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: Young People

#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.
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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/

 

 

 

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 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.

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.

Time to fight the removal of children’s rights through the Children and Social Work Bill

There are bad ideas. There are really bad ideas. And then there’s clauses 29-33 of the Children and Social Work Bill 2016.

This handful of clauses, if approved by Parliament, will allow the Secretary of State to exempt local authorities in England from the requirements of children’s social care legislation in the guise of ‘test[ing] different ways of working’. At a stroke the Secretary of State could say that Durham doesn’t have to meet disabled children’s needs under section 2 of the Chronically Sick and Disabled Persons Act 1970, Doncaster can forget about parent carers’ needs assessments or Dudley can ignore the duties owed to young carers. In the alternative, the Secretary of State could modify the way in which these requirements apply rather than exempt them entirely, just to increase the overall level of confusion.

I’m struggling to know where to start in explaining why this would be a bad idea. But here goes…This post is written from the perspective of the impact on disabled children, but similar concerns will apply across all children ‘in need’. For example, the clauses would seem to allow the Secretary of State to disapply every single requirement of the care planning regulations for looked-after children.

The law on support for disabled children, young people and families is already a mess. It derives from a patchwork of legislation enacted over the past decades, with duties and powers piled one on top of the other. The only saving grace is that it is the same mess everywhere – wherever a disabled child lives in England, their legal entitlements are the same.

If these clauses go through, even that saving grace will be lost. Rights and entitlements will vary across the country, depending on which exemptions or modifications the Secretary of State has granted to a particular local authority. This reduces rather than increases the transparency that is so badly needed if families are to enforce their rights.

What’s more, I simply do not understand why a local authority would need to be exempt from any of the baseline statutory duties governing support for disabled children in order to innovate or test different ways of working. The legislation governing children’s welfare creates a safety net which should never be removed or undermined in this way. Any specific amendments to the statutory scheme should require express and explicit Parliamentary approval, not the Secretary of State’s say-so.

All of the above is true at any time. However the statutory safety net is even more important at a time like this, when many local authorities feel constrained to cut services to the bone to balance their budgets.

The Bill comes back to the House of Lords for Report stage on 18 October – details of the Bill’s progress are on the excellent Parliament website. A coalition of individuals and organisations has come together to oppose these clauses under the banner of Together for Children. Please sign up to show your support – and please see this excellent article from Sara Ogilvie from Liberty for some of the wider concerns.

Hopefully the Lords will ensure that clauses 29-33 are removed from the Bill. However if they do not and they reach the statute book, it seems to me that there is a real issue here under Article 14 of the European Convention on Human Rights, given that disabled adults will continue to have the benefit of coherent legislation in the form of the Care Act 2014 whereas the patchwork of disabled children’s law will simply acquire more holes. It is very hard to see how this differential treatment can be justified, given that the needs of a 17 year old disabled child will be very similar to those of that young adult at 19.

Final point – all this shows how urgently we need the Law Commission to review children’s social care law

Why now is the time to engage with the next round of cuts

Two news stories that have popped up on my feed this morning highlight that now is the time for campaigners and local groups to start engaging with the next round of local cuts, for the financial year April 17-March 18.

Firstly, Essex is apparently consulting on potential cuts to children’s centres.

Secondly, Dorset is said to be considering a range of cuts to adult social care.

I have no doubt there are or will be similar stories across the country in the local media this week or in the near future. Local authority budgets are complex and require significant preparatory work followed by consultation and debate by members. So in order to have the budget ready to be approved next March, work on proposed cuts must be under way in every area.

But aren’t these cuts inevitable? Well, in short, no. There is no doubt that local authorities will be forced to cut services given the ongoing reductions in funding from central government. But the specific cuts they make must be made lawfully, taking into account all the relevant statutory duties. The recent West Berkshire short breaks judgment makes this clear.

There are still choices to be made by councils – not just between which services to cut but also (for example) what level of reserves to hold and where to fix the council tax. All these choices are hard but they are choices nonetheless.
So campaigners and local groups concerned about potential cuts to valued services need to start engaging with their council’s proposals now. I’d suggest:

  • Keeping a close eye on local papers, TV and radio. Proposed cuts often generate local media interest.
  • Check the council’s website. All formal consultations (including the overall budget consultation) should be easily available online. Check the agenda and minutes of Cabinet and Council meetings for early warning of proposed cuts.
  • Make sure you work together, including if possible identifying people in the group with the skills and expertise to understand the financial proposals so you can ask the right questions.

I’ve set out some of the key legal questions campaigners and local groups may want to ask in an earlier post. I hope that post shows the wide range of legal duties with which local authorities must comply when making cuts.

Law Commission consults on review of children’s social care law – please respond

The Law Commission is consulting until 31 October 2016 on its next programme of law reform. One of the issues it is considering reviewing is children’s social care.

There will be competition for what goes into the Commission’s next programme. If, like me, you think children’s social care law is badly in need of an overhaul then please respond to the consultation before the end of next month – see the end of the final link above. One option would be to respond to say – ‘yes please, the current law is a mess’. However I’m sure the Commission would be assisted by slightly fuller responses. Here are some outline thoughts on the issues raised by the Commission in its consultation.

Firstly, the Commission must be right that many of the factors which required new legislation on care for adults in the Care Act 2014 also apply equally to children’s social care. As previously for adults, the law in relation to children’s social care is piecemeal and patchy. Although it centres around Part 3 of the Children Act 1989, the 1989 Act has been repeatedly and confusingly amended in the intervening years and there are other important statutes, not least the Chronically Sick and Disabled Persons Act (CSDPA) 1970 for disabled children. There must be a compelling case for a simpler, more streamlined scheme for children as for adults.

Secondly, it is noteworthy that the first two specific issues identified by the Commission concern disabled children. This reflects in my view the fact that the current statutory scheme works particularly badly for disabled children. It is very difficult if not impossible for families and professionals to understand the links between the CSDPA 1970, the Children Act 1989 and the Children and Families Act 2014. The way social care law operates (or fails to operate) for disabled children therefore seems to me to be particularly ripe for review.

I will post my full response to the Commission nearer the time, but I hope the above is helpful as a starter for 10. Please do respond to the consultation and spread the word to others who may be interested. The Commission has an excellent track record of getting its proposals into law and so this is likely to be a worthwhile investment of time.

 

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