rightsinreality

Thoughts on the crossroads of law, politics and society – for when a tweet isn't enough. This blog contains general information and commentary on legal matters. It is not intended to provide legal advice. This blog discusses the law in England, unless otherwise stated.

Tag: Education

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’.

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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 peoplesection 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 servicessection 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 breaksregulation 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. Childcaresection 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 Centressection 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.

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).

SEND Tribunal health and social care powers – still no parity with education

A parent of an autistic child once told me that the real ‘triad of impairments’ experienced by her family was education, health and social care. Disabled children’s needs don’t exist within neat service boxes, but there remain deep silos between these three different agencies.

The Children and Families Act 2014 went some limited way to addressing this problem, particularly through the creation of Education, Health and Care Plans (EHCPs). However even within the context of EHCPs real divisions between the three service areas remain. For example, the trigger for an EHC needs assessment is only (in short) significant levels of educational need. A child could have the most complex health or social care needs and still not qualify even for this form of assessment if their educational needs are modest.

Even for those children who do qualify for an EHCP, the duties to implement the provision in the plan are different across the different agencies. Section 42 of the 2014 Act imposes duties on local authorities to ‘secure the specified special educational provision for the child or young person’ and on CCGs to ‘arrange the specified health care provision for the child or young person’. Section 42 doesn’t say anything about social care provision, so this area of provision is underpinned only by the previously existing law, in particular section 2 of the Chronically Sick and Disabled Persons Act 1970 which is horribly out of date.

The fact that it continues to matter greatly whether needs or provision are educational, health or social care is demonstrated by section 20(5) of the 2014 Act. This put into statute a rule that ‘Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision)’. This ‘deeming provision’ turns (for example) a host of therapy services which might generally be the responsibility of the NHS into ‘educational provision’ for children with EHCPs, meaning that such provision becomes the responsibility of the local authority for those children.

All this brings us on to the latest innovation in the SEN system – the nationwide extension of the pilot allowing the Tribunal to make recommendations in relation to health and social care provision (i.e. all health and social care provision that isn’t ‘deemed’ to be educational provision). This is brought about by the SEND (First-tier Tribunal Recommendations Power) Regulations 2017. There is an excellent background article on the Tribunal’s new powers on the Special Needs Jungle website, including a link to the analysis by CEDAR of the very limited earlier trial.

A few things to note:

  1. These regulations come into force on 3 April 2018 and only apply to appeals (a) against decisions of local authorities made on or after that date or (b) relating to an EHCP made or amended on or after that date. It is expected that this nationwide trial will last two years.
  2. Unlike in relation to the SEN sections of an EHCP which the Tribunal can require to be rewritten, the Tribunal’s powers in relation to health and social care needs and provision are limited to making ‘recommendations’ .
  3. By their nature recommendations are non-binding. There may well therefore be cases where the local authority or CCG consider and reject the Tribunal’s recommendations. The remedy in such cases would be a complaint to the Ombudsman or (in serious and urgent cases) an application for judicial review (JR). However a successful JR would need to show an error of law in the approach of the local authority and / or CCG, for example irrationality or a failure to take all material considerations into account.
  4. The duty on the CCG or local authority is to respond to any relevant recommendations, including giving written reasons for any decision not to follow all or part of the recommendation.

It is therefore crystal clear that even when this new power comes into force the appeal rights available to parents and young people will be weaker in relation to health and social care than presently exist in relation to SEN. The Department for Education has stated that ‘we would generally expect that recommendations are followed’, however such an expectation has no legal force. It is though likely that many Tribunal recommendations on health and / or social care provision will be followed by local authorities and CCGs, at least in part. If they are not, then the requirement to provide written reasons will give young people and parents a sound foundation for further challenge in appropriate cases. This represents progress, even if we remain a long way from a properly joined up system for disabled children, young people and families.

Can local authorities lawfully close all their children’s centres?

This post is prompted by recent reports that some local authorities are considering closing all their children’s centres in this round of cuts. See by way of example this recent article by Polly Toynbee.

There is of course a ‘sufficiency’ duty in relation to children’s centres, found in section 5A of the Childcare Act 2006 (inserted by an amendment in 2009). Sub-section 1 of section 5A states that:

‘Arrangements made by an English local authority under section 3(2) must, so far as is reasonably practicable, include arrangements for sufficient provision of children’s centres to meet local need’.

