Transcript Care & support-A brief guide to the law

Care & support for disabled and
vulnerable children
A brief legal guide
Richard Copson
Kidz up North 20th November 2014
Care & support-A brief guide to the law
• Securing care & support for disabled
children
Children Act 1989
• Section 17
A general duty of every local authority to:
• Safeguard and promote the welfare of children
within their area who are in need and;
• Promote the upbringing of such children by their
families by providing a range and level of service
appropriate to those children’s needs.
Children Act 1989
• Section 27
A duty on agencies to cooperate in the assessment,
planning and provision of services for children in need.
Duty upon:
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local authority.
local education authority.
local housing authority.
health authority.
Children Act 1989
• Schedule 2, paragraph 3
Assessment of a child in need can be undertaken at
the same time as any other assessment including
assessments under:
• The Chronically Sick and Disabled Persons Act 1970.
• The Education Act 1996.
• The Disabled Persons (Services, Consultation and
Representation) Act 1986.
Children Act 2004
• Section 10
Local authority duty to promote interagency cooperation to improve the
welfare of children.
Working Together to Safeguard Children
• HM Government Guidance March 2013.
• Principles underpinning the assessment framework.
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Are child centred:
Are routed in child development:
Are focused on action and outcomes for children:
Ensure equality of opportunity:
Involve children and families:
Build on strengths as well as identify difficulties:
Are integrated in approach:
Are a continuing process not an event:
Lead to action, including the provision and review of services:
Are transparent and open to challenge.
Working Together to Safeguard Children
• The effective assessment of the need for
early help.
• The provision of early help services.
• Local Safeguarding Children Boards.
• The development of good practice,
procedures, training and information
sharing.
Working Together to Safeguard Chilren
• Timescales for assessment:
• Within one working day of a referral – assess response
required.
• Within a maximum of seven working days from referral
– initial assessment.
• Within a maximum of 45 working days from referral –
completion of an assessment of need.
• The importance of a child centred approach.
Community Care services
• Section 2 Chronically Sick and Disabled Persons Act 1970
Services which a local authority can make available to disabled
children, including:
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Practical assistance in the home.
Short breaks.
Recreational facilities.
Travel and other assistance.
Home aids and adaptations.
Holidays.
Educational facilities.
Carers services
• Section 1 Carers (Recognition and
Services)Act 1995
• Section 1 Carers & Disabled Children Act
2000.
• A Carer’s stand alone right to an
assessment of their needs.
Education-recent changes
Children & Families Act 2014 (CAF)–
Part 3
New SEN Code of Practice (CoP)
In force as of 1st September 2014
Education
• Chapter 3 – families at centre of new co ordinated
assessment process and EHC plan
• Focus on integration – S.25 “…ensuring the integration
of educational provision and training provision with
health care provision and social care provision”
• Assess – Plan – Do – Review - CoP
• Focus on planning throughout
• Responsibility lies with class and subject teacher
• Focus on agreed outcomes as opposed to allocated
hours
Education
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Raised standard
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Section 19(d)
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Section 66(2)
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“ best endeavours to secure that the special educational provision
called for by the pupil’s or student’s special educational needs is made”
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Focus – progress/outcomes – tailor made learning
“achieve the best possible educational and other outcomes”
Previously: “appropriate education”
Education
• EHC Plans
• 0-25 years
• Seeking better integration between local
authorities/education/health and care provision
• Includes maintained/non
maintained/academies/colleges/health
bodies/social care
• Local offers
• Personal budgets
Education
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Less complex needs - require help
“Special Educational Needs (SEN) support” which replaces School Action and School Action Plus (and the equivalent in nurseries).
