rightsinreality

Thoughts on the crossroads of law, politics and society – for when 140 characters just won't do. This blog contains general information and commentary on legal matters. It is not intended to provide legal advice. This blog discusses the law in England, unless otherwise stated.

Tag: Education

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.

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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.

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.

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

Five legal priorities for disabled children and the new government

With the Conservatives winning a majority in last week’s General Election it would seem there is unlikely to be any radical change in law or policy affecting disabled children from the last Government. The focus must surely be delivery of the reforms introduced by the Children and Families Act 2014. With that in mind here are five suggestions for urgent action by the new Minister (most likely the old Minister, Edward Timpson MP) and his colleagues in Health:

  1. Extend the timeframe for transfer from statements and Learning Difficulty Assessments (LDAs) to Education, Health and Care Plans (EHC Plans). It was never going to be possible to transfer all children and young people with statements / LDAs over to EHC Plans by April 2018 unless the transfer process was going to be a sham. And in many areas that seems to be exactly what has happened – no proper transfer review, simply a rebadging of statements as Plans often led by the school with minimal Local Authority input. The Minister should now consult on a sensible extension of the timetable for transfer, predicated on every Local Authority ensuring that a proper transfer review takes place in every case, involving social care and health as required.
  2. Extend the timeframe for carrying out EHC assessments. I anticipate this one may be controversial – but it seems to me very difficult for a local authority to ensure that in every case a proper EHC assessment is carried out with input from social care and health and for the process to be completed within 20 weeks. In my view the Minister should consult widely on whether a slightly longer timeframe should be allowed, again with an absolute expectation that the assessment process will be carried out properly in every case. It seems to me that a proper assessment leading to a lawful Plan is more important than a quick assessment and ropey Plan – but I understand that families may think speed and quality are equally important.
  3. Sort out the confusion in relation to social care assessments. For disabled children who do not qualify for an EHC assessment, the key assessment duty remains section 17 of the Children Act 1989. However the courts have had to read the duty to assess into the Children Act, and there is nothing in section 17 which specifies the form or type of assessment required. Answers to questions like who has to carry out the assessment, what issues it must cover and the timescale are left to guidance, currently Working Together to Safeguard Children. However the High Court in R (L and P) v Warwickshire has held that not all disabled children are entitled to a social work assessment under Working Together. Yet Working Together gives no steer as to which children are entitled to a ‘full’ assessment, and which children can be assessed via ‘Early Help’. It would greatly assist if the Minister were to consult on guidance specific to disabled children which would clarify this critical point.
  4. Make the Local Offer real for social care. The Local Offer under section 30 of the Children and Families Act 2014 has the potential to create a baseline entitlement for all disabled children and families, but only if there are actually services available for families to access under it. One important step which could be taken by the Minister to help achieve this would be to issue guidance requiring every Local Authority to have a minimum short break entitlement with no or very minimal assessment and eligibility criteria. This would obviously be additional to the support available to children who hit eligibility criteria for support under the CSDPA 1970. Guidance currently describes this kind of offer of unassessed short breaks as good practice, but if it were to be mandatory then the Local Offer in social care would start to have some real value.
  5. Reissue the National Framework for Children and Young People’s Continuing Care. It is vital that disabled children with complex health needs get a package of care and support that is properly co-ordinated and centred on their needs in their family context. The National Framework is supposed to achieve this, but it is badly out of date and does not reflect the reforms introduced by the Health and Social Care Act 2012. For example, the Framework still refers to ‘Primary Care Trusts’ which have been abolished and replaced by Clinical Commissioning Groups. It also does not reflect the vital role of NHS England in commissioning packages of care for children with the most complex needs. The National Framework therefore needs to be reissued urgently, and when this is done its status must be clarified; CCGs and Local Authorities need to know whether they are expected to follow it or the question will be left to the courts to decide.

I am not suggesting that any of these measures, either individually or taken together, will lead to the kind of radical transformation in education, care and support that disabled children and their families need and deserve. However they seem to me to be the kind of practical steps that the Minister can take to help the system introduced last year work more effectively.

