Challenging cuts part trois

We moved house on 17^th December – what a damn fool time to move!!  Not that you really have any control over that but suffice it to say we had a somewhat chaotic Christmas.  Hope you all had festive frolicks and are enjoying the yuletide break.

Ok so we’ve looked at legal duties and best interests (part 1); consultation and human rights (part 2); now we turn our attention in part 3 to the disability equality duty and a conclusion to the feature.

Disability equality duty

The disability equality duty is a duty on public bodies to have ‘due regard’ to a number of specified needs, including the need to promote equality of opportunity for disabled children. The duty applies to all decisions by public bodies, including those in relation to individual cases; see Pieretti v Enfield [2010] EWCA Civ 1104. So when (for example) a local authority is deciding what level of service it should provide to an individual disabled child it must consider the need to promote that child’s equality of opportunity compared with other children.

However, the disability equality duty also applies when high-level decisions are taken about the nature and shape of services. In discussions about the future of services to be provided to disabled people, public bodies need to be able to show that they have had the disability equality duty in mind at all relevant times. If they cannot, it is likely that, if challenged, the High Court will quash any decision taken and require it to be taken again with due regard to the duty.

It is important to understand that the disability equality duty does not require the public body to achieve equality of opportunity for disabled people – just to pay due regard to this need when reaching its decisions. However, it may be extremely difficult for a public body which is proposing a substantial cut to services which are valued by disabled children and/or disabled adults to show how it has had ‘due regard’ to the duty.

An important issue is when precisely in a decision-making process must a public body have regard to the disability equality duty. The Southall Black Sisters case (R (Kaur and another) v Ealing LBC [2008] EWHC 2062 (Admin)) shows that equality duties must be considered when proposals are drawn up. It is therefore unlikely to be good enough for a public body to commit to doing a disability equality impact assessment after a consultation – even if before the actual decision is taken.

The disability equality duty can be enforced on an application for judicial review by any disabled person or their family if they are potentially affected by the decision. The remedy will be to quash any decision taken without due regard to the duty and an order requiring it to be retaken lawfully.

Conclusion

The general duties set out in this article all have a role to play in challenges to cuts to services which benefit disabled children and/or disabled adults. Underpinning all of them is a requirement under domestic law and international law that disabled children and their families should be supported to live ‘ordinary lives’. Respect for the human dignity of disabled children and disabled adults is nothing less than what the law requires. Disabled people, families, local groups and their lawyers and advisers have the legal tools to ensure that, even in a time of intense pressure on public finances, the legal rights of disabled people and their families are respected.

Don't forget - if you need to challenge a social care decision through the courts in England and Wales, it is possible to bring the challenge in the name of the child or adult with autism.  An adult who is on benefits and children who are of course minors are likely to be eligible for legal aid. 

Unfortunately, the same does not hold for challenges to education :(  I guess the system would be inundated with requests for legal aid if it did.  If you need to challenge an education decision, these guys http://www.maxwellgillott.com/ are a good starting point.

Steve Broach practices at Doughty Street Chambers and also writes for the publication Autism Eye.  He can be contacted at s.broach@doughtystreet.co.uk Please put NNNJ in the subject line for any enquiries to him.

Best wishes to everyone for the New Year.

Challenging cuts part deux

Hellooooooooo again.  Here is part two of ‘How the law can be used to fight cuts to services for disabled people.’  Part one looked at introduction, legal duties and best interests.  Part 2 will cover consultation and human rights followed closely by part three on the disability equality duty and conclusion.  Over to Steve (in black type).

Consultation

Whether or not there is a duty to consult, once a public body decides to consult it has to do so properly. This essential starting point was made clear in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 (Coughlan). In other words, whether consultation is a duty or a choice, once launched the standard and quality of the consultation has to be the same.