Also available in colleges
Examples of provision:
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www.gov.uk
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Children under 5 – see website
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Children between 5 and 15
A special learning programme
Extra help from a teacher or assistant
To work in a smaller group
Observation in class or at break
Help taking part in class activities
Extra encouragement in their learning, e.g. to ask questions or to try something they find difficult
Help communicating with other children
Support with physical or personal care difficulties, e.g. eating, getting around school safely or using the toilet
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Young people aged 16 or over in further education
Contact the college or academy before your child starts further education to make sure that they can meet your child’s needs.
The college and your local authority will talk to your child about the support they need.
Education
• Single plan – health, care and learning outcomes for child or
YP with SEN
• Specific
• SEN
• Outcomes sought for him/her
• SEN provision required
• Any health care provision reasonably required
• If under 18 – social care provision as a result of Section 2
Chronically Sick and Disabled Persons Act 1970 (different
assistance types)
• Social care provision not already specified under above
Education
• Section 36(8)
• LA responsible for carrying out statutory assessment if:
• Child/YP has or may have SEN
• It may be necessary for SEP to be made for them in
accordance with an EHC plan
• Wide threshold
• If professional is asked for advice – provide within 6 weeks
Education
• LA responsible for carrying out statutory assessment
if:
• Child/YP has or may have SEN
• It may be necessary for SEP to be made for them in
accordance with an EHC plan
• Wide threshold
• If professional is asked for advice – provide within 6
weeks
Education
• When preparing an EHC plan LA must consult child’s parent or
young person about content of plan
• Draft plan must be sent to child’s parent/young person – LA to give
parents/young person notice that they have right to make
representations about content of draft plan and request authority to
secure particular school/other institution is named in the plan
• Draft plan must not name a school/other institution or specify a type
of school/institution
• Where a nursery, school or college is named in an EHC plan, they
must admit the child – CoP 9.130
• From point of assessment being requested until final EHC plan
issued – must take no more than 20 weeks (shorter process)
Education
• CoP 9.4 - No one should lose their
statement and not have it replaced with
an EHC plan
• Consultation with parents is key
Education
• If needs change
• LA must notify child’s parents/YP of its decision as to whether
it will reassess or not within 15 calendar days of receiving
request
• Maximum timescale for reassessment is 14 weeks from
decision to reassess to issuing final EHC plan – although aims
is as soon as practicable
• Review – 12 months from date of finalised EHC plan
• Amendments – Parent or YP must be given 15 days to
comment and make representations on proposed changes
• LA to notify of appeal right – CoP 9.198
Education
12 months
Reassessment can be requested
Review/reassessment consultation with parent/child
LA may continue to maintain EHC plan until end of academic
year during which young person attains age of 25 years old
• CoP – LA may cease an EHC plan for 19-25 year old where it
is no longer necessary for EHC plan to be maintained i.e.
where YP no longer requires SEN provision specified in their
EHC plan
• LA must have regard to whether outcomes have been
achieved
• Appeal rights
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Education
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EHC plan to be reviewed and amended in sufficient time prior to child/YP
moving between key phases
Annual reviews from 13 years onwards – focus on preparing for adulthood
Careers advice – no longer provided by LA i.e. connexions – responsibility of
each school
Where a student has learning difficulty/disability calling for SEN provision
the college must use its best endeavours to put appropriate support in
place
Regular reviews – whether EHC in place or not
With an EHC plan – review at a minimum – every 12 months
LA can ask college to convene and hold annual review on its behalf
Review and any amendments must be completed by 15th February in
calendar year of transfer (for transfers in to or between schools)
From secondary school to post 16 institution/apprenticeship must be
completed by 31 March in calendar year of transfer
Education-post 16
Right to request an assessment for an EHC plan
Right to make representations about content of EHC plan
Right to request a particular institution is named in EHC plan
Right to request a PB for elements of EHC plan
Right to appeal to Tribunal about decisions concerning EHC
plan
• CAFA 2014 – gives rights directly to young people from end of
compulsory school age
• LA should consider need to provide full package of provision
and support across education, health and care that covers
five days a week
• Can include health and care services
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Education-appeals
• A child’s parent or a young person may appeal to First-tier Tribunal
in relation to the education element of the plan:
• Refusals to conduct an EHC needs assessment or reassessment
• Refusals to make an EHC plan after and assessment or
reassessment
• The contents of EHC plans/statements
• Refusals to amend an EHC plan/statement following an annual
review
• Refusals to change the name of the school on an EHC
plan/statement
• Decisions to cease to maintain an EHC plan/statement
Education-appeals
• Education: 11.5 CoP - must contact a mediation service before
registering an appeal they do not have to engage with disagreement
resolution service
• DRS different problems, whereas mediation specifically linked to
decisions about EHC needs assessments and plans
• Once information has been provided it is for parent/young person to
decide whether they want to go to mediation
• Unable to go to Tribunal without a certificate- 2 months of decision
or 1 month of receiving the certificate (whichever is later).
