Birmingham S114 Notice - Impact on young people

What does Birmingham’s declaration of financial distress mean for its vulnerable children and Young People?

Today, Birmingham City Council has declared itself effectively bankrupt and issued a Section 114 notice which prevents all but essential spending to protect core services. But what does this mean for children and young people (YP) with Special Educational Needs (SEN)? 

Essentially, the Section 114 notice should not affect children and YP in receipt of an EHCP as the notice still allows spending to statutory services. This means that Birmingham City Council must still comply with their statutory duty to comply with the EHCP timescales as set out within the SEND Regulations 2014, and must also ensure that they continue to maintain EHCPs and deliver the Special Educational Provision within Section F. 

In reality, however, it is possible that the Local Authority will attempt to use the Section 114 notice to try to justify ongoing delays to the EHCP process and avoid funding provision children and YP require in an attempt to save costs. This means that parents and carers of children and YP with EHCPs need to be even more aware of the statutory timescales, and aware that the Local Authority absolutely still have a duty to maintain the EHCP and deliver all of the provision set out therein. 

Parents, carers and Young People currently going through the EHCP process should therefore ensure they are aware of the timescales set out within the SEND Regulations 2014. These Regulations set out the dates by which the Local Authority must make certain decisions in respect of the EHCP process, such as the date my which they must decide whether to complete an EHC needs assessment, finalise an EHCP, or make a decision following an annual review. The Section 114 notice does not alleviate the Local Authority of their duty to comply with these timescales, and it is therefore very important for parents, carers and YP to be aware of the dates by which they can expect decisions in respect of the EHCP process, and ensure they are pressing the Local Authority to comply with the same. 

It will also be very important for parents, carers and YP that already have an EHCP in place to be very familiar with the provision set out within Sections F, G and H of the EHCP to ensure that the Local Authority are continuing to deliver all of this provision in accordance with Section 42 of the Children and Families Act 2014. The Section 114 notice does not affect the Local authority’s duty to deliver all of the provision set out within these sections of the EHCP. They must therefore continue to deliver provision such as 1:1 support, Speech and Language and Occupational Therapy, and Birmingham cannot rely on the notice to provide justification for not delivering this provision. 

In respect of school placements parents, carers and YP should also be aware that the Local Authority may attempt to reduce costs by amending the school named in Section I of the EHCP. This is more likely to impact those children and YP that attend independent, specialist school placements that cost the Local Authority a significant sum every year. Parents, carers and YP, however, must be aware that the Section 114 notice alone does not afford the Local Authority the right to amend the placement named in Section I and should look to challenge any decision of this nature.
Whilst the Section 114 notice therefore shouldn’t affect children and YP with SEN, our experience acting for parents and YP tells us that unfortunately the reality is that in an attempt to try and reduce current spending/save new costs, in Birmingham we are now likely to see;
An increase in delays to the EHCP process;

• An increase in the Local Authority failing to provide the provision set out within EHCPs;
• An increase in the number of cases in which the Local Authority refuse to complete an EHC needs assessment;
• An increase in the number of cases in which the Local Authority refuse to issue an EHCP;
• An increase in the number of cases in which an EHCP is issued with inadequate provision within Section F;
• An increase in the number of cases in which an EHCP is issued that does not name the parental preference school in Section I;
• An increase in the number of cases in which the Local Authority decide to cease to maintain the EHCP; 
• An increase in the number of cases where the Local Authority attempt to make amendments to the provision in the EHCP and/or the placement named in Section I

In any of the above cases parents, carers and young people must not take the decision at face value and must be aware that these decisions can – and probably should - be challenged. There are a number of different ways to challenge the above decisions, including bringing a judicial review claim, or appealing to the Special Educational Needs and Disability Tribunal (SENDIST). The correct route to go down will be dependent on the individual circumstances of the case. 

If you have received any of the above decisions from the Local Authority, we would encourage you to consider challenging the same. If you would like to talk to one of our specialist SEND Lawyers in relation to your specific circumstances, we offer a free initial consultation to discuss the best way to challenge the decision and how we might be able to assist you with this. Please therefore feel free to contact us on 0333 202 7175 or email education@hcbgroup.com.