COVID-19: banana bread, blankets, beans and the law

I’m very pleased to host this guest post from Prof Katherine Runswick-Cole, describing her experience of using judicial review to challenge Derbyshire’s decision to operate under the Care Act ‘easements’. Katherine has also produced an easy read version of this post: Derbyshire easy read. 

Have you learned a new skill during lockdown? Perhaps you’ve made your first banana bread, crocheted a lockdown blanket or planted runner beans?

I’ve learned a new skill too, I’ve learned about the power of pre-action letters and judicial review to protect human rights.

Supported by Alex Rook of RIS Law and Steve Broach of 39 Essex Chambers, my son, William and I have used a pre-action letter to challenge Derbyshire County Council’s decision to introduce ‘easements’ under the Coronavirus Act (March, 2020) that would allow them to downgrade their duties under the Care Act (2014).  This decision had a potentially devastating impact on William.  William relies on direct payments to deliver the care he needs to live an ordinary life as part of his community. Derbyshire’s ‘easing’ of Care Act duties put this support at risk, and it appeared to us that William was facing the prospect of potentially reduced, or even no, support.

We wanted the Local Authority to explain the justification for their decision to introduce the easements – what was happening in Derbyshire that meant this decision was necessary?  After all, after a bit of brilliant investigative work by George Julian, we found out that the rate of deaths in Derbyshire from coronavirus during March and the first two weeks of April (30.8 per 100k people) was lower than the rate across England (36.6) and overall deaths from all causes in Derbyshire (153.2 per 100k people) was also lower than the rate across England (161).

Our family found out about the changes from Twitter, we had no communication, certainly no consultation, from the Local Authority. We challenged Derbyshire’s failure to consult with, let alone inform, people potentially affected by the decision to introduce easements and their failure to communicate this decision.

In their response to an exchange of legal letters, we discovered that Derbyshire triggered the easements on 30^th March, 2020 but did not communicate this decision, even, as they are required to, to the Secretary of State, until 22nd April, and then only published the decision in a cabinet report on 23^rd April, squirrelled away on their website.

Derbyshire have said that the council “has learned lessons from having to react swiftly to a situation never encountered before and will certainly respond differently in the future, should the need arise, in a number of respects, but certainly in relation to publicity and communication.”

In a public statement we stated that we remain concerned about the failure to communicate to anyone at all for three weeks about the decision, and even then only to do so by the publication of a Cabinet report on the website.  We also continue to question whether the legal tests for enacting the care act easements were ever met, but we were glad to see that Derbyshire has learned lessons, that they assured us that William will not in fact be directly affected, and promised to do things differently, and so, for the moment, we’ve decided not to pursue the case further.

Layers and the law

By now you might be thinking, great, a good news story, a local authority is held to account, but hidden behind the narrative are layers of complexity that often make it difficult for families like mine to use the law.

Cost

The first barrier is, of course, money.  Legal aid does still exist to fund cases like my own, but it is extremely difficult to find a legal aid lawyer with the necessary experience and capacity to take on new work.  Lawyers (sorry Alex and Steve) are otherwise notoriously expensive.  We could not have even begun on this path without them agreeing to speak to us about the issue on a pro bono basis.  We were also extremely lucky that RIS Law have an Education, Health and Care Social Justice Fund.  The fund exists to give legal advice for disabled people or families who need assistance to get the legal support that they require that they are otherwise unable to access. Our bursary covered the cost of sending the letters.

Who challenges?

During the pandemic, there have been several examples of individual disabled people and their families using the law to protect their rights (Doug Paulley sought to challenge the failure of the Secretary of State to plan for the allocation of critical care resources; Rachael Adam Smith has been fighting for carers pay during lockdown).  And yet the ‘big’ disability charities have been very quiet, noting, for example, that they are ‘troubled’ by the government’s delay in publishing information about the COVID-related deaths of people with learning disabilities, but not taking an active lead in any legal challenges.  While big charities may reasonably fear having to pay prohibitive legal costs, families are struggling to find the money even to send a pre-action letter, and, all the while, charities sit on their funds.  Our story shows the power of a small bursary fund, it would be good if more of these were made available, perhaps by big charities.

Legalese

I really struggle with the language of the legal system.  Now, as the saying goes, people in glasshouses shouldn’t throw stones, and as I work in a university I admit that I often use jargon myself, but it is very different jargon from the language of the law.  Points of law are difficult to navigate.  We needed Alex and Steve to translate it for us.

Access to ‘specialist’ knowledge has never been more important than it is now.  And I am really grateful to all the people who work so hard to give information in accessible ways (check out Sunderland People First; SpeakUp Self-Advocacy, Barod and Disability Sheffield for good examples of accessible information).

Interdependence

And all this has made me think very much about interdependence.  William and our family have been supported by our legal team, but also by our friends in the wider disability community.  We needed their support to get this far.

We have put our heads above the parapet, but we could not have done it alone. When deciding whether or not to challenge Derbyshire’s decision, I asked Alex and Steve if there was any potential risk that William might be treated ‘less favourably’, by the local authority, in the future.  To some this will sound like paranoia, and yet to others who have navigated systems of power, it is an obvious question. Support from the disability rights community gave us the help, support and confidence we needed to make this challenge, we all need support to speak up.

Finally

The inequalities that disabled people are facing during the pandemic are not new. Before COVID-19, people with learning disabilities and/or autism were already among the most disadvantaged members of society with a life expectancy 20-30 years less than their non-disabled peers.  When the Care Quality Commission finally published information about COVID-related deaths of people with learning disabilities, they revealed that the number of deaths has more than doubled.  And the crisis is by no means over yet.

Sadly, as lockdown eases, there will be more legal questions and potential challenges ahead. Disabled people, their families and allies will continue need access to the law to protect their rights. We will all need to play our part.

#RightfulLives – all the court judgments upholding the human rights of autistic and / or learning disabled people

Edited 25 September 2018 to add reference to two further cases – G v E and Cheshire West

The #RightfulLives online exhibition launched today (24 September 2018). It is an incredible collection of the voices and views of autistic and / or learning disabled people and their families, grouped under the key Articles from the European Convention on Human Rights (ECHR) (.pdf). The ECHR is of course incorporated (given force in domestic law) by the Human Rights Act 1998. The courts are also increasingly interpreting the EHCR rights by reference to the other key international conventions, including here the UN Convention on the Rights of Persons with Disabilities (CRPD).

I was struck by the following section of the intro to #RightfulLives – ‘The idea for the exhibition came about through a conversation about how the legal framework of the Human Rights Act seems to barely touch the lives of people with learning disabilities. Since then we have only been able to find three published successful court judgements where the HRA has been apply to learning disabled people’.

My immediate thought was – ‘that can’t be right’ – and it’s not, but it’s also not out by much. Below is the (very short) list of court judgments I have been able to locate (thanks Twitter law geek buddies) which meet the following criteria:

1. The case involves at least one autistic and / or learning disabled claimant. This means I had to leave out Bernard v Enfield, the only case where the domestic courts have found a breach of the positive obligation to provide welfare support under Article 8 ECHR, because Mrs B was a physically disabled person.
2. The claim was brought under at least one of the ECHR Articles. This significantly reduces the list, because very often the court is considering the rights of autistic and / or learning disabled people through the lens of other legislation, most notably the Mental Capacity Act 2005.
3. The claim was brought in the domestic courts since the HRA came into force (the year 2000). This rules out earlier claims such as the landmark ‘Bournewood’ case (HL v UK) which gave rise to the Deprivation of Liberty Safeguards (DoLS).
4. The claim didn’t settle. Very many claims made in relation to breaches of human rights will be settled by the public body prior to any hearing, perhaps with an apology and / or a payment of compensation. One example of such a claim which sticks in my mind was a case I was instructed on for a young person who had been separated from her family against her will, where a significant payment was made by the public body in settlement. Of course the consequence of this is that usually no-one else knows what went wrong…
5. The claim succeeded. This ruled out at least one notable case, being A v Essex, the Supreme Court decision on a claim under the right to education (Article 2 of the First Protocol to the ECHR) for an autistic child which failed on its facts, although left open the possibility of future claims where children are denied access to education which is available under the domestic system.

