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

by stevebroach

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/