A Case of First Impression
by Suzannah Lindon-Morris
R (L & P) v Warwickshire County Council (2015) EWHC 203 (Admin)
The Case
In an attempt to make financial savings, Warwickshire County Council reorganised the social care services in their area for children with special educational needs (SEN) and disabilities. This reorganisation coincided with implementation of the new SEN framework, arising out of the Children and Families Act 2014. There were concerns from services users, including Family Voice Warwickshire (a local parent forum), that these changes would result in a decrease in the support provided to children with SEN and disabilities.
It is against this backdrop that two mothers made an application for judicial review against Warwickshire County Council, on behalf of their disabled sons. This was the first and, to the best of this author’s knowledge, the only case which has reached the courts directly concerning the Children and Families Act 2014. It is therefore, a case of first impression.
Grounds
There were five grounds upon which the case was brought:
A. The Local Authority had acted unlawfully in failing to consult properly on the proposed cuts to funding for social services
B. There was no proper consultation on the final proposed changes to social care services
C. The consultation was unlawful because the proposed policy restricted access to social work assessments to only those children with SEN/disability who had more complex needs
D. The ‘Local Offer’ put forward by the Local Authority was so flawed that it was unlawful
E. The Local Authority was in breach of its duty to maintain a register of disabled children.
Mr Justice Mostyn was the judge who heard the application.
The Public Law Duty to Consult
Ground A
At paragraph 4 of the judgement, Mr Justice Mostyn described the first Ground as the principal one: that Warwickshire LA “acted unlawfully in failing to consult properly or at all on the cuts to funding for social care services for disabled children which it intends to introduce when the ‘local offer’ is approved in January 2015.”
Of this, he commented at paragraph 12: “I must be especially careful that I do not cross the line into the political arena and get lured into making a judgement about the merits of a democratic decision which imposes a cut.”
In paragraphs 14-15 Mr Justice Mostyn acknowledged that sometimes “fairness demands that a consultation takes place before a decision is reached”. Sometimes Parliament will enact this through legislation and other times the Common Law will impose a duty to consult. The Plantagenet case was referenced as listing the principles in various cases which illustrate where the Common Law will impose a duty to consult.
In paragraph 16 the principle set out in R (Cheshire East) v Secretary of State for Environment Food and Rural Affairs [2011] is referred to, which found three circumstances where a duty to consult will be imposed:
“i) where there has been a promise to consult; or
ii) where there has been an established practice of consultation; or
iii) where, in exceptional cases, a failure to consult would lead to conspicuous unfairness.”
In paragraph 37 Mr Justice Mostyn states unequivocally that “the claim is seriously out of time and should be refused for that reason”. He goes on to address the merits however, and at paragraph 38 Mr Justice Mostyn held that this was neither a category (i) or (ii) case, but that the question remained whether it was a category (iii) case.
In paragraphs 42-44 Mr Justice Mostyn held that this was neither a category (iii) case and that “the claimants here are voicing their complaints in the wrong place. Rather than raising them in a court room they should raise them in councillors’ surgeries and ultimately in the voting booth.”
The ‘Local Offer’
Section 30 Children and Families Act 2014 sets out the content of ‘Local Offer’: LA’s must publish information about the education and training, social care and health provision, for children and young people who have SEN/disability, that it expects to be available within its area, regardless of whether or not the LA will be making that provision itself.
Schedule 2 of the SEND Regulations 2014 outline what information must be included in the Local Offer.
At paragraph 51, Mr Justice Mostyn comments that “Although the prescriptions are extremely extensive, it is important to understand that the requirement is no more than to publish information about what services are expected to be available. Section 30 of the 2014 Act incorporates a publication obligation, no more, no less.”
Ground B
In relation to Ground B (no proper consultation on final changes to services) Mr Justice Mostyn found “there is no doubt that there is an obligation to consult about these matters”. But he goes on to state that “it must be very clearly understood what the purpose of consultation is. It is about what appears in the Local Offer, which is a compendium of information”. Mr Justice Mostyn held at paragraph 55 that “nothing went wrong at all” with the consultation process on the information which was to appear in the Local Offer and in paragraph 60, he held that Ground B was unarguable.
