Local offers, Ofsted and accountability

The most recent big development in special educational needs is R (L & P) v Warwickshire County Council and Warwickshire Safeguarding Children Board. This was a Judicial Review of, among other things, the Local Offer prepared by Warwickshire.

The High Court found that the Local Offer prepared by Warwickshire was inadequate. The Court did, however, set the threshold very low for the Local Offer. At paragraph 51 of the judgement, the Court sets out that the obligations on the local authority are to;

“publish information about what services are expected to be available.  [It is a] publication obligation, no more, no less”

There has been much concern raised by commentators about the suggestion of a publication duty only. There has been some hope that the Local Offer would provide an interactive tool to find services and to work out whether a parent / child could access the service. This goes beyond a publication duty. It is right to say that the local authority simply has to publish a Local Offer, but the Offer itself should be more of a tool than a publication.

The other comment which has caused concern is at paragraph 75:

“Having regard to the legion matters which the Act, the Regulations and the guidance prescribe it would be amazing if any local authority had by now actually formulated and issued a Local Offer which met every requirement. On the other hand it is well known that many local authorities have by now published Local Offers which are believed to be largely compliant with the requirements.”

The Children and Families Act 2014 took force from 1 September 2014. This means that all local authorities should, by law, have published a Local Offer which met all the requirements by 1 September 2014. The law was not brought in quickly; there were pathfinder local authorities trialling the changes and substantive consultation with local authorities.

What the Court seems to have said is that it is acceptable for a local authority to have issued a ‘nearly’ compliant Local Offer. It is not clear how long this permissive period will last for or what ‘nearly’ compliant is. The point of the regulation is to set out what is required; no more, no less. For the Administrative Court to be permissive about failures, when its primary duty is to ensure that public bodies comply with the letter of the law, is worrying.

This judgement has led to many commentators throughout blogs and social media to raise the issue of accountability.

Currently, there are two remedies in special educational needs. If a parent or young person wants to challenge the content of their Statement or EHCP they can appeal to the Special Educational Needs Tribunal, subject to some restrictions. More general concerns that a local authority is not complying with legal duties are dealt with via judicial review.

On 17 December 2014 Edward Timpson invited Ofsted to investigate local authorities to ensure that they are complying with the new special educational needs duties. Little further information has been given to set out what powers Ofsted will have or how it will hold local authorities to account for any failures.

The judgement issued by the Court calls into question whether Ofsted could realistically require the local authority to have fully complied with the Children and Families Act 2014 and associated regulations and guidance.

I wrote recently about the difficulties of implementing the Children and Families Act. Asking Ofsted to investigate local authorities does mean that it is not simply down to parents, or interested groups, to launch judicial reviews of local authority failings. However, there are still a number of issues:

• What remedy can Ofsted actually obtain / impose if they find a failing?
• How can Ofsted, or the Court, now require that local authorities are fully compliant in light of this judgement?
• How long should local authorities have before we can realistically expect them to be fully compliant with the special educational needs reforms?
• What do parents do in the meantime whilst they seek information, advice or support and local authorities continue to fail to act properly?

At the moment, I do not have any answers to these questions. That is largely because the Court has created these questions and will need to resolve them. In terms of Ofsted’s powers, new regulations are likely to be needed which will take time.

The only answer I can suggest is that accountability needs to be on an individual basis. Parents need to be fully informed and need to monitor closely what their local authority is doing for their child. Being informed is the only way of ensuring that your child is getting the support they are entitled to and that you are being given the right advice.