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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

15 APR 2015

R (on the application of L) v Warwickshire County Council [2015] EWHC 2013 (Admin); (2015) PLLR 021

R (on the application of L) v Warwickshire County Council [2015] EWHC 2013 (Admin); (2015) PLLR 021
Community care – Disabled children – Duty to consult – Information provided during consultation

The claimants, disabled children, sought judicial review of a local authority’s decision to reduce funding for social care services for disabled children. The claim was allowed in part. There was no general common law duty to consult and at the consultation all parties were given a chance to express their views. However, the information the local authority had provided in relation to matters prescribed by schedule 3 of the Special Education Needs and Disability Regulations 2014 was not sufficient. The proposed local offer was therefore, in its present form, lacking. It was held to be necessary for the informed budgetary decisions that the local authority maintained a register of disabled children.

5 February 2015

Administrative Court

Mr Justice Mostyn
1. The claimant were disabled children. They sought judicial review of a local authority’s decision to reduce funding for social care services for disabled children.
2. The local authority had cut its Integrated Disability Service budget as a result of government spending reductions. Most of the reductions were absorbed through staff cuts.

THE ISSUES:
3. The claimants argued that:
(i) the local authority was, at common law, required to consult them but had failed to do so properly;
(ii) the consultation on the proposed local offer, which the local authority was under a duty to publish to section 30(1) of the Children and Families Act 2014, did not involve consultation on the proposed reorganisation of the Integrated Disability Service, which was to have the effect of narrowing eligibility for social care for disabled children and families. The local authority had confirmed those issues would form part of the consultation;
(iii) the approach under the proposed local offer would lead to a significant, and thus impermissible, departure from relevant statutory guidance, Working Together to Safeguard Children (2013). This departure was not explained to participants of the consultation;
(iv) the proposed local budget reductions fell short of what was required by statute; and
(v) the local authority was in breach of its duty to maintain a register of disabled children, to be found in Part 1, para 2 of Schedule 2 of the Children Act 1989. Such a failure meant that the local authority was unable to adequately fulfil the requirement of section 27 of the Children and Families Act 2014, which imposed a duty to review the adequacy of education and care service for children in the area.

THE DETERMINATION:
4. The claim was successful in part.
5. First, it was held that there was no general common law requirement to consult, as the functioning of administration would be impossible if each decision-maker had to consult everyone potentially affected by the decision being taken. The common law would, however, impose a duty where there had been a promise to consult, in situations where there had been an established practice of consultation, and in exceptional cases that conspicuous unfairness would arise from the lack of consultation. As a matter of procedure, the claimants were out of time when they made their review, so the claim for judicial review would be refused for that reason. Even so, the claim would fail on its merits, as the circumstances of the case did not place the local authority under a common law duty to consult.
6. Second, the Special Education Needs and Disability Regulations 2014 (Regulation 55) required that the consultation included consultation on the service that disabled children required. Since the proposed local offer had not been adopted and was being actively evaluated, it could not be said that the parents of disabled children did not have the opportunity to offer their views.

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7. Third, section 17 of the Children Act 1989 instructed that a disabled child, irrespective of the extent of the disability, was to be seen, without qualification to be in need, and thus subjected the local authority to a general duty to protect and promote their welfare. The guidance, however, should not be understood to suggest that every disabled child should be subject to a full social worker assessment.
8. Fourth, it was held that the information the local authority had provided in relation to matters prescribed by schedule 3 of the Special Educational Needs and Disability Regulations 2014 was not sufficient. Therefore, the proposed local offer was, in its present form, lacking.
9. Fifth, it was necessary, for the local authority to make informed decisions, that it maintained a register of disabled children and knew how many disabled children there were in its area.

Key paragraphs
[15]-[16], [37]-[38], [42] – Common law duty to consult.
[54], [59] – Content of consultation.
[63]-[64], [72] – Discussion of the effect of section 17 of the Children Act 1989.
[76]-[80] – Deficiency of information in present proposed local offer.
[83] – The necessity of maintaining a register of disabled children.
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