Ground C
Ground C argued that the proposed policy restricted access to social work assessments to only disabled children with complex needs and therefore that the consultation was unlawful. At paragraph 71, Mr Justice Mostyn held that Ground C was “wholly meritless and unarguable” and at paragraph 72 found that “the guidance should not be read as insisting that every disabled child should initially be subject of a full-blown social worker assessment”.
Ground D
Ground D argued that (as summarised by Mr Justice Mostyn at paragraph 76) “the proposed Local Offer as published by the defendant falls so far short of what is required that it is in fact unlawful”. Although acknowledging the merits of the LA’s arguments in paragraph 77: that the implementation of the Local offer is intended to be an “iterative process” and that it is not unlawful to publish information through links to others providers’ websites; at paragraph 79, Mr Justice Mostyn still found that “the proposed Offer needs a good deal more work before it is issued in final (but variable) form”.
Ground E
Ground E argued that the LA was in breach of its duty to maintain a register of disabled children under paragraph 2 schedule 2 of the Children Act 1989. The LA admitted that it did not maintain a single register but that it expected to have one by the end of March 2015. At paragraph 83, Mr Justice Mostyn noted that the LA was “over 20 years late in complying with its duty” and therefore granted permission for this Ground in paragraph 84 and ordered that the breach of this duty should be remedied promptly.
Implications
Although the claimants’ case failed on the first three Grounds, regarding the consultation process, it was successful in the final two Grounds: the LA’s Local Offer was found to be so inadequate that it was unlawful, and they were found to have breached their duty to maintain a register of disabled children.
This judgement reinforces the duty on LAs to provide a Local Offer which fully meets the requirements set out in the SEND Regulations, though it emphasises that the Local Offer will be continually added to. It also underlines that the duty on LAs is merely to publish this information and nothing further.
Further Information Sources:
PDF of Judgement: http://www.11kbw.com/uploads/Judgments/ApprovedJudgmentLPvWarwickshireCC.pdf
Case Review by Council for Disabled Children & Steve Broach: http://www.councilfordisabledchildren.org.uk/media/966811/case-law-update-1.pdf
James Goudie QC of 11KBW (counsel for the LA) Summary: http://www.education11kbw.com/2015/02/06/local-offers/
The Case
In an attempt to make financial savings, Warwickshire County Council reorganised the social care services in their area for children with special educational needs (SEN) and disabilities. This reorganisation coincided with implementation of the new SEN framework, arising out of the Children and Families Act 2014. There were concerns from services users, including Family Voice Warwickshire (a local parent forum), that these changes would result in a decrease in the support provided to children with SEN and disabilities.
It is against this backdrop that two mothers made an application for judicial review against Warwickshire County Council, on behalf of their disabled sons. This was the first and, to the best of this author’s knowledge, the only case which has reached the courts directly concerning the Children and Families Act 2014. It is therefore, a case of first impression.
Grounds
There were five grounds upon which the case was brought:
A. The Local Authority had acted unlawfully in failing to consult properly on the proposed cuts to funding for social services
B. There was no proper consultation on the final proposed changes to social care services
C. The consultation was unlawful because the proposed policy restricted access to social work assessments to only those children with SEN/disability who had more complex needs
D. The ‘Local Offer’ put forward by the Local Authority was so flawed that it was unlawful
E. The Local Authority was in breach of its duty to maintain a register of disabled children.
Mr Justice Mostyn was the judge who heard the application.
The Public Law Duty to Consult
Ground A
At paragraph 4 of the judgement, Mr Justice Mostyn described the first Ground as the principal one: that Warwickshire LA “acted unlawfully in failing to consult properly or at all on the cuts to funding for social care services for disabled children which it intends to introduce when the ‘local offer’ is approved in January 2015.”
Of this, he commented at paragraph 12: “I must be especially careful that I do not cross the line into the political arena and get lured into making a judgement about the merits of a democratic decision which imposes a cut.”
In paragraphs 14-15 Mr Justice Mostyn acknowledged that sometimes “fairness demands that a consultation takes place before a decision is reached”. Sometimes Parliament will enact this through legislation and other times the Common Law will impose a duty to consult. The Plantagenet case was referenced as listing the principles in various cases which illustrate where the Common Law will impose a duty to consult.
