The following article is taken from the Community Care Law Newsletter issued by the legal chambers 39 Essex Street. For details of how to subscribe visit their website www.39essex.com or email marketing@39essex.com . The newsletter is intended primarily for legal professionals or those involved with community care law; but some articles are accessible to the ‘lay person’, and this is one such. It provides some useful background information on the Children and Families Act 2014, and points out some potential future problems with its implementation (which is now underway).
“The much-anticipated shakeup of the law on children’s needs is now upon us, with the Children and Families Act 2014 having received Royal Assent on 13 March this year, and now with the beginning of its implementation. One of the Act’s key innovations is to introduce Education, Health and Care (EHC) plans, replacing statements of special educational needs.
The EHC plan is to be a comprehensive document, setting out the child or young person’s needs, and the provision to meet those needs, across a range of areas. The line between education and social care, which has always been a blurred one, may become even more difficult to delineate when EHC plans come into effect.
Whilst only the special educational provision in the plan will carry a right of appeal to the tribunal, the plan must set out not only educational provision but also any health care provision reasonably required by the child or young person’s learning difficulties and disabilities and, similarly, any reasonably required social care provision (sections 33 and 36-50 of the Act).
Implementation of the Act begins this September, with transitional arrangements for children and young people for whom statements and learning difficulty assessments are currently maintained.
There is some uncertainty among local authorities and practitioners as to precisely how the new provisions will operate in practice. Of particular interest to community care practitioners will be section 49 of the Act, which provides for personal budgets where EHC Plans are maintained. However there is an important distinction between the right to the identification of a budget, which is purely the calculation of the monetary amount (see s.49(2) of the Act), and obtaining direct payments. The latter are not obligatory. The framework in the Special Educational Needs (Personal Budgets) Regulations 2014 provides numerous grounds upon which local authorities can decide to refuse to provide direct payments, with criteria turning on highly subjective and discretionary evaluations by the local authority: see Regs 5 and 6. Thus the expectation is that direct payments
will not be anywhere near as common for children and young people as they are for adults with social care needs.
Further, the level of financial controls appears much tighter for EHC Plans than it is with direct payments for adults with social care needs. The system for EHC Plans appears to draw more from the experience of budgets for disabled children, where controls have traditionally been tight.
Many aspects of the system remain to be fleshed out. For example, are reasons required for personal budget decisions? The law in the related area of adult social care (ie Savva, R (KM) v Cambridgeshire) suggests a limited reasons duty may be imposed. However aspects of the statutory framework also suggest that Parliament did not intend to impose a reasons duty.
Another issue is whether Resource Allocation Schemes can be used to calculate personal budgets under the new EHC Plan regime. Nothing has been said to suggest that Resource Allocation Schemes, which are now widely used across adult social care, could not still be used here. Indeed, for young people aged 18-25, they will be subject to the rules relating to adult social care provision. However it is not clear how this is to work within the SEN regime, where everything listed as educational provision must be provided regardless of cost.”