Section 3(2) (to which section 5A(1) refers) says that ‘The authority must make arrangements to secure that early childhood services in their area are provided in an integrated manner which is calculated to (a) facilitate access to those services, and (b) maximise the benefit of those services to parents, prospective parents and young children’.

A ‘children’s centre’ is defined in section 5A(4) as ‘a place, or a group of places (a) which is managed by or on behalf of, or under arrangements made with, an English local authority, with a view to securing that early childhood services in their area are made available in an integrated manner, (b) through which each of the early childhood services is made available, and (c) at which activities for young children are provided, whether by way of early years provision or otherwise’.

Despite the overly complex drafting, it seems clear that there is a duty on English local authorities to have sufficient children’s centres, being places managed for or on behalf of a local authority to provide integrated early childhood services and activities for young children. These centres must physically exist, i.e. not simply be ‘virtual’ centres (a network of services without a physical centre).

The duty in section 5A(1) is though subject to an important qualification. The duty must be carried out ‘so far as is reasonably practicable’. This begs the question – can a local authority which intends to close all its children’s centres say that it is not ‘reasonably practicable’ for it to operate any centres?

It may well be that this question is tested in court. My provisional answer to it is ‘yes in principle’ – but the authority would need to have:

  1. Understood the local need for such centres
  2. Considered what level of provision would be sufficient to meet that need
  3. Analysed to what extent it is reasonably practicable for it to make that provision, given the reduction in its overall resources and other pressures on its budget
  4. Complied with its wider public law obligations, for example the public sector equality duty in section 149 of the Equality Act 2010 and the duty to have regard to the need to safeguard and promote the welfare of children in section 11 of the Children Act 2004. These duties are considered in my general blog post on legal issues relating to cuts.

It may be that local authorities could find a way through this process such that it would be lawful to reduce their level of children’s centres to zero, though I have my doubts. It would seem to require a local authority to justify why the other pressures on its budget are such that it cannot afford to operate even a single children’s centre. If the local authority is spending anything above the minimum required to meet its statutory duties in other areas (for example, collecting the bins) this may prove difficult. It is important that the wording is ‘so far as is reasonably practical’ – emphasising that the local authority should go as far as it reasonably can to provide sufficient children’s centres to meet local need.

The law requires local authorities to have regard to the need to safeguard and promote children’s welfare when tough spending decisions are made. What is clear is that a local authority which simply says ‘we are closing our children’s centres because our budget has been reduced’ will not have complied with the required process and would in my view be vulnerable to legal challenge.

If the section 5A(1) duty simply required the provision of ‘sufficient’ children’s centres then it is obvious that the answer to the question in the title of the post would be ‘no’. However Parliament has chosen to qualify the duty by reference to ‘reasonable practicability’. We may well see how the courts treat this qualification relatively shortly after local authority budgets are set for the next financial year, if decisions to close all their children’s centres are indeed taken by some local authorities. I hope though for the sake of the children and families affected that this question never needs to be answered by the courts.

Challenging local cuts – some key legal questions

Following the political choices set out in the recent Spending Review, it would seem inevitable that local authorities are going to need to make cuts to important services next year, including those provided to children and disabled people. Recent Kings Fund analysis shows that the 2% precept on council tax is a totally inadequate solution to the funding crisis for adult social care. No-one seems to be talking about what the Spending Review means for children’s social care, which wasn’t even mentioned on the Department for Education press release – but it is unlikely to be good news.

The issue now is not whether there should be cuts, but whether the cuts which have to be made are lawful, both in terms of their effect on services and those who use them and the process by which the decisions were made. As Mr Justice Blake said in R (Rahman) v Birmingham City Council (para 46) in relation to the ‘public sector equality duty’ (PSED) found in section 149 of the Equality Act 2010:

Even where the context of decision making is financial resources in a tight budget, that does not excuse compliance with the PSEDs and indeed there is much to be said for the proposition that even in the straightened times the need for clear, well-informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater.

In rather an Alice in Wonderland way, Parliament has continued to impose new duties on local authorities at the same time as central government has taken their funding away to comply with them. However this means that councils need to take the hard decisions that will be made in their budgets for 2016-17 and beyond with a crystal clear understanding of their legal obligations. Although there may come a time where a local authority is unable to set a budget which allows it to meet all its legal duties, I doubt we are there yet.

