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Potential for conflict

29 April 2014

The Children & Families Act 2014 establishes a new framework in England to support children and young people with special educational needs (SEN) or disabilities which is due to come into effect in September 2014. It is envisaged that the framework will establish a holistic support network based on a multi-agency approach with clear requirements for co-operation, joint commissioning and integrated provision which would improve outcomes for children and young people from birth to 25 with SEN. These statutory duties to co-operate are set out in the Act and reinforced by regulations and the new SEN Code of Practice.

Of course, co-operation between agencies to support vulnerable groups is nothing new. Within the current framework the local authority has a central and non-delegable duty to ensure provision to meet SEN is secure. However with other agencies and schools having a supporting role there is a real danger of conflict especially where the childs needs are complex and the provision is costly. Past cases have demonstrated restrictions on public funding often lead to disputes (R v Brent & Harrow Health Authority ex p LB Harrow [1996] and WH v Warrington BC [2014]).

The new framework

The new framework builds on the current framework with clear legal duties around joint commissioning arrangements and co-operation to underpin the new ways of working. There remains the "get out" clause if LA requests would be incompatible with a health body due to an adverse impact. The draft SEN Code of Practice sets out a presumption that parties will agree to work together and agree areas which each agency will contribute to the provision for childcare with SEN or disabilities. Whilst there is the possibility of pooled budgets there is no requirement for clarity over decision making and governance with each LA able to put in place different arrangements with different NHS bodies or clinical commissioning groups. The local system may be joined up but there is still a possibility of fragmentation at a regional and national level. One key element of the co-operation under the new framework is the Local Offer.

The Local Offer

The Local Offer is information which sets out what provision is expected to be available to support children and young people with SEN and disabilities across education, health and social care in that LA area. The LA must produce the Local Offer after consultation with children, young people, parents, schools and other education providers, health and social care bodies. It is a living document and should be used by all agencies to ensure the provision available meets the needs of the local community. The Local Offer has clear links into the provision made by schools and health bodies and may lead to conflict.

In relation to schools, the Local Offer will set out what children and young people with SEN and disabilities are entitled to receive by way of support from schools using their own resources. This has clear links into the funding regime for "high need" pupils introduced in April 2013. The funding regime placed a requirement for schools to support children and young people with SEN up to an amount around £10,000 before approaching the LA for "top up" funding to support the pupil. The Local Offer could, by specifying what support should be available from schools, push the levels of support and associated costs higher than that level before the LA provides funding. Such an approach could cause real financial issues for schools especially where the school has embraced the concept of inclusion and taken in pupils with additional needs, whether or not an Education Health & Care (EHC) plan is in place. As the new funding regime is yet to bed down and both schools and LA are having to grasp the new idea of needs based funding being agreed between providing school and commissioning LA it is easy to see how the Local Offer may be used as a tool to bring greater certainty to LA budgets.

Treading on toes

The potential for conflict also exists between the LA and the relevant health body. In a change to the current framework, the EHC plan now brings with it a duty on the health body to arrange the health provision within the plan. The same duty applies to the LA in respect of special educational provision and if the current case law continues to apply, the duty will be non-delegable (R v LB Harrow ex p M (1997)). The draft SEN Code sets out that it will be for the relevant health body to agree to the inclusion of health services in the EHC plan and provides that the joint commissioning arrangements must have a dispute resolution procedure. In addition, the SEN Code includes a paragraph around health provision which is wholly or mainly for the purposes of training. Such provision must be treated as special educational provision and the LAs responsibility.

This gives a further route for potential conflict which would be at odds with the duty to co-operate and which may only be resolved through legal proceedings in the High Court for judicial review. It remains unlikely that the First Tier Tribunal (SEND) would become involved as health care provision would be outside its jurisdiction.

Whilst it is still early days it may be that joint working and the experiences of the SEN pathfinders will iron out any potential problems. However, the potential for dispute remains and those drafting the governance arrangements for LAs and partners or working within the education sector must be aware of the new legal responsibilities under the Children and Families Act 2014.

This article was first published in New Law Journal

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