A young boy with autism, and his family, were denied a parking bay outside their house by London Borough of Tower Hamlets, despite him receiving the highest rate of Disability Living Allowance for his mobility, the Local Government and Social Care Ombudsman has found.
After the Ombudsman found the council applied too rigid an approach when considering the family’s application, the council has agreed to create the bay for the family, review its parking bay policy for how it should take hidden disabilities into account and contact those refused a parking bay over the past year and tell them about the changes to its policy.
The boy, who is of primary school age, has a number of physical conditions and severe behavioural problems which mean that, although he is physically capable of walking, he sometimes refuses to walk and uses a wheelchair to get around.
When assessed for a blue badge parking permit, an assessor felt the boy’s needs were among the highest she had seen. Although he did not meet the physical criteria, the council awarded the family a blue badge on appeal.
The family told the council they needed a parking bay outside their house because of his medical conditions. He was unaware of dangers and would run out into the road. His behaviour meant he would have meltdowns and refuse to walk if he could not see the front door of his house when in the car or have a straight route to the car from his house. They also needed to be able to transport his special needs pushchair.
Despite this, the council did not properly consider the boy’s significant additional needs when it decided the family did not meet its criteria for a parking bay.
The Ombudsman’s investigation found the council at fault for not giving the family clear reasons when it initially denied the family a Blue Badge, or why it changed its decision. Had the council done so, the family could have used that information to support their parking bay application.
The Ombudsman also found the council did not consider properly whether to treat the family’s application as one of the exceptions allowed under its parking bay policy or whether it was right to apply the policy rigidly given the family’s circumstances.
Michael King, Local Government and Social Care Ombudsman, said:
“While the council needs to set criteria for considering whether someone is eligible for a parking bay, they should not be applied so rigidly as to deny a space to families such as this who have a very obvious and significant need.
“London Borough of Tower Hamlets has now agreed to create a parking bay for this family, but also amend its policy and write to other people who have been refused a parking bay to tell them of the changes.
“I hope this, and the other actions I have recommended, will ensure people’s applications will be considered more holistically in future.”
The Local Government and Social Care Ombudsman’s role is to remedy injustice and share learning from investigations to help improve public, and adult social care, services. In this case the council has agreed to install a parking bay outside the family’s home, and pay them £1,000 to reflect the significant distress caused by the delay in making this happen.
The Ombudsman has the power to make recommendations to improve processes for the wider public. In this case, the council has agreed to ensure officers are aware of the implications of an award of higher rate mobility Disability Living Allowance and that decisions relating to parking bay applications take into account both the exceptions in its policy and the council’s general discretion.
It will also ensure decision letters on both Blue Badge and parking bay applications contain sufficient information to enable the applicant to clearly understand the reasons for that decision.
The council will also review its parking bay policy, having regard to how it should take into account hidden disabilities. It will then write to those applicants who have been refused a parking bay over the past year and tell them about the changes to its policy.
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Given what parents and others have had to deal with during the pandemic, many people may have missed the Judgement in AD & Ors, R (On the Application Of) v London Borough of Hackney  EWCA Civ 518.
This was an appeal of a decision of a judicial review in respect of a policy of the LB Hackney to provide support for children who have special educational needs. Specifically, the challenge was to a policy to reduce one element of SEND funding by 5%.
The Appellants were children who have SEN and disabilities and attend mainstream schools in Hackney and therefore had the required standing to bring proceedings.
It all seemed to hinge around section 27 The Children and Families Act 2020 – specifically the statutory requirement to consult in relation to education and care provision and should this requirement be limited to only the strategic or “big stuff”.
The Court of appeal said it should be limited. Lord Justice Bean summarised the position as follows:
‘I do not consider that this modest reduction in one element of SEND funding was sufficient to trigger a strategic review under s 27(1)-(2) with the consequent requirement of widespread consultation under s 27(3)… I would leave for another day the issue of what level of major budget cuts or transformation of a local authority’s SEND provision would trigger a wider duty to consult either under s 27 or at common law.’
So, what does this mean? Simply that local authorities are not required to consult on all relevant budget cuts.
Whilst legal challenges like the one above were no doubt well intentioned, we do come back to the point that any allegations of SEND funding failures must be evidence based.
