Children and Families Act 2014: are disabled children reaping the benefits?
Steve Broach assesses key changes in the Children and Families Act 2014 relating to the duty to aim for best possible outcomes and to the new education, health and care plans, while Camilla Parker looks at deprivation of liberty in the context of Trust A v X.
Disabled children: a legal handbook was first published by LAG in 2010. The scale of the changes to the legal framework since then has meant the second edition has required a complete rewrite. The jury remains out as to what benefit this frenetic period of reform will bring to disabled children and families. Emerging evidence from charities such as the National Autistic Society, the National Deaf Children’s Society and the Driver Youth Trust suggests widespread dissatisfaction with the implementation of the reforms to date.
The headline changes were introduced by Children and Families Act 2014 Pt 3. The new system was intended to streamline and join up the support disabled children and children with SEN receive, and extend aspects of this support from birth to 25. Disabled children and young people should also benefit from the new provisions governing transition to adult social care introduced by the Care Act 2014. Parents of disabled children and young people should be able to anticipate better support as a result of new duties introduced by both the 2014 acts. As always, however, the devil is in the detail.
Duty to aim for ‘best possible’ outcomes
CFA 2014 Pt 3 starts with s19, which imposes a ‘have regard’ duty on local authorities. This duty applies whenever they are exercising any function under Pt 3 in the case of a child or young person. There are four matters to which the local authority must have regard under s19, the first three of which essentially amount to the need to ensure proper participation by disabled children, young people and families in decisions that affect them.
None of this is surprising. What appears to go further, however, is the requirement in s19(d) to 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’ (emphasis added).
This improves upon the previous scheme, under which local authorities would speak of a need to provide merely ‘sufficient’ or ‘adequate’ support. However, there are three important points of qualification.
First, s19(d) is a ‘have regard’ duty, which may arguably be fulfilled by proper consideration of the need to help a child achieve the best possible outcomes, even if no such help is actually provided. Second, the outcomes must be the best ‘possible’, which suggests (inevitably) that the local authority’s resources remain a relevant consideration in discharging the duty. Third, there will be extensive arguments about the boundary of the s19 duty, given it only applies to functions under Pt 3. For example, short breaks are a vital support service to disabled children and families, giving children positive experiences and families a break from caring. Such breaks are generally provided under Chronically Sick and Disabled Persons Act 1970 s2(4) and Children Act 1989 s17. Are they also provided in part in exercise of CFA 2014 Pt 3 functions, given, for example, that they must form part of the ‘local offer’ mandated by s30 of that act?
Education, health and care plans
The aspect of the new system that may have generated the most attention so far is the replacement of former statements of SEN with education, health and care plans (see CFA 2014 s37).
As the name suggests, an EHC plan should set out the support to be provided to meet a disabled child’s EHC needs. However, the focus of the new plans remains educational needs. For example, the gateway in s37(1) is that ‘in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan’.
A host of problems have presented themselves in the transition to the new plans. Some transfer reviews have been poor, with local authorities simply rebadging former statements as plans. This has led the Department for Education to extend the timeframe for transfer reviews from 14 to 18 weeks in an attempt to remove any justification local authorities may have had for rushed transfers.
Also, some outcomes sections have been vague and poorly drafted. There is no right of appeal to the First-tier Tribunal in relation to the outcomes in a plan, but the outcomes determine whether a plan will continue to be maintained post-18.
Meanwhile, there has been no engagement from health bodies, despite the statutory requirement for the plans to contain ‘any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs’ (s37(2)(d)). This makes the new duty on clinical commissioning groups to arrange this provision under s42(3) redundant.
Social care sections of EHC plans have been coming back with nothing written in them except ‘not known to social care’.
Finally, social care sections of plans have been coming back with nothing written in them except ‘not known to social care’. This is despite any request for advice from social care arguably constituting a referral sufficient to trigger a child ‘in need’ assessment under the government’s statutory guidance, Working together to safeguard children: a guide to interagency working to safeguard and promote the welfare of children (March 2015).
