Next Monday, 30th June at 7.30pm (for an hour) we have been offered a brilliant opportunity for an online web-chat with Steve Broach, a barrister at Doughty Street Chambers. Steve will be holding a free web Q&A on the law in relation to education, health and care services for disabled young people in England. Steve will look at both the current law and the changes coming soon under the Children and Families Act 2014 and the Care Act 2014. He will also cover what the Human Rights Act 1998 should mean for the standard and quality of care disabled young people receive. Steve can only answer questions about the law in England, as the other UK nations have different legal frameworks, although some of the general points he makes will be relevant across the UK.
We are very grateful to Steve for his offer, and know that many of you will wish to make use of this opportunity. To participate you can send your questions in advance using the hashtag #JusticeforLBLaw, or add them as a comment to this page, and Steve will answer as many as possible on the night. Please note Steve can only answer general questions about the law and cannot provide advice on individual cases during this session. We would like as many questions as possible in advance, and Steve has also offered to take some spontaneous questions on Monday. Questions will be posted on this page, and Steve will add his answer as a comment, leaving us with a record of the discussion.
If families have urgent legal questions, a list of solicitors who work in this area and may be able to obtain legal aid to provide free advice, with contact details, is available at the end of Steve’s paper ‘Using the Law to Fight Cuts‘.
Just to be clear at the outset – the purpose of this evening is to discuss and share information and ideas about the law as it affects disabled young people. I am not allowed under my professional code of conduct to advise on a case without instructions from a solicitor and it would not be appropriate to provide individual advice in a public forum like this in any event. As such I will only be offering general comment on legal issues this evening and nothing I write tonight should be relied on in relation to any individual case.
I know many people involved in tonight’s web chat will have pressing legal issues of their own, which is why there is a link to my ‘Using the Law to Fight the Cuts’ paper. At the end of this paper you will find a list of specialist solicitors who can provide advice on individual cases and can access legal aid. Despite what you may have heard, it is still possible to get legal aid for our kind of cases and generally it will be the disabled young person who qualifies – so as long as they have little or no money of their own they are likely to be eligible even if the parents have means. My advice would be to ask a solicitor whether your case qualifies for legal aid. Make sure you do so as quickly as possible, as judicial review applications (the main type of legal challenge) need to be made promptly and no later than three months after the decision unless you can convince the court why time should be extended – I will say a little more about judicial review later. I have never known a parent take legal advice too soon, as a good lawyer will always say ‘you’re too early, try this instead’, but sadly I’ve known many take advice too late. There are of course also specialist voluntary sector advice agencies, such as IPSEA, Contact a Family and the NAS Advocacy for Education Service, who offer high quality advice free of charge without the need for legal aid, but these bodies are unlikely as I understand it to be able to help with a JR (see below).
I wanted to say something at the outset about the different kinds of legal remedies when something goes wrong. There are three main remedies in our area: complaints, Tribunal appeals and judicial review (JR). It is also possible to bring claims for damages, for example for negligence and/or breach of human rights, although it is obviously better to use the law to pre-empt the damage or breach occurring if possible. Tribunals are straightforward in this sense – if they exist, for example in relation to most education issues, you have to use them. In a similar way, cases about the Mental Capacity Act 2005 generally go to the specialist Court of Protection. Complaints can be effective particularly where problems are in the past, but they take a long time to go through the different stages and are not the right way to resolve disputes about what the law requires – that is what judges are for. As such if the issue is complex, urgent and/or important, then the right remedy is likely to be JR. This is an application in the High Court, where the court will decide whether the public body is acting in accordance with the law. It sounds pretty extreme but in my view a JR application is likely to be less stressful for parents than a Tribunal claim – for the simple reason that legal aid is generally available for JRs (unless the disabled person has significant funds themselves) and therefore families can have a legal team represent them, whereas in the Tribunal families are generally alone or perhaps have a volunteer advocate. Also, JRs are almost always decided ‘on paper’, meaning that the evidence will all be prepared in advance and written down, so families will almost certainly not have to speak in court. So please do not be put off considering JR as a remedy if there is something going seriously wrong.
Another preliminary point – here are some general resources to find out more about the law:
The Children and Families Act 2014 creates the new SEN system for children and young people aged 0-25 from 1 Sept see Part 3 for the relevant sections to disabled young people.
The SEN and Disability Regulations 2014, flesh out the new system (see for example Regulation 12 re content of EHC Plans)
The current draft Code of Practice and the very important guidance on transitional provisions (moving from the old system to the new system)
The current SEN Code of Practice, which remains in force until 1 September
Guidance on Learning Difficulty Assessments, which remain the way to get additional support in post-school education until the new EHC Plans are in place
Working Together to Safeguard Children, the key guidance document for children’s social care
The official practice guidance on Safeguarding Disabled Children
The key guidance on adult social care has the horrible title ‘Prioritising Need in the Context of Putting People First’ (everyone calls it ‘Prioritising Need’)
No Secrets, the statutory adult safeguarding guidance
The Care Act 2014, which will change the way adult social care is provided from April 2015
The government is currently consulting on draft regulations and guidance for the Care Act – get involved and have your say (consultation open until 15 August)
In terms of case law, there is a wonderful free database of all Supreme Court, Court of Appeal and High Court decisions (inc Upper Tribunal and Court of Protection) called BAILLI
All the SEN decisions of the Upper Tribunal (hearing appeals from the First Tier Tribunal) – choose ‘Special Educational Needs’ as your category
The Supreme Court website is fantastic, and is a great way to know what the final word is on any legal question – look out for the press summaries which are an accessible way to find out what the judgment is about and what the outcome is
The most recent Supreme Court decision to directly impact on disabled young people is the Cheshire West case, which radically increases the number of disabled people whose placements involve a deprivation of liberty requiring justification to avoid a breach of their human rights (I’m rather hoping for a question on Cheshire West!) – see the judgment here
And if all those links are too much, you can get a summary in Disabled Children: A Legal Handbook, which I wrote with Prof Luke Clements and Dr Janet Read. The hard copy is published by Legal Action Group but as we are currently working on a new edition I would save your pennies and just download the chapters you need from the Council for Disabled Children website, where they available free of charge.