So this is the list of all the cases, to the best of my knowledge, which meet the above criteria – in date order. Most but not all involve unlawful deprivations of liberty and resulting breaches of Articles 5 and / or 8 ECHR. If I’ve missed any, and I hope I have, please let me know in the comments below – and please make sure you visit and promote the #RightfulLives exhibition to help make the human rights of autistic and / or learning disabled people a reality.

1. R (A, B, X and Y) v East Sussex CC (No 2) [2003] EWHC 167 (Admin) – this was a very early HRA case where Mr Justice Munby (before his elevation to the Court of Appeal) considered the legality of a local authority’s policy in relation to manual handling of two sisters, who were young women with profound physical and learning disabilities. Munby J memorably held (in the context of Article 8 ECHR) that ‘The recognition and protection of human dignity is one of the core values — in truth the core value — of our society and, indeed, of all the societies which are part of the European family of nations and which have embraced the principles of the Convention.’ The Judge referred further to ‘the enhanced degree of protection which may be called for when the human dignity at stake is that of someone who is, as A and B are in the present case, so disabled as to be critically dependent on the help of others for even the simplest and most basic tasks of day to day living.’ He further stated that ‘The other important concept embraced in the “physical and psychological integrity” protected by article 8 is the right of the disabled to participate in the life of the community and to have what has been described….as “access to essential economic and social activities and to an appropriate range of recreational and cultural activities”. This is matched by the positive obligation of the State to take appropriate measures designed to ensure to the greatest extent feasible that a disabled person is not “so circumscribed and so isolated as to be deprived of the possibility of developing his personality”.’ As such the Judge held that ‘A and B’s rights to participate in the life of the community and to have access to an appropriate range of recreational and cultural activities are so important that a significant amount of manual handling may be required. ‘ It is striking that so few later cases have developed the important concepts and obligations identified in A, B, X and Y.
2. G v E and A Local Authority [2010] EWHC 621 (Fam)– this case concerned a 19 year old with a rare and complex genetic condition resulting in a severe learning disability. As well as issues of capacity, residence and contact, the Court of Protection was asked to determine whether the local authority had unlawfully detained E in breach of Article 5 ECHR (right to liberty) and / or interfered with his rights under Article 8 ECHR (right to respect for family and private life) by removing him from the care of his former foster carer. Baker J held that ‘by removing E from F’s care, placing him at the V Unit and then moving him to Z Road without complying with the procedures laid down in the MCA, either the DOLS procedure in Schedule A1 or an application to the court under ss 16 and 48, the local authority infringed E’s rights under Article 5 ECHR.’ Furthermore ‘the removal from F’s care, the failure to give any or any adequate consideration to his family life with F at the time of the removal or for many months thereafter, the failure adequately to involve F in the decision-making process about E’s future, and the impediments to contact between E and F for several months after his removal constituted a serious breach of his Article 8 rights.’ In conclusion Baker J held that ‘The errors perpetrated by the local authority in this case are grave and serious.’
   
3. Hillingdon LBC v Neary [2011] EWHC 1377 (COP)  – the term ‘landmark case’ is horribly over-used, but Steven Neary’s case undoubtedly justifies it. As well as a wholesale failure to comply with the MCA in depriving Steven of his liberty, the Judge also found a number of breaches of Articles 5 and 8 ECHR. See para 32 of the full judgment, set out here, for the Court’s conclusions on the human rights issues:
   (1) By keeping Steven Neary away from his home between 5 January 2010 and 23 December 2010, Hillingdon unlawfully breached his right to respect for his family life, contrary to Article 8 ECHR.
   (2) By keeping Steven Neary at the support unit between 5 January 2010 and 14 April 2010, Hillingdon unlawfully deprived him of his liberty, contrary to Article 5(1) ECHR.(3) By keeping Steven Neary at the support unit between 15 April 2010 and 23 December 2010, and notwithstanding the urgent DOL authorisation granted by Hillingdon as managing authority and the three standard DOL authorisations granted by Hillingdon as supervisory body, Hillingdon unlawfully deprived him of his liberty, contrary to Article 5 (1) ECHR.
   (4) By failing to
   (i) refer the matter to the Court of Protection sooner than 28 October 2010, and/or
   (ii) appoint an Independent Mental Capacity Advocate for Steven sooner than 29 October 2010, and/or
   (iii) conduct an effective review of the DOL best interests assessments under Part 8 of Schedule A1 of the Mental Capacity Act 2005,
   Hillingdon deprived Steven Neary of his entitlement to take proceedings for a speedy decision by a court on the lawfulness of his detention, contrary to Article 5 (4) ECHR 
4. R (C) v A Local Authority and others [2011] EWHC 1539 (Admin) – the ‘Blue Room’ case, see also the full judgment. C was an 18 year old boy who was regularly secluded in a padded blue room at his school. The local authority denied any breach of C’s Article 3 (freedom from torture and inhuman or degrading treatment) and/or Article 8 ECHR rights, but conceded that ‘when he is secluded and restrained in the blue room …that amounts to a deprivation of his liberty and in so far as that is not authorised by the court, such a deprivation is unlawful and in breach of his article 5 ECHR rights.’ The Judge held that ‘Neither the local authority nor the organisation operating the school had any power to deprive C of his liberty.’ The Judge adjourned the Article 3 and 8 Article issues for further hearing alongside the claim for damages. I cannot find any published judgment on these issues, so it is likely that these aspects of the claim settled.
5. Commissioner of Police for the Metropolis v ZH[2013] EWCA Civ 69 – the only case where the Court of Appeal has considered the ECHR rights of an autistic or learning disabled person. The Court of Appeal upheld the decision of the trial judge that the Met Police had breached the Article 3, Article 5 and Article 8 rights of a 19 year old young man who had been detained and placed in the cage of a police van after becoming distressed at a swimming pool. In particular the trial judge was not wrong to find that the treatment meted out to ZH reached the minimum level of severity required to find a breach of Article 3, in terms of inhuman and degrading treatment. Lord Dyson MR found that ‘Although the police officers were acting in what they thought to be the best interests of ZH, on the judge’s findings they made serious errors which led them to treat this vulnerable young man in a way which caused him great distress and anguish…nothing could justify the manner in which they restrained ZH.’ 
6. Cheshire West and Chester v P [2014] UKSC 19 – undoubtedly the most celebrated of these cases, Cheshire West was a resounding affirmation by the Supreme Court that disabled people’s right to liberty is the same as any other person. The Supreme Court was in fact considering three cases involving learning disabled people, all of whom were held (by the majority) be deprived of their liberty in their living arrangements. Lady Hale held that it was ‘axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities.’ As such, ‘what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.’ The practical consequences of Cheshire West are that (1) many more disabled people are deprived of their liberty than was previously understood to be the case and (2) until Parliament changes the law, many of these deprivations of liberty will need to be authorised by the Court of Protection to avoid a breach of Article 5 ECHR (leading to a raft of follow on litigation as to how to make this work in practice).
7. Somerset v MK [2014] EWCOP B25 – Somerset clearly hadn’t paid attention to the guidance from Peter Jackson J in Steven Neary’s case, which HHJ Marston held ‘has many depressing similarities to this one’. The Judge held that his findings ‘illustrate a blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR. In fact it seems to me that it is worse than that, because here the workers on the ground did not just disregard the process of the MCA they did not know what the process was and no one higher up the structure seems to have advised them correctly about it.’ Somerset conceded that MK had been subjected to an unlawful deprivation of liberty and that there had been an unlawful interference with the family’s Article 8 rights.
8. C and C v Governing Body of a School [2018] UKUT 269 (AAC) – the most recent case was a challenge to the application of the ‘tendency to physical abuse’ exclusion from the protection of the Equality Act 2010 to autistic children in school. The Upper Tribunal held that the relevant regulation resulted in unlawful discrimination contrary to Article 14 ECHR and so had to be disapplied for this group of children. The decision (which has not been appealed) means that head teachers will have to justify decisions to exclude children with autism, ADHD etc in order to avoid unlawful disability discrimination, even where these children have behaved violently or aggressively.

