IPSEA Legal Update
Issue 3 - Autumn 2015
Welcome to our third IPSEA Legal Update and hello to those who are just joining us for the first time. This newsletter has been written especially for you - our Legal Update Subscribers.
The first anniversary of the Children and Families Act 2014 (1st September) coincided with an amendment to the time line for transition from a statement to an Education Health and Care (EHC) plan taking effect.
There have been problems with transitions from statements of Special Educational Needs (SEN) to EHC plans. Some recognition of this was made by Edward Timpson in a speech to the Association of Directors of Children’s Services, on 10th July 2015 when he announced a change to the transition time line.
This change refers to the time limits for a Local Authority to complete the process of transition from a statement to an EHC plan. The period under the original transition arrangements was 14 weeks from commencement – you will see this referred to as a 16 week time limit because two weeks’ notice has to be given, so it is a total of 16 weeks. This has now been extended to 18 weeks – 20 weeks including the two weeks’ notice – so from 1 September 2015, LAs will have 20 weeks to complete transitions from statements of SEN to EHC plans. The existing timetable will remain in place for young people with Learning Difficulty Assessments.
The Department for Education has since issued a newsletter about this and other matters. You can access this newsletter here.
It is worth explaining in more detail what the expression “completing” a transition means:
• the LA must carry out a full EHC needs assessment in relation to the child or young person concerned;
• the LA must issue a draft plan, giving the parent or young person their opportunity to respond to it and consulting with the setting to be attended by the child or young person;
• the LA then finalises the EHC plan and issues it, signed and dated, in its final form.
In some cases the LA will decide not to issue an EHC plan. Since the legal test for an EHC plan is at least the same, if not wider, than the test for a statement this should be happening in only a minority of cases where the child or young person’s needs have changed. In these cases it is the decision of the LA not to issue an EHC plan which completes the process and the parent or young person then has a right of appeal to the Tribunal about that decision. The statement must be maintained pending the resolution of the appeal. If when the EHC plan is finalised it is not what the parent or young person wants, again there is a right of appeal to the Tribunal on the educational sections of the EHC plan.
In particular, transition from a statement to an EHC plan requires an EHC needs assessment under the C & F Act 2014. A statement must not just be “tipped” into an EHC plan. The law relating to an EHC needs assessment being carried out for a new entrant into the system applies equally to an assessment carried out as part of transition, including, for example obtaining an Educational Psychologist report. Click here for more information about EHC needs assessments on our website.
We are encouraged that the Department for Education is listening to feedback about the implementation of the new law and we will continue to give them evidence based on the experience of the families that we support.
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IPSEA Legal Team Manager
Top issues that our services are dealing with
1. Transition from a statement to an EHC plan without an EHC needs assessment being carried out. This was our number 1 issue last term.
2. Home to school transport arrangements being cut or changed (particularly post 16). This was our number 2 issue last term.
3. Local Authorities (LAs) telling parents that they will have to wait 6 months before they can make another request for an EHC assessment for their child following the LA's refusal to carry out an EHC assessment. This is incorrect. There is no requirement for a parent to wait 6 months unless the LA has previously conducted a statutory assessment under the Children and Families Act 2014. This is an emerging issue.
4. Local Authorities refusing an EHC assessment simply because there has been no input from an Educational Psychologist. This is incorrect. This is an emerging issue.
5. Colleges not realising that they have legal duties to young people with SEN, Local Authorities refusing to issue plans for young people with SEN and a lack of information about options for young people with SEN. These are ongoing issues.
Disability Living Allowance – the ultimate in perseverance
On 8th July 2015 there was a landmark decision in a Supreme Court case about Disability Living Allowance (DLA). The child in this case, Cameron Mathieson, had his DLA suspended when he went into hospital.
This case started way back in 2012. The first appeal was to the First-tier Tribunal (Social Security and Child Support) at which stage the appeal was dismissed. The case then went to the Upper Tribunal (in January 2013). The Upper Tribunal set aside the decision of the First-tier Tribunal as an error of law but then also dismissed the appeal on other grounds.
Having lost two layers of Tribunal cases, the father appealed to the Court of Appeal. By now his son had sadly died, but he wanted to continue to get the principle established that the rule suspending payment of DLA after 84 days in an NHS hospital breached a disabled child’s human rights.
The Secretary of State argued that children do not need DLA when they are in hospital because all their disability-related needs are being met. However the Supreme Court accepted the parent’s argument and the parent finally won his case.
The interesting point from an SEN and disability law perspective is the broad approach taken by the Supreme Court to the question of whether Cameron had a relevant ‘status’ for the purpose of Article 14 of the European Convention on Human Rights and the weight given to the relevant international conventions, here the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities.
