Steve Broach, Public Law Barrister on the Coronavirus Bill’s implications for disabled children

Steve Broach, Public Law Barrister on the Coronavirus Bill's implications for disabled children

Tania's note: Further to our post earlier today about Coronavirus and disabled children, the Government has today published its emergency Coronavirus Bill. The bill has sweeping measures aimed at enabling the country to respond to the crisis to every aspect of people's lives caused by caused by COVID-19.

The Bill contains several measures impacting on existing legislation protecting disabled children, and also on The Care Act 2014. They have given public law Barrister Steve Broach much cause for concern about the removal of disabled children's rights. Steve has recorded a vlog and you can see it below, and on our YouTube channel, thank you to Matt Keer who has added subtitles for us. The full transcript for the video can be found at the end of the post, with thanks to Marie Fitzgerald for volunteering the time to do this for us.

Full Transcript: Steve Broach: Public Law Barrister on the Coronavirus Bill’s implications for disabled children

"Hi everyone. This is Steve Broach. I’m a Barrister who specialises in the law affecting disabled children and young people and those with special educational needs. I’m making this video for Special Needs Jungle - to look at the implications of the new Coronavirus Bill that’s been published today - to deal with the current public health emergency and what it means for disabled children and young people and those with special educational needs and those around them.

Now the first thing I should do is give a health warning because the Bill is brand new. I’ve only just been able to finish looking at the Bill and its explanatory notes, and so I can’t guarantee that everything I’m saying now is going to be complete and accurate.

But it’s an immediate reaction to what seems to me to be the key issues in the Bill and secondly, just to stress, it is only a Bill at the moment. It’s not yet law. There is an opportunity for it to be amended as it goes through Parliament. Albeit that of course it will go through very quickly, and the Government has a very significant majority, so we can expect at least the most of what’s in it to remain.

There are three key areas that I want to look at for the video this evening. First of all what the Bill says about Adult Care and Support. Secondly, what it says about the scheme in relation to special educational needs itself and thirdly, briefly, look at the implications of the Bill for the Mental Health Act.

So in terms of Adult Care and Support, this is definitely the area that I found the most striking and in many ways the most shocking. Looking at the Bill, because in essence what it does is suspend or disapply all of the key provisions of the Care Act 2014, and in particular the duty to meet eligible needs for disabled people in Section 18 and their Carers in Section 20. It also disapplies most of the Transition provisions for young people moving into Adult Social Care.

Instead of having these duties, Local Authorities will have a power to do all these things and a duty to provide services where it’s necessary to avoid a breach of a person’s convention rights. So they’re the rights under the European Convention on Human Rights.

The difficulty with that is that the cases so far show that the threshold for where there’s going to be a breach of someone’s human rights, in not providing them with care and support is pretty high.

We may find that disabled people are being left without care and support - in a situation which has a significant impact on their wellbeing. But where there is not a breach of their human rights, there is no requirement to provide them with care and support when the Bill goes through. That’s the first major area of concern.

The second area of concern is what the Bill says about the special educational needs scheme. Now in Schedule 16 to the Bill, there are some powers for the Secretary of State to vary or disapply or modify some of the statutory provision.

So for example in terms of a disapplying, the Sectary of State will have the power to disapply Section 43 of the Children and Families Act. This is the duty on schools and other institutions to name - to admit a child, where they are named in a child’s EHC Plan or a college for a young person.

This could go if the Secretary of State makes the relevant order. Equally the Sectary of State can also vary various provisions of the Act. So if we think about the some of the key provisions that the Secretary of State may be able to vary in Section 42, which is the core duty to secure special educational provision and health care provision in accordance with an EHC Plan.

The Secretary of State can change that duty so that instead of being an absolute duty, it becomes a reasonable endeavours duty. So the Local Authority or the Clinical Commissioning Group will merely have to show their views of reasonable endeavours to discharge the duty, which clearly creates a much lesser entitlement for the period of time that this legislation remains in force - which appears to be up to two years.

So then the third area of concern is what the Bill says about the Mental Health Act and there are various changes to streamline the operation of the Act. In particular, allowing people to be detained on the authority of only one doctor rather than two.

So in essence, it will make it easier for people to be detained under the Mental Health Act and I suppose my big question in relation to all of these proposed changes is, are they strictly necessary? Are they a proportionate response to the challenges that are created by Coronavirus and by the current Public Health emergency? It’s not immediately obvious to me.

For example, that in order to respond effectively to the outbreak of Coronavirus, we need to remove disabled people’s entitlement to adult social care? It’s not immediately obvious to me that we need to turn an absolute duty to meet disabled children and young people’s educational and health needs into a reasonable endeavours duty? This is a far lower form of duty.

I do hope that MPs and peers who are scrutinising the Bill - while of course, they will recognise the need to support the Government to respond effectively to the current situation - do ask these questions, and do ensure that any of these powers that are given to the Secretary of State or any dis-application of the current law, is strictly necessary.

Because what we are talking about here is eroding the hard-fought-for rights of disabled children and young people, children young people with special educational needs and their families and that’s not something we should take lightly.

I hope this has been a helpful summary of some of the key issues coming out of the Bill. I will be tweeting as usual about these issues as often as I can and most of all I hope that you and your families stay safe at this very difficult time."

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