Councils are currently working up and consulting on their budgets for 2016-17, so now is the time when residents and local groups may want to ask some of these legal questions:

Will the council be able to meet all its ‘specific’ statutory duties owed to individual residents? For example:

  1. The duty to meet all ‘eligible’ needs for disabled adults and their carers under the Care Act 2014
  2. The duty to meet ‘eligible’ needs for disabled children under section 2 of the Chronically Sick and Disabled Persons Act 1970
  3. The duty to provide free suitable home to school travel arrangements for all ‘eligible’ disabled children under section 508B of the Education Act 1996
  4. The duty to secure special education provision in education, health and care plans for disabled children and young people in section 42 of the Children and Families Act 2014
  5. The duty to provide advocacy to disabled people and carers during the care and support assessment and planning process under section 67 of the Care Act 2014.

Will the council be able to meet its ‘sufficiency’ duties to have a sufficient level of particular services to meet local needs? For example:

  1. Childcare, including childcare for disabled children up to the age of 18, under section 6 of the Childcare Act 2006
  2. Short breaks for disabled children under regulation 4 of the Breaks for Carers of Disabled Children Regulations 2011
  3. Education and care services for disabled children, under section 27(2) of the Children and Families Act 2014
  4. Children’s centres, under section 5A of the Childcare Act 2006
  5. Services for disabled adults and their carers, under the ‘market shaping’ duty in section 5 of the Care Act 2014

Has the council had ‘due regard’ to the needs specified in the PSED (see above) – for example the need to advance equality of opportunity for disabled people (children and adults)?

Will the proposed cuts give rise to unlawful discrimination between different groups, contrary either to the Equality Act 2010 or Article 14 of the European Convention on Human Rights?

Has the council had regard to the need to safeguard and promote the welfare of children under section 11 of the Children Act 2004?

Has the council treated children’s best interests as a primary consideration in its decision making, as required by Article 3 of the UN Convention on the Rights of the Child?*

Has there been ‘fair’ consultation on the proposals? In particular (quotes are from the leading consultation case of ex parte Coughlan:

  1. Has consultation taken place at a ‘formative stage’, i.e. sufficiently early in the decision making to influence the outcome?
  2. Have consultees been provided with ‘sufficient reasons for any proposal to permit of intelligent consideration and response’ – i.e. do residents know what cuts are being proposed and why?
  3. Have consultees had ‘adequate time’ for consideration and response?
  4. Once the consultation has finished, has ‘the product of consultation’ been ‘conscientiously taken into account’ in the final decision.

Several of these legal principles – for example consultation, non-discrimination and the PSED – apply equally to NHS bodies such as clinical commissioning groups who may also be contemplating cuts to valued services.

If residents and local groups are not getting answers to these questions, or are unhappy with the answers coming back, then the next step may be to consult a specialist solicitor who can advise on whether there may be a challenge via judicial review. It is essential that any challenge to financial decision making is brought extremely promptly – so advice should be obtained before any final decision is made if possible, or otherwise straight after the decision.

It is also important to bear in mind that not all councils are equal – particularly given the increased focus on councils raising revenue from their own areas. Residents and local groups may want to ask questions about what level of reserves their particular council holds – particularly ‘free’ or unallocated reserves. Although spending reserves is obviously only a short term solution, it may be possible to use reserves to mitigate some of the cuts and help with transition to alternative forms of provision.

It is unlikely that legal challenge alone is going to be sufficient where cuts are proposed – there also needs to be political pressure. There are a number of guides for local groups on how to campaign, including campaigning against cuts or to save services. I really like this one from the Every Disabled Child Matters campaign.

Local politics will still come down to local priorities, although the choices will get harder than ever. In the light of the duties above, the law requires councils to give significant priority to services for children and disabled people. It is hoped that the decision by Hampshire not to cut its short breaks budget for 2016-17 is therefore one that other local authorities will follow to the extent they can.

*We can save detailed arguments about whether and why the UN CRC has to be followed when it is not directly incorporated into English law for any case that goes to court.

System change for disabled children – the Local Offer and SEND reforms one year on

We are now one year on from implementation of the SEN and disability reforms introduced by Part 3 of the Children and Families Act 2014 (‘CFA’). To no-one’s surprise the picture on progress is at best mixed. Introducing wholesale system change at a time when local authority budgets have been reduced by 40% over the past five years was never going to be straightforward. As the report on the pathfinder programme was only published this July I imagine we will need to wait a while before any official evidence on progress made under the CFA.

