Legal web chat #JusticeforLBLaw

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‘.

Anyone taking part in the webchat is asked to give what they can to the fundraising appeal, info here. You can read about Steve’s work here and connect with him on Twitter @stevebroach.

Disclaimer:

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.

Useful resources

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.

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68 thoughts on “Legal web chat #JusticeforLBLaw

  1. Pingback: Day 99: Local experiences, national concerns #107days | #107days

  2. If someone is detained under s3 MHA and the local authority decides to move them to another placement, what are the rights of the Nearest Relative in objecting to the move if they feel it is unhelpful and inappropriate? The patient would not like the move either but is judged to lack capacity.

  3. What is the penalty when a local authority & care provider breach ( ignore) a court order that gives a family member ( me ) the right to be consulted on all aspects of a persons health & welfare. My son has no capacity / voice, and both LA/CP insist I am not his “representative”, so will not share any of his info. I did apply to be his welfare deputy, but was denied and given the H & W court order instead. But I am still shut out.

    • It is extremely disappointing that despite the plain words of the Mental Capacity Act 2005 (‘MCA’) too many public authorities and care providers continue to exclude families from decision making once young people turn 16 or 18 or only pay lip service to consultation with families.
      To clear this up once and for all, section 4(7) of the MCA (see http://www.legislation.gov.uk/ukpga/2005/9/section/4) requires anyone making a decision under the Act to take account of the views of, and where practical consult with, ‘anyone engaged in caring for the person or interested in his welfare’. This obviously includes all family members. The same obligation arises from Article 8 ECHR by virtue of the need to show respect for people’s family and private lives.
      Of course there may be circumstances where it is inappropriate to consult with family members but these will be rare. Confidentiality and data protection excuses should not be used to deny family members appropriate involvement in young people’s lives. In terms of penalties where this principle is violated, these would need to be considered on an individual case basis. It is contempt of court to breach a court order and anyone who thinks an order is being breached needs individual legal advice. In other situations the remedy is likely to be a complaint, an application to the Court of Protection or a JR. Again, individual case advice will be needed.

  4. Question from Zoe Thompson: If a child has a statement do they have the right to transfer to an EHC plan (Education Healthcare Plan) as soon as possible rather than waiting for the LA’s timeframe?

    • Statement will stay and carried on until a trigger even : transition, change of needs, change of school. If you would like EHC, you will also have to wait for Sept 14, then you can ask your LA .

    • In short, no. There is some helpful guidance on the transitional provisions in relation to the new SEN system, see https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/318934/Transitional_Arrangements_Note_FINAL.pdf
      The general point is that 1 September 2014 is the implementation for EHC Plans in new cases, in other words where a child would have previously been assessed for or issued with a statement on or after 1 September, they will instead have an EHC assessment or Plan. The same applies for young people who would previously have had a Learning Difficulties Assessment (LDA).
      For children with existing statements and young people with existing LDAs, these documents remain in force with exactly the same legal status as at present until they are replaced with an EHC Plan. Each Local Authority must publish a local transition plan by 1 September setting out the timeframe for transfers from existing statements / LDAs to EHC Plans. All transfers must be completed by 1 April 2018. There will also be some mandatory trigger points for transfer to an EHC Plan – for example when a child moves from primary to secondary school, or secondary school to post-16 institution or apprenticeship – see paragraphs 21-26 of the guidance for the detail.
      I would want to emphasise the point made repeatedly by the government in the transition guidance, the draft Code of Practice and by the Minister in his recent speeches – ‘The legal test of when a child or young person requires an EHC plan remains the same as that for a statement under the Education Act 1996. Therefore, it is expected that all children and young people who have a statement and who would have continued to have one under the current system, will be transferred to an EHC plan – no child or young person should lose their statement and not have it replaced with an EHC plan simply because the system is changing.’ In relation to young people post-school who currently have LDAs, the transition guidance says ‘the expectation is that young people who are currently receiving support as a result of a LDA and remain in further education or training during the transition period, who request and need an EHC plan, will be issued with one.’