In paragraph 16 the principle set out in R (Cheshire East) v Secretary of State for Environment Food and Rural Affairs [2011] is referred to, which found three circumstances where a duty to consult will be imposed:
“i) where there has been a promise to consult; or
ii) where there has been an established practice of consultation; or
iii) where, in exceptional cases, a failure to consult would lead to conspicuous unfairness.”
In paragraph 37 Mr Justice Mostyn states unequivocally that “the claim is seriously out of time and should be refused for that reason”. He goes on to address the merits however, and at paragraph 38 Mr Justice Mostyn held that this was neither a category (i) or (ii) case, but that the question remained whether it was a category (iii) case.
In paragraphs 42-44 Mr Justice Mostyn held that this was neither a category (iii) case and that “the claimants here are voicing their complaints in the wrong place. Rather than raising them in a court room they should raise them in councillors’ surgeries and ultimately in the voting booth.”
The ‘Local Offer’
Section 30 Children and Families Act 2014 sets out the content of ‘Local Offer’: LA’s must publish information about the education and training, social care and health provision, for children and young people who have SEN/disability, that it expects to be available within its area, regardless of whether or not the LA will be making that provision itself.
Schedule 2 of the SEND Regulations 2014 outline what information must be included in the Local Offer.
At paragraph 51, Mr Justice Mostyn comments that “Although the prescriptions are extremely extensive, it is important to understand that the requirement is no more than to publish information about what services are expected to be available. Section 30 of the 2014 Act incorporates a publication obligation, no more, no less.”
Ground B
In relation to Ground B (no proper consultation on final changes to services) Mr Justice Mostyn found “there is no doubt that there is an obligation to consult about these matters”. But he goes on to state that “it must be very clearly understood what the purpose of consultation is. It is about what appears in the Local Offer, which is a compendium of information”. Mr Justice Mostyn held at paragraph 55 that “nothing went wrong at all” with the consultation process on the information which was to appear in the Local Offer and in paragraph 60, he held that Ground B was unarguable.
Ground C
Ground C argued that the proposed policy restricted access to social work assessments to only disabled children with complex needs and therefore that the consultation was unlawful. At paragraph 71, Mr Justice Mostyn held that Ground C was “wholly meritless and unarguable” and at paragraph 72 found that “the guidance should not be read as insisting that every disabled child should initially be subject of a full-blown social worker assessment”.
Ground D
Ground D argued that (as summarised by Mr Justice Mostyn at paragraph 76) “the proposed Local Offer as published by the defendant falls so far short of what is required that it is in fact unlawful”. Although acknowledging the merits of the LA’s arguments in paragraph 77: that the implementation of the Local offer is intended to be an “iterative process” and that it is not unlawful to publish information through links to others providers’ websites; at paragraph 79, Mr Justice Mostyn still found that “the proposed Offer needs a good deal more work before it is issued in final (but variable) form”.
Ground E
Ground E argued that the LA was in breach of its duty to maintain a register of disabled children under paragraph 2 schedule 2 of the Children Act 1989. The LA admitted that it did not maintain a single register but that it expected to have one by the end of March 2015. At paragraph 83, Mr Justice Mostyn noted that the LA was “over 20 years late in complying with its duty” and therefore granted permission for this Ground in paragraph 84 and ordered that the breach of this duty should be remedied promptly.
Implications
Although the claimants’ case failed on the first three Grounds, regarding the consultation process, it was successful in the final two Grounds: the LA’s Local Offer was found to be so inadequate that it was unlawful, and they were found to have breached their duty to maintain a register of disabled children.
This judgement reinforces the duty on LAs to provide a Local Offer which fully meets the requirements set out in the SEND Regulations, though it emphasises that the Local Offer will be continually added to. It also underlines that the duty on LAs is merely to publish this information and nothing further.
Further Information Sources:
PDF of Judgement: http://www.11kbw.com/uploads/Judgments/ApprovedJudgmentLPvWarwickshireCC.pdf
Case Review by Council for Disabled Children & Steve Broach: http://www.councilfordisabledchildren.org.uk/media/966811/case-law-update-1.pdf
James Goudie QC of 11KBW (counsel for the LA) Summary: http://www.education11kbw.com/2015/02/06/local-offers/
