A game-changer? Will ruling of illegal Local Offer force councils to do better?

On Thursday afternoon, we brought you an update from a High Court Judicial Review hearing which found that Warwickshire's SEN & Disability Local Offer plans were so rubbish that they actually broke the law.

By the date the new SEND reforms commenced, September 1 2014, every local authority in England was supposed to have published a Local Offer online. In the event, a number failed to do this. Since then, many, if not most parents who have perused their council's Local Offer website have come away feeling a little underwhelmed at what they have found so far.

In fact, despite the SEN minister telling SNJ that every LA has a Local Offer online, I was told in a tweet that Kingston, for one, does not have anything that you can remotely call useable. It might be a page called "Local Offer" but er, that's it. If this is the same where you live, let us know in the comments.

What is a Local Offer?

For those to whom this is still a mystery, the Local Offer is a key part of the government's reform of the special educational needs and disability provision for children and young people under 25 in England. It is intended to be an online, always current, searchable directory of all relevant services across education, health and social care. It should include information for families about how to access support, eligibility criteria, a feedback system and how to complain or appeal.

It's hoped that its dual purpose will be to illuminate the current state of the area's services for families who have children with additional needs so gaps can be plugged. It isn't just for those with a statutory Education, Health & Care Plan.

Parents and young people were supposed to have been involved in its development which has happened to a more or lesser degree depending on your LA. More info here

The Warwickshire case

The Warwickshire case involved parents of two disabled children known as L and P. Law firm, Irwin Mitchell, led by solicitor Polly Sweeney, sought a judicial review on their behalf 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.

To recap, the proposals were introduced following a decision made by the council in February 2013 to make target savings of £1.786m from its budget for disabled children's services. Since then, the claimants’ families alongside a group of local parents have been lobbying the council to try to 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 respite support for disabled children and their families.

The parents' argument was that the Local Offer did not comply with the basic requirements laid down by the law and the judge, Mr Justice Mostyn, agreed, calling Warwickshire’s Local Offer "deficient' as it fell “a considerable distance short of the statutory requirements”.

And with those words, he sent a bolt of fear through every SEND department management team in the country (or it should have done). I expect they have spent the weekend feverishly reviewing the relevant law and regulations as well as the JR findings (if they've heard of the judgement yet of course) against an assessment of their own offer. And as well they should, before someone else does it for them and finds it wanting.

I contacted Polly Sweeney via Steve Broach, one of the barristers instructed as counsel, to see if we could hear from the parents of L and P. The parents have kindly sent this message:

“Hopefully this decision will help promote the culture change within WCC which is so badly needed in terms of attitudes towards disabled people within Warwickshire. There seem to be entrenched views that disabled people (including children) and their families are ‘benefit scroungers’, ‘become welfare dependent’ and are therefore undeserving of support.

"The families we know are hard-working, conscientious people who are just trying to do their best and hold their families together without going under. Many are very positive that their children can be valued members of society and make a real contribution to their communities but the simple fact is that they need more help than non-disabled children to get there – something that Parliament in its wisdom has recognised by imposing legal duties on Local Authorities. 

"Unfortunately, the council and senior managers sought to impose draconian cuts to this support without knowing how many disabled children would be affected or whether they would actually save any money. These cuts are already causing hardship and pushing families nearer to crisis point. 

"We brought this legal action on behalf of every family in Warwickshire with a disabled child in order to try to preserve vital short breaks support, which helps families continue to care. We were not able to persuade the LA to look again at the huge budget cuts, but we were pleased that the Judge ruled that the SEND Local Offer was unlawful because this confirms everything parents had been saying for months. 

"We remain very worried about the assessment pathway that Warwickshire has created because disabled children are not currently able to get full statutory assessments as a matter of course. We know that this issue is crucial to all disabled children across the country so we now hope that a higher court will make a more helpful ruling. 

"We took the LA to court because we had tried every other alternative to persuade them to sort things out: lobbying councillors, attending meetings with senior managers, media coverage, attending cabinet & council meetings etc. We would much rather the LA had acted lawfully in the first place and spent the cost of legal action on retaining vital services and implementing SEND promptly and competently and we will continue to make every effort to encourage them down this path. 

"Hopefully, WCC will now move quickly to implement the SEND reforms correctly but we also hope that they will no longer try to hoodwink vulnerable families into accepting procedures and decisions which are so patently unlawful.”

The other question

Local authorities shouldn't just be looking at their Local Offer as an ongoing project. They should be asking NOW, "Are we doing well enough already for those families who need to use the Local Offer immediately, because they are transferring or just entering into the new system?"

They probably won't however, because they already know the answer is no.

The SEN Minister, Ed Timpson says it's an early stage, things are developing, etc etc. But how is that of use to me, searching for 'physiotherapy' in ours and getting back precisely nothing? Or to the schools moving children to SEN support, doing their best to find creative solutions as directed, but having no Local Offer worth searching?

