We have recently been sent, anonymously, a letter from Nottinghamshire County Council which seems to set out a blanket policy for pupils in year 14.
To clarify, this seems to directly impact upon all pupils in independent and non-maintained special schools in year 14 (i.e. ages eighteen and nineteen).
The letter, which is attached here, seems to set out that Nottinghamshire County Council is now operating a blanket policy whereby all pupils in independent or non-maintained special schools will have to apply for exceptional funding in order to continue into year 14. This is particularly clear from the comment “For independent non-maintained special schools with a designation up until age nineteen, there is not an automatic entitlement to a year 14 and there is indeed an expectation that year 14 placements will be approved by exception only”.
This is quite plainly a new blanket policy which is being operated by Nottinghamshire County Council. It is also one which seems to be utterly unlawful.
Blanket policies are unlawful because it means that rather than considering individual cases, public bodies tend to rely on generic policies which mean that individual cases do not receive the attention or consideration that they require.
Beyond that, the stance that is being taken by Nottinghamshire County Council here seems to directly contradict with the judgment at the Upper Tribunal in Gloucestershire County Council v EH (SEN).
What the decision of Gloucestershire County Council v EH essentially provided, amongst other things, was an indication that the function of the Children and Families Act was to extend the statutory expectation of education until the age of twenty five.
There are, of course, situations where young people with Special Educational Needs will not continue to qualify for support further to the Children and Families Act. That is particularly where they no longer continue in education, or alternatively move into higher education which is then fully explained in the matter of the Royal Borough of Kensington and Chelsea v GG (SEN).
The very significant issue with this letter is that it suggests that all young people in non-maintained and independent special schools in Nottinghamshire, or funded by Nottinghamshire, face the risk of having funding cut notwithstanding the fact that their EHCP still names that placement. Any expectation that a young person would have to apply for further funding, but have an EHCP requiring that placement, is also plainly unlawful. Local Authorities are required to maintain and discharge an EHCP until it is amended. There can be no expectation for additional applications for funding outside of the SEN system. That seems to be what this letter is requiring schools and young people to go through.
In our experience, there seems to be an ever increasing trend to cut provision for young people post-18. One of the major issues that Local Authorities seem to have with the Children and Families Act system is that it has included thousands of additional young people between the ages of nineteen to twenty five.
Under the regime of Statement of Special Educational Needs, as a matter of law, a Statement would have to come to an end when a young person turned nineteen at the very latest. Typically, however, a Statement would end at the age of sixteen if a young person moved into a further education college and then they would be supported by a learning disability assessment, which, in practice, conveyed very little enforceable provision.
It seems, now after four years, that the issue has begun to crystallise. As more and more young people remain in further education, but not falling into any of the exceptions contained within the Children and Families Act, Local Authorities are having to secure funding for significantly more young people. The focus of the cost-cutting clearly seems to be falling on independent and non-maintained special schools given that they will be attracting the largest fees.
What is particularly troubling is that children and young people in independent and non-maintained special schools tend to have the most severely challenging Special Educational Needs and disabilities. That is simply because Local Authorities seldom agree to such placements unless there is absolutely no alternative to it.
What that therefore means is that the Local Authority is looking to cut funding for the most significantly vulnerable young people that it is responsible for.
It is not entirely clear what the Local Authority’s commitment is beyond an expectation that learners should have transitioned out of schools. The letter clearly states “Given our commissioning expectation that the overwhelming majority of Nottinghamshire learners will have transitioned out of education at, or before, the end of year 13 for the small number that do remain provision will be commissioned on the basis of three days a week …”.
It is unclear how young people or indeed their families would then proceed to challenge any such decision. As set out above, an Education, Health and Care Plan naming a placement would require a Local Authority to continue to fund it. If the Local Authority then, outside of the EHCP, make a decision to cease funding, the appropriate course of action would seem to be an action in judicial review. That is a complex legal proceeding and one which, to us, seems unreasonable for Local Authorities to be forcing upon young people and families.
Alternatively, if Nottinghamshire County Council is planning to amend EHCPs to reflect this policy, it means that young people are going to have to appeal to the Special Educational Needs and Disability Tribunal in order to secure their year 14 provision. This can cause an interruption in their education because, so long as the EHCP is not ceased, the Local Authority does not have to maintain the placement pending the determination of the appeal. If Local Authorities do cease to maintain the EHCP, young people can appeal which has the effect of ensuring interim provision at the same placement. However, if Nottinghamshire County Council is simply changing the placement named in the EHCP, that places young people in the invidious position of having to appeal and facing an interruption to their education of several months before the matter is resolved.
Whatever the practical implications, it is very likely that this blanket policy is going to have a significantly detrimental impact and, quite possibly, is unlawful.
Whilst we fully appreciate that all Local Authorities are currently facing significant financial difficulties, not least due to years of austerity, there are fundamental statutory duties which this letter at least seems to indicate Local Authorities are now trying to avoid.
We would advise any young people facing a situation where a decision has been made on the basis of a policy like this to immediately seek legal advice in respect of challenging by way of either appeal to the Tribunal or an action in judicial review
If you are experiencing difficulties as set out above or otherwise then please do not hesitate to contact our Specialist Educational Solicitor Team on 0333 202 7175.