Council’s plan to change local offer for disabled children was unlawful

Warwickshire council’s proposed local offer for children with special educational needs and disabilities fell considerably short of statutory requirements, the High Court has ruled.

Representatives for two children, known as L and P, launched a judicial review of the authority’s decision to consult on changes to its local offer for disabled children, including new criteria for accessing assessments and services.

As well as failing to meet two thirds of the requirements for a local offer, set out in the Children and Families Act 2014, the council was also found to be failing in its statutory duty to maintain a register of disabled children, as prescribed in the Children Act 1989.

Failing to meet duties

Justice Mostyn criticised the council for being over 20 years late in complying with this duty. He added: “Unless this local authority has such a register and knows more or less precisely how many disabled children there are in the country, it cannot make a fully informed decision about budgetary allocation or as to the terms of a proposed local offer.”

But he clarified this does not mean that previous decisions about these matters have gone “clearly and radically” wrong.

Local offers are mandatory for all councils under the Children and Families Act 2014. The act requires authorities to set out services across education, health and social care from birth to 25 for children with special education needs and disabilities (SEND), including details about how they can access specialist support.

Mostyn said it would be “amazing” if any local authority had by now produced and issued a local offer which met every requirement.

A spokesperson for the council said the judge rejected three of the five grounds raised by the claimants, adding: “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 spokesperson continued: “The judge agreed 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 information 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.”

Right to a social work assessment

Concerns were also raised about Warwickshire’s proposals to deny disabled children the automatic right to a social work assessment. The claimants’ representatives said this will leave families having to prove their child’s needs are complex enough to qualify for an assessment. However, the judge rejected this suggestion as “meritless and unarguable”.

Referring to Working Together guidance – which suggests a disabled child must be assessed by a social worker even if their disability is minor – Mostyn said it would be “very surprising if the author had intended that every disabled child should immediately, and irrespective of the scale or nature of the disability, proceed to that extensive and no doubt expensive assessment”.

The guidance recognises a spectrum where ‘lower end’ needs can be assessed through use of an early help assessment, he said.

He gave the example of a child with dyslexia receiving a social care assessment, explaining it “would not make sense” for any child with a “mental disorder” to be entitled to a social work assessment due to the changing nature of the term ‘mental disorder’.

However, Polly Sweeney, who represented the families, said they were concerned the judgment will “leave disabled children across the country in a vulnerable position without access to proper assessments”.