In five years time, it may well be that this all works a treat, but that doesn't help our families right now who are feeling like the 'sacrificial lambs' of the new, un-road-tested system. The Pathfinders, or testing authorities, were supposed to trial how the system would work, but in reality none were able to properly test-drive a fully-working Local Offer system because they were hamstrung by an unrealistic timescale, a lack of clear central guidelines (because the law wasn't yet there), arguing internally over how much it was going to cost and, it wouldn't surprise me, whose corporate brand should be on the website.

The implications of the Warwickshire ruling

As mentioned, the solicitor who acted on behalf of the claimants is Polly Sweeney, Associate solicitor at Irwin Mitchell LLP. Polly has sent me a detailed explanation of why the ruling that the Local Offer was unlawful really does matter and this really is a cut-out-and-keep:

"I have read many comments on social media questioning what difference it makes that the Local Offer has found to be unlawful when it is not enforceable. 

"‎This is a good question and one which is central to the debate on the purpose of the Local Offer and what role it has in improving services. As observed by Mostyn J in the judgment, "Although the prescriptions are extremely extensive, it is important to understand that the requirement is no more than to publish information about what services are expected to be available. Section 30 of the 2014 Act incorporates a publication obligation, no more, no less. 

"However, I believe that this statement, when read alone, mis-states the purpose of the Local Offer and that to properly understand its function, and importance, you have to look at what it is required to contain. 

"The requirements for what should be included within a local authority’s Local Offer are set out at Schedule 2 of the Special Educational Needs and Disability Regulations 2014 (S.I. 2014 No. 1530). This includes for example:

• Special educational provision and training provision with the LA expects to be available in its area
• Arrangements for identifying particular SEN of children and young people
• Arrangements for securing services, provision and equipment required
• Arrangements for supporting children and young people in preparation for adulthood and independent
• What activities and support is available for children and young people with SEND

However, the crucial part of Schedule 2 is paragraph 18. This states that the Local Offer must include: 

“Information about any criteria that must be satisfied before any provision or service set out in the local offer can be provided.”

"Although the Local Offer in itself may not give rise to a legal duty on a local authority to provide the services contained within it – the requirement to include any eligibility criteria will create an entitlement to those services or provision in circumstances where that eligibility criteria is met. 

"I frequently act for parents and carers who have been told by local authorities that they cannot access an assessment or services because of some purported eligibility criterion. Commonly this might include blanket policies and unlawful thresholds but often nothing is ever written down (at least not publicly) and parents will feel that they have no choice but to accept what they are being told.

"The requirement to publish any eligibility criteria will not only ensure transparency in decision-making but will give rise to an entitlement to services or provision in accordance with that LA’s eligibility criteria.

"For example, the Local Offer must contain information about arrangements for social care services provided under section 17 (children in need). On its own, that list of services will not give rise to a legal right to access them. However, the Local Offer must also set out what eligibility criteria is in place to be able to access those services. This was one of the reasons that the Local Offer was so pivotal in the Warwickshire case as it contained new eligibility criteria for access to short breaks and s17 assessments for disabled children which would severely restrict access to services and we argued were unlawful. However, assuming the eligibility criteria were, in another local authority, lawful and it said that all children with a certain level of need were entitled to a certain number of hours of short breaks – this part of the Local Offer would be enforceable and would give rise to a right to those services.

"In addition, section 27 of the new Act states that local authorities must keep their educational and training provision and social care provision under review and this includes the sufficiency of that provision.

"The SEND Code of Practice states: 'Local authorities should link reviews of education, health and social care provision to the development and review of their Local Offer and the action they intend to take in response to comments. This will help to identify gaps in provision and ensure that the Local Offer is responsive to the needs of local children and young people and their families.'

"So if parents or young people identify that there are gaps in the provision in their Local Offer, then local authorities must consider their comments and formally respond to set out what action they intend to take. If local authorities are not doing this, or are ignoring the comments, then families can challenge them. 

"Ultimately though, whether or not the Local Offer has any teeth, it is hoped this Judgment will provide a ‎clear message to all local authorities across the country that these legal duties do matter and they have to comply with the requirements under Part 3 of the Children and Families Act or risk having to explain itself to a Court. I hope it will also give families the confidence and continued determination to stand up to local authorities who are not complying with their duties under the SEND reforms.

"That said, this victory should not down play our very serious concerns about other aspects of the Court's judgment and in particular the assessment criteria for disabled children and access to short breaks. Those issues will be subject to an appeal to the Court of Appeal and in the meantime we will be inviting the local authority to put on hold these aspects of their Local Offer pending the appeal.”

Although this is pretty comprehensive on the ruling, we'd also like your views and experiences on what you've seen local to you. Please add your comments below.

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Tania Tirraoro

Founder, Co-Director at Special Needs Jungle

Founder of Special Needs Jungle. (She/Her) Parent of two young adults with autism. New grandma. Tania, who is autistic, is a leading SEND advisor, working with the Special Education Consortium, Ofsted, and Whole School SEND. She is also an Advisory Board member of the Royal Holloway, University of London Centre of Gene and Cell Therapy and an Editorial Board member of Springer Nature Gene Therapy journal.
Tania is an experienced broadcast and print journalist & author. She also runs a PR, web & social media consultancy, SocialOro Media.
Tania is a rare disease & chronic pain patient advocate with Ehlers Danlos syndrome.

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