The duty to provide a full five-day post 16 education programme

I’m very pleased to host this guest post from Rachel Adam-Smith, whose successful legal challenge in relation to her daughter Francesca’s post-16 education shows yet again that judicial review can be a real remedy for children, young people and families. Rachel explains below why she was forced to pursue a judicial review claim to get Francesca full time education post 16 and gives some tips for others considering legal action.

The problem

In March 2017 I arrived home to a letter from school. This letter detailed the cuts that were going to be made to post 16 education, for children with disabilities attending West Oaks Special School (Leeds Local Authority).

These cuts were totally unexpected, and I immediately felt upset and anxious, because I knew I was about to face another battle. I was determined not to allow Francesca and her peers to lose their vital provision. Francesca had every right to receive a full five-day education.

The letter from the Headmaster stated that my daughter’s education from 16 plus would be cut to three days a week. The letter stated that children would be able to volunteer, do work experience or have private care on the two days they would not be in school. It was clear no thought had been given as to how a child with severe disabilities would be capable of doing work experience or volunteering. Francesca certainly would not have been capable due to the complexity of her needs. Francesca is unable to speak, read or write and requires constant one to one support. Furthermore, Francesca’s choice to be educated and her entitlement to stay in full time education, as per mainstream children had seemingly disappeared.  Realistically, I would have been left to fund private care on those two days or look after her myself. I thought that these cuts were discriminatory.

For many working parents, these cuts would mean a reduction in their working hours (if they are able to work) or they may have to give up work, which will leave them caring for their child with no educational input to enable them to reach their potential. The educational provision in Francesca’s EHCP would not have fitted into a three-day timetable. As far as I was aware, the local authority cuts to provision were decided without carrying out an equality impact assessment or consultation. It seemed to me to be a decision made by people with little or no experience of caring for a child with special needs.

From previous battles I have had (four tribunals and two panel hearings), I have often felt that the council view children with disabilities as ‘not worth it’ and an ‘easy target’ to take provision from.  The argument always centres around funding rather than what the child needs.  Moreover, it seems that there is no thought given to how the cuts to education would impact not only the children but also the parents. The cuts would leave children isolated and drive parents into poverty. Coping financially with a severely disabled child with no or little support, disadvantages most parents.

Judicial Review as the solution

The letter from school stated that a meeting would take place in around two months to discuss the reduction in education in more detail. At the time, I was in the first year of my law degree at The University of York and ironically that very week, I had attended a lecture on judicial review. I did not realise I would be calling upon my learning quite so soon.

My learning enabled me to understand that judicial review might be a possibility to challenge these cuts. If I had not been doing a law degree, it is highly likely that I would have waited the two months for the meeting, by which time the opportunity to bring proceedings would have passed. Other parents I spoke with had no idea what to do, had not heard of judicial review and were seemingly happy to wait the two months for the meeting. However, I knew that the cuts to education could not be lawful and set about finding a solicitor who was willing to help us.

Francesca’s lawyers

It was suggested via a twitter source that I contact the Public Law Project (PLP) and I spoke with solicitor Katy Watts. From the beginning Katy was very understanding, listened to what I had to say and acted upon it. Katy really understood my financial situation, appreciated the arguments I put forward and the importance of ensuring Francesca’s education was not subjected to these cuts. She was extremely thorough, travelling up to Leeds to meet with me to ensure she understood Francesca and the importance of her education.  Initially, it was unclear how the case would be funded, I was not within the legal aid criteria but had no available capital to fund the case.  However, Katy applied for a legal aid certificate in Francesca’s name and we commenced proceedings.

The process

PLP sent three pre-action letters in total. The first one went to West Oaks School. West Oaks responded by agreeing to consult with parents about the changes, and disclosed several letters, minutes and meeting action notes from all the school’s meetings with Leeds about the changes. The disclosure revealed that Leeds had implemented top up funding to allow one more year of full time provision, but would not continue this beyond September 2018.  Based on this information PLP sent a further pre-action letter to Leeds, challenging their decision not to provide top-up funding for five days from September 2018.  Leeds responded, stating that their decision to provide three days was based on its new ‘Funding for Inclusion Handbook’, which set out that three days of education would be the norm, but that in exceptional cases additional days could be supported. PLP then sent a further pre-action letter challenging this lawfulness of the policy in the handbook, arguing that five days should not be provided only in exceptional cases.

As this did not persuade Leeds to change their minds the judicial review application was then issued. It was disappointing that Leeds were not able to recognise the unlawfulness of their decision and that it was necessary to issue JR proceedings.  It is costly for both sides to proceed to JR; this money would be better spent on the children’s education. Furthermore, at a critical time in Francesca’s education, I found myself in the midst of court proceedings, which created uncertainty for the future for both of us. It is totally unacceptable that I find myself having to repeatedly challenge the local authority for their unlawful decisions. Most parents have the security of knowing their child’s education is safeguarded until 18, I and other parents whose children have SEN do not have the same privilege.

Outcome

The outcome of the case is that Leeds have accepted that it cannot restrict funding to three days, where more education is required by an EHCP. Leeds have refused to amend their handbook, but it is clear that the handbook is no longer the sole basis for funding decisions. The extra two days for Francesca are going to be funded from the social care budget, but Leeds have agreed that the two days that are funded will be education, not social care. I hope that this successful outcome for Francesca will also help other young people, both in Leeds and elsewhere, given that councils must be consistent in their decision making.

Tips

Go with your gut instinct, if you think something does not seem right then start asking questions, contact IPSEA or a solicitor for initial advice.  Do not just believe everything that the school or other parents tell you. It is easy to just be swept along believing that someone else will do something to put it right. Do not feel defeated. I appreciate it is easy to feel defeated, particularly, given our role as carers, we are often exhausted, but time is often crucially important for bringing a case.

Parents can often feel intimidated by either the school, the council or solicitors but you must try and put any fear aside.  By way of example, following the letter, I attended the meeting at the school that was promised.  The request for judicial review had been submitted to the court that week but PLP advised me to attend to see whether anything had changed. During the meeting parents were told there was no legal argument and if there was, the school would be arguing it. Please do not always believe what is said, take advice, even if other parents are saying there is no point. In my case the school was wrong, and my gut instinct was right. Ensure you stand up for your child’s rights, so that you can be 100 percent sure you have done all that you can.

Final thoughts

I wish that it was not necessary to have to give tips on challenging cuts to education. A parent caring for a child with disabilities should not find themselves repeatedly in this position. I would love to just be able to spend time with my daughter without constantly fearing the next letter that arrives. Our caring role is already demanding enough without having to constantly challenge the local authority. A parent’s wellbeing is equally as important as the child’s, if parents are exhausted from constantly challenging, how are we expected to be energised to care for our child. It is time that we are able to be ‘just parents’.

In my opinion the local authority should support parents and challenge Government cuts, rather than just accepting them. A child’s rights should be of paramount consideration. The local authority has a duty to uphold children and young people’s human rights (section 6 of the Human Rights Act 1998). There is a strong argument in my view that councils making cuts are in breach of the Human Rights Act by not taking action to prevent this (right to education in Article 2, Protocol 1 ECHR combined with Article 14 requiring non-discrimination).

Thank you to Francesca’s lawyers, Katy Watts at the Public Law Project, David Wolfe QC, and to the York Law School for their lecture on judicial review which coincided perfectly with the arrival of ‘the letter’.

Rachel Adam-Smith, mum to Francesca.

https://publiclawproject.org.uk/latest/plps-client-wins-fight-for-education/

 

 

 

Seeking legal change in the courts – case study of a Supreme Court intervention

I had the privilege of being instructed by the Childhood Bereavement Network (CBN), part of the National Children’s Bureau, in a recent Supreme Court intervention with colleagues at Irwin Mitchell’s public law team. The case concerned the different treatment of cohabiting partners and their children in relation to bereavement benefits compared with married couples. In this guest post, CBN’s Director Alison Penny describes the process of intervening in a case before the UK’s highest court and offers tips for other NGOs considering intervening in cases with wider public importance.

