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: Legislation

Seeking legal change in the courts – case study of a Supreme Court intervention

I had the privilege of being instructed by the Childhood Bereavement Network (CBN), part of the National Children’s Bureau, in a recent Supreme Court intervention with colleagues at Irwin Mitchell’s public law team. The case concerned the different treatment of cohabiting partners and their children in relation to bereavement benefits compared with married couples. In this guest post, CBN’s Director Alison Penny describes the process of intervening in a case before the UK’s highest court and offers tips for other NGOs considering intervening in cases with wider public importance.

The problem 

Here at the CBN, we get fairly regular incredulous phone calls or emails asking us if it’s true that unmarried, cohabiting parents can’t claim bereavement benefits if one of them dies. Usually, the call comes from someone ringing on behalf of a friend or family member who has recently faced the devastating loss of their partner. They have been told that the family won’t be eligible for bereavement benefits, and simply can’t believe in this day and age that this is true.

Astonishingly, it is. We know that each year, around 2,000 families face the double blow of one parent dying and the other discovering that they and the children won’t get bereavement benefits. On average, these families lose out by over £12,000 before their children reach adulthood. Parents make the same National Insurance contributions whether they are married or not. These build up their entitlement to a state pension or, if they die before they can draw it, to survivor benefits for their family. But these benefits are only paid if the survivor was married to or in a civil partnership with the person who died.

Some couples with children choose not to marry, or can’t marry, for a range of reasons, and are fully aware of the financial risks this brings. But alarmingly, more than half of couples living together have no idea: they believe that by cohabiting they have the same legal rights as if they were married. In fact, there is no such thing as common law marriage in the UK (unless the couple were living together ‘with habit and repute’ before 2006 in Scotland).

This lack of awareness stems in part from the inconsistent treatment of cohabiting couples. If the government insists on treating you and your live-in partner as a couple for tax credits and means-tested benefits, why would you expect to need a marriage certificate to receive bereavement benefits? For us at CBN, the problem is that as well as discriminating against the surviving partner on the grounds of their marital status, the policy also discriminates against the couple’s children.

CBN’s campaigning on the issue

Until very recently, we took a two-pronged approach to tackling this social injustice. We tried to raise public awareness of the lack of rights for cohabiting couples through our Plan If campaign, and at the same time coordinated a group of concerned organisations lobbying in Parliament to whoever would listen. We gave evidence to the Work and Pensions Select Committee, and on the strength of this the Committee recommended in March 2016 that eligibility be extended to cohabiting couples with children. But the Government held fast to its position that inheritable benefits derived from someone else’s National Insurance contributions have always rested on the marriage or civil partnership, and they were not minded to look at this again.

Cohabitation and the courts

Alongside this dual approach, we followed with interest the case of Siobhan McLaughlin. She and her partner John had four children together during their 23 year partnership. They never married, because prior to meeting Siobhan, John had promised his dying wife that he would not remarry. After John’s death, Siobhan learned that she was not eligible for Widowed Parents’ Allowance to help raise the children. She appealed this and won her challenge in the High Court in Belfast in December 2015, but this was subsequently overturned by the Court of Appeal. However, she was given leave to appeal to the Supreme Court.

We read the judgments from the High Court and Court of Appeal and felt that there was some contextual material missing which frustrated us. We knew that our parliamentary campaigning was likely to stall until the Court made its ruling, so we resigned ourselves to sitting on the sidelines.

Making an intervention

However, colleagues from the Child Poverty Action Group (CPAG) soon got in touch to ask if we would be seeking permission to intervene in the case. Not being familiar with the judicial process, we had to look up what this meant. Realising that this could give us an opportunity to share in court the evidence we’d been gathering for parliamentarians and the media, we were keen to consider it. We contacted the Registry at the Supreme Court who were extremely helpful in explaining the process, but realised we needed more support. We got in touch with Steve Broach, a former colleague with the National Children’s Bureau and Council for Disabled Children, now a human rights barrister at Monckton Chambers. At that stage, we just needed someone who’d be able to answer our very uninformed questions about the process.

Steve read the case papers through, and we talked through what evidence we had or could collect that might be helpful to the court. He offered to represent us pro bono and kindly introduced us to solicitor Alex Rook at Irwin Mitchell, who agreed to work with us on the same terms. Without these most generous gifts of time, there is no way that a tiny organisation such as ours would have been able to get involved. We have just 1.4 full time equivalent members of staff, and we have to marshall these resources very carefully.

Steve and Alex talked us through the process, and spoke to our counterparts at CPAG to make sure that our interventions would complement rather than repeat one another. They helped us seek consent from Siobhan’s and the government’s solicitors to ask for permission to make written interventions and, crucially, an undertaking that they would not seek costs against us. Without this clear undertaking, we had to weigh up the financial risks of intervening. After very careful consideration of the risks set out by Steve and Alex, we decided to go ahead.

Preparing the submissions

What followed was a twin track process of gathering the evidence we wanted to submit, and making sure it was in the format that the Supreme Court required. There were almost as many emails about font size as there were about legal arguments! Meeting the strict deadline to make our submissions involved some very late nights.

Two widowed parents had contacted us during our earlier campaigning work to describe how bereavement benefits for children were structured elsewhere in Europe. This was a crucial part of our evidence, and we put a call out to NCB colleagues to enlist foreign-language-speaking friends and family to translate obscure social security documentation for us.

Alex and his colleague Rosie did a superb job of juggling multiple copies of documents, suffixed with ever-increasing version numbers. It was a huge relief when the bundle was submitted, and there were no further tweaks we could make.