At an individual level I continue to hear utterly depressing accounts of the new Education, Health and Care Plan (‘EHC Plan’) process resulting in absolutely no benefit for children and families. Plans are being issued with no outcomes or outcomes drafted in the blandest terms, social care sections simply saying ‘not known to social care’ and no engagement at all from health. This survey by Special Needs Jungle should help show how widespread are these problems. While there may well be excellent EHC Plans being issued, flagrantly unlawful ones are certainly far from unique.

The Department for Education has just issued new advice to confirm that local authorities are being given longer to complete the transfer process and produce EHC Plans – as introduced by secondary legislation. The main change is that the maximum time for a transfer review for the move from a statement to an EHC Plan has been extended from 14 to 18 weeks. As I suggested this as an urgent action the new government needed to take, I obviously welcome this as a sensible move. However it remains to be seen whether local authorities will now be able to carry out proper EHC assessments and take new advice in every transfer case unless all parties including the parents agree that previous advice is sufficient, as the regulations require; see IPSEA’s summary of the transfer process.

The focus for this post though is one of the key system level reforms introduced by the CFA 2014 – the ‘Local Offer’, as required by section 30 CFA. I’ve written previously about the delays in introducing a lawful Local Offer in many areas. However since that time a number of local areas now have Local Offers which are highly compliant with the statutory requirements and as a result provide a valuable guide to local provision for children, young people and families. Other local areas, shall we say, haven’t done this.

The next question is whether these Local Offers can fulfill their second purpose – ‘To make provision more responsive to local needs and aspirations’ (see the SEND Code of Practice at para 4.2). The mechanism to achieve this is the requirement for local authorities to publish comments on the Local Offer. This requirement is imposed by regulation 56 of the SEN and Disability Regulations 2014.

Regulation 56 imposes a positive duty on local authorities to ‘seek’ comments on its Local Offer from children, young people and parents. Importantly, comments should be sought not just on the Local Offer itself (e.g. is it searchable, is all the information accurate) but also on ‘the content of its local offer, including the quality of the provision that is included and any provision that is not included’. These comments must then be taken into account when the local authority carries out its review of the sufficiency of provision in its area, as required by section 27 CFA.

Why is this particularly relevant now? Because regulation 56 requires that local authorities must publish the comments they receive on their Local Offers ‘at least annually’, on an anonymised basis. Given that Part 3 CFA and the regulations came into force on 1 September 2014, that means every local authority should now have published its first set of Local Offer comments ‘on its website, with the local offer’.

If you are a child, young person or parent who has made a comment on your Local Offer, then now would be the time to check that it is up in lights. If it isn’t, then you may want to highlight to officers and Members that publication is overdue.

If you haven’t yet commented on your Local Offer but have something to say about ‘the quality of the provision that is included and any provision that is not included’, please do comment. It seems to me that effective use of the Local Offer comments facility is the best tool we have to hold local authorities to account in the services and support provided to children, young people and families.

Two important points to note on the Local Offer comment facility. Firstly, it must not be used as a way to make complaints about ‘services provided to a particular individual’. The local authority and NHS complaints process exist for this purpose. Secondly, a local authority is not required to publish any comment which it ‘considers to be vexatious’. The term ‘vexatious’ is not defined in the regulations; under the general legal approach a vexatious comment would be one where the purpose is purely to annoy the local authority and its officers. This is plainly a high bar and means that the vast majority of comments which relate to services generally, including highly negative comments, should be published.

I would be keen to hear about experiences of using the Local Offer comments facility – whether you could find out how to make a comment on your Local Offer easily, whether your local authority sought your comments as the regulations require whether your comment has been published and whether you have seen any difference as a result. Please leave any feedback on these issues below.

Guest post – how SOS Transport Sefton saved their disabled teenagers’ school buses

SOSTransportSefton

This is the first in what I hope will be an occasional series of guest posts on some of the themes and issued covered on this blog. It is written by Joanne Allman with input from Bee Jones from the campaign group SOS Transport Sefton. I saw some of the work of the group on Twitter and thought they captured perfectly what it takes to fight back successfully against the cuts to disability and children’s services. There is much to be impressed by reading Joanne’s account of the campaign, but from my perspective I particularly like how the potential for a legal challenge was integrated into the overall campaigning work. The campaign also shows the importance of engaging at the highest possible level, in this case with the Council Leader.