  5. I only heard about the Disclosure and Barring service this morning. Can anyone make a referral to this service? What is the process that follows ? And why is the service so little known about among families with disabled children who come into contact with professionals who cause harm through their actions? Thank you…

    • Sara, welcome to the discussion – it’s a privilege to be part of your amazing campaign. Your question goes to how to achieve a remedy against individuals responsible for poor and / or abusive practice which harms a young person or puts them at risk at harm. This is obviously vital for the well-being of our young people, alongside challenging abusive institutional practices.
      The Disclosure and Barring Service (DBS) has two functions – it issues Criminal Records Checks and manages the list of individuals barred from working with children and / or vulnerable adults. This second function is governed by the Safeguarding Vulnerable Groups Act 2006, as amended by the Protection of Freedoms Act 2012. If it receives a referral about poor behaviour or conduct, or a notification that a person has committed a relevant criminal offence, the DBS considers whether the individual has done something which potentially can lead to them being barred and then (other than in the case of the most serious offences) decides whether it is appropriate (i.e. proportionate) to bar them. The effect of being barred is that working with the relevant group is a criminal offence, so it’s a very serious sanction.
      Following some earlier chat on Twitter I have spoken with a specialist solicitor who confirms that although it is possible for the DBS to consider a referral from a member of the public, in practice the DBS needs a referral from one of the relevant agencies, for example the Local Authority, because it needs to piggyback on existing investigations rather than carry out its own investigations from a standing start. As such, the best course of challenge would be to ask the local authority or other responsible body to refer any staff who may have harmed or placed at risk of harm a vulnerable adult to DBS and then JR any refusal to refer if it is arguably irrational or otherwise unlawful.
      Another important route to redress in relation to individuals responsible for poor and / or abusive practice is a referral to the relevant professional regulator (I see you’ve rightly identified this as one of the markers of justice for LB). For teachers this is the General Teaching Council, for doctors the General Medical Council, for nurses the Nursing and Midwifery Council and for health care professionals and social workers the Health Care Professionals Council. These bodies can consider allegations of unprofessional conduct and have a range of sanctions, up to and including striking a person off the professional register which will prevent them from practicing. All the regulatory bodies have websites so you can search the name of the relevant regulator and you should be able to find the referral process.
      Again, families with serious concerns about the conduct of a particular professional or worker should seek case-specific specialist legal advice.

  6. Which groups of professionals are fully trained to carry out MCA assessments? Why is there apparently so little attention paid to the section with the MCA requiring people to pay heed to the views and expertise of close relatives and carers?

    • The short answer is that all professionals working with disabled young people should be fully trained in the MCA but far too few either have been trained or appear to have been paying attention! You are absolutely right that, as I’ve noted above, it is a statutory requirement to consult with relatives and take their views properly into account when decisions are taken. I can only assume that there is a cultural problem amongst some professionals and in some settings where families are seen as a nuisance to be got around rather than partners in the young person’s care. The MCA is a powerful tool to challenge this and families shouldn’t be frightened to quote section 4(7) at professionals who are excluding them.
      There are also two excellent template letters produced by Irwin Mitchell solicitors alongside Ambitious about Autism, Mencap and the Challenging Behaviour Foundation to help families in this situation where families are being excluded – check out http://www.irwinmitchell.com/activities/best-interest-decisions-tool

  7. I have been led to understand that the new law and regs relating to SEN and LA duties exclude parents from consultation once the young person is 16 and over, unless the YP requests their involvement in the consultation process. Is this correct? If it is, what are the options for parents to remain involved if their YP either makes no request or does not consent to parents’ involvement? I particularly have in mind YP with LDs who may prefer to opt out of meaningful education, despite assessment that it is in their best interests.

