations (including the overall budget consultation) should be easily available online. Check the agenda and minutes of Cabinet and Council meetings for early warning of proposed cuts.
  • Make sure you work together, including if possible identifying people in the group with the skills and expertise to understand the financial proposals so you can ask the right questions.

I’ve set out some of the key legal questions campaigners and local groups may want to ask in an earlier post. I hope that post shows the wide range of legal duties with which local authorities must comply when making cuts.

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.

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.

Guest post – how SOS Transport Sefton saved their disabled teenagers’ school buses

SOSTransportSefton

This is the first in what I hope will be an occasional series of guest posts on some of the themes and issued covered on this blog. It is written by Joanne Allman with input from Bee Jones from the campaign group SOS Transport Sefton. I saw some of the work of the group on Twitter and thought they captured perfectly what it takes to fight back successfully against the cuts to disability and children’s services. There is much to be impressed by reading Joanne’s account of the campaign, but from my perspective I particularly like how the potential for a legal challenge was integrated into the overall campaigning work. The campaign also shows the importance of engaging at the highest possible level, in this case with the Council Leader.

As we wait for more cuts to to be announced in the new government’s ’emergency’ budget this summer, I hope Joanne’s words and the work of the campaigners in Sefton will help inspire other groups, nationally and locally, who are challenging the consequences of austerity. All comments welcome – as are other suggestions for guest posts.

Birth of a campaign

Campaign group SOS Transport Sefton was born of two parents in a meeting room in a special school in Southport, Merseyside on 23 February 2015.

The meeting had been called by Sefton Council as a part of their public consultation on post-16 Special Educational Needs and/or Disability (SEND) school/college transport. It was attended by just two parents, Janet and myself, who both had 15-year-old children with severe autism at the school. The meeting was not well-publicised, and many parents simply didn’t know about it.

The main focus of both the meeting and the Council’s consultation questionnaire, issued a couple of weeks previously, was their stated intention of promoting ‘independence’ for children with SEND. According to the Council, young people over 16 would be taught to travel independently to school or college through a ‘Travel Training’ scheme.

On the surface, it may all sound perfectly reasonable, even laudable….until you wake up from the seductive daydream of teenagers happily waiting at bus stops, and remember that our special school caters for severely disabled children. Paraplegic children in wheelchairs. Children with complex medical conditions. Children who are tube-fed. Children, like my own son, with profound learning difficulties who need constant supervision. What are the alternatives for these children, we asked. The reply was that there was none. Parents would have to take their children to and from school each day.

Again, this may not seem such a big deal…until you appreciate that special schools may well be many miles from the family home. Parents without a car might have long distances to travel each day by public transport, in some cases escorting a young person in a wheelchair. Some parents told us they would have to give up their jobs in order to take their children to school, which would cause them hardship. And these are families already under pressure, be it financial or stress or health related.

These issues gave birth to SOS Transport Sefton…although neither Janet nor I realised it at the time. We had a quick chat after the meeting and decided to write a letter to all the other parents to inform them of the impending transport cuts.

That was 23 February 2015….BUT on 23 April, exactly two months later, the Council stated publicly and unequivocally that they would NOT remove post-16 transport to special schools or colleges in Sefton.

So how was this achieved? These are the steps we took to persuade the Council to change its mind. Bear in mind that we spent virtually no money on this campaign.

What we did

We formed a committee

It’s always a good idea to team up with like-minded campaigners who share your goal. Janet and I were lucky enough to be joined by two very determined individuals, Bee and Sarah, also parents of teenagers with autism. We all brought different skills, strengths and experience to the group, and gave each other much-needed moral support.

We mounted a legal challenge

Bee had already approached a Public Law solicitor before joining our group. As it happened, the Council withdrew their proposal to remove transport before the case was brought, but the threat of legal action may have had a bearing on their decision.

We promoted our campaign on social media

We set up a Facebook page and a Twitter feed, to raise awareness of the Council’s proposals, and to give updates on our campaign. This proved to be enormously effective. We soon attracted over 200 followers on Twitter and garnered a similar number of ‘likes’ on Facebook. Social media were a crucial factor in the success of some of our later initiatives.

We launched a petition

We started our petition on 4 March, and gathered signatures both on paper and on-line. By the close of the public consultation period on the 30 March, in less than four weeks, 2,779 people had signed on paper and 2,559 on-line, totalling 5,338. This meant that our petition was eligible to be presented at a full Council meeting, because the number of signatures exceeded the threshold of 2,750.

