Are SEN cutbacks denying families’ rights?

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As local authorities threaten further cuts to SEN and disability budgets, Samantha Hale looks at how parents’ rights will be affected  

Local authorities are under pressure to make cuts to their budgets, in most cases across all local authority services. Unfortunately, this means that cuts to education services are also considered and, in particular, cuts to high needs budgets. There are a number of reasons for local authorities to be in this position; one suggested reason is due to overspending by local authorities – with one local authority in particular being reported in the media to be on the brink of bankruptcy.

However, it is unlikely to be as simple as local authorities overspending and more likely to be due to having insufficient budgets to provide the services they are legally required to provide. Therefore, by cutting budgets further, this isn’t going to resolve matters, but instead make them worse, leading to a lack of services being available for vulnerable children and adults and their families, meaning more families will have to fight for the services they require.

Have SEN budget cuts been challenged?

There are three cases which have been issued to challenge specific local authority decisions to cut their budgets. The first of these cases has now been heard by the High Court. This was a challenge by two families against Bristol City Council’s decision to cut their high needs budget by £5 million.

The families were successful in their challenge against Bristol City Council, as the Court decided that the process completed by the local authority was flawed. This is because the authority failed to consult with those who would be affected by the cuts and have regard to them. The Court therefore concluded that the decision to cut the budget by £5m should not stand, and the local authority now has to reconsider the allocation of funding to the high needs Budget.

Why is the Bristol decision important?

This case was the first to be heard out of other similar challenges against other local authority budget cuts. It now means that Bristol City Council will need to properly reconsider the funding allocation, which must include consulting with families who would be affected by any cuts.

As other local authorities are reporting that they will have to make cuts to their budgets for SEN and disabilities they should take this decision into consideration before determining any cuts.

Although the case was a challenge to the decision to cut the high needs budget, evidence was included in the case on the impact this would have on children and families within the authority. The Court took this into consideration and commented on the SEN and disabilities provision in Bristol in the decision. The Court criticised the authority for the high numbers of exclusions for pupils with SEN and disabilities, which across primary and secondary is the highest in the country. It also criticised the attainment gap between pupils with SEN and disabilities and their peers. Whilst these criticisms were specific to Bristol, the same could be said about many local authorities and the provision of services they provide for pupils with SEN and disabilities.

Unfortunately, the Bristol decision does not mean that all decisions to cut SEN and disabilities budgets are unlawful. In order to challenge cuts, there needs to be a legal basis for this. If there is one, this decision could be challenged by families of children and young people who are impacted by such a decision.

What is the legal basis for a challenge?

In order to challenge funding cuts, a local authority will have to consult with service users and families who are likely to be affected by any decision to cut the budget – as the Bristol case confirms. Therefore, one way of potentially challenging a cuts decision is to look at the specific process completed by local authorities with regard to their legal duties to consult.

Other points to consider to try and determine whether a decision can be challenged include whether or not the local authority can fulfil its legal duties to provide services for disabled children and young people if funding cuts are agreed. Furthermore, a decision could potentially be challenged if the local authority has failed to have regard for their duty to safeguard and promote the welfare of a child or by failing to comply with the public sector equality duty. In order to determine if the local authority is in breach of any of these legal duties, you should seek legal advice and do so promptly, as it is likely any funding decision will need to be challenged within three months of the date the decision is made.

Will services suffer?

If a local authority’s budget for SEN and disability is cut, does this mean the services a child receives can automatically be reduced?

If your child has an education, health and care (EHC) plan, the local authority has a legal duty to provide the provision set out in Section F, and this legal duty remains even if there are cuts being made. Therefore, if an authority stops or reduces the provision, you can challenge this legally through a Judicial Review. As this legal duty is separate to the legal duties around cuts, you can challenge this even if a budget cut was announced 12 months beforehand, as long as the local authority remains in breach of their duty to ensure the provision is in place.

The only way that a local authority can lawfully reduce or stop provision to a child or young person with an EHC plan, is if they amend the EHC plan either following an Annual Review or if they carry out a reassessment of their needs. If the authority decides to do this, and I anticipate some local authorities will, the provision has to be implemented in accordance with the EHC plan that includes it all, until a new final EHC plan is issued amending or removing that provision.

If the authority decides to amend or remove provision from the EHC plan, the parents or, in the case of young people, the young person would be issued with a draft EHC plan which should detail the amendments suggested. You will then have 15 calendar days to provide comments on this draft and to suggest the placement that you would like to be named in Section I. The local authority should take these comments into consideration and carry out the relevant school consultations before issuing the final EHC plan.

When the new final EHC plan is issued you may find that, despite making parental comments against it, amendments are made to the provision essentially reducing or removing it. Furthermore, they may even use it as an opportunity to change the placement named in Section I; If, for example, your child attends an independent special school, they may name a community special school instead which would be a cheaper placement for the local authority to fund.

Whilst the authority is legally entitled to change provision and the placement named in any EHC plan, it should only do so if it has evidence that the changes are required and that the young person or child’s needs can be met. I anticipate that some local authorities will make amendments without such evidence. If this happens to you, I recommend you seek legal advice as to the most appropriate way to challenge this; however, it is likely that this would be an appeal to the First-tier Tribunal (Special Educational Needs and Disability). During an appeal, I recommend that you point out to the Tribunal the local authority’s failure to produce any evidence to support the amendments. The Tribunal is unlikely to want to hear detailed submissions around budget cuts, however you can point out to them that you think this is a budget led and not a needs led decision.

Can services be reduced if the child does not have an EHC plan?

If your child does not have an EHC plan but is one of a number of children who may still have a statement of SEN, the local authority would still have a legal duty to ensure that they comply with that and arrange provision accordingly. However, if your child does not have any EHC plan or a statement of SEN and is simply supported through School Support, services could be cut and ordinarily you would not have a legal right to challenge this. This is because School Support does not come with the level of legal protection for services to be provided as that provided under an EHC plan or a statement of SEN.

In cases where a child is being supported through school support, if the service is reduced or stopped completely, I recommend you consider requesting an education, health and care needs assessment (EHCNA). Amongst budget cuts, some parents may find it is harder to get the local authority to agree to carry out an EHCNA, and therefore you may find that such a request is refused.

Regardless as to whether or not local authorities make cuts to their SEN and disability budget, the law on when an EHCNA should be carried out and an EHC plan issued is clear and decisions on these should not be based on budgets.

If a provision is removed or reduced, you should also seek legal advice as to whether or not this could amount to discrimination.

What to do if an authority refuses an EHCNA or to issue an EHC plan?

If the local authority refuses to issue an EHC plan or to carry out an EHCNA, they must notify you of your right of appeal to the First-tier Tribunal (Special Educational Needs and Disability). This right to appeal cannot be removed from you if a local authority decides to cut its SEN and disability budget and therefore I recommend you consider using it to challenge a refusal to carry out an EHCNA or issue an EHC plan.

Further information

Samantha Hale is a Partner and educational law specialist at Simpson Millar Solicitors:
www.simpsonmillar.co.uk

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