RD (A child by his litigation friend LD) v Worcestershire County Council

Hearing dates: 19–20 February 2019

Approved Judgment

The Claimants are four children with significant disabilities and support needs. They live, with their families, in Worcestershire. Until 1 October 2018, each of them benefitted from the provision of Portage services by the Defendant Council. From 1 October 2018, the Defendant withdrew provision of Portage services. This Judicial Review claim essentially challenges the lawfulness of the withdrawal of those services from the Claimants.

Portage

Portage is an educational support service for pre-school children (from birth to 5 years-old) provided through regular home visits from a trained Portage home visitor. It is named after a town in Wisconsin, USA, where the service was originally developed. Portage was introduced in the United Kingdom in the mid-1970s. Portage aims to:

i) work with families to help them develop a quality of life and experience, for themselves and their young children, in which they can learn together, play together, participate and be included in their community in their own right;

ii) play a part in minimising the barriers that confront young children with special educational needs and disabilities (“SEND”) and their families;

iii) support the national and local development of inclusive services for children with SEND.

The principal objective of Portage is to achieve its aims through a partnership between the Portage home visitor, the family (including parents, siblings, carers and wider family) and other support agencies.

Prior to their withdrawal, Portage services were available in the Worcestershire area to children of pre-school age (0 to 5 years-old). The “entry requirements” for the service included that the child has significant developmental delay in at least two areas, or a recognised disability or diagnosis, and that s/he is not already attending a special needs placement.

The Claimants

The First Claimant is now 4 years-old. He suffered from a middle cerebral artery infarction when he was born, which has left him with an acquired brain injury. He has global developmental delay and suffers from cataracts. He requires significant support from a variety of professionals. Prior to their cessation, the First Claimant had been receiving regular (fortnightly) Portage services from a dedicated Portage home visitor since he was 14 months-old, having been referred for support in November 2015.

The Second Claimant is 2 years-old. He has suffered from hypoxic ischemic encephalopathy at birth, as a result of which he has a range of conditions including microcephaly, cerebral palsy, visual impairments and global learning difficulties. He is unable to sit, roll or use his hands. He also suffers from seizures which require daily medication. The Second Claimant has been receiving Portage services since March 2017.

The Third Claimant is 21 months-old. He was born with Down Syndrome and has experienced developmental delay as a result. He had been receiving fortnightly Portage services from a dedicated Portage home visitor since September 2017.

The Fourth Claimant is 3 years-old. He was born with Down Syndrome which affects several aspects of his health and development. He is both cognitively and developmentally delayed by at least 18 months. The Fourth Claimant had been receiving regular (fortnightly or monthly) Portage services from a dedicated Portage home visitor since approximately June 2016.

The evidence of the Claimants' parents is that the Portage service has “ helped… invaluably”, “ provided an immense benefit to [their] family”; has been a “ constant source of support to me and my family and … greatly beneficial to all”, and has “ helped keep [their] family together”

The Defendant's Review of Portage provision: the Peridot Report

In December 2012, the Defendant's Early Years and Childcare Service (the department then responsible for the Portage service in Worcestershire) commissioned a consulting firm, Peridot Associates, to review the service and “ evaluate the impact of the current service delivery and to identify potential changes that could provide additional outcomes and identify any realistic savings projections”.

The resulting report (the “Peridot Report”), produced in March 2013, found that parents and children experienced a wide range of benefits from the Portage service in Worcestershire, and included a “Social Return on Investment” report which concluded that for £1 invested in Portage a return of £1.62 was realised. The Peridot Report recommended that the Council “ acknowledges the impact of its service delivery on its service users and the added value this brings to them”, and that the service should be extended to school-aged children.

The Peridot Report noted that Portage home visitors in Worcestershire were required:

i) to deliver a Portage service to children with disabilities and/or significant special needs to them and their families in a home environment;

ii) to support the holistic development of children with disabilities and/or significant special needs aged 0–5, to improve opportunities for achievement and learning;

iii) to work with a range of multi-agency professionals to ensure a consistent approach to the individual child's support package;

iv) to empower parents to support their children's holistic development; and

v) to lead group activities for Portage parent(s)/carer(s) and their children.

As a result of interviews with some 60 parents, the Peridot Report identified 4 key areas that parents valued from the Portage service:

i) the developmental support that was provided for the child and the family;

ii) networking opportunities for parents and carers;

iii) signposting (“ Portage has helped us understand what help we needed, what help is out there and how to claim it”); and

iv) support for the family.

The views of other professionals engaged in provision for SEND children were also captured. The Peridot Report stated:

“Without Portage, the professionals noted:

• It would be difficult to make accurate early diagnosis; in some cases impossible (Consultant Paediatrician)

• Managing children's disabilities in a holistic, family friendly way would be extremely challenging, if not impossible (Consultant Paediatrician)

• Unsupported families would really struggle — relationships may well break down and children may be harmed (Consultant Paediatrician)

• There would be safeguarding concerns for some families

• Concerns about parent skills and confidence in child development and positive parenting beyond what health visitors can offer

• Worcestershire would not be able to fully support families with complex needs without this service, having a huge impact on the other support services in the county

• Early education is essential for children with special needs and it is becoming increasingly difficult to find appropriate support. If Portage is withdrawn it may be very difficult for us to offer any regular home-based support or developmental support to very young children with general developmental delay (e.g. Downs syndrome) aged 0–4 years. Many of these children are too young to attend Nursery. (Consultant Paediatrician specialising in Child Development and Pre-School Years)”

Consultation on whether to cease providing Portage services

Between 4 April 2016 and 3 May 2016, the Defendant conducted a consultation on a proposal to stop providing dedicated Portage services with effect from 1 October 2016. The results of the consultation were published in May 2016:

i) 100% of parents/carers currently receiving support from Portage and who completed a survey indicated that they were against the proposal to cease the provision of Portage services;

ii) 86% of professionals who responded to the survey expressed disappointment at the proposal. Some felt that ceasing Portage could impact on children's school readiness because children with additional needs would be left “largely unsupported in anything other than their medical needs until they start their education”, and that removing Portage would also lead to an “increase in demand on specialist provision and social care”.

Subsequently, towards the end of May 2016, the Defendant announced in a document entitled, “Portage Consultation 2016”, that it was proposing to cease providing the Portage service with effect from 1 October 2016:

“After exploring the viability of [other] options the council is proposing to stop providing a dedicated Portage service in Worcestershire from 1st October 2016. Following a consultation with families currently accessing Portage and taking into consideration the feedback they provided, the council is proposing the following measures to ensure that those families who are currently receiving support from Portage and who would otherwise continue to receive support post-October 2016 are not disadvantaged by stopping Portage; …

• Develop a transition plan for all families that the decommissioning of the service will impact on with the wider services working with the families and identify a lead professional…

• Access funding to provide personal budgets for those families that the decommissioning of the service will impact on to enhance the support they...