We developed good relations with friendly local journalists

There was widespread coverage of our campaign in both print and on-line versions of local newspapers, for example here and here.

We organised a demonstration march

On 30 March, we held a peaceful demonstration march in Bootle, where Sefton Council is based, to hand in our petition. Around 35 people took part, mostly parents, with several children in wheelchairs who had been given leave of absence by one of the special schools in support of our cause. At Bootle Town Hall, we discussed the issue with Peter Dowd, Council Leader and Labour Party Parliamentary candidate for Bootle. 

We got political

….and we got lucky. When the Bootle based parent protesters got home after the demonstration, they found Labour’s General Election leaflet on their doormats. It showed Peter Dowd at Bootle Town Hall, where we had just left him, with a list of five pledges, including these gems:

  • Work with schools and colleges to give our young people the best start in life
  • Fight to get a fairer deal for the most vulnerable
  • Demand better environmental standards and protect our precious green spaces

This galvanised the four of us into action, and took our campaign into the political arena. Over the Easter weekend, we challenged Dowd on Twitter about the dissonance between his election pledges and his stance on disability transport as Council Leader. A ‘Twitter storm’ ensued, after which Dowd blocked all our Twitter accounts! We contacted the press, and the story appeared in the local newspapers. Details of the Twitter row can be found here and here.

We published an Open Letter on our new campaign blog

We resolved to continue to highlight the disparity between Dowd’s pledges and his actions as Council Leader by writing an open letter from the standpoint of a parent of a disabled teenager. We published the letter on a new campaign blog, runawaybus.

We promoted our blog on social media, and the day it was launched, it attracted 280 visitors and 395 views!

We sent a parody Consultation Questionnaire to every councillor in the borough

The questionnaire issued by the Council as part of their public consultation was not fit for purpose. Couched in language more reminiscent of a teenage magazine quiz than a serious survey, it appeared to have been designed to dupe the respondent into giving the answers that the Council wanted.

We hit on the idea of giving the Council a taste of its own medicine by writing a parody consultation questionnaire and emailing it to 70 Sefton councillors and council officers! The parody version was written in the same style as the offending original, and was humorous, but hard-hitting.

We issued a press release

We collected over 100 email addresses for national newspapers and other news outlets, and on 20 April we issued a press release. Later, we were contacted by BBC Radio Merseyside and the next day…..

We got on the radio

Bee was interviewed for several minutes on BBC Radio Merseyside, and put our case very persuasively. A clip of a pre-recorded interview with Sarah was also broadcast. Our story was featured as first or second item in every news bulletin that day, and the radio station also invited a spokesperson from the National Autistic Society to discuss it.

We wrapped it up at meetings with the Council

On the day of the radio broadcast we had a private meeting with Peter Dowd and two Council officers. They gave us a categorical assurance that there would be no cuts to disabled transport to any of Sefton’s special schools or colleges.

On Thursday 23 April we presented our petition at a full Council meeting at Southport Town Hall. In response, Leader of the Council Peter Dowd gave an assurance, on the record, that there would be no cuts to transport to any special schools or colleges in Sefton. He also acknowledged the flaws in the consultation process which we had highlighted, and invited us to assist in efforts to improve the way future consultations are carried out.

So, on St George’s Day, two months to the day from the birth of our campaign, the dragon of cuts to transport to specialist provision was finally slain, and the worry caused by the threat of removal of this vital service laid to rest.

A few days later, we issued the following public statement.

Lessons we’ve learned

We’ve learned a lot over the past few weeks, and hope that some of our ‘top tips’ may help others embarking on campaigns against injustice:

