Response to the government’s consultation proposing changes to Working Together to Safeguard Children guidance which concluded on 6 September 2023.

 Introduction

1  This response is prepared on behalf of the Cerebra Legal Entitlements and Problem Solving (LEaP) Project.

2  The LEaP Project is an innovative problem-solving project that helps families of children with brain conditions cope with the legal barriers they face. We listen to families and help them get the knowledge they need to access health, social care and other support services. We identify the common legal problems that prevent families getting access to services and we develop innovative ways of solving those problems. We aim to reach as many families as we can by sharing our solutions as widely as possible.

Response to question 25; Do you agree with the proposed changes to strengthen assessment and support for disabled children?

3  No, we do not agree with the proposed changes. We have considered the submission to this consultation by Prof Luke Clements and Dr Ana Laura Aiello, both of the School of Law, the University of Leeds. The LEaP team work closely with Prof Clements and Dr Aiello and wholeheartedly endorse their response. In short, we consider that where there is no cogent evidence of neglect or abuse, local authorities should take steps to ensure that their local protocols provide for a discrete assessment / care planning pathway for disabled children.

4  In terms of the draft guidance, we make the following comments.

5  There is a dilution to the wording on providing services as soon as they have been identified as being necessary during the assessment process. The wording has been changed from “should not wait” to “do not need to wait” (para 83/page 34 v para 191). We think the wording should be made stronger because, in practice, we do not see local authorities putting in place services as needs are identified.

6  There is no defined time period between completing an assessment (which should be within 45 days) and the provision of services. We consider that there should be a maximum explicit time frame by which services (or in complex cases, ‘adequate interim services’) must be provided, and that it is made clear that services should be provided as soon as possible (i.e. that a maximum timeframe does not become the default provision date).

7  The wording on thresholds/criteria for accessing services remains the same in the draft as in the existing guidance. This is problematic because in our casework we see local authority threshold documents and policies which are neither transparent nor accessible. Similarly, we see local authorities setting thresholds to access services that are so high as to effectively exclude almost all disabled children (save those where a significant ‘safeguarding risk’ is also present). See for example thresholds set by Birmingham City Council (reference documents Right Help Right Time Dec (2021), Disabled Children’s Social Care Service Our Thresholds Explained and Short Breaks Statement 2020-2021). Birmingham was subject to at least two letters before action in the first half of 2023 due to these policies – thresholds which were not transparent and set so high so as to essentially exclude disabled children from receiving services. In 2009 R(JL) v Islington LBC, Black J stressed the ‘pressing need’ for government guidance on eligibility criteria for children services, given that many local authorities have, at best, imperfect and, at worst, unlawful criteria. This has not been forthcoming. We suggest consideration is given to national eligibility criteria to remove the postcode lottery of access to services and to set threshold criteria at a rational and lawful level in every local authority.

8  Para 108 suggests that where children are not receiving education, this could be a possible indicator of neglect or exploitation. It fails to explain that another reason could also be because a significant number of children with SEND are not having their needs met in school. This context needs to be explicit together with across referral to the Department’s ‘Working together to improve school atendance’guidance2022 (for example paras 85-87 and 220 –221). A National Autistic Society survey in 2021 found that nearly seven in ten autistic children were being home-schooled because parents felt their child’s educational needs were not being met at school (p11 here) and there are currently 12,089 pupils with EHC plans who are not in education, employment or training (National Statistics, Education, health and care plans 2023). Failure to set out this reason will continue the parent blame narrative referred to in Prof Clements and Dr Aiello’s submission.

9  Guidance should specify that a local authority is under a duty to carry out a s17 Children Act1989 assessment as part of an education health and care needs assessment. We see too many EHC plans that contain no input from social services. Disabled Children: A Legal Handbook (S Broach and L Clements, Legal Action 2020) states:

3.32  Where a local authority carries out an EHC assessment, it must seek advice, which must include ‘advice and information in relation to social care’. In the opinion of the authors of this book, it will not be sufficient for children’s services to discharge the advice-giving duty in relation to an EHC assessment by simply stating that a child is ‘not known’ to social care. The request for advice must constitute a referral for the purposes of ChildrenAct1989 s17 and so the proper response where a child is not previously known to social care will be to carry out an assessment in accordance with the Working Together guidance (see paras 3.33–3.36 below) so that there can be meaningful input to the EHC assessment process. Where a new or revised social care assessment is necessary, this should be carried out alongside the overall EHC assessment process. The SEND Code calls for a ‘tell us once’ approach and emphasises the need for co-ordinated assessment processes. The SEND Code states further that ‘EHC needs assessments should be combined with social assessments under Section 17 of the Children Act 1989 where appropriate’.

The Local Government and Social Care Ombudsman Focus report “Not going to plan? Education, Health and Care Plans two years on” ( Oct 2019) takes the same view:

“The law and statutory guidance are clear that EHC assessments should consider social care needs where this is relevant. Therefore, it was wrong for the council to say it could not insist its social care team assessed James. Councils are one corporate body and different departments must co-operate in discharging the council’s legal duties.” (James’ story, page 13.)

And, see for example, the complaint Surrey County Council (20 002 144):

“On 24 April 2019 the Council’s SEN officer wrote to social care for advice as part of the EHC assessment. The reply stated Y was not known to the service. This is not an adequate response. An EHC assessment must include an assessment of care needs (SEND Regulation 6 (1)). Where a child already has a care plan, providing advice will be straightforward. Where a child is not already known to social care, the Council must identify whether they have social care needs. Sometimes it may be necessary to proceed to formal assessment to determine this” (para 61).

LEaP Team
Cerebra
6 September 2023