As we wait for more cuts to to be announced in the new government’s ’emergency’ budget this summer, I hope Joanne’s words and the work of the campaigners in Sefton will help inspire other groups, nationally and locally, who are challenging the consequences of austerity. All comments welcome – as are other suggestions for guest posts.

Birth of a campaign

Campaign group SOS Transport Sefton was born of two parents in a meeting room in a special school in Southport, Merseyside on 23 February 2015.

The meeting had been called by Sefton Council as a part of their public consultation on post-16 Special Educational Needs and/or Disability (SEND) school/college transport. It was attended by just two parents, Janet and myself, who both had 15-year-old children with severe autism at the school. The meeting was not well-publicised, and many parents simply didn’t know about it.

The main focus of both the meeting and the Council’s consultation questionnaire, issued a couple of weeks previously, was their stated intention of promoting ‘independence’ for children with SEND. According to the Council, young people over 16 would be taught to travel independently to school or college through a ‘Travel Training’ scheme.

On the surface, it may all sound perfectly reasonable, even laudable….until you wake up from the seductive daydream of teenagers happily waiting at bus stops, and remember that our special school caters for severely disabled children. Paraplegic children in wheelchairs. Children with complex medical conditions. Children who are tube-fed. Children, like my own son, with profound learning difficulties who need constant supervision. What are the alternatives for these children, we asked. The reply was that there was none. Parents would have to take their children to and from school each day.

Again, this may not seem such a big deal…until you appreciate that special schools may well be many miles from the family home. Parents without a car might have long distances to travel each day by public transport, in some cases escorting a young person in a wheelchair. Some parents told us they would have to give up their jobs in order to take their children to school, which would cause them hardship. And these are families already under pressure, be it financial or stress or health related.

These issues gave birth to SOS Transport Sefton…although neither Janet nor I realised it at the time. We had a quick chat after the meeting and decided to write a letter to all the other parents to inform them of the impending transport cuts.

That was 23 February 2015….BUT on 23 April, exactly two months later, the Council stated publicly and unequivocally that they would NOT remove post-16 transport to special schools or colleges in Sefton.

So how was this achieved? These are the steps we took to persuade the Council to change its mind. Bear in mind that we spent virtually no money on this campaign.

What we did

We formed a committee

It’s always a good idea to team up with like-minded campaigners who share your goal. Janet and I were lucky enough to be joined by two very determined individuals, Bee and Sarah, also parents of teenagers with autism. We all brought different skills, strengths and experience to the group, and gave each other much-needed moral support.

We mounted a legal challenge

Bee had already approached a Public Law solicitor before joining our group. As it happened, the Council withdrew their proposal to remove transport before the case was brought, but the threat of legal action may have had a bearing on their decision.

We promoted our campaign on social media

We set up a Facebook page and a Twitter feed, to raise awareness of the Council’s proposals, and to give updates on our campaign. This proved to be enormously effective. We soon attracted over 200 followers on Twitter and garnered a similar number of ‘likes’ on Facebook. Social media were a crucial factor in the success of some of our later initiatives.

We launched a petition

We started our petition on 4 March, and gathered signatures both on paper and on-line. By the close of the public consultation period on the 30 March, in less than four weeks, 2,779 people had signed on paper and 2,559 on-line, totalling 5,338. This meant that our petition was eligible to be presented at a full Council meeting, because the number of signatures exceeded the threshold of 2,750.

We developed good relations with friendly local journalists

There was widespread coverage of our campaign in both print and on-line versions of local newspapers, for example here and here.

We organised a demonstration march

On 30 March, we held a peaceful demonstration march in Bootle, where Sefton Council is based, to hand in our petition. Around 35 people took part, mostly parents, with several children in wheelchairs who had been given leave of absence by one of the special schools in support of our cause. At Bootle Town Hall, we discussed the issue with Peter Dowd, Council Leader and Labour Party Parliamentary candidate for Bootle. 

We got political

….and we got lucky. When the Bootle based parent protesters got home after the demonstration, they found Labour’s General Election leaflet on their doormats. It showed Peter Dowd at Bootle Town Hall, where we had just left him, with a list of five pledges, including these gems:

  • Work with schools and colleges to give our young people the best start in life
  • Fight to get a fairer deal for the most vulnerable
  • Demand better environmental standards and protect our precious green spaces

This galvanised the four of us into action, and took our campaign into the political arena. Over the Easter weekend, we challenged Dowd on Twitter about the dissonance between his election pledges and his stance on disability transport as Council Leader. A ‘Twitter storm’ ensued, after which Dowd blocked all our Twitter accounts! We contacted the press, and the story appeared in the local newspapers. Details of the Twitter row can be found here and here.

