| SPOTLIGHT |
The failure by Worcestershire County Council to provide the families of four children with significant disabilities and support needs with transitional support following a decision to withdraw portage services was unlawful, a HIgh Court judge has ruled.
Portage is an educational support service for pre-school children (from birth to 5 years-old) provided through regular home visits from a trained home visitor. It is named after a town in Wisconsin in the United States where the service was originally developed.
Prior to 1 October 2018 portage services were available in Worcestershire. The ‘entry requirements’ for the service included that the child had significant developmental delay in at least two areas, or a recognised disability or diagnosis, and that s/he was not already attending a special needs placement.
In RD & Ors, R (on the application of) v Worcestershire County Council [2019] EWHC 449 (Admin) the evidence of the claimants’ parents was that the portage service had provided significant benefits to the children and their families.
Mr Justice Nicklin found that none of the claimants’ families were provided with any written notification of the decision by Worcestershire’s Cabinet Member for children and families in August 2016 to withdraw the portage service from 1 October 2018.
Nor were they given any details of the ‘transitional arrangements’ that would be made for them, something on which the August 2016 decision had been expressly premised.
“In the language of judicial review, I find that the defendant made a clear representation to the parents affected by the August 2016 Decision (and to the public generally) that it would devise and implement transitional arrangements to mitigate the impact of the withdrawal of the portage service by ensuring that the families affected were able to access alternative services which would meet the needs that had previously been addressed by portage,” the judge said.
Nothing that happened in the period from August 2016 to September 2018 – when the majority of families would be ‘naturally discharged’ from the service – undermined or withdrew that representation, he added. “Indeed, subsequent events demonstrate that this representation was not only acknowledged but it was also reinforced by the defendant.”
Mr Justice Nicklin found that there was no evidence that at the date of a second equality impact assessment carried out in April 2018 – apparently because of impending staff changes as a result of the withdrawal of the portage service – that any transition plan “had been developed” or was in existence for any of the families whose children had been identified as being at risk of adverse impact from the withdrawal of the portage scheme at the end of September 2018.
Nevertheless, the second EIA had clearly acknowledged not only the need for such a plan, but also the need for monitoring of the implementation.
Mr Justice Nicklin said it was “a striking feature of this case” that there was no contemporaneous evidence of any transition planning at all in the period from August 2016 to September 2018.
On the basis of the evidence, the judge concluded that Worcestershire had not developed/implemented and did not develop/implement any transition plan, despite the fact that (a) the August 2016 Decision was premised on the clear representation that such transitional arrangements would be made before the portage service was withdrawn; and (b) the Second EIA had stated that a transition plan either had been, or would be, developed. [Judge’s emphasis]
He added that it was not until September 2018 that there was any engagement with the claimants’ families; even then, the evidence strongly suggested, these “belated efforts were only triggered by the complaint by solicitors acting on the families’ behalf and were not executed pursuant to any ‘transition plan’.
The claimants had put forward five grounds of challenged:
Worcestershire resisted all the grounds of challenge. It also contended that the claim for judicial review should be rejected on the grounds of delay and/or the availability of an alternative remedy.
Mr Justice Nicklin said: “In my judgment, the struggle to identify the decision under challenge (if it is not the August 2016 Decision) does not lead to the conclusion, urged by [counsel for Worcestershire], that the claimants have no basis for complaint.
“I consider that it helps to pin-point the real target of the claimants' claim: the absence of any transition planning. The claimants are not creating a duty to reconsider; their case is that they were entitled to expect the defendant would execute the transition planning that it had promised it would carry out. That is a claim to legitimate expectation.”
The judge concluded that Worcestershire’s failure to devise or implement any transitional plan had frustrated that legitimate expectation. “The defendant has offered no justification for doing so.”
He also rejected the council’s arguments on delay, alternative remedy or that there were would not have been a substantially different result.
The judge said the frustration of the legitimate expectation was not lawful and the claimants were entitled to a declaration to that effect.
Bindmans solicitor Jessie Brennan, who represented the families, said: “Rather than simply proactively engage with and support affected families who in many cases are not only caring for a very young child with SEND, but are also caring for their siblings and working, the council has fought a legal battle for six months to avoid keeping their promises.
“I hope that the council will now genuinely engage with not only my clients, but all affected families, to ensure they are appropriately supported and that their children's and their family's needs are met in accordance with the council's statutory duties.”
Brennan added: “I also hope that this and other councils will heed the Court's warning that an adversarial approach 'is positively unhelpful in terms of securing the best outcome for the claimants' and other families will not be forced to fight legal proceedings to enforce their rights. Money should be invested in supporting children with SEND, not fighting legal battles to avoid doing so.”
A spokesperson for Worcestershire County Council said: "We acknowledge the judge's ruling. The court has not found that the children's needs were being inadequately met. The judgment instead focuses on the implementation process following the original decision in 2016. The council will review this ruling and will assess if any further action is required."