The problem 

Here at the CBN, we get fairly regular incredulous phone calls or emails asking us if it’s true that unmarried, cohabiting parents can’t claim bereavement benefits if one of them dies. Usually, the call comes from someone ringing on behalf of a friend or family member who has recently faced the devastating loss of their partner. They have been told that the family won’t be eligible for bereavement benefits, and simply can’t believe in this day and age that this is true.

Astonishingly, it is. We know that each year, around 2,000 families face the double blow of one parent dying and the other discovering that they and the children won’t get bereavement benefits. On average, these families lose out by over £12,000 before their children reach adulthood. Parents make the same National Insurance contributions whether they are married or not. These build up their entitlement to a state pension or, if they die before they can draw it, to survivor benefits for their family. But these benefits are only paid if the survivor was married to or in a civil partnership with the person who died.

Some couples with children choose not to marry, or can’t marry, for a range of reasons, and are fully aware of the financial risks this brings. But alarmingly, more than half of couples living together have no idea: they believe that by cohabiting they have the same legal rights as if they were married. In fact, there is no such thing as common law marriage in the UK (unless the couple were living together ‘with habit and repute’ before 2006 in Scotland).

This lack of awareness stems in part from the inconsistent treatment of cohabiting couples. If the government insists on treating you and your live-in partner as a couple for tax credits and means-tested benefits, why would you expect to need a marriage certificate to receive bereavement benefits? For us at CBN, the problem is that as well as discriminating against the surviving partner on the grounds of their marital status, the policy also discriminates against the couple’s children.

CBN’s campaigning on the issue

Until very recently, we took a two-pronged approach to tackling this social injustice. We tried to raise public awareness of the lack of rights for cohabiting couples through our Plan If campaign, and at the same time coordinated a group of concerned organisations lobbying in Parliament to whoever would listen. We gave evidence to the Work and Pensions Select Committee, and on the strength of this the Committee recommended in March 2016 that eligibility be extended to cohabiting couples with children. But the Government held fast to its position that inheritable benefits derived from someone else’s National Insurance contributions have always rested on the marriage or civil partnership, and they were not minded to look at this again.

Cohabitation and the courts

Alongside this dual approach, we followed with interest the case of Siobhan McLaughlin. She and her partner John had four children together during their 23 year partnership. They never married, because prior to meeting Siobhan, John had promised his dying wife that he would not remarry. After John’s death, Siobhan learned that she was not eligible for Widowed Parents’ Allowance to help raise the children. She appealed this and won her challenge in the High Court in Belfast in December 2015, but this was subsequently overturned by the Court of Appeal. However, she was given leave to appeal to the Supreme Court.

We read the judgments from the High Court and Court of Appeal and felt that there was some contextual material missing which frustrated us. We knew that our parliamentary campaigning was likely to stall until the Court made its ruling, so we resigned ourselves to sitting on the sidelines.

Making an intervention

However, colleagues from the Child Poverty Action Group (CPAG) soon got in touch to ask if we would be seeking permission to intervene in the case. Not being familiar with the judicial process, we had to look up what this meant. Realising that this could give us an opportunity to share in court the evidence we’d been gathering for parliamentarians and the media, we were keen to consider it. We contacted the Registry at the Supreme Court who were extremely helpful in explaining the process, but realised we needed more support. We got in touch with Steve Broach, a former colleague with the National Children’s Bureau and Council for Disabled Children, now a human rights barrister at Monckton Chambers. At that stage, we just needed someone who’d be able to answer our very uninformed questions about the process.

Steve read the case papers through, and we talked through what evidence we had or could collect that might be helpful to the court. He offered to represent us pro bono and kindly introduced us to solicitor Alex Rook at Irwin Mitchell, who agreed to work with us on the same terms. Without these most generous gifts of time, there is no way that a tiny organisation such as ours would have been able to get involved. We have just 1.4 full time equivalent members of staff, and we have to marshall these resources very carefully.

Steve and Alex talked us through the process, and spoke to our counterparts at CPAG to make sure that our interventions would complement rather than repeat one another. They helped us seek consent from Siobhan’s and the government’s solicitors to ask for permission to make written interventions and, crucially, an undertaking that they would not seek costs against us. Without this clear undertaking, we had to weigh up the financial risks of intervening. After very careful consideration of the risks set out by Steve and Alex, we decided to go ahead.

Preparing the submissions

What followed was a twin track process of gathering the evidence we wanted to submit, and making sure it was in the format that the Supreme Court required. There were almost as many emails about font size as there were about legal arguments! Meeting the strict deadline to make our submissions involved some very late nights.

Two widowed parents had contacted us during our earlier campaigning work to describe how bereavement benefits for children were structured elsewhere in Europe. This was a crucial part of our evidence, and we put a call out to NCB colleagues to enlist foreign-language-speaking friends and family to translate obscure social security documentation for us.

Alex and his colleague Rosie did a superb job of juggling multiple copies of documents, suffixed with ever-increasing version numbers. It was a huge relief when the bundle was submitted, and there were no further tweaks we could make.

Approaching the hearing

 There were however many more questions to pose to Steve and Alex, who were endlessly responsive and good-humoured. We needed to know more about the process, including whether we could attend in person and when the judgement was likely to come out. We had many queries about the media work we could and should do in the run-up to the hearing, and consulted on the wording of tweets and press releases.

Thanks to Siobhan and her solicitor Laura Banks’ willingness to talk to the media, the case was covered extensively in the run up to the hearing on 30 April. The Supreme Court heard the case during its first ever sitting in Belfast, and there was a palpable sense of excitement in the court buildings at hosting the sitting. We even managed a little live-tweeting.

It was pleasing to hear our evidence being mentioned by the other parties in the case during their oral submissions – those late nights felt worth it. But more broadly it felt good to be present for the culmination of many years’ work from campaigning organisations and from Siobhan and her legal team. She and her children attended the hearing and provided an excellent demonstration of the legislature in action.

Ideally, the government would have changed its position years ago, and there would have been no need for Siobhan to put herself and her family through the effort and scrutiny of taking the case to court. Whatever the outcome, she has done a brave thing in drawing the court’s attention to this issue, and raising awareness among the general public along the way. We are proud to have been part of this. Now we are more familiar with the process, we would feel more confident about intervening again in cases that relate to discrimination against grieving children and those caring for them. It’s a new string to our campaigning bow.

Advice to potential interveners

•  Talk to any other actual or potential interveners in the case to make sure that your evidence won’t be repetitive.
• Weigh up the risks and benefits of intervening carefully. Involve all those who are necessary to the decision at an early stage – but remember that you can always withdraw right up to the point you send in your submissions.
• Some of the evidence you would usually include in a briefing paper or campaign document might not be relevant or admissible to the court. Listen to your lawyers about what you should include.
• Be well organised. It will be much easier for your legal team to advise you and keep track of document versions if you set out your queries and amendments clearly.
• If you don’t already know any solicitors or barristers who may be willing and able to advise and act for you in an intervention, you can try contacting Law Works, a charity which connect volunteer lawyers with people in need of legal advice, who are not eligible for legal aid and cannot afford to pay and with the not-for-profit organisations that support them. You can also ask other NGOs in your sector if they know of lawyers with the right expertise who may be interested in your potential intervention.
• You might find it helpful to attend a training course on the use of judicial review, such as that offered by the Child Poverty Action Group

New Tribunal powers for health and social care – key points from the guidance

So from April* the SEN and Disability Tribunal will have new powers to make ‘non binding recommendations’ on health and social care needs and provision in EHC Plans for disabled children and young people. There is an excellent overview of the Tribunal’s new powers on the Contact website.

This is potentially a very significant development, as previously the only legal remedy in these areas was judicial review. While judicial review can be a very effective remedy in serious and urgent cases and cases involving unlawful policies, it is not so effective in cases involving disputes as to the detail of care and support for children and young people. Whereas the Tribunal, with specialist judges and expert members, really can and does get deep into the detail of what a child or young person needs and what provision is required to meet those needs.