Even if there is no specific duty to consult on a particular issue, disabled people’s organisations, parents’ forums and other local groups may well have a legitimate expectation that there will be consultation about changes to important services. The recent Building Schools for the Future case provides an example of a failure to consult at all amounting to an ‘abuse of power’; R (Luton BC and others) v Secretary of State for Education [2011] EWHC 217 (Admin). Once consultation begins, Coughlan makes clear that four things must be in place to make it lawful:

1) Public bodies must consult in good time – so that responses to the consultation can still genuinely be taken into account before the final decision is made;

2) There must be enough information so that people responding to the consultation understand the proposals and can make an informed response;

3) There must be enough time for responses. Whether ‘enough’ time has been given will be judged by the court, if the consultation is challenged, on the facts of the individual case. However, for example, a very short consultation over a school holiday period in relation to a service used by disabled children is unlikely to be ‘enough’ time;

4) There must be genuine consideration of the responses – not just ‘lip service’ paid to them.

If a particular consultation does not match these requirements, any child, adult or family potentially affected by the proposed changes can bring an application for judicial review to challenge the consultation. If the court agrees that the consultation is unlawful then the court will quash it and make the public body consult again – and do it properly the next time.

Human rights

The most important human rights in the context of cuts to services are those protected under article 8 of the European Convention on Human Rights, incorporated into English law through the Human Rights Act 1998. Article 8 requires respect for two distinct but linked rights, the right to family life and the right to private life. The right to family life is simpler to understand; respect for all types of family is required, but the right to private life is particularly important for disabled people.

Private life includes a person’s ability to function socially (R (Razgar) v Home Secretary [2004] 2 AC 368, speech of Lord Bingham) and a person’s ‘physical and psychological integrity’ (Pretty v UK (2002) 35 EHRR 1). In effect, this means that disabled people have a right under article 8 to services and support to enable their personalities to develop and for them to function socially.

Article 8 requires the state not to ‘interfere’ with a person’s right to respect for family and private life unless that interference is ‘in accordance with the law’ and ‘necessary in a democratic society’, which means proportionate (see below). Any decision to cut or withdraw services that support a disabled person’s ability to function socially and/or their psychological integrity is an ‘interference’ with that person’s article 8 rights. For this ‘interference’ not to breach article 8 and be unlawful it must meet these two requirements. To reiterate, any cut to a service to disabled people will breach article 8 unless it is (i) in accordance with the law and (ii) proportionate.

For the purposes of article 8, the ‘law’ includes not just legislation but (for example) statutory guidance. This means that a breach of (for example) the Framework for the Assessment of Children In Need and Their Families, which requires disabled children to be assessed and provided with sufficient services to secure their well-being, is likely to result in an unlawful interference with a child’s article 8 ECHR rights.

Even if all the relevant ‘law’ has been complied with, the final test under article 8 is whether the decision is proportionate (‘necessary in a democratic society’). The key judgment here is the speech of Lord Bingham in an immigration case, Huang v Home Secretary [2007] 2 AC 167. Lord Bingham emphasised that for a decision to be proportionate it must be no more than necessary to accomplish the objective. So in the context of cuts, if other less drastic steps could be taken to achieve the necessary savings then the decision cannot be proportionate and therefore the proposed cut would breach article 8. Furthermore, Lord Bingham added in Huang that the ‘overriding requirement’ of proportionality was ‘the need to balance the interests of society with those of individuals and groups’. The ultimate question under article 8 in any cuts case therefore is whether the wider economic interest justifies the decision to withdraw or reduce services to vulnerable people.

What about a situation where a disabled child or adult is not yet receiving services? There may then be a ‘positive’ obligation under article 8 for a public body to show respect for the person’s right to family and/or private life through providing services. This is particularly so for children if such action would ‘enable family life to continue’ (Anufrijeva v Southwark LBC [2004] QB 1124, judgment of Lord Woolf).

Bringing a challenge under article 8 requires a person to be an actual or potential ‘victim’ of a violation of their rights; section 7(1) of the Human Rights Act 1998. This is not supposed to be a high hurdle and any child or family who are or may be directly affected by cuts would be able to bring such a challenge.

I know it’s a bit dry – but worth knowing about so parents and people with autism (in England and Wales) can see what their legal position might be in the event that they have to challenge a decision on cuts to services.  A friend of mine who runs a support group is finding that more and more adults with autism are coming to him for advice when their Direct Payments have been cut.  Local authorities have been trying to change the assessment criteria for social care services – proposing to help people in the ‘critical’ category but withdraw services from those in the ‘substantial’ category. In Kirklees, a neighbouring authority to me, a legal challenge was brought on behalf of three residents (two with autism), following poor consultation (as outlined above).  The Council settled the matter (by reinstating services to those meeting the ‘substantial’ criteria) before the matter went to court.

