Letter from Sinclairslaw to BCP Council: Release Safety Valve Proposal

Letter demands release of full proposal sent to DfE, ahead of full council vote

Letter from Sinclairslaw to BCP Council: Release Safety Valve Proposal
By: Rachel Filmer  | 

We can now share that Michael Charles, CEO of Sinclairslaw, has been instructed to ask BCP Council to share the full details of their Safety Valve proposal to the Department for Education.

On 20th February, BCP Council voted that any Safety Valve agreement must be subject to a full council vote. However, neither the full council nor the public have seen the full contents of the submission. BCP have made the plans exempt from public view, and this letter challenges the legal reasons for this decision, as well as consideration of the public interest test.

The full letter is below - more to follow:

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Dear Sir/Madam

We have received instructions from the above-named who intends to proceed as litigation friend on behalf of her children, [REDACTED] born on the [REDACTED]. These children have special educational needs and are currently educated within a non-maintained specialist school under the terms of EHCPs, the product of a Tribunal ruling made in 2020.

As this letter is produced pursuant to the pre-action protocol which governs the judicial review procedure we are obliged to set out for the Local Authority (“LA”) certain information.

1. The proposed claimants shall be [REDACTED] who both reside at [REDACTED]

2. The defendant is likely to be the Bournemouth, Christchurch and Poole Council, Civic Centre, Bourne Avenue, Bournemouth BH2 6DY. We are sending this letter to Cathi Hadley, Director of Childrens Services and Chief Executive Graham Farrant, in his role as Head of Paid Services, in addition to BCP’s Monitoring Officer Janie Berry, and Section 151 Officer, Adam Richens

3. The claimants are advised by this firm’s Mr. Michael Charles of 36, Windsor Terrace, Penarth, Vale of Glamorgan CF64 1AB.

4. The matters being challenged, the issues and the interested parties.

(a) In or around March 2021 central government published information to support local authorities experiencing very high deficits within their educational budgets. The government issued guidance to such local authorities through the DfE in October 2022, as part of its initiative to improve values within the SEND system, ‘Delivering Better Value’. In essence this meant local authorities who submit to central government a deficit management plan that the government might approve will receive funding conditional upon such local authorities complying with that plan. Many plans which have since been submitted to the central government contain controversial wording of a nature which has prompted concern within the special needs community in respect of how such practices and procedures correlate with the statutory duties which vest in all local authorities to assess and meet the needs of children who may have special educational needs.

(b) From information within the public domain, the LA has resolved to apply to the government to secure such funding through what is known as the safety valve programme. The LA earlier this year took steps to prevent interested parties from fully participating in the debate in respect of this strategy. We note from information within the public domain, including within school forum minutes, meeting held in December 2023, that the LA claimed it could no longer comply with the levels of demand in the SEN area. In the school forum held on the 15 January 2024 members learned the DfE expected a successful plan to show a balanced DSG (dedicated schools grant) within 5 years and that with the rapid growth of EHCPs the LA claimed this would not be possible without significantly restricting EHCP support and moving most pupils currently in non- maintained and independent schools into state funded provision the LA seemingly intends to build. This information came into the public domain and our client advanced an argument on behalf of her children before the LA that such a plan would not correspond with statutory obligations. The critical document which should have been put before the LA but which has never come into the public domain is the BCP’s DSG deficit management plan. That document, were it to be similar to those already submitted to the DfE, is highly likely to contain the type of controversial language referred to within a letter recently sent to the DfE by the writer, a copy of which is attached. This letter provides greater insight into the difficulties in respect of this scheme which, put succinctly, is being claimed to represent a mechanism to try and bypass statutory duty.

(c) On the 3 January 2024 the LA met to consider the contents of a deficit management plan which it chose not to put into the public domain on the grounds it was felt that the information was exempt under paragraph 3 part 1 of schedule 12 (a) of the Local Government Act 1972. Accordingly, the Children’s Services Overview & Scrutiny Committee resolved the management plan would be considered in secret. The level of public interest which has existed in respect of the safety valve scheme is considerable and the question as to whether the LA is properly complying with or advocating a practice and policy which contravenes the basic requirements of the Children and Families Act 2014 cannot be answered without sight of this plan, albeit from the language used in material within the public domain it seems highly likely the primary scheme the LA proposes to advance will include the type of undertakings we have seen central government accept through the 34 local authorities that have been awarded the safety valve benefit.