All good so far. But…(1) this new right only extends to children and young people with significant special educational needs, because a gateway to an EHC Plan remains (in essence) having SEN which are not being met / cannot be met appropriately from a school or college’s own resources**, and (2) how are local authorities and clinical commissioning groups going to react to a ‘non-binding recommendation’ to spend more money at a time of cuts?

The devil of any new scheme is of course in the detail, and for the detail we need to go to the guidance newly published (on a supermarket-style just-in-time basis) by the Department for Education. The guidance describes the new scheme as the ‘single route of redress national trial’. Even for children and young people with EHC plans this may be slightly optimistic, as (for example) school transport still remains outside this scheme and has its own separate appeals process. However it is clear from the guidance that the DfE expects that the Tribunal will now be able to resolve disputes across education, health and social care.

The guidance is non-statutory so has no formal legal force – although I anticipate that a court will still expect it to be taken into account by local authorities and others as a ‘relevant consideration’. Its purpose is to explain the new powers enjoyed by the Tribunal under the regulations which establish the national trial. The guidance says that the (laudable) policy aims of the national trial are to: create a more holistic, person-centred view of the child or young person’s needs at the Tribunal, bring appeal rights in line with the wider remit of EHC plans, encourage joint working between education, health and social care commissioners, bring about positive benefits to children, young people and parents.

These are the 10 key points I’ve picked up from the first read of the guidance:

1. The Tribunal’s new powers are helpfully summarised against the different types of appeal at p8. The Tribunal can make health and social care recommendations in any type of appeal except an appeal against a refusal to carry out an EHC needs assessment.
2. There is an interesting note that ‘the Tribunal will only make a recommendation about health and social care needs or provision related to a child or young person’s learning difficulties or disabilities which result in them having special educational needs, with the exception of any social care provision made under Section 2 of the Chronically Sick and Disabled Persons Act 1970.’ This of course immediately begs the question – what is this ancient Act and what provision does it require? See my ‘mystery duty’ blog post for the answers – but in short, the CSDPA requires local authorities to provide any of an extensive list of services where these are ‘necessary’ to meet the child’s needs. This requires the local authority to carry out a child ‘in need’ assessment under section 17 of the Children Act 1989 to determine what the child’s needs are, so they can decide (applying any eligibility criteria) whether it is ‘necessary’ to meet them. This must surely spell the end of requests for advice from social care during the EHC needs assessment process coming back with ‘child not known to social care’.
3. Another interesting note on the health side is ‘The Tribunal will not make decisions relating to conflicting clinical diagnosis from medical professionals concerning health needs or health provision.’ I think what this means is that the Tribunal will focus on the child or young person’s presenting health needs and the provision required to meet those needs, rather than on the particular diagnosis the child or young person may or may not have.
4. The orders and recommendations the Tribunal can make in relation to health and social care are summarised at p14. The guidance states that ‘Although any recommendations made by the Tribunal on health and social care elements of an EHC plan are non-binding and there is no requirement to follow them, they should not be ignored or rejected without careful consideration. Any reasons for not following them must be explained and set out in writing to the parent or young person.’ In public law terms, this makes the Tribunal’s recommendations a form of ‘mandatory relevant consideration’ for the local authority or CCG.
5. This section of the guidance also includes the following; ‘It is important to be aware that, should an LA or responsible health commissioning body decide not to follow the recommendations of the Tribunal, parents and young people can complain to the Ombudsmen or seek to have the decision judicially reviewed.’ This is a welcome reference to the ability of the High Court to control how local authorities and CCGs respond to Tribunal recommendations through judicial review – ensuring that they are properly taken into account in decision making, that the process for deciding whether to follow them is fair and so on.
6. In terms of evidence, the guidance states at p16 that ‘For a trial appeal, the LA will be required to provide evidence from the health and/or social care commissioners.’ The Tribunal will have the discretion to allow the parties to bring additional witnesses to address health and social care issues. As such parents and young people will need to consider whether they need evidence from (for example) an independent social worker to supplement the education- focused evidence they may have obtained from (for example) an educational psychologist. This of course will add to the costs of the appeal for parents and young people (other than those who may get the costs of expert reports met through legal aid). However the Tribunal has always (rightly) been heavily influenced in its decisions by good quality expert evidence and I do not anticipate that this will change in relation to health and social care recommendations. Note that the Tribunal expects to publish new guidance for professional witnesses shortly on how to present their evidence.
7. There is a helpful note in the guidance, by reference to how witnesses present their evidence, that ‘ Specification means being clear what needs a child or young person has and quantifying and qualifying what provision they require, including who will deliver that provision, when, how often, for how long and the arrangements that should be in place to monitor its effectiveness.’
8. The high point of the guidance, at p18, is the statement that local authorities and CCGs are ‘generally expected’ to follow the Tribunal’s recommendations on health and social care.
9. One issue in the guidance which has already caused understandable controversy is the section on funding (p22); ‘LAs and CCGs will be reimbursed for reasonable costs incurred in taking part in the trial. A grant will be awarded for SEND Tribunal trial activity up to the total value of £4,000 per case for the period of the trial.’ There is of course no equivalent grant for parents and young people facing the additional costs of trying to have their child’s needs or their own needs properly identified and met.
10. Section 5 of the guidance deals with ‘Implications of not following recommendations’. The strong message running through this section is that DfE desperately wants the Tribunal’s recommendations to be followed. The guidance emphasises that ‘should an LA or responsible health commissioning body decide not to follow the recommendations of the Tribunal, parents and young people can use a range of alternative routes of complaint, including complaining to the Ombudsmen or seeking to have the decision judicially reviewed.’ After a detailed description of the powers of the various Ombudsmen, there then follows a rare and welcome exposition of what judicial review is and how it can be used to ensure Tribunal recommendations are properly considered. The emphasis of the potential for local authorities and CCGs to be judicially reviewed seems to me to be the clearest steer that DfE is urging them simply to follow the Tribunal’s recommendations. Responses to Tribunal recommendations will also be considered by Ofsted and the CQC as part of the inspection process.

One critically important point remains. Nothing in the national trial alters the basic legal position under section 21(5) of the Children and Families Act 2014, being that all provision which ‘educates or trains’ a child or young person becomes educational provision for the purposes of EHC plans, rather than health or social care provision. It is therefore vital that before getting in to whether to make recommendations on health and social care, the Tribunal properly assesses whether the contested provision is in fact educational provision and should go in Section F of the plan, which the Tribunal has the power to re-write. Given the breadth of the concepts of ‘education’ and ‘training’ it seems to me that most of the provision that children and young people require will be ‘educational’ provision in their plans, even if it is usually commissioned by health or social care or delivered by health or social care staff.

The next few months will begin to make clear whether the new trial is an effective remedy for families in relation to health and social care needs and provision or a damp squib. I’m cautiously optimistic that it will be the former, at least for the minority of children and young people with significant SEN who have the benefit of a joined up plan. Other disabled children and young people will continue to need to rely on the social care and health complaints processes, and judicial review in serious and urgent cases or where a policy issue is involved.

*The trial applies to local authority decisions and EHC plans issued or amended from 3 April 2018.

**The educational-led nature of the system is also emphasised by this extract from the guidance, correctly summarising the legal position; ‘If mediation resolves the appealable educational issues, the parent or young person will not be able to ask the Tribunal to make recommendations on any health and/or social care aspects of the EHC plan’.