This, yet again, stresses the importance of ensuring that the contents of section F of an EHC plan be specified, quantified and detailed and parents and young persons should be motivated to ensure this is achieved.
When this is attained, a penetrating light is shone upon any Authority who fails to deliver.
The judgement in the above case can be found Click here for details
The Care Quality Commission (CQC), the independent regulator of health and social care in England, recently published their report on how the Mental Health Act (MHA) is being used. Click here for details
They found that detentions under the MHA continue to rise with 49,998 new detentions recorded for 2018/19.
There are concerns that human rights principles are not consistently being applied to the care and treatment of detained patients and more needs to be done to understand and address issues of inequality, especially for BAME groups. Astonishingly new statistics for detention show that Black or Black British people are still over four times higher than for White British people.
Community Treatment Orders – an order means that a person will have supervised treatment when they leave hospital and requiring them to follow conditions – continue to be significantly higher for Black/Black British people; 53.8 uses per 100,000 population compared to 6.4 uses per 100,000 population for White British people.
There is a lack of availability of beds both in the community and in hospitals. Coroners made the CQC aware of at least seven deaths of people who were assessed as requiring admission, but for whom no mental health bed was available. There is ongoing use of police cells as places of safety due to lack of beds.
There is continued improvement in the number of people being given information about their rights, which was evidenced via patient records:
- Good evidence of accessible and appropriate info in 91% of all records
- Initial discussion about rights in 87% of all records
- Repeated discussions about rights in 80% of all records.
But, there are still many people who don’t understand their legal rights as they’re not having meaningful discussions or being given information in a format they can understand.
94% of the wards visited were locked on the days of the CQC visit, including wards where patients may be admitted on an informal basis. The CQC raised concerns in 7% of visits about whether informal patients were free to leave the ward at will.
They stated that staff may be concerned about how safe it is to allow informal patients to move freely around the hospital grounds or to leave the hospital. As a result, they may be reluctant to fully explain their rights to them or feel like they must take a risk averse approach and use the section 5 holding powers under the MHA to stop the person leaving when they request to do so.
There are ongoing concerns about patients’ involvement in care planning. The CQC recommended that patient involvement was absent or needed to improve in 37% of care plans that they reviewed. 19% of care plans showed insufficient or no evidence that a person’s diverse needs were considered, and 17% showed insufficient or no evidence that the service had considered the minimum restriction on a patient’s liberty. In 11% of care plans there was no evidence of patient involvement at all.
The CQC also highlighted the complexity between the MHA, the Mental Capacity Act (MCA) and the Deprivation of Liberty Safeguards (DOLS) work. It highlights that it is very difficult for people to be clear on what safeguards and rights they have under each of these frameworks. It also calls for the laws to be updated and provide clear guidance on how they interact.
Clearly there is a huge amount of work to be done and many people with an ASD know only too well what it means when MHA is used infectively and without compassion.
It is hoped that the Mental Health Units (Use of Force) Act will come into force soon and it seems the Mental Health Admissions (Data) Bill is progressing. That said, parents and adults are encouraged to keep their representatives updated with regards to mental health failures and, of course, successes.
The Equality and Human Rights Commission (EHRC), an independent body that promotes equality and human rights in Great Britain, have just launched an inquiry into the use of restraint in schools.
Currently the law permits schools to use reasonable force, which includes physical restraint, when it is reasonable to do so:
- Prevent a pupil committing any offence,
- Prevent a pupil from causing personal injury to, or damage to the property of, any person (including the pupil himself), or
- To maintain good order
There is no legal duty on schools to record or report when they restrain pupils. There is also no duty to tell parents or caregivers when their child has been restrained.
This also means there is very limited data on how often restraint is being used in schools and the reasons behind it.
The EHRC’s inquiry will look into whether primary, secondary and special needs schools in England and Wales are collecting information on the use of restraint.
It will also look at how other institutions collect and use data, such as child and adolescent mental health units and young offender institutions, to explore if there is any learning from those approaches which could be applied to schools.
Click here to find details of the inquiry, it is important the EHRC are made aware of how children and young persons with ASD are affected by the current regimen.