    • This is simply wrong. What is correct is that once a young person turns 16, their parent cannot simply continue to make decisions on their behalf without first assessing the young person’s capacity to make the decision for themselves. This has always been the case under the MCA. However at risk of repetition, section 4(7) of the MCA requires consultation with all family members, including parents, unless it is actively inappropriate to do so. If a young person has capacity to make a particular decision for themselves, then it may be possible for them to ask for their parents to be excluded from the process. However where, as is much more typical for our young people, the young person lacks capacity there is a strong presumption that parents should be fully involved. There is certainly no requirement for young people to actively request their parents’ involvement, as this would obviously discriminate against more severely disabled young people.
      Also, where a young person lacks capacity in relation to a particular decision, then their parent will essentially have the same rights in relation to that decision as the young person would have done under Part 3 of the Children and Families Act 2014, unless there is a court appointed representative – see regulation 64 of the 2014 Regulations. As the draft Code of Practice says at Annex 1, ‘in most cases, where a young person lacks capacity, decisions will be taken on their behalf by their parent. However, it is important that people are helped to make decisions themselves wherever possible.’ This latter point is itself a fundamental underpinning principle of the MCA.
      The draft Code of Practice at 8.19 says ‘Where a young person is under 18, the involvement of parents is particularly important and local authorities should continue to involvement them in the vast majority of decisions.’ I would suggest that this would also apply with little if any modification to 18-25 year olds.

  8. What is the law about obtaining previous notes from NHS and Private hospitals, what can and can’t be redacted from them, we received a file of redacted LADO stratergy notes when requested following a serious incident, (we appreciate it was partially to protect another child) we were excluded from the meetings on our son, when we received the notes they inaccurate with regard to another incident and we would like an amendment or covering letter to confirm this, our local authority safeguarding officer never rec’d a response to thepoints she raised with Norfolk County Council on this

    • These important questions are governed by the Data Protection Act 1998 (‘DPA’) and the Human Rights Act 1998 (‘HRA’). The DPA both provides the right to make ‘subject access requests’ to obtain all information about yourself (subject to very limited exceptions) and prohibits disclosure to you of personal information relating to others. Anyone unhappy about a public body’s lack of compliance with the DPA can contact the Information Commissioner’s Office, see http://ico.org.uk/
      Article 8 ECHR, made part of our law by the HRA, requires the state to respect our right to privacy, which again requires proportionate and careful disclosure of personal information.
      Child safeguarding procedures are set out in the Working Together to Safeguard Children guidance and adult safeguarding procedures in the No Secrets guidance, see links above for both. Anyone who feels aggrieved by a flawed safeguarding process should seek case-specific legal advice – sadly there are far too many cases where the proper procedures are not followed.

    • Patchy and inadequate. The greatest protection comes from the Human Rights Act 1998, which incorporates Articles 2, 3 and 8 of the European Convention on Human Rights into English law. Article 2 ECHR requires the state to respect individual’s right to life, which includes a positive obligation to address known risks to people’s lives. Similarly, Article 3 ECHR is a prohibition on inhuman and degrading treatment, which also requires the state to take steps to prevent such treatment being inflicted by third parties. Finally Article 8 ECHR requires respect for individuals’ private and family lives, which includes their physical and psychological integrity and ability to function socially. Under Article 8 the state can be required to take positive steps such as providing services and support to enable these rights to become real for people with significant additional needs.
      The current domestic adult safeguarding legislation is horribly patchy. Although the No Secrets guidance was reviewed in 2009, it was not reissued (unless I’ve missed something) so it is currently over 14 years old. The Care Act 2014 may make some improvements to this but I will wait until we have the final regulations and guidance before passing judgment. The children’s safeguarding scheme was in my view badly undermined when the previous detailed guidance was replaced with a slimmed down and far less prescriptive guidance document in Working Together to Safeguard Children 2013. Although some new duties were created in 2008 on Local Authorities towards children who are accommodated under health or education legislation, it is doubtful that these afford adequate scrutiny of the placements of these particularly vulnerable children. The practice guidance Safeguarding Disabled Children (see link above) says at 2.26 that ‘Disabled children are over represented in the population of looked after children. Annual statistics show that 10% of children looked after in England have a disability (for further details see section 4.15). When disabled children are placed away from home they are far more likely to be placed in residential care rather than family settings, which in turn increases their vulnerability. Many other disabled children attend residential schools or are placed in health settings but are not legally looked after by the local authority. This means that they do not have the statutory rights and protection afforded by being looked after by the local authority.’
      The inadequacy of the domestic scheme makes the protection offered by the HRA even more important in this area.

