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A zero sum game?

The number of SEND tribunal cases is rising and the proportion of appeals ‘lost’ by local authorities is at a record high. Lottie Winson talks to education lawyers to understand the reasons why, and sets out the results of Local Government Lawyer’s exclusive survey.

Crowdfunding appeal launched for judicial review on use of restraint in schools

A group of parents of children with learning disabilities have launched a crowdfunding appeal to pay for lawyers to advise on whether there are grounds to bring a judicial review challenging the Education Secretary’s alleged failure to ensure there are adequate safeguards around the use of restraint on children in schools in England and Wales.

The three families behind the appeal via Crowd Justice are lobbying for the introduction of a clear legal framework and robust guidance, saying that disabled children were “being hurt every day” because there were no clear rules in force.

They said that the primary issues are:

  • The failure to ensure that interferences with children’s Article 8 rights are ‘in accordance with the law’ and therefore justified;
  • A breach of Article 14 of the European Convention of Human Rights, on the basis that (a) children are treated differently than adults in this regard (there is a clear legal / policy framework for adults) and (b) the absence of an effective framework for children indirectly discriminates against disabled children by comparison with their typically developing peers. The families believe this amounts to both age and disability discrimination.

Law firm Irwin Mitchell, which has been approached to advise on the judicial review claim, said: “At the moment, the vague and inadequate nature of the government’s ‘Advice’ to schools means they are left to use whatever measures they wish to manage what they consider to be ‘challenging behaviour’, the parents believe.”

One of the parents told the firm that her daughter, who had self-harmed, was restrained 81 times during a year. Another parent said her son was physically restrained 30 times in three months, resulting in bruising on his ankles, face and back. Both children had special educational needs.

The families behind the crowd funding believe the new law regulating the use of restraint should cover other restrictive practices such as seclusion in schools.

The families are looking to raise £7,000.