In what may turn out to be a ‘landmark’ (or at very least a ‘significant’) ruling, on Feb 5th (2016) High Court has handed down Judgement in the first Judicial Review to consider local authorities’ duties to disabled children following the reforms brought in under the new Children and Families Act on 1 September 2014.
This is a summary of the case (taken from the website Special Needs Jungle , and the website of law firm Irwin Mitchell who represented the Claimants).
- The Claimants, two disabled children known as L and P, instructed law firm Irwin Mitchell to seek a judicial review against Warwickshire County Council’s proposed Local Offer consultation, which included changes to disabled children’s social care and new criteria for accessing assessments and services.
- These proposals were introduced following a decision made by the Council back in February 2013 to make target savings of £1.786m from its budget for disabled childrens services. Since then, the Claimants’ families alongside a group of local parents have been lobbying the Council to try and secure a fair and transparent consultation on the Council’s plans to reduce expenditure – which involve severely restricting access to Short Breaks, a service which provides essential support for disabled children and their families.
- Under government reforms introduced on 1 September 2014, local authorities are now required to have a “Local Offer” which sets out in one place information on services across education, health and social care and from birth to 25; how to access specialist support; how decisions are made including eligibility criteria for accessing services where appropriate; and how to complain or appeal. One of its purposes is to make provision more responsive to local needs by directly involving children and young people and their parents in its development.
- Law firm Irwin Mitchell argued on behalf of the Claimants that the council’s Local Offer which has been published for consultation, and which includes its plans for reducing access to Short Breaks for disabled children, was unlawful as its content does not comply with the basic requirements laid down by the law.
- Mr Justice Mostyn, sitting in the High Court, found that Warwickshire’s Local Offer was deficient as it fell “a considerable distance short of the statutory requirements”.
- In addition, the Judge found that Warwickshire Council were in breach of their legal duty maintain a single register of disabled children, commenting that “plainly unless this local authority has such a register and knows more or less precisely how many disabled children there are in the county it cannot make a fully informed decision about budgetary allocation or as to the terms of a proposed Local Offer.”
- However, the Court refused to allow the Claimant’s permission in relation to its other grounds relating to its proposed new social care policy and the reduction in funding that the new policy will implement, finding that there had been no breach of any duty to consult with the families on these issues. In addition, Mr Justice Mostyn rejected the Claimant’s arguments that Warwickshire’s proposals were unlawful as they denied disabled children the automatic right to a social work assessment and instead required families to prove that their disabled child’s needs were very complex in order to access an assessment.
Note especially the Judge’s finding with regard to the maintenance of ‘a register of disabled children’, a requirement intoduced with the Children Act 1989. (Although also note that many commentators consider the language in that legislation outdated and problematic, not least in its use of the ‘non-specific’ term ‘disabled’)
An article on the judgement (‘Council’s plan to change local offer for disabled children was unlawful’) has just appeared in Community Care online. Author Luke Stevenson provides a reasonably concise analysis of the jusgement; but concludes with a consideration of the possible effect of that part of the judgement, in which Mr Justice Mostyn found against the Claimants on the issue of assessment.
- Concerns were also raised about Warwickshire’s proposals to deny disabled children the automatic right to a social work assessment. The claimants’ representatives said this will leave families having to prove their child’s needs are complex enough to qualify for an assessment. However, the judge rejected this suggestion as “meritless and unarguable”.
- Referring to Working Together guidance – which suggests a disabled child must be assessed by a social worker even if their disability is minor – Mostyn said it would be “very surprising if the author had intended that every disabled child should immediately, and irrespective of the scale or nature of the disability, proceed to that extensive and no doubt expensive assessment”.
- The guidance recognises a spectrum where ‘lower end’ needs can be assessed through use of an early help assessment, he said.
- He gave the example of a child with dyslexia receiving a social care assessment, explaining it “would not make sense” for any child with a “mental disorder” to be entitled to a social work assessment due to the changing nature of the term ‘mental disorder’.
- However, Polly Sweeney, who represented the families, said they were concerned the judgment will “leave disabled children across the country in a vulnerable position without access to proper assessments”.
Look out for more on this judgement, on our and others’ websites!
Postscript
This exchange in the Commons on 22nd Jan 2016 was surely prompted by this judgement:
Although the reply from Edward Timpson, The Minister for Schools, adds little: “The SEND reforms are complex and will take time to embed fully. The transition period from statements to Education, Health, and Care Plans (EHCPs) runs until 2018… Early in the process, feedback showed that local authorities were at different stages in developing their Local Offers. All local authorities now have a Local Offer in place, and are working with their partner bodies, families and young people to ensure Local Offers respond to local needs.”