Disabled children, decision-making and deprivation of liberty
The legal framework governing decision-making in relation to children and young people aged under 18 is complex. For example, although the Mental Capacity Act 2005 applies to 16- and 17-year olds who lack capacity to make decisions for themselves (see s2, ‘People who lack capacity’), there are significant differences in how it applies to young people, as compared to adults. Furthermore, while in some circumstances parents and others with ‘parental responsibility’ will be able to make decisions on behalf of their child, there are limits to their decision-making powers (see, for example, Gillick v West Norfolk and Wisbech Area Health Authority
 AC 112, Hewer v Bryant
 1 QB 357 at 369 and Nielsen v Denmark
App No 10929/84, 28 November 1988 at para 72). The difficulty, however, is that there has been little guidance on where those limits are drawn. Cases in which parental consent is considered to provide sufficient authority for the decision in question are described as falling within the ‘scope of parental responsibility’1Children Act 1989 s3 defines this as ‘the rights, duties, powers, responsibilities and authority which by law a parent has in relation to a child and his property’.
(a term introduced by the Department of Health and previously called ‘the zone of parental control’; for guidance on this concept see the Department of Health’s Mental Health Act 1983: Code of Practice
(MHA Code), TSO, 2015, para 19.41).
One particular area of confusion is how a deprivation of liberty of under-18s is determined following P v Cheshire West and Chester Council and another; P and Q v Surrey County Council  UKSC 19, 19 March 2014. The Supreme Court confirmed that a deprivation of liberty requires both the objective element (the Cheshire West ‘acid test’, ie whether the person is ‘under continuous supervision and control’ and ‘not free to leave’ – see para 49) and the subjective element (the lack of valid consent) to be met, together with state responsibility for that deprivation of liberty (para 37).
A key question for under-18s, not addressed in Cheshire West, was whether parents ‘could, and if so in what circumstances, consent to restrictions that would, without their consent, amount to a deprivation of liberty’ (MHA Code para 19.48). It was considered in Trust A v X and others  EWHC 922 (Fam), 31 March 2015 (also known as Re D (A Child: Deprivation of Liberty)), which concerned the placement of D, a 15-year-old boy with autism, in a locked ward of a psychiatric hospital for 15 months. The court held that D’s parents could consent to their son’s placement (D was assessed to lack Gillick competence to decide about these matters) on the basis that their decision was within ‘the proper exercise of parental responsibility’ (para 57).
This decision raises significant concerns, in particular that it undermined D’s right to liberty under European Convention on Human Rights art 5. Despite acknowledging that such restrictions ‘would probably amount to ill treatment’ if placed on a non-disabled boy of that age (para 57), Keehan J seems to have assumed that because D’s parents were acting in their disabled child’s best interests and in line with medical advice, they could authorise the significant restrictions placed on him. This is in direct conflict with the Cheshire West principle that ‘what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities’ (Cheshire West at para 46).
Furthermore, although Keehan J adopted the concept of the ‘zone of parental responsibility’, he did not take into account the MHA Code guidance on its application, which makes clear there are limits to what parents can consent to, even if they are acting in their child’s best interests (paras 19.40–19.42 and 19.47). D’s care regime included a range and intensity of restrictions that exceeded, by a long way, the types of restrictions that parents place on their child as part of their parenting responsibilities.
To hold that D’s parents could authorise their son to be placed under such intrusive restrictions for such a lengthy duration because of his ‘erratic, challenging and potentially harmful behaviours’ appears to confuse two separate questions. Asking whether the restrictions placed on D are justified due to the nature of his care and support needs is not the same as asking whether D’s parents can consent to such retrictions on his behalf. That the parents are doing the best for their child is not the deciding factor when assessing if the care regime imposes restrictions that exceed the limits of parental authority.
For the above reasons, it is suggested that the court’s decision that the parents’ consent was within ‘the proper exercise of parental responsibility’ is questionable. It should also be noted that Keehan J declined to give general guidance on such cases, emphasising that these decisions are ‘fact specific and require a close examination of the “concrete” situation on the ground’ (para 68).
Camilla Parker is an independent legal and policy consultant, and a contributor to Disabled children: a legal handbook. This is an adapted excerpt.
There is detailed guidance on producing plans in the SEN and disability code of practice (Special educational needs and disability code of practice: 0 to 25 years, DfE/DoH, January 2015, chapter 9). However, this has not prevented a number of local authorities apparently using the transfer from statements to plans to reduce specificity and quantification, making plans difficult, if not impossible, to enforce.
Time will tell
These reforms cannot remedy system failures on their own, particularly at a time of cuts, but they do have the potential to benefit children, young people and families. By the time we need to produce the third edition of Disabled children: a legal handbook, we will know whether any of this promise has been fulfilled. ■
Disabled children: a legal handbook, Steve Broach, Luke Clements, Janet Read, 2nd edn, LAG £50, published December 2015.