All the key ‘sufficiency’ duties for disabled children and young people

When looking a public bodies’ proposals to cut funding, one of the key legal questions which arises is whether there is a ‘sufficiency’ duty in the relevant area. I thought it might be helpful if I set out all the key sufficiency duties for disabled children and young people in one place, so here goes:

1. Education and care provision for disabled children and young people – section 27 of the Children and Families Act 2004 states that as well as keeping education and care provision under review, local authorities must ‘consider the extent to which the provision…is sufficient to meet the educational needs, training needs and social care needs of the children and young people concerned’. In considering this local authorities have to consult with (amongst others) children, young people and parents. Section 27 is therefore likely to be important in any case involving cuts to education or care services for children and young people.
2. Adult social care services – section 5 of the Care Act 2014 is often described as the ‘market shaping’ duty on local authorities. However as well as generally promoting an effective market in services, every local authority must ‘also have regard to the need to ensure that sufficient services are available for meeting the needs for care and support of adults in its area and the needs for support of carers in its area.’
3. Short breaks – regulation 4 of the Breaks for Carers of Disabled Children Regulations 2011 requires local authorities to provide ‘so far as is reasonably practicable, a range of services which is sufficient to assist carers to continue to provide care or to do so more effectively.’ This is a key duty in relation to the provision of short breaks.
4. Childcare – section 6 of the Childcare Act 2006 mandates that local authorities must provide ‘secure, so far as is reasonably practicable, that the provision of childcare (whether or not by them) is sufficient to meet the requirements of parents in their area who require childcare in order to enable them to [work or study]’. This requirement extends up to 18 in relation to childcare for disabled children.
5. Children’s Centres – section 5A of the Childcare Act 2006 states that childcare arrangements must ‘must, so far as is reasonably practicable, include arrangements for sufficient provision of children’s centres to meet local need.’ These have to be physical centres, as per the definition in sub-section 4. This is why it would be very unlikely to be lawful for a local authority to decide to close all its children’s centres.

It is obvious that all of these duties are subject to important qualifications. The first two duties listed above are ‘regard’ duties, which require local authorities to ‘think about’ the need for sufficiency rather than actually achieve sufficiency. The final three duties are focused more on outcomes, but are qualified by reference to reasonable practicability. This means that local authorities can take account of their own resources when deciding what level of provision to make. However in my view it is clear that when contemplating cuts in these areas local authorities must understand the level of demand for a particular service and assess the extent to which the remaining service will be sufficient to meet local needs if the cut is to be made lawfully. Very often in my experience this fundamental requirement of lawful decision making is not met. Those who have concerns about cuts in their area which may breach one or more of these sufficiency duties will need to get advice ASAP.

No doubt there are other important sufficiency duties for disabled children and young people than those listed above – suggestions for other duties to include in this post are welcome using the comments below.

It’s not funny, to cut SEND money

I have shamelessly stolen the title for this blog post from Milo, a young man involved in the successful campaigning on SEN cuts in Hackney. Milo chose a donation from me to the fund to help save the Kids playground in Hackney as the price of this theft. Milo explained why as follows: ‘I am choosing the Kids adventure playground because I like it and it’s really cool to play in because disabled children can play there with their brothers and sisters.’ Please support the playground if you can.

So local authorities across England have now set their budgets for 2018-19 or will do so in the coming weeks. Some have taken every possible step to protect the services that matter to disabled children, young people and their families. Others, not so much. This blog post highlights some points of interest for all concerned with saving these vital services and challenging cuts.

First, I’m taking part in a webinar with Contact and Alex Rook from  Irwin Mitchell solicitors on ‘Using the law to challenge cuts’. The webinar is now fully subscribed but will be available to view through Contact online after the event – details tbc. If you can’t attend the webinar but have questions for us please either leave comments here or tweet me (@stevebroach). There is also very helpful advance reading in a guest blog from Alex’s colleague Mathieu Culverhouse dealing with the practicalities of using the law to challenge cuts.

Alex was the solicitor for the amazing families in #NascotLawnJR. In the unlikely event that there is anyone reading this blog who doesn’t already know, this case involved a number of families whose children have complex health needs who came together and fought the decision by their Clinical Commissioning Group (the local NHS) to pull funding for an overnight short break centre. The CCG’s funding decision has now been held unlawful and quashed by the court not once, but twice.

The outcome of Nascot Lawn is powerful evidence that judicial review can achieve real benefits for disabled children, young people and families – ensuring cuts cannot be made unless and until a lawful process has been adopted. It is important to emphasise that even ‘process’ challenges – for example concerning a failure to consult lawfully or to discharge the ‘public sector equality duty’ – can have real and lasting benefits. Where a cut is quashed because it was adopted following an unlawful process it routinely happens that the public body do not remake the decision but instead find the necessary savings another way. This is supported by excellent research from the Public Law Project which found that ‘Claimants for JR gained a wide range of tangible benefits: the most common of which were conferment or retention of a service by a public body…’.

However in relation to the coming round of cuts it may well be possible to go beyond the typical ‘process’ challenges in judicial review. In fact Nascot Lawn itself was more than a ‘process’ challenge – the CCG’s funding decision was held to be unlawful in substance as the CCG had failed to appreciate that Nascot Lawn was a ‘health service’ under the NHS Act. As this blog post explains, services for disabled children, young people and families are supported by a range of ‘specific’, ‘sufficiency; and ‘due regard’ duties. It may well be that some of the proposed cuts are unlawful in substance because they will result in the local authority (or CCG) breaching one or more of these duties. This will not then just be a question of the decision being quashed and the local authority or CCG being required to think again – if any of these kinds of challenges succeed then the cut would not be able to be made at , or at least not in the form held to be unlawful by the court.

Of course local challenges will only be able to do so much in the current context. Local authorities cannot magic up sufficient money to replace the central government funds they have lost. This is why campaigning efforts towards central government such as this petition by the Disabled Children’s Partnership are so important. It is only through work like this that we can move away from making sure that cuts are lawful to a focus on the kind of investment and expansion in services and support that families really need to see.

A final point – I wanted to emphasise that cuts are a human rights issue. The ‘socio-economic’ rights under the UN Conventions on children’s rights and disabled people’s rights all require ‘progressive realisation’ – as the Disability Convention states (Article 4(2)), the government has undertaken to ‘take measures to the maximum of its available resources…with a view to achieving progressively the full realization of these rights’. In simple terms that there should be ongoing progress towards achieving the rights to education, health, independent living and so on for disabled children and young people. This is why the UN Committee, in its General Comment on the right to education, states that ‘any deliberately retrogressive measures’ on education funding ‘must not disproportionately target learners with disabilities at any level of education’. In my view the same must hold true for health, social care and all other areas of public life which matter to disabled children and young people (i.e. everything).

If this post leads you to want to consider challenging cuts in your area, you may want to contact a specialist solicitor – and you will need to move quickly, as if funding is to be restored a judicial review would need to be heard within a matter of weeks if at all possible.

Guest blog – using the law to challenge cuts – Mathieu Culverhouse, Irwin Mitchell solicitors

I’m very pleased to have a guest post on rightsinreality from Mathieu Culverhouse at Irwin Mitchell solicitors, one of the leading public law solicitors involved in challenges against cuts. I’ve written a number of times on the blog about the law that can be used to challenge cuts. I asked Mathieu to focus on a related issue – the practicalities of how to bring such cases to court. The questions were sourced on social media, with thanks to all those who responded. Over to Mathieu…

1.Parents who know their children’s rights can contest individual decisions at Tribunal, but what collective options are available to contest cuts?

Challenges to cuts are generally brought as applications for judicial review. Whilst ‘group actions’ are common in the US, and increasingly in the UK in relation to consumer and personal injury claims, for practical reasons they have not to date been used to bring legal challenges to cuts.

The main practical reason for this is that, with the availability of legal aid for individuals, and the advent of crowd funding (see further below), it is far simpler and easier for an individual, or a small number of individuals, to bring a cuts challenge.

However, collective action still plays an important part in bringing cuts challenges to court.  Having an organised campaign group from an early stage can be extremely helpful in identifying a suitable individual or individuals to act as claimants in an application for judicial review.  The campaign group can also assist in gathering witness evidence from others, in addition to the claimants, who are affected by the decision.  And of course, where a claim is being paid for through crowd funding, an active campaign group is vital for raising awareness and funds.

2. When is the right time to try to bring legal challenges to cuts?

The sooner the better.  A claim for judicial review must be brought promptly and not later than three months after the grounds for the claim first arose. The need for a claim to be brought ‘promptly’ can mean that where a case involves a challenge to a particularly significant decision (for example a challenge to a council’s budget), a court might still say that a claim has been left too late even if it is issued within three months.

It is therefore vital to start the process of seeking expert legal advice as soon as possible.  A solicitor will be able to help you identify the decision which needs to be challenged, the date of that decision, and whether there are good legal grounds to challenge it.