      • How do we get the Ministry of Justice on board with understanding people under restriction sections of MHA can be safely discharged to the community? They are really risk adverse?

  9. Has the Care Act changed the Needs criteria much from those that are currently in place? They look much the same to me, but the Autism charities seem to be saying otherwise.

    • New Care Bill is still in consultation and public can do posting comments on .gov sites, please do as they do read. As far as I know, and in regard to this changes every LA will have to have some obligation to provide some care, probably that would be just an assessment and that would be a national, meaning every LA in UK and Wales.

    • The headline change under the Care Act 2014 in relation to eligibility for adult social care is that all local authorities must set their criteria no higher than ‘substantial’. This means that the minority of authorities who are only meeting ‘critical’ needs will have to broaden their criteria – plainly a good thing. However as always the devil is in the detail and what the NAS are highlighting in their ‘Careless’ campaign is that the language of some of the criteria have changed, making it less likely that certain groups such as people with autism will fit them and be eligible for support. Everyone who is concerned about this should respond to the current consultation (see link above) and get involved in the NAS campaign at http://www.autism.org.uk/careless

  10. If PECS picture exchange communication system is my son’s voice, but the local authority sen dept claims it can’t enforce it ( despite it being an educational reasonable adjustment) in their sen schools might I be able to buy it in under EHC plan or is it educational tribunal route and European human rights court as human right to communicate by his methodology being denied? My son is five, all our family do PECS with him , I’m doing all qualifications in it. Thank you, sorry for convoluted phrasing.

    • the question would be if PECS are not available what would be then way of communication in the school , I guess its a SEND school and its very strange that this well known system is not recommended. I would involved a good mediator to start with “gentle” reminder what reasonable adjustment means.

    • There is a very strong emphasis throughout the legal scheme on ensuring effective communication for disabled children and young people. It is highly likely to be a reasonable adjustment, and therefore a legal duty under the Equality Act 2010, for schools to use the most effective communication method with a disabled child, for example PECS. There is a specific prohibition under the Equality Act on making disabled people and families pay for services which should be provided as a reasonable adjustment. Breaches of the Equality Act by schools are dealt with by the same Tribunal which hears SEN appeals. Also, if a communication method such as PECS is specified as educational provision in Part 3 of a child’s statement then it has to be provided free of charge and the remedy for a failure to provide it would be JR – for which legal aid is likely to be available.

  11. Hampshire CC have been “tasked with exploring” what their Short Breaks budget cuts from £2.8m to £1m would look like for 2015/6. Can they really do this to so many parents having built up a really good service over the past few years? The overall budget cuts across Hampshire are 12% why cut our budget by 67% compared to a cut of 12% for Highways. Yet again the most vulnerable will suffer. Any advice to fight challenge/fight them? Many thanks Gail Co-Chair Hampshire Parent Carer Network

    • The only suggestion could be to attend a consultation about LA budget or post comment about it on LA website. Also the explanation could be that voluntary sector in Local Offer will take on board some activities, but probably not that much.

