local authority duty on SEN

Special needs, education and the local authority duty

Question: How must a local authority assess the special educational needs of a child in its area? What is the extent of the duty?

Assesment must be systematic. In R (LH and MH) v LB of Lambeth [2006] 2FLR 1275, a boy, 10, suffered from autism, moderate learning disability, severe epilepsy, and asthma. He had been statemented, and attended a non-residential school for children with learning difficulties.

A psychiatrist told the local authority (LA) that the boy's mother was near the end of her tether, and that the situation at home was breaking down. The mother requested a core assessment under the Children Act 1989, and an amendment of the statement so he could go to a residential school.

The first core assessment
The social worker noted that the boy's mother was doing her best to meet his needs, but was unable to cope with his behaviour, which was affecting her mental and physical health.

The social worker prepared a care plan, recommending that he be educated at a boarding school. A suitable school was prepared to admit him. During the holidays, he would attend a local authority play scheme.

What the local authority did
The LA did not implement the care plan, but said its social services and educational panel would consider the boy's circumstances, and that its social services department supported placement at a boarding school.

In fact, while the social services department did support such a placement, the education department thought that there was no educational reason for funding it.

The mother became depressed. The social worker suggested that the Children and Adolescent Mental Health Service might help: the boy did not misbehave at school, but only at home and, while he might have to attend a boarding school in the future, other options should be explored first.

The statement was amended, and the LA said there was no evidence that the objectives in the amended statement could be achieved solely by a residential placement.

The second core assessment
The same social worker made a further core assessment. But the social worker now said that steps could be taken to help the mother cope with the boy at home, and that a boarding school could be detrimental.

The mother told the LA that she was appalled by the core assessment, which contained inaccuracies, and generalisations. She did not think the social worker and LA had the boy's best interests at heart, and believed that money was the bottom line.

A further statement referred to the problem of the boy's behaviour at home only obliquely, and suggested that the behaviour management strategies that would be used at a non-residential school could be shared with the mother.

Judicial review
The mother applied for judicial review of the new assessment, arguing that the conclusion that a parenting programme was capable of meeting the boy's needs was irrational, and that the LA had failed to comply with its obligations to deal with the case as a whole, taking into account the boy's educational, health, and social care interests.

The Children Act 1989 s.17 requires every LA to safeguard and promote the welfare of children within its area who are in need: i.e. those unlikely to achieve reasonable health or development without LA services.
The Children Act 2004 says that an LA must make arrangements to improving the well-being of children in its area (physical and mental health and emotional well-being, protection from harm and neglect, education, and social and economic well being).

A ‘flawed and irrational’ decision
The judge, said that it was for the LA, and not the court, to decide between a residential placement and home support. The court could decide whether the LA had carried out a proper assessment of the boy's needs. It had not done so.

The LA's decision that its proposed package of support, much of which remained to be identified, was preferable to a residential placement, was seriously flawed, and irrational.

There should have been a systematic assessment of the boy's needs, taking into account his developmental needs, his parents' parenting capacity, and family and environmental factors, with cooperation between all agencies.

The LA was in breach of its assessment obligations under the Children Act 1989 and the Children Act 2004.

This article first appeared in Education Law Update - May 2007

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