Legal action launched against #SENDReview Consultation, over “misleading” disability discrimination Tribunal question

It’s all happening isn’t it? As Nadhim Zahawi scarpers to No11 (don’t let the door to Sanctuary Buildings hit you on the way out, love), the new (probably temporary) appointee, Michelle Donelan James “Cleverly”, will be welcomed by a Schools Bill in disarray, and a nasty letter about the SEND and Alternative Provision Green Paper newly landed on their desk.

UPDATE: For us, more importantly, Will Quince the SEND Minister, resigned over being given "false assurances" by No 10, has been reappointed to the Department for Education, with a promotion to full Minister. Read more about this here.

The letter comes in the form of a legal action being taken by the parent of a disabled 10-year-old boy against the SEND Review's Consultation, that she contests is unlawful.

The parent, from St Helens in the North-West of England, is represented by well-regarded specialist solicitors, Rook, Irwin, Sweeney, who last Friday, sent a pre-action protocol letter on her behalf to the Secretary of State for Education. The Letter before Action, the first step of a potential judicial review, claims that question seven of the consultation is misleading, inadequate, and therefore, unlawful.

What does Question 7 say?

7. Do you consider the current remedies available to the SEND Tribunal for disabled children who have been discriminated against by schools effective in putting children and young people’s education back on track? Please give a reason for your answer with examples, if possible. (Chapter 2)

You can see our ponder points and answer this question via SNJ's single answer forms here

The claim is that the consultation question or accompanying information fails to explain that the First-tier (SEND) Tribunal doesn't actually have the power to award damages as a remedy to successful claimants in the first place. The pre-action letter says the consultation doesn't give enough information about this for an informed response to be possible unless you already know this, and is therefore unlawful. They want an amended version to be published that's more explicit and the consultation to be extended, explaining that this is why.

We've been instructed by [our client] to challenge the lawfulness of the #SENDreview consultation. The consultation seeks views on the effectiveness of Tribunal remedies in disability discrimination claims, but doesn’t explain the Tribunal can’t award damages.

Many people (like our client) don’t bring claims because of this. We’ve asked SoS for Education @nadhimzahawi to respond to our pre-action letter by 14 July to publish information making this clear and to extend the consultation period. Will update further once response received.

Originally tweeted by Rook Irwin Sweeney (@ris_law) on July 5, 2022.

RIS tweet, text above

While we can't say how likely it is that this potential judicial review will succeed, below, the parent explains for SNJ why she decided to take action...

Why I had no choice but to launch a legal action — parent carer

SEND and accountability, not words that go hand in hand in the minds of parents and carers of children with disabilities. The SEND Review does little to address the lack of accountability. More specifically it does nothing to tackle the lack of financial redress available to parents when they successfully bring a claim of disability discrimination to the First Tier (SEND) Tribunal.

Question 7 of the consultation says: Do you consider the current remedies available to the SEND Tribunal for disabled children who have been discriminated against by schools effective in putting children and young people’s education back on track?”

The consultation does not make it clear that Tribunals are unable to award financial damages. This is unacceptable and misleading. The consultation seeks views on the effectiveness of Tribunal remedies in disability discrimination claims but doesn’t explain that Tribunal cannot award damages. Because I have benefitted from legal advice, it was clear to me that the consultation omitted this important fact, and this is unfair and misleading. People replying to the consultation will not be aware and will be unable to properly respond to the question about the adequateness of remedies and what remedies the Tribunal can and cannot make.

I have instructed James Betts and Jennifer Wright of Rook Irwin Sweeney to challenge the lawfulness of the SEND review consultation. A letter of claim for judicial review has been sent and a response is due by Friday 15 July. It is my hope that the Secretary of State for Education will publish information to properly explain the point and will extend the date for replying in order to give people time to respond. If this is not done I am very concerned that the consultation will fail to pick up people’s views on this issue.

Why is this important to me?

I imagine that my experience of the SEND system is as harrowing as yours. My son started school five years ago. In that time I have spent over £38,000 in legal fees just to secure the provision that he is entitled to in light of his disabilities and special educational needs. My son has an EHCP and attends a mainstream school. I had to give up a successful career to become his carer, causing financial loss to my family.

I have made successful claims through the Local Government and Social Care Ombudsman (LGSCO) route, as well as findings from the SEND Tribunal and Parliamentary and Health Service Ombudsman (PHSO) that decision-makers have acted inappropriately towards my son. Despite this, I have been unable to seek compensatory damages for the failings that have been identified to date. I have been left substantively out-of-pocket, even when I have received countless (meaningless) apologies and admissions of wrongdoing.

Naturally, my local authority initially rejected my application for an EHC Needs Assessment for my son. Eventually, following mediation, a wholly inadequate plan was drafted. This was the start of many legal battles.

How I became empowered to act

I have experienced a number of historic difficulties with my son’s school. The school wrote to the local authority (LA) repeatedly in 2020 advising they could not meet his needs, despite the provision in his EHCP clearly being that which can be provided in a mainstream placement. I instructed solicitors over the contents of his EHC Plan, reminding the LA of the presumption in favour of parental preference in respect of school choice. This led to the successful resolution of these issues. Since then, I've had to complain to the LGSCO regarding the LA's conduct.

I may wish to bring a disability discrimination claim against my son’s school in the future. However, one of the reasons I haven't done this yet has been the inability of the SEND Tribunal to award damages should I be successful. This is in stark contrast to other courts and Tribunals at the same level that have the power to award damages as remedies for other types of discrimination claims. Once again, disabled children are treated as “less”.

Not many parents have the financial and emotional resilience to continue to fight as I have had to. I don't see how the SEND review brings me any hope that my future will be any easier.

I have a message for the Nadhim Zahawi: no matter how many bureaucratic hurdles you make parents/carers jump through, we won’t give up, we won’t be quiet, and we will continue to demand accountability. The views of parents and carers have long been marginalised. We are forced into a system that is underfunded and where there is a complete lack of accountability. Even when you win it is a loss, because of the financial and emotional toll. I am bringing this claim to ensure that people’s views about the system and proposed changes are accurately recorded. Unless people are provided with all the information they need to provide an informed response that will simply not be possible.  

Statement from Rook Irwin Sweeney

‘Our client is bringing this claim as she is considers it vital the consultation gives people the information they need to respond with their views. We are often contacted by clients who feel discrimination has taken place at school and are contemplating bringing a disability discrimination  claim. In many cases they decide not to after learning that the Tribunal has no power to award damages. This is an important issue that goes to the route of accountability in the SEND system.

In order to be a fair consultation it is vital that those that wish to take part are provided with all the information they need to answer the questions asked. It is therefore a major concern that at no point in the consultation itself, or indeed the accompanying notes, is it explained that the Tribunal has no power to award damages as a remedy.

We sincerely hope the Secretary of State takes into account the concerns raised on behalf of our client and agrees to publish information that makes the situation clear and then extends the timescales to provide people that wish to with an opportunity to respond’. 

James Betts, Rook Irwin Sweeney

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Tania Tirraoro

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