Historically, referring to this type of argument in an SEN appeal had seemed like a last resort but this case should encourage appellants to bring in these arguments where relevant. In this case, the Supreme Court held that the decision to suspend payment of Cameron’s DLA violated his human rights under Article 14. The difference in treatment between disabled children in hospital and disabled children cared for at home could not be justified by the state. There was therefore a breach of the obligation to act in accordance with Convention rights imposed by section 6 of the Human Rights Act 1998.
Useful resource on social Care and the Children and Families Act 2014
From 1st April 2015, when the Care Act 2014 was implemented, social care law as it relates to adults changed. The new law does not apply to children (other than in relation to transitional provisions). In relation to children, it is still the Children Act 1989 and the Chronically Sick and Disabled Persons Act 1970 (as well as a host of other enactments) which applies. There are therefore two separate social care regimes, one for children and one for adults.
The Children and Families Act 2014 separates children from young people at the ending of compulsory school leaving age, i.e. broadly, at 16. However for the purposes of social care law, until a young person is 18, they are still classed as a child. Therefore, when advising in relation to young people, if they are still under 18, it is children’s social care law which applies and if they are over 18, they are adults to whom the Care Act 2014 will apply, with some exceptions and transitional arrangements.
How social care law interacts with the Children & Families Act 2014 is a complex topic but a useful resource which carefully analyses this can be found here.
Spotlight on a case - number 3
Our third “spotlight” case is a decision of the Upper Tribunal in an SEN appeal, KC v LB Hammersmith and Fulham (SEN)  UKUT 0177 (AAC).
The child’s parent wanted her to attend a specialist independent school. The parent had a “fall back” option if the first choice was not to be named, a free school which was a mainstream school. The Local Authority named a maintained special school.
Section 9 of the Education Act 1996 obliges a local authority to ” have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.”
This is the relevant law where parents are seeking a specialist independent school to be named in a statement of SEN. There is a two-stage process to making decisions about whether one school constitutes unreasonable public expenditure when compared with another under section 9.
First, a LA or Tribunal must establish whether one alternative is in fact more expensive than another. Then, if so, they must make the decision as to whether the additional expenditure involved in meeting the parent’s preference was justified. This second stage is usually referring to as the “balancing exercise” which has to be carried out under section 9. So the Tribunal does not just look at the figures to see whether there is an additional cost – it then must go on and do a balancing exercise weighing the additional cost against the parents’ preference considering in so doing the benefits of the parents preferred school.
In this case the First-tier Tribunal considered the parents first choice school and the LA’s special school and having carried out the balancing exercise required by section 9 found that a placement at the parent’s first choice school (the specialist independent school) would be unreasonable public expenditure. So the parents lost on that argument.
The parents second, or “fallback” choice was then considered and the First-tier Tribunal found that it did not have jurisdiction to name it, i.e. the Tribunal at that stage decided as a matter of law that it could not then go on and name the parent’s fall back option. The Upper Tribunal found that this was an error of law.
In the Upper Tribunal case the parents also attempted (unsuccessfully) to bring back their first choice into the equation, asking for the section 9 balancing exercise be considered between their original first choice and the mainstream school (which at this stage the LA had accepted could be named). This the Upper Tribunal did not accept.
However, this case confirms that it is possible for parents to have a fall back option. Where a parent’s first choice is an expensive independent special school and the parent has strong views about their child not going to the LA special school – not an uncommon occurrence - it may well be worth parents considering a mainstream school as a fall back option – the Tribunal has power to consider this school and to name it in the statement.
One issue that arose in the Hammersmith and Fulham case (see above) was the right to a mainstream education. One of the reasons why the parents ended up with their “fall back” option was because of the rights in the Education Act 1996 (and continued in the new law in the C & F Act 2014) to education in a mainstream setting. Inclusive education is one of the principles stated to underpin the Special Educational Needs and Disability Code of Practice 2015.
However, recent studies have shown that the 30 year trend of increasing numbers in mainstream has reversed, and parents are increasingly met with mainstream schools suggesting that they are not suitable for a child with SEN or who is disabled.
Mainstream schools and maintained nursery schools must ensure that children with SEN ‘engage in the activities of the school together with children who do not have special educational needs’ provided that this is reasonably practicable, does not prevent them from receiving the support they need, and does not prevent the efficient education of the other children and the efficient use of resources (C & F Act 2014, section 35). The reason for a child’s exclusion from activities must therefore fall within these conditions.
It is useful to be aware of section 35 when advising parents of children who are not being properly included in the activities of the school in mainstream settings. Although it is subject to the caveats mentioned above, it is a statutory duty and schools must comply with it.
This sits alongside the duties in the Equality Act 2010. Under the Equality Act 2010 schools have a duty to make reasonable adjustments for children and young people with disabilities – and these are anticipatory duties.
Thank you and Goodbye!
Your next legal update will be published in early 2016. Until then, goodbye from IPSEA!
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