It may be that your solicitor will advise that it is too soon to bring a judicial review challenge (for example if a final decision on the issue has yet to be made), and that you need to wait before bringing a formal challenge. But this is a complex and technical area of law, and it is therefore crucial to get specialist advice from the outset, rather than risk missing the opportunity to bring a challenge by leaving it too late

3. What does being a ‘claimant’ in a cuts challenge actually involve?

The ‘claimant’ in a cuts challenge is the person who is bringing the claim, and will usually be someone who uses the service which is being cut.

In order to bring a challenge the claimant will need to instruct lawyers (often funded by legal aid – see below), who will then prepare the necessary paperwork for the court.

Where the service user is a child or an adult who does not have the mental capacity to instruct lawyers, a ‘litigation friend’ can instruct the lawyers on their behalf.  This could be a family member, a carer, a friend or any other suitable person. Legal aid can still often be obtained for the child or adult who actually uses the service.

Once the claimant has instructed lawyers, the lawyers will do the vast majority of the work involved in bringing the case to court.  Depending on the type of case, the lawyers might need the claimant to provide documents (such as letters, emails or care assessments), and the lawyers are also likely to want to take a statement from the claimant or the litigation friend.  Again, the work of taking a statement will be carried out by the lawyer.

Although the claimant will usually provide a written statement to the court, it is extremely unlikely that the claimant will be required to speak in court.  These kinds of cases are usually very dry, technical affairs, and all the talking in court is done by lawyers rather than witnesses.

This kind of case is nearly always held in public, which means that supporters of your case are able to attend the hearing.  This can often be helpful, to show the judge the strength of public feeling about the issue. However, if a large number of people are expected to attend, it will usually be a good idea to let the court know in advance so that they can make any necessary arrangements (e.g. holding the hearing in a big enough court room).

Some claimants might find that the idea of attending court is too much for them, or they may simply be unable to because of the nature of their disability.  Whilst it is always good to have the claimant in court for the hearing, it is equally fine if they are unable to attend, and the court will be sympathetic and understanding about this.

If a claimant is particularly vulnerable, for example in the case of a child or an adult who lacks the mental capacity to instruct lawyers, the court can be asked to make an order for anonymity, meaning that the claimant’s name will not appear in the published court papers and cannot be reported in the media. This request will usually be accepted although it is not guaranteed – but the issue of anonymity can be resolved before any public hearing so the claimant does not have to proceed if anonymity is refused.

4. Can you still get legal aid to challenge cuts?

Shout it from the rooftops – legal aid is still available to challenge cuts.  Many people are under the mistaken impression that legal aid has been abolished altogether, but that is not the case.  Although legal aid has been restricted (or removed altogether) for a number of areas of law, it is still available for ‘community care’ and ‘public law’ challenges, which in practice means that it is available to challenge cuts to public services.

Legal aid for these cases is means tested, but it is important to understand that where there is a potential court challenge, the means test is based on the service user’s means (whether that is a child or an adult) and not their parents’ or carers’ means.  The means test for legal aid is complicated, but in general terms people whose only income is from state benefits, or who are otherwise on a low income, and who have limited capital, will usually qualify. Specialist solicitors will be able to advise on the detailed requirements of the legal aid system.

 And, whilst in recent years the number of lawyers working in legal aid has reduced significantly, there remains a small but dedicated community of solicitors and barristers working in this field.  See here for a non-exhaustive list of specialist solicitors. 

5. How can you fund a cuts challenge if you can’t get legal aid?

In recent years more and more people have turned to crowd funding in order to bring legal challenges.  A number of online platforms have been set up to assist with this, the most popular of which is currently CrowdJustice.

By launching a crowd funding campaign, donations can be sought from the community affected by the decision under challenge, as well as from members of the general public who wish to support the cause.

If you cannot get legal aid, and you do not wish to pursue crowd funding, the options for funding a challenge are unfortunately limited.  Because of the particular rules which apply to judicial review cases, it is very rare for these cases to be run on a ‘no win, no fee’ basis.

One option is of course funding the challenge privately from your own resources, but challenges of this kind are very expensive and so this is unlikely to be a realistic option for most people.  Another option is to find lawyers who will agree to act ‘pro bono’ (ie free of charge). However even then the problem is that the usual costs rules apply to judicial review, so it is likely that an unsuccessful claimant will have to pay the public body’s legal costs. One of the key benefits of legal aid is that it comes with pretty effective ‘costs protection’ from the other side’s costs, meaning that usually legally aided claimants have to pay nothing towards the costs of the claim. A ‘protective costs order’ can be sought for non-legally aided claimants, limiting their exposure to costs, but the rules around these orders are complex and specialist advice will be needed.

6. What actually happens if you win a cuts judicial review? Do they have to reinstate the funding?

It is important to understand that in a claim for judicial review, the court will generally look at whether the way in which the decision was made was lawful or not.  If it is found to be unlawful, the court is likely to make an order ‘quashing’ the decision in question.  This means that the decision is effectively cancelled and the situation restored to that before the decision was made.  If the decision being challenged was one to cut funding, this of course means that the cut will not be implemented, at least for the time being.

Whilst it is open to the public authority to go away and try to make the same decision again but in a way that is lawful, in many cases public authorities which have been on the losing end of judicial reviews have chosen not to attempt to re-make the decision under challenge.  This could be either because the court’s criticism of their decision has been so strong as to make it difficult for them to make the same decision lawfully, or because they have simply taken a strategic decision to drop the proposal under challenge and look at other options for saving money.

A good example of this is the 2011 challenge to Birmingham City Council’s decision to cut £51m from its budget for adult social care and to raise its threshold for eligibility for adult care.  After the judicial review succeeded and the decision was quashed by the High Court, the council decided not to pursue the budget cuts or the policy change any further.

7. How can parents use the law to challenge an LA’s decision only to provide services in accordance with their statutory duties?

With increased pressure on local authority budgets, many councils have indicated that they will soon only have enough money to meet their basic statutory duties (i.e. the services the law says they have to provide), and will therefore be unable to provide any “non-statutory” services.

However, even when a service is non-statutory, it may still be possible to challenge a decision to cut it if the public authority has not made its decision lawfully.

A challenge may be brought on the basis that no, or inadequate, consultation was carried out before the decision was made, or that the decision maker failed to take into account the impact of the decision on people with a ‘protected characteristic’, such as disability, in breach of the Equality Act 2010.

This means that, despite the pressure on local authority resources, they can still be held to account for decisions to cut non-statutory services. There is also often potential for argument as to whether services are really non-statutory. For example short breaks for disabled children are now a ‘statutory’ service under the Breaks for Carers of Disabled Children Regulations 2011.

See also some of the key legal questions identified in one of Steve’s earlier blog posts.

 8. Where there is a ‘sufficiency duty’ in a particular area, how can families best gather evidence that a service (such as short breaks) is not in fact ‘sufficient’?

Much of the evidence in this kind of challenge will centre around what steps the local authority has taken to establish what the local need for the service is and to balance this need against the other demands on its resources.

However, families involved in such challenges can assist by recording in writing their own experiences of asking for, and being denied, the service in question.

For example, a family could keep a diary over the course of several months recording all the occasions on which they have asked for a short break and have been told that no space is available.  One such diary on its own may be enough to demonstrate the lack of sufficient provision, but of course the more families that are able to provide this kind of evidence, the more powerful it will be.

9. Are there any other key points you want to make about the practicalities of using the law to challenge cuts?

We are lucky to live in a country where the law allows individuals to hold public bodies to account through the courts.  But the law is only any use if it is enforced, and all too often public authorities are able to get away with making unlawful decisions without being challenged.

This is why it is vital that bad decisions made by public authorities are challenged.  If bad decisions go unchallenged, this will only encourage bad practice and breed more bad decisions.  It is only by holding public authorities to account that we can make sure that the rule of law is upheld and our rights protected.

