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The Children and Families Act 2014

‘Working Together’ conferenceRainbow Parent Carers Forum

1 April 2015

Steve Broach Barrister

Monckton Chambers

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• CFA 2014 – top five changes• CFA 2014 – top three challenges• Care Act 2014 – key issues• Parent Carers Needs Assessments• Context of cuts

• short breaks• school transport

Topics to discuss

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• Section 19• ‘best possible educational and other

outcomes’• Genuine 0-25 approach• Duty to provide health services in EHC

Plans – section 42• Spotlight on social care – section H1• The Local Offer – but...

CFA 2014 – Top Five Changes

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Section 19 CFA provides that:In exercising a function under this Part in the case of a child or young person, a local authority… must have regard to…the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes.

Applies to everything done under CFA

CFA - Importance of s 19 principles

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• Section 25 – LAs must carry out functions with view to integrating education, health and social care provision

• Section 26 – duty to have joint commissioning arrangements (Code Ch 3)

• Section 27 – duty to keep education and care provision under review and consider sufficiency

• Sections 28, 29, 31 – co-ooperation duties

Strategic duties

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• Presumption in favour of maintained nursery school, mainstream school or mainstream post-16 – section 34

• SEN support – four part cycle • Assess• Plan• Do • Review – all funded via notional SEN budget + top up

• Governors’ best endeavours duty – section 66

Support from school

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• Key existing law re social care / health• Children Act 1989 section 17 /

Working Together to Safeguard Children (2013)• Assessments of children in need in 45 working days• Immediate response in urgent cases• Requirement for child in need plan

• National Framework for Children’s Continuing Healthcare• Applies to ‘complex’ cases – inc behaviour• Multi-agency assessment / decision in 8 working days

Health / Education / Social Care interface

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• The Local Offer

• R (L and P) v Warwickshire CC [2015] EWHC 203 (Admin)

• Ground D – paras 74-80. • Local Offer deficient in relation to 16 of the

matters prescribed by Schedule 2 to the 2014 Regulations.

• Proposed Local Offer falls ‘a considerable distance short of the statutory requirements’

CFA 2014 – Top Three Challenges (1a)

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• The Local Offer• Basic requirement of all Local Offers is to

provide the information required by schedule 2 to the Regulations

• Vital not to lose second purpose, see Code at para 4.2

• ‘To make provision more responsive to local needs and aspirations’

• LAs should already be seeking comments in accordance with regulation 56 (and s 27)

CFA 2014 – Top Three Challenges (1b)

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• Transition to EHC Plans• Every LA required to have its Local Transition

Plan in place• See ‘Statutory guidance - ‘Transition to the

new 0 to 25 special educational needs and disability system‘

• Transfer review requires the local authority to carry out an EHC needs assessment in accordance with Regulation 6

• New advice required unless parents, professional and LA agree to use old advice

CFA 2014 – Top Three Challenges (2)

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• The Joined-Up Approach• Health

• Clear duty on CCGs to arrange provision if in plan• Challenge seems to be getting health to table

• Social care• Real confusion as to what is required by the

CSDPA 1970 (section H1)• Different entitlement to direct payments

• Absence of Tribunal appeal right• Including outcomes...

CFA 2014 – Top Three Challenges (3)

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• Transition duties• Assessments (child, child’s carer, young

carer)• Continuation of services – section 66

• New rights to support for carers • Of over 18s...

• National eligibility criteria• More generous than ‘substantial’?

The Care Act 2014

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• Charging• Current consultation – no charges for those

who turn 18 with eligible needs?• Advocacy

• Extensive new right – but availability?• Parent Carers Needs Assessments

• Section 97 CFA• What does this add to existing law?

• Carers and Disabled Children Act 2000 s 6

The Care Act 2014 (2)

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• Section 97 – parent carers’ needs assessments• In force 1 April 2015 (like Care Act)• Inserts new sections 17ZD-ZF into CA 1989• Requires PCNA to be carried out either on request or

where appearance of need (s 17ZD(3))• Must have regard to well-being of parent carer and

need to safeguard and promote welfare of disabled child (s 17ZD(10))

• May be combined with other assessments (s 17ZE(3))

• Detail may be specified in regulations (s 17ZE(4))

Duties to parent carers

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• Is there a new duty to provide services to parent carers?• Section 17ZF requires ‘consideration’ of PCNA• In particular:

• Does the parent carer have needs for support in relation to their caring role?

• Does the disabled child have needs for support?• Could those needs be satisfied by services provided under

section 17?• Must then decide ‘whether or not to provide any such

services in relation to the parent carer or the disabled child’

Duties to parent carers (2)

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• Problems with PCNAs• Overlap with existing carers’ assessment duties

• Carers Act 1995 s 1 remains in force (‘grandparent problem’)

• Overlap with duty to conduct ‘holistic’ assessment of disabled children under CA 1989 s 17

• Only general duty to provide services under section 17 – including to family members, s 17(3)

• No link to CSDPA 1970 s 2 – the specific duty to provide services to disabled children...