Comments on these ideas and other ideas for priority action most welcome below.

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.

School transport – no right to education if you can’t get there

This post was edited on 12 March 2015, including to clarify the definition of an ‘eligible’ child and the requirements of a post 16 transport policy statement. Links to the legislation have also been added.

School transport in general and transport for children with SEN in particular forms a massive part of Local Authority expenditure. I know of at least one Local Authority where expenditure on SEN transport exceeds the amount spent on SEN provision – by some way. So at this time of austerity it is unsurprising that Local Authorities are eyeing up their school transport budgets and seeking to bring them down. Unfortunately, too often this is being done without any proper understanding of the relevant statutory duties – the subject of this blog.

Compliance with the law on school transport is not helped by it being so blinking complicated. I have totted up at least four statutory provisions which might be relevant to the question of whether a child or young person receives help from their Local Authority to get to school. Each of these form part of the alphabet soup of sections found after section 508 of the Education Act 1996 – a soup created through lots of later amendments to that Act. The key statutory provisions (all in Part IX, Chapter II) follow. Although legislation.gov.uk has not yet updated all these sections of the 1996 Act, you can see the amended sections through the Act that introduced them, the Education and Inspections Act 2006 and the Apprenticeships, Skills, Children and Learning Act 2009.

  1. Section 508B – this requires Local Authorities to secure ‘suitable home to school travel arrangements’ for ‘eligible’ children of compulsory school age (5-15, ie not 16 and 17 year olds – see 3. below). Importantly these arrangements must be provided free of charge – see sub-section (1). Any arrangements must be ‘suitable’, i.e. appropriate for the individual child taking account of any particular needs they have. Schedule 35B to the 1996 Act sets out who ‘eligible’ children are – importantly, paragraph 2 of this Schedule says that disabled children and children with SEN of compulsory school age who live within the walking distance (two or three miles depending on age) but ‘cannot reasonably be expected to walk to school’ are all ‘eligible’. Paragraph 3 makes children ‘eligible’ if they attend a school outside the walking distance, so long as it is the nearest suitable school. So in most cases (unless, for example, the parents have chosen to send their child to a school which is not the nearest suitable school) disabled children and children with SEN will have a right to free suitable school transport up to the age of 16 unless they can reasonably be expected to walk to a school close to home themselves. There is helpful statutory guidance on the school transport duties to ‘eligible’ children.
  2. What about children aged 5-15 who are not ‘eligible’? The Local Authority has a power to provide school transport for any child under section 508C (scroll down the link) of the 1996 Act. The Local Authority must at least think about exercising this power in every case and must exercise it in some cases – otherwise it is fettering its discretion. However, by virtue of it being a power it will be much harder to force a Local Authority to make transport arrangements under section 508C. Moreover unlike transport provided to ‘eligible’ children arrangements made under section 508C do not have to be made free of charge. Section 508C could also be used to obtain transport for children below compulsory school age, i.e. the under 5s, where this transport is necessary for them to access education.
  3. What about children aged 16 and 17? It seems to me there is a gap in the law here which is potentially discriminatory. 16 and (shortly) 17 year olds are now expected (indeed obliged) to participate in education or training. However the duty to provide school transport under section 508B applies only to children of ‘compulsory school age’. The definition of this term is found in section 8 of the 1996 Act – and it clearly says that this term covers only children aged 5-15. Children aged 16 and 17 are covered by section 509AA of the 1996 Act (warning – section not fully up to date with later amendments). This requires every Local Authority to publish a transport policy statement for ‘persons of sixth form age’. Importantly, this statement has to include ‘arrangements for facilitating the attendance [at schools or colleges] of disabled persons and persons with learning difficulties or disabilities’, see section 509AB (warning – section not fully up to date with later amendments). However, section 509AA does not itself create a duty or power to provide transport – it therefore seems to me that the statement it requires is dealing with circumstances when the Local Authority should exercise its section 509C powers in relation to these older children. In setting this policy, the Local Authority will need to have due regard to the need to advance equality of opportunity for disabled learners – as required by section 149 of the Equality Act 2010, the public sector equality duty (see further below). However this is not as good as being covered by the section 508B duty – not least because, as we have seen, ‘eligible’ children under that duty are entitled to suitable transport free of charge. The statutory guidance on post 16 transport is very helpful on the need for the transport policy statement to deal properly with the particular transport requirements of disabled learners.
  4. What about young adults, who are now within the remit of the SEN system by virtue of the reforms under Part 3 of the Children and Families Act 2014 (particularly those who have or will have EHC Plans)? Their transport needs should be met under section 508F of the 1996 Act, which requires Local Authorities to make ‘such arrangements for the provision of transport as they consider necessary’ for adult learners. So if it is ‘necessary’ for a young person over 18 to receive help with transport to get to school or college, then there is a duty on the Local Authority to provide this. Further, assistance under section 508F must also be provided free of charge – see sub-section (4).