Mendip House – not ‘safeguarding’ failures but rights violations

This week I have been mostly cheering on families challenging the closure of an NHS short break unit in Hertfordshire, watching with a combination of awe and anger as George Julian live tweeted Richard Handley’s inquest* and feeling sickened and disgusted by the reports of the Safeguarding Adults Review of Mendip House, the former National Autistic Society (NAS) service in Somerset. Not the happiest week. This blog post is about the last of these three horror shows. The NAS position statement is here.

I’ve read lots of the commentary this week at the #MendipHouse hashtag on twitter. The most powerful comment for me was that by Neil Crowther: ‘When Panorama exposed Winterbourne View a human rights expert described the treatment filmed as ‘torture’. The treatment described here in a residential home run by [NAS] is also torture, inhuman and degrading treatment and must be labelled as such.’ Only judges and treaty bodies get to decide that human rights have been breached, but like Neil I struggle to see how the kind of treatment of the residents at Mendip House described in the Safeguarding Adults Review** can be anything other than inhuman and degrading – and thereby prohibited by Article 3 of the European Convention on Human Rights. I also share the concern Neil expressed in a later tweet about the radio silence from the ‘mainstream’ human rights bodies on this issue – feeding the unfortunate impression that violations of disabled people’s rights are not ‘real’ human rights violations.

The only positive contribution I may have to the discussion is to flag section 73 of the Care Act 2014, which makes clear that voluntary and private sector providers of state-funded adult social care are now covered by the Human Rights Act 1998. This means that a resident of a private or voluntary sector care home (or a recipient of domiciliary care) can bring a claim that their human rights are being or have been violated in exactly the same way as if they were in a state-run institution (see below for more on ‘institutions’ in this context). Although the Care Act only applies to adult social care, in my view it is very likely that the courts would now take the same approach in relation to children’s social care and NHS-funded care for both children and adults, in order to avoid unlawful discrimination contrary to Article 14 ECHR. However until this is tested in court the position is unclear. Equally, until the first voluntary or private sector provider is successfully sued using section 73 of the Care Act, I’d imagine this very important extension of disabled people’s rights will continue to be little known and poorly understood.

A number of really important questions seem to me to arise from what happened at Mendip House. The first is whether charities should be running services at all. In my view the only justification for a national charity running services that can only benefit a handful of individuals is that these services act as an exemplar of what can be provided to all. As such my view is that every service run by a charity should have an ‘outstanding’ rating. Charities should sell off services rated only ‘good’ or below to the private sector or non-profit companies; if the service isn’t ‘outstanding’ it can’t be an exemplar. Of course what was going on at Mendip House was about as far from ‘outstanding’ care as it’s possible to get, as the NAS recognised by closing the service.

Secondly, should charities be running these kinds of services? Dr Oliver Lewis of Doughty Street Chambers and Leeds University published a powerful thread on twitter suggesting that ‘institutional’ care breaches Article 19 of the UN Convention on the Rights of Persons with Disabilities on independent living and community inclusion. Oliver linked to the UN Committee’s General Comment on Article 19 from last year, which stated that assessments that disabled people were ‘unable’ to live outside institutional settings were ‘contrary to article 19’ and that independent living means ‘life settings outside institutions of all kinds’. While I would completely sign up to the programme of deinstitutionalisation called for by the UN Committee in its recent concluding observations on the UK, I’m not convinced that this means that there can be no charity-run residential care. Residential care provision can be (although admittedly rarely is) run wholly in keeping with the letter and spirit of Article 19, promoting genuine community inclusion. Equally I agree with Mark Neary that some of what passes for ‘independent living’ in this country is as alienating and segregating as the worst of residential care. What seems to me to be the greatest priority is ensuring that disabled people have ‘choices equal to others’ about where they live, in the language of Article 19. So (1) there ought to be a duty on local authorities to develop the widest possible range of community support services, and (2) local authorities and NHS bodies should be prevented from taking the cost of residential care into account when developing community support packages – precisely as we called for in #LBBill.

Thirdly, what’s the point of the big disability charities? On this one I am in complete agreement with Polly Neate, the chief executive of Shelter, who tweeted the following: ‘I think if local and activist-led groups and larger charities with more capacity join forces around an issue, there’s more potential to achieve change than traditional Westminster/Whitehall public affairs and so-called “insider” influencing’. But the prerequisite for this must be that the big charities have ‘clean hands’ – the least of it being that if things go badly wrong there is a prompt, complete and up-front public apology.

I’ll end on by returning to an earlier theme – that abuse such as that uncovered at Mendip House needs to be part of the mainstream human rights discourse. There are brilliant disabled activists, family members, academics and lawyers speaking more and more publicly about disabled people’s human rights. They need the full support of the major human rights organisations to make sure abuse like this is not framed as merely a ‘safeguarding’ failure but as human rights violations.

*Help fund George’s work here: https://chuffed.org/project/richard-handleys-inquest

**See in particular table 1 on pp5-6 of the report which goes through blow by blow the allegations in relation to individual residents.

Book review – Special educational needs and disability discrimination in schools

Disclaimer – I was sent a free review copy of this book by the publishers, Legal Action Group (LAG), and I am also a LAG author. This is still a really good book though, honest.

As education budgets are cut and pressures on schools mount, it is ever more important that parents, children and young people know the law and use the law (copyright Senior Tribunal Judge McConnell). That task has been made significantly easier by the publication last year of Special educational needs and disability discrimination in schools: a legal handbook (Legal Action Group). Written by three highly expert education barristers from Matrix Chambers, the book is a very practical guide to some of the key areas in the SEND system.

I was struck by the fact that the book gives only four pages to the position of children with SEN but without an EHC plan, while EHC assessments and plans (rightly) get two full chapters. This reflects the fact that the detailed legal scheme for SEN really only kicks in at the stage of EHC assessment. The importance of the EHC process in law needs to be kept in mind when some local authorities are considering adopting forms of extra-statutory replacements for this process. The book provides expert guidance on how to navigate the process mandated by the law.

It is great to see that the book devotes a whole chapter to the position of children and young people with SEN in detention. We know the rates of SEN amongst the detained population are sky high and one of the most welcome innovations under the Children and Families Act 2014 was a focus on their needs. The book helps explain how to make those rights real.

There are also chapters on appeals to the Tribunal (including onward appeals to the Upper Tribunal), disability discrimination, school transport and inter-authority disputes – the last being particularly welcome as a tool to help families avoid getting lost in a maze of local authorities seeking to avoid responsibility for the child or young person.

As can be expected with a LAG handbook, this book is an essential reference point for families, advisers and professionals. I cannot imagine that there is anyone who is involved in the SEN process at any level who would not benefit from a copy. Not only is there the expert commentary from the three authors, reviewing the legislation and case law, but the book also contains the key provisions of the legislation and Code of Practice, making it a handy reference guide. Each chapter begins with a very helpful summary of key points, which can act as a ‘myth buster’ in relation to the relevant area of law.

The law is stated as at January 2017 but there has been little if any substantive change in this area of law since then – the only obvious thing missing from the book as the result of the passage of time will be the guidance from the Upper Tribunal in a couple of recent cases, which will hopefully feature in a second edition. As there is nothing to suggest that there will be any wholesale changes to SEND law soon (answers on a postcard as to whether that is a good or bad thing), it seems to me that it is well worth investing in this book even though it is a year old.

Finally – shameless plug alert – this book is an excellent companion to Disabled Children: A Legal Handbook, which I co-author for LAG. Our book provides an overview of a wide range of legal issues affecting disabled children and young people, for instance social care, housing and mental capacity as well as SEN, whereas this book focuses on the SEN system created by the Children and Families Act. The absence of properly joined up legislation to meet the needs of all disabled children and young people perhaps explains why two books are necessary rather than one.

Special educational needs and disability discrimination in schools: a legal handbook is available from the Legal Action Group website (£45 – hard copy and ebook).

Disabled Children: A Legal Handbook is available from the Legal Action Group website (£50 – hard copy and ebook). The chapters can also be downloaded free of charge from the Council for Disabled Children website.

(These books concern the law in England. Not only is the law in Scotland very different but Welsh SEND law also now has significant differences to England, as I believe does Northern Irish law. I do not know of any similar books in relation to Scotland, Wales or Northern Ireland but if any readers are aware of such books please leave a comment with a link).