Duties to parent carers (3)

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Cuts – Short Breaks

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• Relevant statutory duties• CSDPA 1970 s 2 – home-based (s 2(1)(a)) and

community-based (s 2(1)(c))• CA 1989 s 17 and schedule 2, para 6(1)(c)

• Provide services ‘to assist individuals who provide care for such children to continue to do so, or to do so more effectively, by giving them breaks from caring’.

• Breaks for Carers of Disabled Children Regulations 2011

• CA 2004 s 11 – safeguarding and promotion of children’s welfare in carrying out functions

• CFA 2014 s 19 – ‘best possible outcomes’

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• Reg 3 – LAs required to focus on carers’ needs:• ‘to undertake education, training or any regular

leisure activity, meet the needs of other children in the family more effectively, or carry out day to day tasks which they must perform in order to run their household

• Reg 4 – duty to provide ‘so far as is reasonably practicable, a range of services which is sufficient to assist carers...’

Breaks for Carers of Disabled Children Regs 2011

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• Reg 4 (cont) – services must include:• day-time care • overnight care • educational or leisure activities for disabled

children outside their homes, and• services available to assist carers in the evenings,

at weekends and during the school holidays.• Reg 5 – duty to publish

short breaks services statement (‘SBSS’)

Breaks for Carers of Disabled Children Regs 2011 (2)

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• Reg 5 (cont) – SBSS must cover• the range of services provided in accordance

with regulation 4• any criteria by which eligibility for those services

will be assessed, and• how the range of services is designed to meet

the needs of carers in their area.• Must be published with Local Offer

• Code at para 4.44

Breaks for Carers of Disabled Children Regs 2011 (3)

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• ‘Eligible’ children aged 5-15 – duty to provide free, suitable transport (s 508B and schedule 35B)

• Children aged under 5 or 16-17 – power to provide suitable transport – can charge (s 508C)

• Over 18s – duty to provide suitable transport – must be free (s 508F)

• Post-16 transport policy statement – s 509AA and AB

Cuts - School Transport

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• Huge opportunities in both 2014 Acts• Implementation will inevitably take time

• 10 years?• Very difficult to achieve system change in

context of reduced funding• Compliance with spirit, not just letter, of

new law is vital• Making change happen in real partnership

with children, young people and parents

Conclusions

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• Improvements under new systemhttp://rightsinreality.wordpress.com/2014/08/19/five-reasons-why-new-sen-system-improves-on-present/

• SEN Direct paymentshttp://rightsinreality.wordpress.com/2014/08/28/why-sen-direct-payments-are-a-legal-damp-squib/

• Local Offerhttp://rightsinreality.wordpress.com/2014/09/01/the-strange-case-of-the-missing-local-offers/

• Local transition planshttp://rightsinreality.wordpress.com/2014/09/01/local-transition-plans-another-sen-duty-being-ignored/

Blog posts for more info

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• Social care – CSDPAhttp://rightsinreality.wordpress.com/2014/08/25/csdpa-the-mystery-duty-for-disabled-childrens-social-care/

• Judicial Reviewhttp://rightsinreality.wordpress.com/2014/08/30/why-judicial-review-is-a-real-remedy-in-sen-and-disability-cases/

• Mental Capacity (decision making)http://rightsinreality.wordpress.com/2014/09/13/why-parents-can-make-decisions-for-young-people-under-the-send-reforms/

• School Transporthttp://rightsinreality.wordpress.com/2014/09/19/school-transport-no-right-to-education-if-you-cant-get-there/

Blog posts for more info

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• Childcarehttp://rightsinreality.wordpress.com/2014/09/30/childcare-for-disabled-children-reasonable-adjustments-and-the-right-to-ordinary-lives/

• Direct paymentshttp://rightsinreality.wordpress.com/2014/10/11/direct-payments-dont-get-fooled-by-personalisation/

• Care Act eligibilityhttp://rightsinreality.wordpress.com/2014/10/27/care-act-2014-first-thoughts-on-eligibility-a-moderate-success/

• Duty to consult (Moseley v Haringey)http://rightsinreality.wordpress.com/2014/10/29/duty-to-consult-supreme-court-sets-down-what-fairness-requires/

Blog posts for more info

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• Challenging cutshttps://rightsinreality.wordpress.com/2014/11/11/challenging-the-coming-cuts-to-childrens-services-budgets/

• Disabled children’s human rightshttps://rightsinreality.wordpress.com/2014/12/10/close-to-home-or-virtually-invisible-disabled-childrens-human-rights/

Blog posts for more info

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Steve Broach

Monckton Chambersemail

sbroach@monckton.comtwitter @stevebroachblog

rightsinreality.wordpress.com