So it is clear that the nature and extent of the duty to provide school transport depends not only on the child or young person’s needs but also on their age. As set out above, I’m troubled by this, particularly what seems to me to the less favourable treatment of young people aged 16-17, not just compared with younger children but also compared with those over 18. However in general it should be possible to use these provisions to obtain suitable transport for any child or young person who has a genuine need for help to get to school. Any transport policy being operated by a Local Authority which makes this impossible will be highly likely to be unlawful.

It is also important to remember that there can be a social care duty to arrange transport which helps a disabled child or young person access education. Unsurprisingly, this duty is found in section 2 of the Chronically Sick and Disabled Persons Act 1970 – see further on the CSDPA here. In particular, section 2(1)(c) requires Local Authorities to provide ‘assistance to [a disabled person] in taking advantage of educational facilities available to him’. This duty arises where it is ‘necessary’ for a Local Authority to provide a service under the CSDPA to meet a person’s needs. As such, there will be no CSDPA duty if in fact the disabled child or adult is able to obtain transport to access education under the Education Act 1996 duties and powers described above. However if there is a gap in the 1996 Act scheme and a need for transport to education cannot or will not be met under that legislation, then the CSDPA duty operates as a safety net. From 1 April 2015 however the CSDPA is repealed in relation to those over 18 and entitlement to transport will then be an issue of eligibility under the Care Act 2014.

How about the case, common at present, where Local Authorities are attempting to tighten their eligibility criteria for school transport as part of the cuts? Obviously any new policy has to comply with the law above, but what about other relevant legal considerations? Firstly, it is virtually certain that any Local Authority attempting to change its transport policy will have to consult in advance with affected families, and do so properly – see the guidance from the Supreme Court on consultation. Secondly, all cuts decisions must be taken in accordance with the public sector equality duty in section 149 of the Equality Act 2010, which requires ‘due regard’ to be given to a series of specified needs. The most relevant need in such a case is likely to be the need to ‘advance equality of opportunity’ for disabled people compared with others (see section 149(1)(b)). It is still possible for a Local Authority to pay ‘due regard’ to this need while cutting an important service, but it must first have understood how many disabled people will be affected, analysed what the impact will be and considered any ways in which the impact could be mitigated or avoided (all of this comes from the extensive case law on the section 149 duty). This places a heavy burden on Local Authorities who are seeking to cut services which are valued by disabled people, and one which is all too often not properly discharged.

Families who are concerned about current transport policies or proposed cuts to services which may be unlawful should seek advice from a specialist solicitor as soon as possible.

Comments on this tricky legal area most welcome below.

Solicitors with expertise in disability and SEN cases

I am often asked to recommend solicitors for SEN and disability cases. The following is a list of solicitors’ firms with whom I’ve worked and who I know have good expertise in SEN and disability issues. All these firms offer legal aid and will be able to advise disabled people and families about eligibility for public funding. All can help with judicial review cases and most advise and represent people in the First-tier Tribunal (education appeals) and the Court of Protection (Mental Capacity Act cases). However not every firm does every type of case. If in doubt, check the website or call the new enquiries number for the firm to ask.

