Local offer to disabled children "fell below statutory requirements": judge

A High Court judge has found that Warwickshire County Council’s ‘Local Offer’ to disabled children under section 30 of the Children and Families Act 2014 fell “a considerable distance” below the statutory requirements.

The case of L & P, R (On the Application Of) v Warwickshire Safeguarding Children Board [2015] EWHC 203 (Admin) was billed as the first judicial review to consider local authorities’ duties to disabled children following the reforms brought in under the 2014 Act.

The claimants were two disabled children who live in Warwickshire. Their challenge was to the county council’s Local Offer consultation, which included changes to disabled children’s social care and new criteria for accessing assessments and services. Access to a Short Breaks service was to be restricted as part of the changes.

The background to the claim was Warwickshire’s decision in February 2013 to make target savings of £1.786m from its budget for disabled children’s’ services.

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Under reforms introduced under the 2014 Act on 1 September last year, local authorities are required to have a ‘Local Offer’ setting out in one place information on services across education, health and social care and from birth to 25; how to access specialist support; how decisions are made including eligibility criteria for accessing services where appropriate; and how to complain or appeal.

Five grounds were advanced by the claimants’ lawyers, law firm Irwin Mitchell and barristers Ian Wise QC and Steve Broach of Monckton Chambers.

In a ruling handed down today (5 February) following a rolled-up hearing, Mr Justice Mostyn described the case as “complex and intricate”. He found that the claim was “seriously out of time” and permission ought to be refused for that reason.

However, he addressed the merits of the case as leading counsel had addressed him on them at some length. He found that two grounds had been made out but three others should be dismissed.

Mr Justice Mostyn concluded that Warwickshire’s Local Offer fell “a considerable distance short of the statutory requirements”.

The judge added that the proposed offer “needs a good deal more work before it is issued in final (but variable) form”.

He said: “The defendant will have noted the criticisms made by the claimants and will no doubt work very hard to improve the current draft.”

Granting permission on this ground, the judge noted that no substantive relief was sought beyond a finding that the proposed Local Offer in its present form was deficient. He formally made that finding.

The judge also found that the council was in breach of its duty under paragraph 2 of schedule 2 to the Children Act 1989 because of its failure to create and maintain a register of disabled children. He said the council was obliged “promptly to remedy that breach”.

“The defendant [council] is over 20 years late in complying with its duty under paragraph 2 of Schedule 2 to the Children Act 1989, which does raise questions as to when this ground ‘first arose’, although I have heard no argument about this,” Mr Justice Mostyn said.

“Plainly unless this local authority has such a register and knows more or less precisely how many disabled children there are in the county it cannot make a fully informed decision about budgetary allocation or as to the terms of a proposed Local Offer. That is not to say however that the decisions that it has reached hitherto have gone clearly and radically awry.”

However, Mr Justice Mostyn refused to grant the claimants permission in relation to their other grounds relating to the council’s proposed new social care policy and the reduction in funding that the new policy would implement. He said there had been no breach of any duty to consult with the families affected on these issues.

The judge also dismissed the claimants’ arguments that Warwickshire’s proposals were unlawful as they denied disabled children the automatic right to a social work assessment and instead required families to prove that their disabled child’s needs were very complex in order to access an assessment.

Polly Sweeney, an Associate Solicitor in the Public Law team at Irwin Mitchell representing the families, said: “We are pleased that the Court has accepted our arguments regarding the lawfulness of the defendant’s Local Offer and hope that this judgment sends out a message to local authorities that they have to take their new duties introduced under Part 3 of the Children and Families Act 2014 seriously.

“The Court also emphasised the importance of local authorities having a register of disabled children so they can plan properly for budgets and services to support them. However, we are very disappointed that the Court has ruled that disabled children are not automatically entitled to a social care assessment and we are concerned that this judgment will leave disabled children across the country in a vulnerable position without access to proper assessments.”

Sweeney added: “We also remain of the view that the defendant has not consulted properly on its final proposals to limit access to social care services. We intend to apply to renew our application on these grounds to the Court of Appeal.”

A spokeswoman for Warwickshire said: "The court judgment found in favour of the council on three out of five grounds cited by the claimant against the council’s decision-making process around redesign of services for disabled children and young people.

“The principal ground of challenge was that the council was under a common-law obligation to consult before deciding to make a cut in a budget for services for vulnerable people. This was not a view held by the court and we are pleased with this judgment confirming that our processes are lawful and proper.

“The court also dismissed two other grounds raised by the claimant concerning an obligation on the local authority to carry out social care assessments of any disabled child and inadequate consultation about local offer of care and support for children and young people.”

The spokeswoman added: "On two issues the court did support the complainant concerning the development of the council’s proposed local offer for children with special educational needs and disabilities and the absence of a voluntary disability register. The council has already taken steps to ensure these issues are addressed by 31 March 2015.

“The judge agreed that Warwickshire was in a similar position to other local authorities in that more work is required on its local offer and we are already working closely with families to make improvements to the support available to these children and young people. We will also be putting in place arrangements for a children’s disability register where parents, if they wish, can register their child.” 

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