Because the people who brought the challenge were vulnerable adults receiving state benefits, they were eligible for legal aid, so the challenge didn’t have a financial cost to the family.  Worth remembering!!

Challenging cuts to services: using the law

Steve Broach is a barrister at Doughty Street Chambers. Before coming to the bar, he was campaign manager for the Every Disabled Child Matters campaign. He previously worked for the National Autistic Society and TreeHouse, the national charity for autism education (now called Ambitious About Autism).  On top of all that, he is a totally fantastic chap and a real autism and disability hero, who most definitely has his underpants on over his trousers ;-)

I am reproducing here an article he wrote in the UK’s Law Society Gazette, entitled ‘How the law can be used to fight cuts to services for disabled people’.  The piece is long, so will be covered over 3 blogposts.  It will look at: introduction, legal duties and best interests (part 1); consultation and human rights (part 2); disability equality duty and conclusion (part 3).

Introduction

Disabled children and disabled adults need significant support from public bodies to help them lead ordinary lives. These groups require both specialist and targeted services and flexible universal services which can be adapted to their needs.

The past decade has seen services for disabled children and disabled adults improve, albeit patchily, under a focused programme of investment. A key example of this is the Aiming High for Disabled Children programme, which led to over £800m being spent on improving disabled children’s services during the last spending review period.  However, it is precisely because of these large sums that disabled children and disabled adults are likely to be hit hardest by the coming cuts to public services.

This was made clear at last week’s National Autistic Society professional conference in Manchester, where hundreds of delegates from all over the country expressed serious concern about the future of services for children and adults with autism, from specialist education services to services helping adults with autism to enter employment.

I am concerned here with some of the general legal obligations which may be used by disabled children, disabled adults and their advocates to resist spending cuts. And it should also be remembered that where a duty arises to provide a service to an individual, compliance with this duty is likely to be necessary regardless of whether there is sufficient money in the budget. Decisions by public bodies that run contrary to their statutory duties, for example to slice a fixed percentage off the allocation of personal budgets in adult social care, are highly likely to be overturned by the High Court.

Legal duties

There are four key duties that can assist in fighting proposed cuts to services for disabled children and disabled adults:

      1.  The duty to ensure that children’s best interests are a ‘primary consideration’ in decisions affecting them and that public bodies carry out their functions having regard to the need to safeguard and promote children’s welfare;

      2. The duty, if consulting on a proposed change to a service, to do it properly;

      3. The duty to respect disabled children and disabled adults’ human rights, particularly their right to family and private life; and

      4. Section 49A of the general disability equality duty in the Disability Discrimination Act 1995, to be replaced from 1 April by the public sector equality duty under section 149 of the Equality Act 2010.

Best interests

One of the central obligations under the UN Convention on the Rights of the Child (Article 3) is that in decisions affecting children, their best interests should be a ‘primary consideration’. In ZH (Tanzania) [2011] UKSC 4, a case involving the proposed deportation of a mother to Tanzania when her children were British citizens, Baroness Hale stated that while all other considerations could outweigh a child’s best interests, ‘the important thing…is to consider those best interests first’.

In the context of cuts to disabled children’s services, the ‘best interests’ duty requires the impact of the decision upon them to have been the first consideration in the minds of the decision-makers. Any decision to cut services without children’s best interests being a primary consideration is therefore potentially unlawful. The requirement to act in children’s best interests could be enforced in the courts by the child, their parent or another person close to the child.

A key route under which the courts can consider whether proper regard has been had to disabled children’s best interests is through section 11 of the Children Act 2004, which requires public bodies to have regard to the need to safeguard and promote the welfare of children in carrying out their functions. Public bodies are not required to actually safeguard and promote children’s welfare under this duty, but they must consider this issue when reaching their decisions. Any decision to cut or withdraw a valued service to disabled children which does not see an alternative service put in place may be open to challenge under this duty on an application for judicial review.

Please stay tuned for part 2 on 'consultation' (i.e. a public body's duty to consult properly over proposed changes to services) and 'human rights'.  If you'd like to receive a notification email when the next blogpost is posted, please enter your email address in the 'follow by email' box (top right).

