Coram Children’s Legal Centre (CCLC) is today publishing details of its successful legal challenge to Norfolk County Council’s unlawful policy to slash speech and language therapy provision for children with Education, Health and Care Plans (EHCPs) by 50%.
The new policy, which Norfolk introduced to its Speech and Language Therapy (SLT) provision for children with EHCPs in a document entitled ‘Supporting CYP on the Norfolk and Waveney Speech and Language Therapy Waiting List’, would have had a dramatic impact on children living in the county who have special needs.
This policy was brought to the attention of Coram Children’s Legal Centre when they were asked to represent H, a local child with special needs in receipt of an EHCP. 11-year-old H has speech and language difficulties and was receiving a combination of group and one-to-one speech and language therapy sessions in the classroom, as part of the EHCP. These have been invaluable in helping to improve H’s ability to communicate in school and at home. As with many services during the Covid-19 pandemic, there was a reduction to the support H was able to receive and H’s family had been looking forward to returning to a time when the support would be re-established to the level H needed.
Yet H’s support reduced even further. Norfolk County Council commissioned NHS Community services to provide a report on H’s language and communication needs and this reduced H’s sessions down by over half of what he was receiving previously. The 50% reduction policy would then halve it further still, down to a quarter of his previous sessions.
CCLC’s Education Law Team sent a pre-litigation letter to Norfolk County Council challenging the policy as unlawful on the grounds that:
- They failed to deliver special educational provision as outlined in H’s EHCP in accordance with Section 42 of the Children and Families Act 2014 (2) and any healthcare provision must be provided by the responsible commissioning body under section 42 (3) and (4).
- It was unlawful for the special educational provision within an EHCP only to be provided if the Clinical Commissioning Group or Local Authority was in agreement with the clinical recommendations.
- It was not lawful to review all children’s EHCPs outside of the statutory timetable and it should only be based on a change in the child’s needs or the child’s placement rather than motivated by the needs of the service.
- They were not acting in accordance with their Public Sector Equality Duty as they failed to consult with parents of disabled children before making its decisions.
In response, Norfolk County Council stated the policy was formulated to reduce delays in the overall service, to address a backlog and bring down waiting times. However, they accepted the policy did not meet statutory requirements and agreed to withdraw the published policy as soon as possible.
Norfolk confirmed there was no plan to review provision in EHCPs other than in terms of Annual Reviews. It stated that there was no global or single review of all EHCPs planned. Furthermore, the Council confirmed it would provide Speech and Language Therapy to children in the county who require it, if this were contained within their respective Education Health and Care Plan.
H’s mother, M, was dismayed by the policy, not only for her own child but also for the impact it would have on other children living in the county and decided to take action.
The impact of the pandemic on children with disabilities compared to their non-disabled peers is well-documented, with the additional loss of therapies they rely on to support their development and attainment. Families understood and accepted the need for staff to be redeployed to other areas of the NHS during a national health crisis. The last thing they expected though, when services were able to be reinstated, was for Norfolk County Council to introduce a policy that would dramatically reduce speech & language therapy to the children who need it the most.
We felt we had no choice but to bring this action for the sake of all children in Norfolk impacted. We are glad our action has resulted in the policy being revoked and await, together with other families, to further from Norfolk County Council’s plans to reinstate children’s full speech & language provision. We are incredibly grateful to the team at Coram Children’s Legal Centre, and to 3PB Chambers for their valuable advice and support in getting this policy overturned.
Gregg Burrough, Senior Education Solicitor, Coram Children’s Legal Centre, said:
It is highly unfortunate that parents were forced to threaten legal action following a policy effectively halving children’s therapy enshrined in EHCPs. We were only too happy to advise and assist as soon as we were contacted. We would want to acknowledge our client’s bravery and determination in fighting a public body in this way. Of course, we hoped to avoid protracted litigation wherever possible, and we now hope the local authority and clinical commissioning group, as responsible public bodies, will follow through with their intentions and ensure no further amendments to children’s special educational provision are made in this unlawful manner.
Qaisar Sheikh, Head of Education Law, Coram Children’s Legal Centre, said:
The local authority’s withdrawal of the unlawful policy was a great outcome not only for H but all children who access speech and language therapy through their EHCPs in Norfolk. This case goes to show how important the judicial review mechanism is for children and young people with special educational needs. The policy would have undermined the process in formulating provisions within EHCPs which are based on a child’s specific needs and what has been determined as necessary provision. Following this legal action, we have already been contacted by parent groups in at least one other local authority who have seen similar cuts in services and are looking for legal support.
The CCLC team was assisted on a pro bono basis by 3PB barristers Emma Waldron and Alice de Coverley. Emma Waldron said:
This case raised an important issue not just for H but for all children and young people in the authority who had speech and language therapy provision written into their EHCPs. If the LA’s policy had not been successfully challenged, it could have led to a vast number of children and young people not accessing therapies that they were legally entitled to. The withdrawal of this policy is a welcomed outcome for all those involved in this case.
Notes to editors
Norfolk County Council Policy: Supporting CYP on the Norfolk and Waveney Speech and Language Therapy Waiting List
The policy was contained in a document titled ‘Supporting CYP on the Norfolk and Waveney Speech and Language Therapy waiting list’.
The document stipulated that Norfolk County Council would undertake to do the following:
- continue Covid arrangements for Education Health and Care (EHCP) provision by providing an average of 50% provision for two terms;
- review all EHCP provision under ‘Other work supporting the sustainability of this approach’, ;
- only provide the EHCP provision if the LA are in agreement with the clinical recommendations;
- only provide the EHCP advice/assessment for children and young people already known and being supported by the service.
H’s pre-existing speech and language provision
Through his EHCP, H would have received:
- 45 – 60-minute Speech and Language Therapy Sessions up to 4 x a term.
- 30-minute Speech and Language Therapy sessions up to 4 x per term
- 1-1 Speech and Language Therapy Sessions for up to 60 minutes per term
In the weeks before the policy was introduced H’s was assessed and the provision of speech and language therapy was reduced by half. Then once the policy was introduced it was to be reduced by half again.