Logjam in the Employment Tribunal

Logjam in the Employment Tribunal

It is reasonable to assume that anyone who has recently come in contact with the First-tier Tribunal (Special Educational Needs and Disability) will be aware of the backlog which is routinely causing delays in getting cases heard.  These difficulties are being caused by a huge number of people seeking the assistance of the Tribunal.

But users of the Tribunal shouldn’t feel victimised because the Employment Tribunal is experiencing similar difficulties.

Claims to the Employment Tribunal have more than doubled in the last two years, latest official figures show. While the Ministry of Justice received 4,291 single claims from January to March 2017, it received 9,500 from January to March of this year. Although single claim receipts grew by just 6% compared with the same quarter last year, the outstanding caseload rose by 39% to 26,664. The mean age of claims at disposal also rose.

Another causal factor is the swingeing funding cut since 2010. This was all done when each Lord Chancellor since 2010 swore oath of office “to ensure the provision of resources for the efficient and effective support of the courts.”

We all wait and see what is going to happen next.

The LGO criticises LB Hackney for significant delays

The LGO criticises LB Hackney for significant delays

The Local Government and Social Care Ombudsman criticises LB Hackney for significant delays when completing plans for children with Special Educational Needs.

Reg 13(2) The Special Educational Needs and Disability Regulations 2014 requires that a local authority must send the finalised EHC plan to:-

(a) the child’s parent or to the young person;

(b) the governing body, proprietor or principal of any school, other institution or provider of relevant early years education named in the EHC plan; and

(c) to the responsible commissioning body,

as soon as practicable, and in any event within 20 weeks of the local authority receiving a request for an EHC needs assessment.

 When the EHC plan is issued, disagreements can be resolved by mediation or by the First-tier Tribunal (Special Educational Needs and Disability) standing in the place of the local authority.

The Ombudsman looked into two cases and found that in one case a boy with autism only received his plan after 69 weeks. In the second case, there was a 48-week delay in providing a plan for a young boy with Down’s syndrome.In both cases the boys’ families were found to have made significant efforts to ensure the council provided the services they were entitled to.

The Ombudsman made a number of specific (including financial compensation) recommendations in relation to the families concerned and also general recommendations designed to improve the relevant processes within the LB Hackney.

In our experience, while many local authorities adhere to the said timescales, this is not always the case. This case is a reminder that, when unnecessary delays are experienced in issuing an EHC plan, parents and young people should consider invoking the local authority’s official complaints procedure. 

Full details of the Ombudsman’s findings  can be found click here

Disability and Relates Issues

Disability and Relates Issues

Does the period in which an employer must take into account the protected characteristic of disability include the period after dismissal to the end of the appeal process? Yes, according to Baldeh v Churches Housing Association [2019] UKEAT 0290_18_1103 (11 March 2019)

In this case Mrs Baldeh worked as a support worker and issues were raised in relation to her performance – this all happened within her six-month probationary period. Specifically, “… several of your [Mrs Baldeh’s] colleagues have made comment about your [her] manner while at work”

At her appeal hearing, she told her employer that she was suffering from depression which could have influenced her behaviour towards her colleagues and also affected her short-term memory. Following the rejection of her appeal, she claimed discrimination arising from disability, under s. 15 The Equality Act 2010.

When her claim to the Employment Tribunal was unsuccessful, she appealed to the Employment Appeal Tribunal who, perhaps unsurprisingly, found in her favour. The Employment Tribunal’s judicial reasoning was found to be defective in a number of areas, all of which make the judgment an interesting read.

More broadly, this case makes the following clear:

  1. An employer must take into account the protected characteristic of disability up to the end of the appeal process. It is reasonable to apply this approach to children/ young persons who are having exclusions considered by a governing body or Independent Review Panel.
  2. 15 The Equality Act 2010, discrimination arising from disability, relates to unfavourable treatment because of something arising in consequence of a person’s disability. The Employment Appeal Tribunal were very clear that it was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment: the fact that there may have been other causes did not assist the employer. Again, this may be of assistance in exclusion cases.
  3. A defence in 15 The Equality Act 2010 cases is that the employer – or we could also say school – did not know, and could not reasonably have been expected to know, that the person treated unfavourably had the disability. That said, it would be reasonable to say that, if the question of disability was on the radar, is should not be ignored rather it should really be investigated further.

An example of a small case with significant ramifications.