  • Know that if your sense of justice has been offended, there will be others who share your outrage and anger. In the twenty-first century, we have an enormous advantage over campaigners from previous generations because the internet gives us the tools to link up very quickly with like-minded people. It’s quite straightforward to set up a Facebook page, a Twitter feed, even an on-line petition; yet these simple steps can be very empowering because they bring people together and provide a focal point for opposition.
  • Don’t try to run the campaign on your own. Find a few other people to share the decision-making, organisation and work. You’ll probably come up against vested interests, underhand tactics and intimidation, and you’ll need moral as well as practical support.
  • Don’t under-estimate your individual strengths; you may have experience of writing or public speaking, perhaps a social media presence or other useful attributes. When these resources are pooled, the resulting synergy can make the difference between success and failure of your campaign.
  • Publicity is the oxygen your campaign needs to flourish and succeed. Make contact with journalists via social media, where it might be possible to develop an informal, friendly relationship. Maximum coverage for your story in the local press will both attract supporters and put pressure on the authorities you’re campaigning against. Consider issuing a press release to reach a wider audience.
  • Take your chances and be bold. When opportunities present themselves, seize them. In our case, the upcoming General Election made the bad publicity we created for a local candidate decidedly inconvenient. You can’t guarantee lucky breaks, but if a gift horse does happen to wander across your path, jump on and ride!
  • Have fun! The issues you are facing may well be very serious, but confronting them and taking back some control over the situation will probably be therapeutic and make you feel a whole lot better. You may discover skills you never knew you had, or learn new ones, grow in confidence and find new friends. A sense of common purpose can break down barriers and forge bonds between people who may not otherwise have had the opportunity to get to know each other. Even if your campaign does not achieve what you hope it will, you may find you reap other unforeseen benefits and rewards. Set your sights on your destination, but don’t forget to enjoy the journey.

Joanne Allman
With input from Bee Jones

SOS Transport Sefton

Twitter: @SOS_Sefton

Email: sostransportsefton at gmail dot com

Challenging the coming cuts to children’s services budgets

Things feel pretty bad in children’s services already, but they are about to get much worse. The cuts to local authority budgets to date have resulted in significantly greater reductions to adult social care than to children’s services. But with local authorities currently working on their 2015-16 budgets, children’s services are now in the firing line as any further cuts to adult social care would leave councils clearly unable to comply with their statutory duties.

To give two examples from very different parts of the country:

It is undeniable that local authorities are being placed in an increasingly difficult position by the swingeing cuts imposed on them by central government. However there are still choices to be made:

  • Some councils still have significant ‘reserves’ – funds in the bank not allocated for a specific purpose. While it is obvious that reserves can only be spent once, councils should at least be considering using reserves to mitigate the worst impact of the cuts on vulnerable groups such as children. It will be misleading (and in my view unlawful) for councils to suggest in their consultations that they ‘have’ to cut budgets when they have significant reserves in place. This was one of the errors made by Haringey in their consultation on the local council tax reduction scheme, as shown by the Supreme Court judgment in Moseley v Haringey.
  • Councils are entitled to raise council tax. I understand the problems with this – including that (i) council tax is a regressive tax that hits poorer people proportionately harder than richer people, (ii) the benefit which meant the poorest residents didn’t have to pay it has been abolished so even those whose sole income is state benefits have to pay some of their council tax liability and (ii) council tax would need to be raised significantly to replace the cuts from central government. However raising council tax remains a choice which councils can consider as an alternative to cuts. Any council which wants to raise council tax to any significant extent needs to hold a local referendum – which would be an opportunity to give local residents a choice about whether they are prepared to pay more tax to fund children’s services. We shall see if any council is willing to ask this question.
  • Most fundamentally, councils have a choice about which services they cut to make budgets balance. A saving of (for example) £1.75m compared with £1.85m in a disabled children’s budget area means more services available for children and families. The question which always strikes me is whether cuts are being targeted at groups least likely to complain and take legal action. How many local authorities are proposing reduction to the road maintenance budgets or bin collections – the things which matter most to residents without specialist needs for services?

It is important to bear in mind that local authority budgets are only estimates of expenditure. A local authority still has to comply with its statutory duties no matter what budget it has set. However the nature of many of those duties – for example the key duty to provide disabled children with social care services in the CSDPA 1970 s 2 – are heavily influenced by the amount of money which the authority says it has available at any given moment in time. And in the real world, the legal obligations are less important than the amount of money which the Director of Children’s Services has in his or her budget to actually provide services.

So proposed budget cuts to children’s services need to be challenged. Where the cut is arguably going to lead to the local authority being unable to comply with its statutory duties – for example the various duties in relation to short breaks – this must be pointed out. Local groups can and should respond to the consultations. But I also suggest legal advice is taken from specialist solicitors at an early stage – because challenges to financial decisions need to be brought even more promptly than other judicial review cases. If the consultation process is unlawful it may be possible to bring a legal challenge before the final decision is taken. So the earlier advice is sought once cuts are proposed, the better.

Two key grounds of challenge to financial decisions are likely to be consultation and the public sector equality duty (PSED). The Supreme Court’s judgment in Moseley shows that a high standard of fairness is required in consultations which propose cuts to benefits or services. In particular, consultees must be provided with sufficient information about the proposals to make an informed and intelligent response – which is likely to include information about alternative options which were considered and rejected prior to the consultation. How many consultations on proposed budget cuts taking place at the moment include any information about alternatives?

