Human Rights in SENDIASS: what difference can it make?

In the world of SENDIASS (special educational needs information, advice and support services) people are always looking for ways to best support children, parents and young people at what can be a very challenging time. Although the legislation and guidance that is mainly used in this area (the Children and Families Act, SEND Regulations, Equality Act etc.) is robust, holding local authorities accountable to the law can be a challenge; from a school policy, all the way up to the big decisions on Education Health and Care Plans (EHCPs).

This blog sets out how The Human Rights Act (HRA) can be used as an invaluable tool to ensure accountability at every level and get the best outcomes for people who use the service.

There is a lot of value in understanding and actively using human rights legislation, it empowers parents and young people when trying to secure the right support for them. Sometimes parents will raise that a decision that impacts their child feels like it is against their human rights, but don’t feel empowered enough to explain exactly why, don’t know they can raise it or don’t necessarily know how.

If you want to know more about the detail of human rights law, or want to know how to use human rights when raising issues – this blog series is for you.

When can the HRA be used?

The HRA puts a duty onto all public bodies to respect, protect and fulfil human rights in all decisions they make. Click here to find out more about the Human Rights Act and who has duties. It also puts this duty onto anyone else who is performing a public function.

Examples of people who are performing public functions in the SEND sphere include:

People who work for the local authority: EHC case workers, social workers, educational psychologists, speech and language therapists, the SEN team.
Local authority run schools.
Private specialist schools where places are funded by local authorities.

In SENDIASS it’s important to say that academies have been held to be duty bearers for other pieces of legislation - as yet there hasn’t been a legal case to confirm this position regarding the HRA, but it is highly likely to be the case. This means that the HRA can also be used to challenge academies, which can otherwise be very difficult as they are not beholden to a local authority and formal complaints process can be notoriously hard to access effectively.

This means that the HRA can be used at any and all stages of securing the SEND support that children and young people are entitled to. This can be particularly useful in the stages before a formal appeal to the SENDist tribunal, as it can bolster a case to the point where a local authority will see no point in continuing to refuse support than can be shown to be necessary. Having an additional piece of legislation to use as evidence of the local authorities' obligations in a case will always be useful and the same can be said for lending weight to any other form of formal or informal complaint.

How can the HRA be used to help in SENDIASS?

As explained above, the HRA is relevant in any decision made by a local authority. This means that every time a local authority decision needs to be challenged, be it an EHCP decision or a school policy, human rights legislation can be used. This can be particularly important when a child may not have an EHCP, and schools are refusing to provide appropriate support and parents are feeling stuck with what to do next. The following examples show how the HRA can support a parent or young person to challenge local authority or school decisions.

Using the Right to Private and Family Life, Home and Correspondence to take part in school activities

Read more about this right here.

Polly's story

A primary school teacher organises a series of class trips to museums around London. As well as complementing history and other lessons, the excursions are designed to introduce the children to educational activities in the city and to encourage bonding between students outside of the classroom. Polly, a student in the class, has global development delay and uses a wheelchair. She is transported to and from school in a specially adapted vehicle.

Polly is keen to participate, and her parents ask the local education authority in advance if they can arrange transport for her. An officer at the local education authority considers the request but discovers that there is a blanket policy against providing transport except on a ‘home to school’ basis. As a result, Polly is unable to participate in the series of excursions and instead spends the time alone in the school library. She feels dejected and isolated.

Article 8 covers the right to community involvement and the right to autonomy, although it is a non-absolute right (link here to explainer on that) it can only be restricted if the three-stage test is satisfied. Polly’s parents asked the local authority to show that it was lawful, legitimate and proportionate to prevent Polly from attending with the other children. Her parents argued that it was unlawful under s508B of the Education Act 1996, it is not legitimate because it was fundamentally unfair to Polly and it’s not proportionate because they did not consider any other options that Polly may have been able to take part in.

The LA realized that their policy was unlawful, apologized, and changed the policy itself to include wider transport options so that they could let Polly (and other children in similar circumstances) to attend school trips.

Practical things you can do

Read our resources on all rights protected under the Human Rights Act: All rights explained here.

Include any human rights concerns in formal complaints to schools or the local authority itself. As well as in any submissions to the SENDist Tribunal. We will have model letters available soon and include the link to those in our next blog.

Our blog series over the next few months (finishing in April 2024) is going to look at:

Brief introduction to the Human Rights Act and how it can be used, using Article 8 as an example. (this blog)
Article 3 with a focus on residential schools and very high care needs students.
Article 1 Protocol 1 focus – fiddle toys and other learning aid provision/access to phones.
Blanket policies in schools – uniforms and behaviour policies etc. also building on Blog 3 about phones.
School Transport.
A practical tool to use – a letter template for bring up human rights issues with public bodies.

You will be able to find all published blogs here: BIHR Blogs

Sign up to our mailing list here: Sign up!

Find out more about workshops for SENDIASS and LA practitioners: Click here for more info.