• Other education issues – JR
• Health provision – CCG must arrange it
• Social care provision – must be provided by other legislation
Education-Local offer
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In response to parents/carers wanting information on services,
opportunities and access for children and YP with SEN and disabilities
CoP - must make it widely accessible and on a web site
Including health, social care and education
Local authorities must publish a local offer setting out in one place
information about provision they expect to be available across education,
health and social care for children/young people with SEN/disabled
including those who do not have an EHC plan
Include: provision – what can be expected – criteria for services - transition
SEN Regulations provide a framework for the Local Offer
Review/development of local offer – publish comments at least annually
Education-Personal budgets
• Right to request PB if EHC in place
• SEN - funding allocated to meet additional and individual support
needs of child/YP where needs cannot be met in full by mainstream,
universal or targeted services without additional investment
• Does not include funding for a school place and it does not include
targeted support school/other providers
• It does enable the support offered to the child or young person to
be further personalised to meet individual learning support needs
• For example: funding work experience, technology, specialist input
Education-Personal budgets
• Important distinction
• PB = “notional” amount of money available to secure particular
provision specified or proposed to be specified in EHC plan – can be
held by LA or third party
• A PB can result in a DP – further info - SEN (Personal Budgets) Regs
2014 – however LA can refuse DP if deemed to be an “inefficient”
use of its resources or such payments would have an adverse
impact on other services which LA provides/arranges for children/YP
with EHC plan
• May be few in reality – different to social care where you can
request DP’s – Regs are vague on this issue
• Nonetheless, LA to prepare PB if asked to do so by child’s
parent/young person
Education-Personal budgets
• Direct payments
• An arrangements – LA, school or college
holds funds to commission services
• Third party arrangements – organisation
• Combination of the above
Education-summary
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Joint working
EHC Plans: 0-25
Replacement of SA and SA+
PB and DP’s
Local Offer
• New system – still developing i.e. local offer
Human rights
• European Convention on Human Rights 1953.
• Human Rights Act 1998.
• Section 6
It is unlawful for a public authority to act in a way which is incompatible with a
Convention right
• Section 8
Judicial remedies: In relation to any act or proposed act of a public authority which
the court finds is, or would be, unlawful, it may grant relief or remedy as it
considers just and appropriate.
Narrative: the concept of just satisfaction and compensation.
Human rights
• Article 2: The right to life.
• Article 3: The prohibition of inhuman and
degrading treatment.
• Article 5: The prohibition of deprivation of
liberty without lawful authority.
• Article 8: The right to respect for privacy and
family life.
• Article 14: The prohibition of discrimination.
Legal aid
• Significant changes in April 2013.
• The loss of legal aid in relation to welfare
benefits, debt, clinical negligence and some
areas of family law.
• The retention of protection for vulnerable
children via:
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Community care law.
Public law
Education law
Equalities law
Richard Copson
Disability Rights and Public Law Unit
Pannone Part of Slater & Gordon
telephone: 0161 909 4966
email: [email protected]
123 Deansgate, Manchester, M3 2BU
www.pannone.com