In relation to the PSED (Equality Act 2010 s 149), the key case is now the Court of Appeal’s judgment in Brackingthe successful challenge to the decision to close the Independent Living Fund (judgment in round two of that litigation is currently awaited from the High Court). The Court of Appeal helpfully summarise the legal principles governing the operation of the PSED at para 24 of the judgment. However the two key principles to emerge from the case (in my view) are these:

  • Decision makers must have a proper understanding of the impact of cuts decisions on disabled people and other groups with protected characteristics (eg children) when they make cuts decisions. Astonishingly, the Court of Appeal held in Bracking that the Minister for Disabled People did not properly understand the impact of her decision to close the Independent Living Fund on the disabled people affected when she took her decision.
  • It is necessary for decision makers to consider the particular needs set out in the PSED – for example the need to advance equality of opportunity for disabled people – in their decision making, not just refer generally to the impact once this has been understood.

Challenges to financial decision making are difficult – but not impossible. To end on a high note, I’d emphasise again the decision of the High Court in W, M and others v Birmingham CC the successful challenge to Birmingham’s decision to move to ‘critical only’ adult social care. In that case, both the budget cut and the resulting social care policy were held to be unlawful by reason of breaches of the PSED and failure to carry out a lawful consultation. The sums of money at stake in the Birmingham case were huge – the cuts proposed were £33.2 million in the first year and £69.1 million in the second year. Yet this did not stop the court from allowing the application for judicial review – and to this day Birmingham continues to meet ‘substantial’ needs.

As Mr Justice Blake said in Rahman, another successful challenge to cuts in Birmingham, ‘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.’ (para 46)

The times are about to get as straightened as they have ever been. I have a good deal of confidence that the courts will continue to take a robust approach to unfair and unlawful cuts – if cases are brought before them, which requires disabled people, children and young people, families, local and national groups and lawyers to work together.

Please post details (including links if possible) of any proposed cuts to local authority budgets affecting children – or disabled adults – in the comments below. It would be good to build up a picture of the cuts proposed across the country.

Challenging childcare cuts through ‘sufficiency’ duties – a key case

I have blogged previously about the right to childcare for disabled children. Since I wrote that post, I have come across a great judgment in a case about cuts to nursery provision in a Welsh local authority. So this is a follow-up post to show, once again, that judicial review is a real remedy when unfair and unlawful cuts are made to public services.

The case is R (West and others) v Rhondda Cyon Taff County Borough Council [2014] EWHC 2134 (Admin). The issue in the case was the Local Authority’s decision to stop providing free full time nursery education for all three year old children, instead funding 15 hours a week. This is important – because it was not a case where the Local Authority got the law wrong about their minimum obligations to individual children, but instead one where the court intervened to stop a cut where there had previously been a more generous level of service than the absolute minimum required.

It was no doubt also highly important to the decision in West that the termination of full time nursery funding was going to be severely detrimental to vulnerable children. The Judge noted that in addition to losing the childcare, ‘the loss of this full-time provision will also result in the termination of free school meals and free school transport for the children concerned’ (para 2). The expectation was that 3,300 children and their families would be affected.

The challenge was brought on five legal grounds. Two failed; the decision was not taken in breach of the public sector equality duty in section 149 of the Equality Act 2010 and there had been no failure to have regard to the duties concerning child poverty under the Children and Families (Wales) Measure 2010 (this covers ‘child poverty, play and participation’ in relation to children in Wales and probably merits a blog post of its own).

The three grounds of challenge which succeeded were all linked specifically to the provision of childcare or nursery education. The Local Authority was found to have breached the following statutory provisions:

  • Section 118 of the School Standards and Framework Act 1998, which requires Local Authorities in Wales to secure that ‘the provision…of nursery education…is sufficient for their area’. (NB – the legislation.gov.uk website has not been updated since section 118 was amended by the Childcare Act 2006 so that it only applies in Wales, not England).
  • Section 22 of the Childcare Act 2006, which states: ‘A Welsh local authority must secure, so far as is reasonably practicable, that the provision of childcare…is sufficient to meet the requirements of parents in their area who require childcare in order to enable them (a) to take up, or remain in, work or (b) to undertake education or training which could reasonably be expected to assist them to obtain work’. The equivalent duty for English local authorities is found in section 6 of the Childcare Act 2006. As I emphasised in my previous post, both section 22 and section 6 contain a specific requirement on local authorities to have regard to the need for the ‘provision of childcare which is suitable for disabled children’.
  • Section 18 of the Children Act 1989, which requires local authorities to provide ‘such day care…as is appropriate’ for children ‘in need’ within their area who are under five and not yet attending school. Children ‘in need’ are defined in section 17(10) of the Children Act 1989 and include all disabled children; see section 17(10)(c) and (11).

