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: Judicial Review

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

A few things to note:

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

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

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.

Using the law to recover the cost of care which the state fails to provide

A recent case has shed some light on one of the most difficult problems that some disabled people and families may face – how to recover the cost of care which should have been provided by the state.

A typical scenario might go like this. An assessment shows that a disabled child or adult has eligible needs. There may even be a care plan put in place or other agreement on the services or funding required to meet those needs. Then nothing happens – and so the disabled person or their family is left paying for care which the state has accepted it ought to provide.

There are a number of options in this situation. For example, a complaint can be made through the local authority complaints process and ultimately to the local government or health Ombudsman, which could recommend compensation for maladministration. These recommendations are almost always followed by public bodies. Alternatively, if the local authority is asked to refund the monies and refuses, that decision could be challenged by way of judicial review on the usual public law grounds, including rationality and reasonableness. This is particularly likely to be appropriate where there are other ‘live’ issues with the care package. The sums involved would need to be significant to justify a stand-alone judicial review to recover past care costs.*

A recent case however shines a spotlight on a third option – an ordinary civil claim for ‘restitution’. The case in question is Richards v Worcestershire CC and South Worcestershire CCG and the judgment at [2016] EWHC 1954 (Ch) concerned the defendants’ application to ‘strike out’ the claim.

The value of the claim was significant, amounting to over £644,000. This reflected the costs of care for Mr Richards after his discharge from hospital in 2004. Mr Richards had been detained under the Mental Health Act 1983 and so was entitled to ‘after care’ support under section 117 of the 1983 Act. Importantly, the judgment records (at [18]) that Mr Richards was ‘not challenging the defendants’ assessment of his needs and or their decisions as to what after-care services should be provided. His case…is rather that the defendants failed to provide the services that they considered should be supplied’.

The Judge did not have to concern himself with the factual issues in Mr Richard’s case, because the defendants’ application was to strike the claim out on the basis that it was ‘not properly the subject of private law proceedings’ (at [20]). The first issue the Judge had to resolve was whether it was possible in principle for Mr Richards to bring a restitutionary claim. He decided this in Mr Richards favour, firstly on the basis that the 1983 Act did not exclude any such claim at common law. It would seem that the same analysis would apply to any of the other statutes which give rise to an entitlement to community care services, for example Care Act 2014.

The Judge also considered that Mr Richards may be able to make out a claim for unjust enrichment. The Judge recorded that ‘failure to perform a public law duty has never of itself been held to be an unjust factor for the purposes of a claim in unjust enrichment or a sufficient basis for any other restitutionary claim’ (see [36]). However it was seriously arguable that the defendants had been enriched at Mr Richards’ expense and no argument was put forward that Mr Richard’s case that the monies had been paid by ‘mistake’ could not succeed.

The second issue was whether Mr Richards was entitled to pursue an ordinary civil claim (under Part 7 of the Civil Procedure Rules) or if he needed to bring his claim by judicial review. In short, the Judge held that Mr Richards was entitled to bring a civil claim for the reasons set out at [50] in the judgment. This is potentially helpful in future cases as there is a much less strict time limit for ordinary civil claims than for judicial review.

The defendants’ application was dismissed and Mr Richards’ claim will now proceed to trial unless it now settles, which my uninformed guess says is likely.

In terms of the factors which would seem to be needed to mount a successful claim of this type, the first requirement would be a clear breach of statutory duty to provide support by the public body. It would seem unlikely that another breach of statutory duty, for example a failure to complete an assessment, would be sufficient, even if this led indirectly to expenditure on care. The claimant would then need to show the presence of an ‘unjust factor’ such as a mistake – or convince the court that the common law should be extended so that failure to perform a public law duty alone would be sufficient.

None of this is likely to be straightforward and disabled people and families will of course need specialist advice on the facts of their individual case. It may however be helpful to consider a civil claim as part of the set of legal options where a local authority or NHS body is simply refusing to cover the costs occasioned by a breach of one of their duties.

Thoughts on the above and / or examples (anonymised as appropriate) of how costs of care have been recovered in other cases are most welcome via the comments below.

*Moreover it is not possible to bring a claim for restitution alone via judicial review (see Civil Procedure Rules r 54.3(2)).

New case law updates on disabled children’s rights

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

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

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

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

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

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

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

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

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

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

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

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

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

Disabled Children: A Legal Handbook – second edition now available

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

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

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

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

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

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

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

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

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

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