Tania's note: On Monday, we published a post asking you to send us your evidence for cuts to SEND where you live. You've been doing that, thank you, but if you haven't yet, please do so if you have evidence that cuts are to blame for a lack of provision, or refusal to provide. We can then get a national picture.
Matt Keer has already explained how to find out if your LA is cutting SEND budgets (tell us when you find out). Today specialist lawyer, Steve Broach is here to tell you exactly how to fight the cuts, using the law. Steve is familiar to many SEND parents. He's a barrister at Monckton Chambers specialising in cases involving disabled children, young people and families. He provides advice and representation in the First-tier and Upper Tribunals and the High Court and above on cases involving complex education, health and social care issues. He regularly tweets and blogs on SEN and disability issues at www.rightsinreality.wordpress.com. Before coming to the Bar, Steve worked in the voluntary sector, most recently as Campaign Manager for the Every Disabled Child Matters campaign which led to the Aiming High for Disabled Children programme.
Over to Steve to tell you all...
How the law can help challenge cuts to SEND services
We are in the midst of a fully fledged ‘SEND crisis’, despite what the Minister may think. Cuts to funding and services across many local authorities at a time of rising demand. Thousands of children without school places or with statements of SEN past the legal transfer deadline to EHC Plans. Thousands more with botched and rushed EHC Plans following unlawful transfer processes when the legally required advice was not obtained. A total absence of social care support for children ‘in need’ in many areas. Lengthy waiting lists for health services such as CAMHS or equipment.
The chink of light on the horizon is that disabled young people and parents are using social media to organise and fight back against the cuts. Campaigners have the benefit of a legal framework, which requires disabled children and young people to be a priority group for funding. These are some of the key legal questions which can be used to challenge cuts:
- Can the local authority fulfil its ‘specific’ statutory duties, owed to individual disabled children and young people, with its reduced funding? For example the duty to secure the educational provision in EHC Plans under section 42 of the Children and Families Act 2014, or the duty to provide social care services where necessary to meet the child’s needs under section 2 of the Chronically Sick and Disabled Persons Act 1970. If a local authority reduces funding to implement EHC Plans and / or provide social care support, it will only be if the funding was previously more generous than was required to fulfil these duties that the cut can be lawful – which seems unlikely. Of course, failures to comply with ‘specific’ duties can also be challenged by individual children, young people and families, but better to make sure this is unnecessary because sufficient funding has been allocated in the first place.
- Have the local authority or Clinical Commissioning Group (CCG) ‘had regard’ to (in other words considered) the various things that Parliament has mandated when deciding on the cut? For example:
- The need to safeguard and promote the welfare of children, as required by section 11 of the Children Act 2004. In the Supreme Court recently, Baroness Hale stated that the section 11 duty requires ‘active promotion’ of children’s welfare. It is hard to see how cuts to SEND services ‘actively promotes’ the welfare of disabled children and / or children with SEN.
- The needs specified in the ‘public sector equality duty’ (PSED) in section 149 of the Equality Act 2010. Most relevant here is likely to be the need to advance equality of opportunity for disabled children compared with their non-disabled peers, but the need to eliminate discrimination may also be relevant in challenges to cuts. Funding cuts could result in indirect discrimination and / or a failure to make reasonable adjustments for disabled children and the risk of this must be carefully considered by the local authority or CCG before making a decision to cut funding for SEND services.
- Has the local authority complied with its various ‘sufficiency’ duties when reaching a decision to cut funding? For example:
- Section 27 of the Children and Families Act 2014, which requires local authorities to ‘consider the extent to which [education and social care] provision…is sufficient to meet the educational needs, training needs and social care needs of [children and young people with SEN and disabled children and young people]’.
- Regulation 4 of the Breaks for Carers of Disabled Children Regulations 2011, which 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.’ The term ‘so far as’ is important here – local authorities must go as far as they can reasonably go to provide a sufficient range of short breaks to meet local need. As a first step, this requires local authorities to have audited both local need and local provision and see how the two currently match up.
- Have the local authority or CCG consulted on the proposed cut? If so, have they consulted properly and therefore lawfully? It is likely that if the answer to either of these questions is ‘no’ then the resulting cut will also be unlawful.
- There are a host of legal reasons why local authorities and CCGs will very likely have to consult before making financial decisions that affect disabled children and young people and children and young people with SEN. Firstly, it is likely that common law fairness would require consultation where the cut will result in a loss of services. Secondly, the public sector equality duty contains a ‘duty of inquiry’ such that local authorities and CCGs will only be able to discharge that duty if they have asked children, young people and families what the impact of the proposed cut would be. Thirdly, in considering sufficiency under section 27 of the CFA 2014 local authorities have to consult with (amongst others) children, young people and parents.
- Once a local authority or CCG consults, whether or not they were required to do so by law or have chosen to do so, the same standard of ‘proper’ and therefore lawful consultation applies. This means that consultation has to take place when the proposals are at a ‘formative stage’, i.e. early enough to make a difference. Adequate time has to be given to consultees to respond. Consultees have to be given sufficient information about the proposals to make an intelligent response – which in certain situations can include information about discarded alternative options. Finally there has to be conscientious consideration of the responses, so that if 97% of consultees say ‘no’ the local authority or CCG should explain why their answer is still ‘yes’.
What is clear from all the above is that Parliament has decided that disabled children and young people and children and young people with SEN should be a priority group for public services. Some children and young people will have an enforceable individual right to services. For a much wider group of children and young people there are important ‘regard’ and ‘sufficiency’ duties that local authorities and CCGs have to meet. Local authorities and CCGs are very likely to have to consult ‘properly’ before deciding on cuts.
What is unacceptable is for Parliament to give rights to children, young people and families, which central and local government then fail to resource properly. Parents and young people working together can use the law to stop this happening.
Further information about how to use the law to challenge cuts is available through the recent webinar I hosted with the charity Contact and Alex Rook from Irwin Mitchell solicitors. Young people and parents who are concerned about local cuts may want to consult a specialist solicitor’s firm with a relevant legal aid contract. The legal remedy in cuts cases is very likely to be judicial review.
However time is of the essence to challenge this round of cuts, so young people and parents who want to do so should get specialist legal advice ASAP.
Steve Broach, Monckton Chambers
Don’t miss a thing!
- Care in a time of coronavirus (ii): Using health direct payments to pay family members for care - April 2, 2020
- Care in a time of Coronavirus: Using direct payments to pay family members for care - March 23, 2020
- Steve Broach, Public Law Barrister on the Coronavirus Bill’s implications for disabled children - March 19, 2020