These three duties have one important feature in common – they are all what can be termed ‘sufficiency’ duties, in that they require local authorities to have a ‘sufficient’ (or in the case of section 8 of the Children Act 1989 an ‘appropriate’) level of service in place. Parliament has become increasingly fond of sufficiency duties – they seem to be the way in which a balance is struck between the desire to achieve minimum standards and the need to allow flexibility in how local areas meet needs. However it can be argued that they do not strike the balance in the right place – because as long as the local authority has some of the required service, the court is unlikely to want to interfere with its assessment of whether that level of service is ‘sufficient’.

West shows that this analysis is not always correct. The primary error made by the local authority in West was to fail to demonstrate a proper understanding of these duties. In relation to section 118 of the School Standards and Framework Act 1998, para 38 of the judgment cites from the relevant council report, which stated that ‘our statutory obligation is to provide all children with ten hours of nursery education per week…’. While this reflected the guidance given on individual cases, it ignored the broader duty to secure ‘sufficient’ nursery education and childcare. This error was not remedied elsewhere in the materials. As the Judge held at para 44:

If members are not informed of their statutory duties then there is a real risk they will adopt the wrong approach when they come to consider an issue such as securing the provision of sufficient nursery education. That is, in my view, what happened in the present case. The Council did not ask itself the question as to what is sufficient nursery education for its area, nor, in my view, can it be inferred that it considered its duty to provide sufficient nursery education when taking the decision.

The Judge then highlighted that whether there is ‘sufficient’ nursery education is linked to what other childcare provision is available – bringing into play the childcare sufficiency duty under section 22 of the Childcare Act 2006. However the local authority’s decision documents did not refer to that duty and the relevant childcare assessments were not in front of the elected members when the decided to reduce nursery funding. As the judge held at para 57, ‘once it is accepted that childcare is a relevant issue to be considered then it has to be considered on the correct basis, that is, on the basis of a correct appreciation of the local authority’s statutory duties in that respect. That being so, proper regard must be had to the statutory guidance.’ This had not been done and so section 22 of the Childcare Act 2006 had also been breached.

The final breach identified by the Judge was the duty to provide ‘appropriate’ day care for children in need under five in section 18 of the Children Act 1989. Again, the problem was that ‘the Cabinet was not referred to its statutory duties under the Children Act and therefore had no statutory framework in which properly to consider the consultation material’. Further, there was no attempt to analyse the impact of reducing nursery funding on children in need (who include, as noted above, all disabled children).

So why does West matter? Plainly it matters because as a result of the judgment over 3,000 young children in a deprived area retain their full time nursery provision, at least until the Local Authority makes a new decision. But I would also suggest it matters more broadly, because it emphasises the strict approach the Court will take to cases where services are reduced or withdrawn in an area where Parliament has imposed a duty to secure a ‘sufficient’ supply of such services.

The reality at present is that services for disabled children are being decimated across the country as a result of local authority funding cuts. Yet there are numerous sufficiency duties that could be used to challenge these cuts. In addition to those covered in West, they include:

So in every case where cuts to services for disabled children are being proposed, the question needs to be asked as to whether the local authority is complying with its sufficiency duties – as well as other relevant duties such as the public sector equality duty. Where, as in West, these duties have not been brought to members’ attention and do not feature in the analysis of the proposals, then the decision to cut the service may well be quashed by the court. It is important to note that the Local Authority’s arguments that quashing the decision would cause chaos did not impress the Judge in West, see para 76.

Disabled people and families who consider that the cuts taking place in their area may be unfair or unlawful – and indeed all groups affected by cuts – need to take legal advice as quickly as possible. Challenges to high level financial decisions need to be brought even more quickly than ‘ordinary’ applications for judicial review; see the discussion of ‘delay’ in West at paras 70-76.

All of these solicitors with expertise in SEN and disability cases should be interested in talking to disabled people and families affected by proposed cuts about the potential to bring a legal challenge – the solicitors in West were Bindmans whose details are on my list.

I would be keen to hear about any other successful challenges to cuts using sufficiency duties, whether or not the case made it to court, in the comments below.

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