Legal Challenges and Opportunities

Council for Disabled Children Spring Conference

A New Landscape for SEN and Disability

Steve Broach Barrister

Monckton Chambers

www.monckton.com +44 (0)20 7405 7211

• CFA 2014 – top five changes• CFA 2014 – top three challenges• Care Act 2014 – key issues• Parent Carers Needs Assessments• Context of cuts

• short breaks• school transport

Topics to discuss

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• Section 19• ‘best possible educational and other

outcomes’

• Genuine 0-25 approach• Duty to provide health services in EHC

Plans – section 42• Spotlight on social care – section H1• The Local Offer – but...

CFA 2014 – Top Five Changes

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• The Local Offer

• R (L and P) v Warwickshire CC [2015] EWHC 203 (Admin)

• Ground D – paras 74-80. • Local Offer deficient in relation to 16 of the

matters prescribed by Schedule 2 to the 2014 Regulations.

• Proposed Local Offer falls ‘a considerable distance short of the statutory requirements’

CFA 2014 – Top Three Challenges (1a)

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• The Local Offer• Basic requirement of all Local Offers is to provide

the information required by schedule 2 to the Regulations

• Vital not to lose second purpose, see Code at para 4.2

• ‘To make provision more responsive to local needs and aspirations’

• LAs should already be seeking comments in accordance with regulation 56 (and s 27)

CFA 2014 – Top Three Challenges (1b)

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• Transition to EHC Plans• Every LA required to have its Local Transition

Plan in place• See ‘Statutory guidance - ‘Transition to the new 0 to

25 special educational needs and disability system‘

• Transfer review requires the local authority to carry out an EHC needs assessment in accordance with Regulation 6

• New advice required unless parents, professional and LA agree to use old advice

CFA 2014 – Top Three Challenges (2)

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• The Joined-Up Approach• Health

• Clear duty on CCGs to arrange provision if in plan• Challenge seems to be getting health to table

• Social care• Real confusion as to what is required by the CSDPA

1970 (section H1)• Different entitlement to direct payments

• Absence of Tribunal appeal right• Including outcomes...

CFA 2014 – Top Three Challenges (3)

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• Transition duties• Assessments (child, child’s carer, young

carer)• Continuation of services – section 66

• New rights to support for carers • Of over 18s...

• National eligibility criteria• More generous than ‘substantial’?

The Care Act 2014

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• Charging• Current consultation – no charges for those who

turn 18 with eligible needs?

• Advocacy• Extensive new right – but availability?

• Parent Carers Needs Assessments• Section 97 CFA• What does this add to existing law?

• Carers and Disabled Children Act 2000 s 6

The Care Act 2014 (2)

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• Section 97 – parent carers’ needs assessments• Not yet in force (due in force 1 April 2015)• Inserts new sections 17ZD-ZF into CA 1989• Requires PCNA to be carried out either on request or

where appearance of need (s 17ZD(3))• Must have regard to well-being of parent carer and

need to safeguard and promote welfare of disabled child (s 17ZD(10))

• May be combined with other assessments (s 17ZE(3))• Detail may be specified in regulations (s 17ZE(4))

Duties to parent carers

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• Is there a new duty to provide services to parent carers?• Section 17ZF requires ‘consideration’ of PCNA• In particular:

• Does the parent carer have needs for support in relation to their caring role?

• Does the disabled child have needs for support?• Could those needs be satisfied by services provided under

section 17?• Must then decide ‘whether or not to provide any such

services in relation to the parent carer or the disabled child’

Duties to parent carers (2)

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• Problems with PCNAs• Overlap with existing carers’ assessment duties• Overlap with duty to conduct ‘holistic’

assessment of disabled children under CA 1989 s 17

• Only general duty to provide services under section 17 – including to family members, s 17(3)

• No link to CSDPA 1970 s 2 – the specific duty to provide services to disabled children...

Duties to parent carers (3)

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Cuts – Short Breaks

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• Relevant statutory duties• CSDPA 1970 s 2 – home-based (s 2(1)(a)) and

community-based (s 2(1)(c))• CA 1989 s 17 and schedule 2, para 6(1)(c)

• Provide services ‘to assist individuals who provide care for such children to continue to do so, or to do so more effectively, by giving them breaks from caring’.

• Breaks for Carers of Disabled Children Regulations 2011

• CA 2004 s 11 – safeguarding and promotion of children’s welfare in carrying out functions

• CFA 2014 s 19 – ‘best possible outcomes’

• Reg 3 – LAs required to focus on carers’ needs:• ‘to undertake education, training or any regular leisure

activity, meet the needs of other children in the family more effectively, or carry out day to day tasks which they must perform in order to run their household

• Reg 4 – duty to provide ‘so far as is reasonably practicable, a range of services which is sufficient to assist carers...’

Breaks for Carers of Disabled Children Regs 2011

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• Reg 4 (cont) – services must include:• day-time care • overnight care • educational or leisure activities for disabled children

outside their homes, and• services available to assist carers in the evenings, at

weekends and during the school holidays.

• Reg 5 – duty to publish short breaks services statement (‘SBSS’)

Breaks for Carers of Disabled Children Regs 2011 (2)

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• Reg 5 (cont) – SBSS must cover• the range of services provided in accordance with

regulation 4• any criteria by which eligibility for those services will be

assessed, and• how the range of services is designed to meet the needs

of carers in their area.

• Must be published with Local Offer• Code at para 4.44

Breaks for Carers of Disabled Children Regs 2011 (3)

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• ‘Eligible’ children aged 5-15 – duty to provide free, suitable transport (s 508B and schedule 35B)

• Children aged under 5 or 16-17 – power to provide suitable transport – can charge (s 508C)

• Over 18s – duty to provide suitable transport – must be free (s 508F)

• Post-16 transport policy statement – s 509AA and AB

Cuts - School Transport

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• Huge opportunities in both 2014 Acts• Implementation will inevitably take time

• 10 years?

• Very difficult to achieve system change in context of reduced funding

• Compliance with spirit, not just letter, of new law is vital

• Making change happen in real partnership with children, young people and parents

Conclusions

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Steve Broach

Monckton Chambersemail

sbroach@monckton.comtwitter @stevebroachblog

rightsinreality.wordpress.com