WHEN DOES HEALTHCARE AND SOCIAL CARE PROVISION BECOME SPECIAL EDUCATIONAL PROVISION?
One of the unique factors of the Children and Families Act 2014 is that it recognizes in statue that social care provision and healthcare provision can be treated as special educational provision if it educates or trains a young person. Section 21 (5) of the Act states:
'Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision.'
This is important for many reasons to include:-
• Health and social care provision which 'educates' and 'trains' can be recorded in Section F of the Educational, Health and Care Plan.
• Health and social care provision which 'educates' and 'trains' can now potentially come under the jurisdiction of the First Tier Tribunal and they have the power to step into the local authorities shoes and redraft the provision to ensure that is suitable to meet the child or young person's needs.
• A local authority could have an absolute duty to provide that provision under Section 42 of the Children and Families Act 2014.
WHAT CIRCUMSTANCES WOULD HEALTH AND SOCIAL CARE PROVISION BE CONSIDERED TO BE SPECIAL EDUCATIONAL PROVISION?
The case of East Sussex County Council – v – TW (25th November 2016) provides some assistance.
In this case, the Upper Tribunal held that in order to comply with the statutory provision, the Tribunal must review what part of the social care provision educates or trains a young person and therefore can be placed in Section F of a plan.
Paragraph 25 of the Judgment distinguished between two types of provision that can be placed in a plan; direct special educational provision and indirect provision, that is, health or social care provision which has an education or training function. The Judge said that in the area of direct provision, a tribunal must make its own decision with regard what the person’s needs are and what provision is called for in light of those needs. In contrast, the health or social care provision which may educate or train a young person the judge classified as being “indirect provision”. The judge seems to suggest that in these circumstances, it is not the job of the Tribunal to determine health and social care needs but merely to differentiate what part of already defined heath or social and health care needs of an educational or health care element and place that provision within section F of the plan. To quote the Judgment directly:
“The nature of the tribunal’s task differs between direct and deemed special educational provision. For direct provision, it may make its own decision on what the person’s needs are and what provision is called for in the light of those needs. In doing so, it may add to the provision in the plan, amend it, or remove it. For indirect provision, the task is different. The tribunal’s only role is to classify the social care provision to filter out that part of the provision that is properly classified as special educational provision under section 21(5). The tribunal has no jurisdiction over the social care provision as such, because section 51 does not provide for an appeal. The tribunal only has jurisdiction in so far as it is properly classified as special educational provision, at which point it comes within section 51(2)(c). It has no power to change in any way the provision that remains social care provision under section 21(4). Nor has it power to include social care provision in Section F of the plan. All it can do is to include additional direct special educational provision.".
The confusion caused by the current law is reflected in the judgment of E Sussex County County v TW. I would respectfully suggest that it would be extremely difficult for any Tribunal panel to departmentalise the elements of social care and healthcare provision which may educate or train without first conducting an assessment as to whether that provision is indeed needed. In any event, how easy is it going to be for tribunal's or local authorities to 'break down' social care or health care provision into provision which provides education or training and provision that does not serve this function . This will no doubt be the subject of a number of appeals in the future. What is, however, clear, is that this process, puts a significant burden on any parent, local authority education department, and tribunal panel stepping into its shoes. Further clarification is desperately needed.
The law has created an entirely false artificial distinction between health, education and social care provision
The Courts have already determined that there is no hard and fast line between education and social care provision (see Bromley Judgment). The call must be for a 'one stop shop' to re-determine the needs and provision for a child and young person with educational and social health care needs on an equal footing; the tribunal should be given this power . There should also be a new statutory duty to make sure all social care, health care and educational provision specified within a plan has to be provided by the local authority. This is only this way that this confusion can be removed and children and young people can have access to the process which truly provides for all of their needs irrespective of whether they are deemed to be education, social care or health.
This is particularly the case with the introduction of education, health and care plan which provides for a social care and health care provision. Social care, in particular, cannot be enforced directly. The situation will only confuse parents and practitioners; they will now have a document which is 12 sections long and some sections appealable directly to the tribunal (BF & I) special educational needs element. Other elements in relation to health care can be directly enforced against a healthcare authority, however, there are very limited mechanisms available within the Children and Families Act to actually get pure health care provision with the plan to ensure that they can be directly provided. In relation to social care provision contained within the plan the local authority only have to have regard to its contents, it is not under a direct duty to provide it. The only appropriate way to get social care is to request for an assessment under the Children’s Act 1989.