Social Care Assessments – Will They Help Your Child Get A Residential Placement In Their EHCP?
The Law Of… Getting Specialist Placements
We are often contacted by parents who are seeking a placement for their child at residential special schools or colleges.
These placements are often independent and the cost can be relatively high when compared to local day schools or colleges. As a result, Local Authorities can be extremely reluctant to name them in a child's Education, Health and Care Plan (EHCP), meaning parents and young people often have to go to a Tribunal to secure this provision.
James Betts, Solicitor in Education Law and Community Care, takes a look at the decision process involved around specialist placements and how to challenge a decision.
Putting Costs Above A Child's Education
These types of cases are becoming more common now that EHCPs continue up until a person turns 25 (as opposed to Statements of SEN, which only provided support until the age of 19). This is because young people over 18 will often need specialist support and accommodation irrespective of their educational needs.
We have extensive experience of challenging these decisions through the SEN Tribunal, and there's one problem we often see when reviewing these cases. Local Authorities often refuse to fund the residential school or college sought on the basis of costs. They tend to argue that the pupil’s needs can be met at a reduced cost at a local day school or college.
But, in many of these cases they make this decision without having properly considered what the overall costs would be if the pupil was to attend the day placement they propose.
For example, they will often fail to consider what social care support and accomodation would be needed if the young person was to attend a day school. This can be significant, particularly when a young person is over 18 and may need support and accommodation outside of the family home.
Such instances are disappointing as the courts have made it clear that it is the overall public expenditure (and not just the costs of the educational placement itself) that should be considered when making a decision as to whether or not a particular placement should be named in a child’s EHCP.
Without information such as what social care support would be needed if the young person was to attend a local day college, it's impossible to make an informed decision as to what the actual cost difference would be between the placement the Local Education Authority proposes and the residential school that is sought.
How Does Section 9 Of The Education Act 1996 Apply To This Situation?
Section 9 of the Education Act 1996 sets out the general principle that children should be educated in accordance with their parents' wishes, as long as this is compatible with the provision of efficient instruction and training and does not amount to unreasonable public expenditure.
The Local Authority must have regard to this when making decisions as to what school to name in a person's EHCP.
What Is Overall Public Expenditure?
In the case of WH v Warrington BC  EWCA Civ 398, the court considered the duty a Local Authority had under section 9 of the Act and how the phrase 'overall public expenditure' should be interpreted.
The judgement in this case makes it clear that where a parent or a child/young person asks for a specific placement but the Local Authority wants them to attend somewhere else:
- The Local Authority "must compare the total costs of both placements to the public purse."
This should include all public expenditure that would be saved if the pupil was to attend a residential school such as social care costs, health, transport and any other costs that are included in the placement. When making these decisions, the Local Authority must consider what social care support would be required if the pupil is to attend their choice of placement.
- If the comparative cost of the 2 placements is the same – or it's relatively small and the additional benefit justifies the additional cost – then the parent or young person’s choice should be named in the EHCP.
"It is therefore crucial to obtain clarity as to what social care support the child or young person is entitled to when seeking a placement at a residential school", James explains.
Requesting Social Care Assessments
We recommend that parents should ask for social care assessments of their child’s needs in circumstances when they are thinking about requesting a residential school placement.
If your child is under 18, the assessment can be requested under section 17 of the Children Act 1989. If your child is over 18, or they're about to turn 18, the request can be made under section 9 of the Care Act 2014.
"The legal threshold as to when an authority is obliged to carry out an assessment is low", James comments.
"Generally speaking, if a child has an EHC Plan their Local Authority should carry out a social care assessment if it's requested. Ideally, Local Authorities should have done this already during the EHC assessment process, although in many instances we find that they haven't done so."
If the social care assessment identifies needs for which support is required then the Local Authority should prepare a care and support plan setting out how those needs are to be met and how much they are likely to cost.
The cost of this support should then be added to the cost of the Local Education Authority's proposed placement before a comparison can be made as to whether the residential placement sought amounts to unreasonable public expenditure.
This information can prove crucial as it will often significantly narrow the cost difference between the 2 placements. Sometimes, it can even show that the Local Authority’s proposal is actually more expensive.
James explains what you can do if you're unhappy with the outcome of the assessment:
"If your Local Authority refuses to assess your child or you're unhappy with the results of an assessment, you might be able to challenge this decision via judicial review. Sometimes the the Tribunal might also be willing to make orders directing the Local Authority to provide this information."
"We often deal with cases like this, and suggest that you should speak to one of our Education Law experts as soon as possible. This is because there are strict time frames involved – such judicial review challenges need to be brought within 3 months of the decision being made."