I am not formally recommending these firms – because I can’t, I only know their work from my perspective as a barrister at the other end of the telescope from the client. However from what I know, I would be confident that all these firms will offer a good quality service from staff who are committed to disability rights. The best recommendations will come from disabled people and families who have used solicitors as clients – so ask around if you are in need of legal advice.

Some of these firms have offices around the country, others have just one office. Where the firm has a particular regional focus I have noted this. However geographical location isn’t as important as the right expertise, particularly as so much work is done online these days. You should be able to find out about each firm from their website, including any restrictions on the areas they serve.

If a firm isn’t on this list, it may be that I simply haven’t had the chance to work with them yet. Please post any recommendations for further firms in the comments section below.

Final point – the list is in alphabetical order to avoid any accusations of favouritism by the firms I work with!

Solicitors with expertise in SEN and disability cases (as at 13 September 2014)

Why parents can make decisions for young people under the SEND reforms

Continuing the theme of ‘things that are really legally complicated under the SEND reform programme’, it’s high time I wrote about the interesting and in my view controversial provisions governing decision-making for young people aged 16-25

Quick recap on the general rule. The Mental Capacity Act 2005 applies to everyone aged 16 and over – with very limited exceptions in relation to 16- and 17-year-olds (no Lasting Powers of Attorney, no advance decisions to refuse treatment being the two key differences pre-18). So in general, once a young person turns 16 they are presumed to be able to make their own decisions. If this isn’t the case, then the presumption needs to be rebutted in relation to each decision they have to take. The MCA Code of Practice has a good chapter (Chapter 12) on how this works for 16- and 17-year-olds.

This can come as quite a shock to parents of disabled children, who will routinely take decisions on their behalf where the child cannot decide for themselves until their 16th birthday – when there is of course no magical change in the child’s abilities or needs. Sadly, the MCA 2005 is too often misused by public officials to exclude families from decision making once young people fall under its remit – something we want to change in #LBBill.

Perhaps with this problem in mind, the legal scheme under the Children and Families Act 2014 (CFA) modifies the approach to decision-making for young people under this Act. Section 80 of the CFA allows for regulations to be made which allow statutory provisions to be modified where a young person (or indeed a parent) lacks capacity to make relevant decisions. The regulations which do this are in Part 6 of the SEN and Disability Regulations 2014.

Regulation 64 requires that where a young person lacks capacity to make a decision under Part 3 of the CFA (i.e. a decision in relation to their education or a related health or care decision) then the right to make that decision rests with an ‘alternative person’, either alone or jointly with the young person. The phrase ‘alternative person’ is then defined as meaning either a formal representative under the MCA (Deputy or Attorney) or, if none exists, the young person’s parent.

It is extremely rare for disabled young people to have a formal MCA representative, and where they do it will often be their parent. This means that in the vast majority of cases the new scheme will allow parents of disabled young people to continue to take decisions about their education, health and care up to the age of 25.

I have mixed feelings about this. On the one hand, it is plainly positive that public bodies will not be able to simply cut families out of the decision making process for disabled young people. But on the other, I can’t see any principled reason why this approach should apply only to decisions made under the CFA. Not only does this potentially undermine the autonomy of young disabled adults, it also seems to me to be discriminatory – what about health and care decisions for young people which are not made under the CFA, i.e. for young people who do not meet the threshold for an EHC Plan?

Annex 1 of the new SEN Code of Practice gives brief guidance on how mental capacity issues are to be dealt with in the new scheme. The annex makes the position clear; ‘In the case of a young person [who lacks capacity to make a decision] who does not have [an MCA] representative, the decision will be taken by the young person’s parent’. Importantly, the Annex does go on to emphasise that ‘However, it is important that people are helped to make decisions themselves wherever possible’ – a key principle under the MCA.

Thoughts on these important provisions both in principle and practice most welcome below.

Local transition plans – another SEN duty being ignored?

In the discussion about my post on the Local Offer earlier, there was a very helpful point made by @iannoon on Twitter suggesting that many Local Authorities may not also have their ‘local transition plan’ in place yet. So what is this plan, why does it matter and what precisely do Local Authorities have a duty to do here?

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

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

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

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

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

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

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

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

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