Approaching the hearing

 There were however many more questions to pose to Steve and Alex, who were endlessly responsive and good-humoured. We needed to know more about the process, including whether we could attend in person and when the judgement was likely to come out. We had many queries about the media work we could and should do in the run-up to the hearing, and consulted on the wording of tweets and press releases.

Thanks to Siobhan and her solicitor Laura Banks’ willingness to talk to the media, the case was covered extensively in the run up to the hearing on 30 April. The Supreme Court heard the case during its first ever sitting in Belfast, and there was a palpable sense of excitement in the court buildings at hosting the sitting. We even managed a little live-tweeting.

It was pleasing to hear our evidence being mentioned by the other parties in the case during their oral submissions – those late nights felt worth it. But more broadly it felt good to be present for the culmination of many years’ work from campaigning organisations and from Siobhan and her legal team. She and her children attended the hearing and provided an excellent demonstration of the legislature in action.

Ideally, the government would have changed its position years ago, and there would have been no need for Siobhan to put herself and her family through the effort and scrutiny of taking the case to court. Whatever the outcome, she has done a brave thing in drawing the court’s attention to this issue, and raising awareness among the general public along the way. We are proud to have been part of this. Now we are more familiar with the process, we would feel more confident about intervening again in cases that relate to discrimination against grieving children and those caring for them. It’s a new string to our campaigning bow.

Advice to potential interveners

  •  Talk to any other actual or potential interveners in the case to make sure that your evidence won’t be repetitive.
  • Weigh up the risks and benefits of intervening carefully. Involve all those who are necessary to the decision at an early stage – but remember that you can always withdraw right up to the point you send in your submissions.
  • Some of the evidence you would usually include in a briefing paper or campaign document might not be relevant or admissible to the court. Listen to your lawyers about what you should include.
  • Be well organised. It will be much easier for your legal team to advise you and keep track of document versions if you set out your queries and amendments clearly.
  • If you don’t already know any solicitors or barristers who may be willing and able to advise and act for you in an intervention, you can try contacting Law Works, a charity which connect volunteer lawyers with people in need of legal advice, who are not eligible for legal aid and cannot afford to pay and with the not-for-profit organisations that support them. You can also ask other NGOs in your sector if they know of lawyers with the right expertise who may be interested in your potential intervention.
  • You might find it helpful to attend a training course on the use of judicial review, such as that offered by the Child Poverty Action Group
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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’.

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

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

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

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

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

Book review – Special educational needs and disability discrimination in schools

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few things to note:

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

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

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

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

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

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

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

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

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

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

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

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

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

A new right to short breaks – but only in Scotland

I’m heading back from the fantastic International Short Breaks Association conference in Edinburgh, where I spoke about Aiming High for Disabled Children and the short breaks duty in England. This gave me a chance to look at the (relatively) new Carers (Scotland) Act 2016, which will apply from 2017-18. Although some aspects of the Scottish legislation are familiar from the English scheme (for example the requirement to publish a short breaks services statement), there are of course important differences.

The most striking difference to my mind is that in Scotland there will shortly be an enforceable right to services (potentially including short breaks) for some unpaid carers of disabled children, not just disabled adults as under the Care Act 2014 in England. This is because the Scottish Act applies to ‘carers’, who are defined simply in section 1 as ‘an individual who provides or intends to provide care for another individual ‘. There are then two exceptions, the first being ‘professional’ carers. The second exception is that the definition does not apply ‘in the case of a cared-for person under 18 years old, to the extent that the care is or would be provided by virtue of the person’s age’. It seems to me that applying this exception is likely to create practical difficulties – is the parent or other relative support a disabled child by reason of her disability, her age or both? Regulations should shed light on how this test is expected to work in practice.

Although the test may be problematic, the principle of extending a meaningful right to support to unpaid carers of disabled children in Scotland must be welcome. The high point of the English legislation in this respect is the duty under section 17ZD-ZF of the Children Act 1989 to carry out a ‘parent carer’s needs assessment’ (‘PCNA’), but as blogged previously these sections do not create any right to support.  The English short breaks duty and accompanying regulations are focussed on the commissioning of short breaks by local authorities and do not confer any individual rights.

The right to support (including short breaks) in the Scottish Act stems from section 24, which states that subject to certain criteria local authorities ‘must provide support to the carer to meet the carer’s eligible needs’. Eligibility is to be determined by reference to local eligibility criteria, although the Act contains a power for Ministers to make national criteria through regulations which would override local criteria. I can imagine some interesting discussions about whether that power ought to be used.

Section 25(1) of the Scottish Act states ‘A local authority, in determining which support to provide to a carer under section 24(4), must consider in particular whether the support should take the form of or include a break from caring’. As such there must be specific consideration of whether short breaks need to be provided in every package of support for carers with eligible needs. It may well be in many cases that the carer’s eligible needs can only reasonably be met through the provision of some sort of short break.

Much of the detail of the scheme under the new Scottish Act has been left to regulations, which are still forthcoming. I very much hope colleagues in Scotland are able to push for the most rigorous scheme that will provide an example in England and elsewhere.

One final reflection – the Care Act 2014 in England applies to disabled adults and their carers. The Scottish Act applies to carers of both disabled children and adults – but not to disabled people themselves. Is it naïve to think that we might be able to have a single joined up scheme covering disabled people of all ages and those who provide them with care? This seems particularly important when a short break must be a positive and rights-respecting service for the disabled person, not just a chance for a break for their carer.

There is a lot more in the Scottish Act than I have covered in these initial reflections. I should also stress that I am an English lawyer and am not familiar with the wider scheme in Scotland in which this Act sits. Any comments by those with more expertise will be very welcome.

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).

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.

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.

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