Advice on special educational needs

Another guest blogpost - this time from the organisation Independent Parental Special Education Advice (IPSEA) with some fab information about what IPSEA does and how they can help families of children with Special Educational Needs.

Independent Parental Special Education Advice – known as IPSEA

I asked Jane McConnell, Chief Executive of IPSEA, to tell us about their work. Jane became an IPSEA volunteer 10 years ago.  She has been a paid IPSEA staff member for the last 7 years.  She has a 12 year old son with complex SEN.  Jane has overcome several substantial hurdles to get the right education for him.  She has firsthand experience of what thousands of parents have to go through. 

What is IPSEA?

IPSEA is a registered charity providing free and independent legally based advice for parents whose children have SEN / disability. We have been supporting parents since 1983. IPSEA covers England and Wales. We use highly trained volunteers to deliver all our advice and support. We offer more support to the most disadvantaged families. A small team of paid part time staff co-ordinate and train our volunteers.

What does IPSEA do?

IPSEA advises families whose children have all types of SEN / disability, including behavioural problems, communication difficulties, learning disabilities and autism. IPSEA often helps families before their child has even been diagnosed. IPSEA’s legally based advice gives parents the confidence to exercise their rights. This basic understanding of the law equips families to be more involved in the decisions that affect them and helps them to avoid future issues. IPSEA helps around 3,000 families each year - thanks to our dedicated volunteers and supporters.

How can IPSEA help me?

IPSEA offers parents the following free services:

·        Website with over 80 resources

·        Free phone Advice Line for parents who are in negotiations with their local authorities, but not in a Tribunal situation

·        Local rate Tribunal Helpline advising parents who are taking a case to the Special Educational Needs and Disability (SEND) Tribunal

·        Tribunal casework support for those who need extra help

·        Monthly walk-in advice clinic in Saffron Walden

·        IPSEA on facebook and Twitter

Common problems

Many simpler and common issues with the SEN system can be resolved with the help of IPSEA’s on-line resources:

·        Understanding SEN jargon

·        Common problems when your child has SEN but no statement (cases 1-11)

·        Asking for a Statutory Assessment and getting the provision in place

·        How to handle a refusal to assess

·        Difficulties during the assessment (cases 12-15)

·        Issues that arise when you receive the proposed statement (cases 17-26)

·        Getting the final statement right (cases 27-30)

·        Common problems when your child has a statement (cases 31-40)

·        Appealing to get the secondary school you want  

·        Exclusion fact sheets

·        Home/school transport

What parents say about IPSEA

Our website has quotes from parents we have helped. We survey the parents that have used our services to ask them for feedback. Their feedback helps us improve our services and secure the funding we need to keep them going.

Using parents’ experiences to influence change

IPSEA gathers evidence and uses it to lobby for changes to current legislation. We also attempt to correct the practices of local authorities whose policies are not in line with legislation. 

1,039 people took part in our SEN Green Paper survey.  796 of them were parents of a child with SEN.  They agree with IPSEA's strong belief that parents' views need to be listened to and respected by the professionals responsible for assessing and educating their children.  Without this basic respect, mistrust builds up.  This can have a detrimental effect throughout the child's education. 

IPSEA works constructively with the government. We were particularly pleased that the new administration activated the right of parents to make an appeal to the SEND Tribunal if their child’s Statement did not reflect the needs of the child.

We gave evidence to the parliamentary education committee on the SEN Green Paper. We also successfully campaigned to protect legal aid for SEN appeals.

Keeping IPSEA going

It costs IPSEA around £30 to provide telephone advice to a family and around £300 to provide a tribunal caseworker. We appreciate all the donations we receive. You can donate using PayPal or debit/credit cards. You can also set up regular donations.     

IPSEA is always looking for more volunteers. You need to complete our training first. This training is very thorough so we ask you to commit to actively volunteering with us for at least 2 years.  "I enjoy the feeling of empowering parents - talking them through their problem and sending them off with a clear plan of action" says one of our experienced volunteers. 

And back to me - what a really extensive range of services :)  I wish us parents of special needs kids didn’t need to use them….but great to know IPSEA has got your back when you do.  Thanks for a really informative, helpful guest post.