School Related Anxiety

School Related Anxiety

Does the decision to ensure that a child or young person’s special educational needs be met otherwise than in a school, early year’s provision or post 16-institution have to take into account school-related anxiety? Yes, according to the decision in  M v Hertfordshire County Council [2019] UKUT 37 (AAC) HS/1237/2018

This case involved a child diagnosed with rumination disorder who had a patchy educational history due to previous placements breaking down because of the very real and debilitating effects of him having school-related anxiety.   The LA wanted him to attend a special school whilst his mother, Ms M, wanted them to arrange a home-based package of tuition. To resolve this, Ms M appealed to the SEND Tribunal who, in relation to Section I of her son’s EHCp, dismissed the appeal on the basis that, in their opinion, there was no: “evidence that [A] is medically unfit to attend school as there is no current opinion based on a proper assessment of him by a suitably qualified professional”.

She then sought the intervention of the Upper Tribunal and put forward a number of grounds of appeal, including that in deciding whether it would be inappropriate for A to be educated otherwise than at school (the section 61(2) Children and Families Act 2014 test), the Tribunal failed to take into account all the relevant circumstances as they were required to do by TM v London Borough of Hounslow [2009] (this case concerned the predecessor legislation and the Court of Appeal held that a tribunal is required to take into account all the circumstances in determining whether a child is to be educated otherwise than at school). As this had not happened in this case, hence the appeal succeeded. 

It is important to be clear that having school-related anxiety does not determine whether section 61(2) Children and Families Act 2014 is triggered, rather it must be considered along with all other relevant factors. It therefore follows that ignoring a relevant factor in such cases risks unlawfulness.

SEND Single Route of Redress National Trial

SEND Single Route of Redress National Trial

The single route of redress national trial extends the power of the special educational needs and disability (SEND) tribunal. This means that as part of a special educational appeal, the SEND tribunal will be able to make non-binding recommendations on the health and social care aspects of Education, Health and Care (EHC) plans.

The Trial’s recent newsletter was both interesting an informative.  To illustrate we are informed that: “Since the launch of the national trial on the 3rd April 2018 there have been 829 cases registered under the First-tier Tribunal’s extended powers” – this is certainly a lot more than were expected.

To better understand what the above appeals consist of, case summaries can be found here

Whilst it would be unwise to draw any firm conclusions, it would not be unreasonable to say that the Trial is providing a relatively straight forward way for parents and young people to move towards resolving deficiencies in both health and social care and this alone means that the Trial is adding value.

Anyone who would like more information about the Trial is encourage to contact the national trial help desk by email to: SENDdeliverysupport@mottmac.com or telephone to 0207 651 0308.

SEND National Crisis March across the country

SEND National Crisis March across the country

Anna Kennedy, OBE who is a campaigner for autism will speak at the SEND crisis national March, where she will be one of the representatives for London.

Anna Kennedy’s experience of speaking with parents on a daily basis through social media and through her autism charity AnnaKennedyOnline has led her to join and speak at the march.

This march is aimed at:

  • Parents and carers who are struggling and are frustrated with the SEND system currently in place.
  • Parents who do not believe that this current system is providing fair and equal accessibility for their children, as was promised.
  • Parents from across the country who feel that the current legislative framework surrounding SEND, is not fit for purpose and appears to be designed in such a way to avoid putting in place the required provisions to support their children receive an education to meet their needs.

Anna Kennedy is inviting you to share and sign Nadia Turks’s petition which will be handed into 10 Downing Street on 30th May.

https://www.change.org/p/secretary-of-state-for-education-rights-and-equality-for-young-people-with-additional-needs-in-education/psf/promote_or_share

 

This nationwide protest is being organised SEND Crisis to take place on 30th May. This march aims to highlight a range of SEND issues.

Poppy Rose and Sharon Pratt are at the helm of coordinating the event. They will be joining Anna Kennedy on her weekly live ‘All things Autism’ Women’s Radio Show on May 7th at 1pm

There are also planned marches across the UK on 30th May to raise awareness of failings to those with SEND, their families and education providers who are expected to provide an appropriate education on continuous budget cuts.

Everyone is invited – parents, carers , young people , school staff, among others – to support the march in London.

You are also invited to follow the SEND National Crisis Facebook Page.

There will also be guest speakers in London at 1pm outside of Parliament Square :

  • Siena Castellon
  • Alfie Scanlon
  • Emma Parker
  • Max Green
  • Kevin Courtney
  • Dean Beadle
  • Dr Carrie Grant
  • Dr Anna Kennedy, OBE
  • Tania Tirraoro

 

Siena Castellon one of Anna Kennedy’ s young charity Ambassadors shares:

‘We live in a society that neglects its children with SEND. Instead of supporting and nurturing SEND students so that they can fulfil their potential, our politicians have eviscerated their support services and created a climate that encourages and rewards schools that deny SEND students a place at their school and that exclude SEND students.

Click here to read the article by Nadia and Poppy last week who are organising parent-power marches to protest the lack of funding for SEND. It won’t be just parents taking to the streets. Young disabled people like myself are the ones suffering and we demand to be heard too!

Anna and Siena both share: ‘Together we can make our voices heard. Together we can all make a difference! ‘

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