    • Disproportionate cuts to disabled children’s services raise a number of legal issues, most obviously whether the local authority has complied with the public sector equality duty (PSED) in Equality Act 2010 s 149 – a duty which the courts have found to have been breached in numerous cuts cases. Essentially, the PSED requires public authorities to properly understand the impact of their proposals on groups with protected characteristics (most obviously here disability, but also age, gender and race amongst others) and take this impact carefully into account when the decision is taken. Compliance with the PSED may well require the public body to consult with those likely to be affected to gain a proper understanding of the impact – although this point has not yet been settled by the courts. The best summary of what the PSED requires is in the Court of Appeal’s judgment in the successful challenge to the first decision to close the Independent Living Fund, R (Bracking) v Secretary of State for Work and Pensions, see http://www.bailii.org/ew/cases/EWCA/Civ/2013/1345.html – in particular paras 24-26.
      Another very important issue is whether the public authority will be able to comply with its statutory duties to individual disabled people in the light of the proposed cuts. It is important to remember that short breaks are a statutory service – they can be required as a matter of legal duty under section 2 of the Chronically Sick and Disabled Persons Act 1970 – see http://www.legislation.gov.uk/ukpga/1970/44/section/2. If the local authority accepts that a break for a particular disabled child is necessary to meet his or her needs, they cannot limit the amount of short breaks provided simply by reference to their own resources. If they have cut their budget too far this is likely to put them in breach of their legal duties to that child and other children with similar levels of need.
      Hope these points help. I would strongly suggest parent groups concerned about cuts get early and specialist legal advice from one of the solicitors firms on my ‘Using the Law to Fight the Cuts’ paper linked above. Solicitors may be able to obtain legal aid to fund advisory work, or if not may offer the parent forum or other group a relatively reasonable fixed fee. Legal challenges to budgetary decisions are difficult and need to be brought very promptly, so the key is not to delay in seeking legal advice.

      • Thank you so much for your advice I will pursue the cost implications of getting further legal support.

  12. Following an annual review where bit school and parent agree that the placement should continue, can the LEA present the child’s statement to the SNAP panel without either the parent or the school being informed?

    • As far as I know (I am a member of parent-carer forum and actively involved in designing and implementations of new CoP) there should be an Independent Supporter guiding you for whole 20 weeks. Parents could also chose their own keyworking person but for sure and at least from the moment of assessment of EHC there will be a IS present.

    • Just for more info, the LEA want to move from specialist provision based solely on some academic progress, against parents wishes and against advice of the school.

    • Cath, your question raises a very important point about the role of funding panels. Generally the legal schemes are silent about these panels – their use isn’t allowed but neither is it prohibited. As such public bodies are probably allowed to use them so long as they comply with the ‘common law’ requirements – the common law being the body of case law built up by judges to reflect the standards of our society. One of the common law requirements is that public bodies must act fairly. I would suggest this means that any panel making a funding decision must be willing to hear submissions from all relevant parties, which would of course include parents and schools. Anyone who is unhappy about how a panel is operating in their case should (you’ve guessed it) get case specific advice.

  13. Another question from Zoe Thompson: There appears to be an alarming increase in allegations of fabricated and induced illness (FII) against parents. How can parents best use the law to challenge unfounded FII allegations?

    • I share your concerns Zoe. I know from my time at the NAS that FII is extremely rare. Also, a number of the signs of FII overlap with diagnostic indicators of autism. Of course abuse does happen but professionals must not jump to this conclusion without exploring all other potential causes. If a parent is faced with FII allegations they must get their own legal advice asap. The allegation is likely to lead to child protection proceedings and at a certain point this triggers non-means-tested legal aid. However parents may well wish to be proactive and get the allegation thrown out at an early stage, perhaps during the section 47 enquiries (the initial stage of a child protection investigation). This is likely to require a very strongly worded ‘letter before action’, the preliminary stage for a JR. Parents cannot be expected to deal with such stressful and emotive allegations without highly specialist legal support. There is however guidance on FII which concerned parents can consider as a first step: https://www.gov.uk/government/publications/safeguarding-children-in-whom-illness-is-fabricated-or-induced
      The guidance shows that there is a very specific prescribed process which local authorities must follow in these cases and any deviation from this process is likely to be unlawful.