We published an Open Letter on our new campaign blog

We resolved to continue to highlight the disparity between Dowd’s pledges and his actions as Council Leader by writing an open letter from the standpoint of a parent of a disabled teenager. We published the letter on a new campaign blog, runawaybus.

We promoted our blog on social media, and the day it was launched, it attracted 280 visitors and 395 views!

We sent a parody Consultation Questionnaire to every councillor in the borough

The questionnaire issued by the Council as part of their public consultation was not fit for purpose. Couched in language more reminiscent of a teenage magazine quiz than a serious survey, it appeared to have been designed to dupe the respondent into giving the answers that the Council wanted.

We hit on the idea of giving the Council a taste of its own medicine by writing a parody consultation questionnaire and emailing it to 70 Sefton councillors and council officers! The parody version was written in the same style as the offending original, and was humorous, but hard-hitting.

We issued a press release

We collected over 100 email addresses for national newspapers and other news outlets, and on 20 April we issued a press release. Later, we were contacted by BBC Radio Merseyside and the next day…..

We got on the radio

Bee was interviewed for several minutes on BBC Radio Merseyside, and put our case very persuasively. A clip of a pre-recorded interview with Sarah was also broadcast. Our story was featured as first or second item in every news bulletin that day, and the radio station also invited a spokesperson from the National Autistic Society to discuss it.

We wrapped it up at meetings with the Council

On the day of the radio broadcast we had a private meeting with Peter Dowd and two Council officers. They gave us a categorical assurance that there would be no cuts to disabled transport to any of Sefton’s special schools or colleges.

On Thursday 23 April we presented our petition at a full Council meeting at Southport Town Hall. In response, Leader of the Council Peter Dowd gave an assurance, on the record, that there would be no cuts to transport to any special schools or colleges in Sefton. He also acknowledged the flaws in the consultation process which we had highlighted, and invited us to assist in efforts to improve the way future consultations are carried out.

So, on St George’s Day, two months to the day from the birth of our campaign, the dragon of cuts to transport to specialist provision was finally slain, and the worry caused by the threat of removal of this vital service laid to rest.

A few days later, we issued the following public statement.

Lessons we’ve learned

We’ve learned a lot over the past few weeks, and hope that some of our ‘top tips’ may help others embarking on campaigns against injustice:

  • Know that if your sense of justice has been offended, there will be others who share your outrage and anger. In the twenty-first century, we have an enormous advantage over campaigners from previous generations because the internet gives us the tools to link up very quickly with like-minded people. It’s quite straightforward to set up a Facebook page, a Twitter feed, even an on-line petition; yet these simple steps can be very empowering because they bring people together and provide a focal point for opposition.
  • Don’t try to run the campaign on your own. Find a few other people to share the decision-making, organisation and work. You’ll probably come up against vested interests, underhand tactics and intimidation, and you’ll need moral as well as practical support.
  • Don’t under-estimate your individual strengths; you may have experience of writing or public speaking, perhaps a social media presence or other useful attributes. When these resources are pooled, the resulting synergy can make the difference between success and failure of your campaign.
  • Publicity is the oxygen your campaign needs to flourish and succeed. Make contact with journalists via social media, where it might be possible to develop an informal, friendly relationship. Maximum coverage for your story in the local press will both attract supporters and put pressure on the authorities you’re campaigning against. Consider issuing a press release to reach a wider audience.
  • Take your chances and be bold. When opportunities present themselves, seize them. In our case, the upcoming General Election made the bad publicity we created for a local candidate decidedly inconvenient. You can’t guarantee lucky breaks, but if a gift horse does happen to wander across your path, jump on and ride!
  • Have fun! The issues you are facing may well be very serious, but confronting them and taking back some control over the situation will probably be therapeutic and make you feel a whole lot better. You may discover skills you never knew you had, or learn new ones, grow in confidence and find new friends. A sense of common purpose can break down barriers and forge bonds between people who may not otherwise have had the opportunity to get to know each other. Even if your campaign does not achieve what you hope it will, you may find you reap other unforeseen benefits and rewards. Set your sights on your destination, but don’t forget to enjoy the journey.

Joanne Allman
With input from Bee Jones

SOS Transport Sefton

Twitter: @SOS_Sefton

Email: sostransportsefton at gmail dot com

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