Minutes:
(1) Mr Badman gave a presentation using overheads on the National Child Poverty Pilots. He advised that Kent County Council would have to bid for all funds from the national £125m set aside by the government for the pilots between 2008-11. This funding would be used to cover key areas such as: childcare affordability, child development grants, improved housing for teenage parents and innovation. The results of the EOI would be available from 30 September. The full bid would be notified on 28 November and the pilot would begin in 2009 when the mapping of the pilots can take place.
(2) Members made comments and asked questions which included the following issue:-
a) In response to a question, Mr Badman agreed to provide more information to the Committee on the bid for funding the pilot for new local approaches to addressing child poverty at a later date.
(3) Ms Wainwright followed up with a verbal presentation on the Waltham Forest Judgement and the implications for Kent County Council.
The Judgement would affect Looked After Children attending schools in Kent. As this information was complex, Ms Wainwright agreed to prepare a detailed note to the Committee.
(4) Members were given the opportunity to make comments and ask questions which included the following:-
· A Member spoke about the anomalies in the funding stream for looked after children and asked what the figures were. How much does it cost against what KCC is allowed to recoup?
· Members felt that this information was very important and would have preferred a formal report to the POC on this matter.
(5) Following the meeting Members received the following note prepared by Ms Wainwright which also answered the Members Questions
Looked After Children (LAC) attending schools in Kent and Implications of the Waltham Forest Judgement
(Comments in italics relate to Member questions)
London Borough of Waltham Forest - v – Staffordshire County Council [2007] EWHC2060 (Admin)
Summary of Judgement
London Borough of Waltham Forest v Staffordshire County Council [2007] EWHC2060 (admin)
The case has decided that the responsible authority (i.e. the authority looking after the child) for a child with a statement is responsible for arranging the child’s education provision rather than the host authority (i.e. the authority where the child is placed) as was the case prior to the judgement.
The judge recorded his view that the child would benefit if the same authority were responsible for arranging both the social care and the education placement for the child.
This judgement appears to be consistent with earlier judgements, which decided that the responsible authority retains responsibility, as would any good parent rather than transfer that responsibility to the host authority.
Numbers
There are 165 children with statements of SEN who are looked after by another local authority in Kent maintained schools. There are an additional 142 children in non-maintained schools for whom Kent Local Authority (LA) maintains a statement.
There are around 100 referrals for statutory assessment each year for LAC living in Kent.
There are 1,271 OLA LAC in Kent of school age in total.
The LAs do not report to DCSF the authority in which they place LAC. It is therefore not possible to say how many LAC from London are placed in other SE LAs. We could ask the LAs to disclose their data but this would be very time consuming.
Situation Prior to Judgement
For LAC children with statements the receiving authority (Kent) was responsible for arranging the statutory assessment and maintaining the statement, however. The cost of the school place could be recouped.
For children with special educational needs and without statements the receiving authority is responsible for arranging and funding school places and the cost of the child’s education cannot be recouped.
DCSF Position
Nigel Foulton, Lead SEN Framework has confirmed that the judgement not only covers the maintenance of statements but also the statutory assessment process and all duties relating to LAC covered by the Education Act.
DCSF say that future Kent practice is a matter for Kent but it believes that the judgement is unhelpful to LAC and have drafted new Belonging Regulations, which will put the division of responsibilities back to education authorities as they were prior to this judgement. However they must first be approved by Parliament before they become law. They will be put out to consultation and Kent (and others) could make representations if it saw fit. There is no guarantee that they will become law nor can we be certain of a time frame, although DCSF is talking about ‘some time next year’.
If proposed Belonging Regulations do become law they would apply to all LAC.
LGA Position
LGA will not be issuing any guidance.
Implications for Kent Local Authority
Following the High Court Judgement, we are entitled to return files of LAC with statements to the responsible authority.
The responsible authority would then be responsible for arranging statutory assessments, maintaining statements and arranging provision.
It is likely that there would be a disincentive to place children in Kent without consultation about school places.
A referral for statutory assessment will be made to the responsible authority and that authority would have responsibility for undertaking the full assessment.
Appeals to the Special Educational Needs and Disability Tribunal would be against the responsible authority and not Kent.
Judicial reviews would be against the responsible authority and not Kent.
Should the Judgement be reversed through new regulations, files would be returned to Kent. Kent maintains a log of where files are sent in the normal course of events so would be able to track them if necessary.
Funding Implications
Funding for schools comes to the LA from DCSF based on the number of children in Kent schools in January (Direct Schools Grant/DSG). If a LAC child is on the roll of a Kent school in January, Kent will receive the funding. However due to the extreme mobility of this group a child may come onto a school roll after the January PLASC and off it before the next, attracting no funding to Kent. The DSG varies across authorities with the amount paid to London authorities being higher than the amount paid to Kent. There is potential for London Boroughs to profit.
There is also an issue about the cost of additional services. A proportion of the LAC teams’ time, estimated to be at least £120K (out of £340K) is dedicated to other LA LAC issues. As there are discrepancies between the Area Based Grant (ABG) received by Kent and London Boroughs there is again potential for London Boroughs to profit.
London Boroughs will also be benefiting from Standards Funds for extended schools.
Suggested Actions
1. Consider the return of all files of LAC with statements to the responsible authority in compliance with the judgement. This would support and be consistent with Kent’s lobby to make the responsible authority responsible.
2. Request meeting with DCSF to clarify position with regard to the wider implications for non-statemented LAC.
(6) RESOLVED that the verbal presentations by Mr Badman and Ms Wainwright and comments made by the Members be noted.