  14. At annual review it is suggested child A would do better with a 1-1 and as a teacher they feel they are failing him, proposed statement comes back with nothing suggesting this, parent questions this with sen department to be told the special school never requested this however they will get no more money as they already get a top up of £17,000 on top of his £10,000 where does the parent stand now with challenging this, parent never asked for it in first place the special school suggested this and to hear from his teacher they feel he would do better with 1-1 due to his complex physical needs of not been able to do anything for himself now feel saddened and want 1-1 , parents already moved him from mainstream to special last year due to school failing him so to hear this again feels helpless, thanks

    • This is a complicated one! As a general point we all know that if provision is in a statement it has to be provided – and this will be the same under EHC Plans. So the primary objective should be to get the statement right, as any failure to provide what is in the statement can easily be challenged. Also, it is simply wrong to say that funding for a child with SEN is fixed to a particular amount. The duty on the local authority is to arrange the necessary educational provision in the statement, no matter what this costs. That’s why they fight Tribunals so hard.

  15. sorry forgot to add is it the school she would address it with or the LA to get it wrote in statement as she is been told you cant have 1-1 in special

  16. Our local authority say that Learning Difficulty Assessments have no legal status before or after 1 Sept 14 so they don’t need to schedule them for conversion and will only convert on request, and only if the pupil qualifies for high needs funding. Can this be challenged or will it take case law to resolve it?

  17. Given your early answers above Steve, can I ask what you think underpins the continued exclusion of families from decision making by public authorities/care providers? Incompetence? Ignorance? Wilful intent? An eye on budgets/easy life? Disinterest? Or other reasons?

    • A wild variety of reasons Sara. In my past 15 years as a campaigner and barrister I have formed the strong belief that people get into SEN and disability for the best of reasons but find themselves up against a system that drives conflict. The essential reason for that conflict is that there is a potentially limitless amount of need and a very limited amount of resources to meet that need. If those in charge of the system would be more honest about this we may get somewhere towards fixing the problem. On the specific point about failure to properly involve families I would guess this often stems from a combination of arrogance, ignorance and fear. I would also want to acknowledge though the pockets of outstanding practice that do exist, perhaps despite rather than because of the system. One of the disadvantages to being a barrister as opposed to working in policy and campaigning is that I don’t get to see enough of the good things going on – but I’m reliably informed they are out there.

      • Yep, that all makes sense. More honesty has to be the way forward and maybe social media will enable this through providing a platform for families to discuss, disclose and share experiences. Maybe eventually erasing arrogance, ignorance and fear? And a space to shout out about good practice nudging other areas to maybe in their shoes? I just feel that that there is a rock solid resistance among too many authorities to even begin to open up a bit. The fear/arrogance too potent a mix to shift.

      • Bit of a counsel of despair though to see it as limitless, expensive, needs. Does it really take such complicated edifices of “expertise” and provision to figure out some simple things that might make improvements? Agree that A LOT more honesty and more open dialogue with parents/carers wouldn’t be a bad place to start! Yes of course it can get very expensive, but where is that money being spent? Has the cart got before the horse a bit? What did Steven Neary need, and how much was spent trying to stop him getting it?

  18. How do we make our local authorities more transparent and accountable? Individual cases don’t always produce systemic change. Do you think more councillors need to be made aware when things go wrong? Do we need sanctions or a more proactive oversight body?

    • This is an excellent question Debbie. I agree individual cases, particularly Tribunal cases, are not usually ‘system changers’. However JRs really can be – a cracking example is the ‘Islington case’ (R (JL) v Islington LBC, see http://www.bailii.org/ew/cases/EWHC/Admin/2009/458.html. Prior to this case, every local authority operated eligibility criteria limiting disabled children’s access to social care service, and none of the ones I saw gave any respect to the different legal duties to provide social care services and what these duties required. Islington came a cropper in JL’s case and as a result pretty much every local authority reviewed their eligibility criteria. I’m not saying they are all now lawful (far from it…) but the judgment certainly changed practice.
      I absolutely agree that councillors are key, after all they are our elected representatives and given how low turnout is in local elections organising a local group of parents and families to campaign is highly likely to get their attention at election time. A more proactive oversight body wouldn’t go amiss either.