(d) In its guidance the government made it clear those local authorities are expected to reach an in- year balance on their DSG as quickly as possible and over time eliminate their deficits, such that the agreements set out within the deficit management plan will be closely monitored and if the conditions set out in the agreements are not being met the government makes it clear it will not hesitate to withhold payments. Many may have some sympathy for the LA in these circumstances, and as revealed in the attached letter sent to the secretary of state, a request has been made for the government to relax these commitments so that local authorities who are law abiding should not live in fear. However, the extent of the LA’s management plan has not been made clear to the public and ought to be.

(e) This letter specifically reserves the right to amend the contents of the grounds for any judicial review to include not only the LA’s decision to refuse the public access to this information but to potentially include a challenge in respect of the contents of the LA’s management plan, as being representative of a policy and procedure which does not comply with the law. It is trite law that policy is permissible in order to ensure consistency but to be lawful that policy should not advocate in any way the possibility of a decision-maker being constrained in their exercise of discretion. Further, where the statutory language compels the LA to evaluate needs above all else, the LA cannot exercise a policy to curtail that process. It is for these reasons we reserve the right to challenge more openly the LA’s deficit plan when received but we need to know key information from the LA as set out below. We need the information quickly and within the context of this potential claim. Give the substantive challenge that might be brought regarding the council’s overall approach, there is no alternative speedy and effective remedy open to the family not least due to the fact that the Information Commissioner’s office will take too long to rule on this rendering the judicial review otherwise being out of time. You will note that our client does not have the key dates upon which the council approved entering into a contract with central Government. If this decision has already been made but it was made without ensuring transparency for members of the public to provide views, it will be claimed that the decision should be quashed or else declared unlawful. For now, we need to know -

(1) The date upon which the LA submitted its application to central government within its safety valve scheme.
(2) Whether that decision was made by the LA or by members of the executive within the LA and if so it should identify the names of those individuals who made that decision.
(3) We need sight of the deficit management plan please as submitted to the DfE, any additional documents that formed part of the Safety Valve submission, and please confirm the date upon which that management plan was approved by a council. If not approved by a full council, please explain your reasoning and explain the process the LA followed to authorise its submission.

5. The matter being challenged – For now, whilst we await the information referred to above, we confine this warning to the LA’s interpretation of paragraph 3 part 1 of schedule 12 (a) of the Local Government Act 1972. This part of the legislation permits the withholding of information in certain circumstances including, “information relating to the financial or business affairs of any particular person (including the authority holding that information)”. It is patently obvious that this paragraph relates to information that concerns the financial or private affairs of an individual.

The paragraph cannot rationally be interpreted to include the affairs of the LA. The authority for the LA proposing this stance is requested please. Absent that authority, we put the LA on notice that we intend to make an application to the High Court for an order that the LA disclose this information through a process of judicial review whilst reserving the right to amend the claim to include a more expansive argument in respect of the plan we now ask the LA provide to us.

6. Interested parties – At present this is unclear although more expansive proceedings might include our citing the DfE on the grounds we believe there is evidence to substantiate a claim that endorsing unlawful content and strategy contained within a management plan is representative of the executive defying the will of parliament.

7. The action we require the LA to take – Within 7 days from the date of this letter the LA should send to us a copy of the management plan approved by the LA and any associated documents submitted to central government.

8. ADR – We do not make any ADR proposals in the circumstances, given the nature of the dispute.

9. The information we seek – This includes the information set out above.

10. The documentation we consider relevant – This includes the minutes of the school forum of December 2023 and January 2024.

11. Replies to this letter should be directed to this firm at the address set out on the first page of this letter within 7 days please.

In the event we are instructed to proceed with a claim for judicial review, on the grounds your response is inadequate, we put the LA on notice we will seek the following relief -

(a) A declaration the LA is acting and intends to act unlawfully.
(b) An order quashing the decision of the 3 January 2024 to refuse the disclosure in the public domain of the deficit management plan referred to.
(c) Such other order as the court may see fit.
(d) An order the LA pay the cost of these proceedings.

Our client has children with SEN and plainly they have an interest in the outcome of these proceedings and we sincerely hope common-sense will prevail to enable transparent disclosure and a full and proper explanation to be given to the public in relation to the LA’s conduct.

We look forward to hearing from the LA within the time set.

Yours faithfully
Sinclairslaw