  19. Another question by email: Our local authority is introducing a new charging policy for school transport which involves everyone paying more than they do currently. There is a consultation about the policy – but there isn’t an option to say ‘don’t introduce the charges’. Can this be a fair consultation?

    • This one goes exactly to the forthcoming decision of the Supreme Court in Moseley v LB Haringey, which will define the requirements of a lawful consultation. However, what we do know already (from the old case of Coughlan) is that to be lawful a consultation must (1) take place at a formative stage in the decision making process, (2) run for sufficient time (how much time precisely is controversial), (3) provide consultees with sufficient information to make an intelligent response and (4) ensure the responses to the consultation are properly taken into account when the final decision is made. The question is cases such as the above (and Moseley) is how much consultees need to understand about the context to give a proper response – ie do they need to know whether there are other options than increasing the charges and be told something about why these options have been rejected? Follow me on twitter for the answer from the Supreme Court in due course…

  20. Thank you for your time Steve. What I would like to know is how one is able to ensure an LA appointed (and commissioned) advocate for a YP with SEN/D is actually providing ‘independent’ advice and support to the YP and acting in their best interests rather than within the ‘rules’ the LA operates under (often regardless of law)? Being told they ‘act on children’s rights’ does not seem adequate yet, if challenged by the family, it is very easy to be sidelined. Is there a way to ensure this without seeming confrontational or should families just wade in?

    • Good and difficult question – and one where I think the answer may lie more in the realms of policy and practice than law. Families are however entitled to evidence that an ‘independent’ advocate funded and appointed by the LA are acting independently – otherwise I would suggest that the absence of such evidence is sufficient grounds to ask for a new advocate to be appointed from a different source.

  21. With all the new legislation recently has the position regarding AAC equipment changed at all? Does a school by itself have a specific duty to provide communication aids to each and every pupil requiring it?

  22. hi parent has now come back and said , ” why the hell should it be me now that has to go through this tribunal” when it came from the school , can a school take a LA to tribunal ?

  23. The Govt are proposing a number of changes to Disabled Students Allowance. They seem to have implicitly ruled out an open public consultation – instead saying they are consulting with stakeholders (I.e. behind closed doors)

    My question is: Is this a lawful way of carrying out ‘consultation’?

    • I have not seen the Justice for LB bill text as none of the links appear to work – from what I have heard the bill is about making it harder for the state to place disabled people with learning difficulties into institutional care. My view is that the state should have NO POWER to force any disabled person regardless of capacity and ability into any form of segregated institution for disabled people. We need a bill that prevents the state from forcing disabled people into nursing homes, shared accommodation under the guide of supported living, assessment and treatment centres and special schools and special colleges… I do not think making it harder for the state to place a disabled person in an institution is the answer – as there is a presumption that some disabled people should not have the right to live independently in the community – not in line with the UNCPD – Article 19. Even if the numbers are small – it still puts all disabled peoples rights to live n their communities at risk – a good example is the SEN framework – I think the bill should include a clause preventing LAs from placing anyone into a segragated institution for disabled people alongside the incorperation of Article 19. I would also include article 24 as well as this article deals with inclusive education – even this roton Government included article 24 into the SEN COP after much lobbying by ALLFIE.

      • Do I assume that we can provide feedback and suggest changes – as the bill will be in easy read so that people with LDs can also have their say – right on I am happy to wait for everyone to get the same information at the same time. When is this likely to be made available?

      • Yes of course, that’s why we’re waiting. The process is outlined on the LB Bill site, we have plenty of time for feedback and really need it.

        We don’t have an exact date but hopefully in the next week or so. Best place to look is the LB Bill site.

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