Human Rights and SENDIASS: How to Raise a Human Rights Issue

The Human Rights Act puts a legal duty on all public authorities and officials to respect, protect and fulfil human rights across all their actions. This means that all staff working for a public authority will have human rights duties to everyone they interact with.

Public authorities are divided into two categories:

Core public authorities, who are clearly acting on behalf of the state. These include the NHS, local authorities, the police and social services.

who provides a service normally provided by the state or have been commissioned to do so. People like agency care staff, local authority funded private assessments and probably academies.

You can read more formally about who is a public body and what their duties are here.

The public officials most involved with SEND support include:

• Local authority-maintained schools (and private schools if they are providing education that is paid for by the local authority). There has not yet been a legal case to show that academies have human rights duties but the Department for Education has said they are "highly likely to be considered hybrid public authorities for the purposes of section 6 of the Human Rights Act 1998".
• Local authority team responsible for EHCPs, including caseworkers and their managers
• Local authority transport team
• Social workers and others carrying out state provided assessments

If your concern involves any public authority or official, then you can raise a human rights concern with them.

To effectively address a human rights issue, it can be helpful to approach it in several stages of formality. Here we will set out a list and then explain each step as we go, with templates where useful.

1. Record detailed information
2. Raise informally with the public official you interact with about the issue
3. Step up your action and raise the issue in writing to them or their manager
4. Submit a formal complaint
5. Take the issue to the Local Government and Social Care Ombudsman
   
   

Step 1: Recording detailed information

Once you have established that the person or service is a public body, you need to gather information. Before raising any significant issue, it is important to have evidence of what is going on. This is particularly important with human rights issues, as they are often taken very seriously and can have a powerful impact on who you are raising it with. You may not need to use all the information you have gathered if the issue is resolved quickly, but it will be more difficult to take a complaint further without it.

You should be able to show exactly what the issue is, when it started, how long it has been going on for and which human rights are potentially at risk. There is no specification for what any evidence must look like, but things that could be useful might include:

• Statements of how a decision has impacted the child, ideally from them
• Letters from the school/local authority informing you of a decision that risks a human right
• Copies of policies that have not considered human rights
• A timeline or diary of how the issue is impacting the child and their family (if relevant)
• Your responses or any documents where you have raised concerns about the impact of the decision (s) on the child (these could be emails, letters or notes from conversations you’ve had with public officials)
• A clear explanation of why the issue is a human rights issue
• What you would consider an acceptable outcome to resolve the issue.

Although you can raise a human rights issue without any evidence, it is always good to have as much as possible to support your argument.

Click here for our template for recording information about a human rights issue.

Step 2: Raising it informally

There is a possibility that a public official did not realise the impact of a decision on a child, so raising the issue informally is the best course of action. This gives an opportunity for a quicker resolution that everyone is satisfied with. Explain what the issue is, how it is impacting the child, why it is a human rights concern and what you would like to happen to resolve it. It is important to be very clear on the facts of the situation and how the Human Rights Act places legal duties on all public officials to respect, protect and fulfil human rights across all their actions. You can read more about what public bodies must do here. If you think it would be helpful, bring the information you have collected with you to share with the person.

Hopefully, this will address the decisions in question and the issue will be resolved. If it does not, let the person know you are raising the concern and that you will be taking the matter further.

Step 3: A written complaint

If the informal conversation didn’t resolve the situation, or the agreed resolution doesn’t happen, it is time to become more formal in your approach. A written complaint is helpful as it documents your concerns in your own words and will become part of the local authority’s records. Correspondence in writing is often taken more seriously that anything you have talked about in person. Make sure you include a date by which you expect a response, as this may not be considered a formal complaint under local authority policy.

When raising a human rights concern in writing it is important to be very clear about what the issue is, why it is a human rights issue, which Article/s of the Human Rights Act are involved and an alternative that you think would be rights respecting. You can read about all 16 rights and what they cover here.

Remember: Absolute rights are never allowed to be restricted. Non-absolute rights can be restricted if the meet the three-stage test. Watch a short explainer on absolute and non-absolute rights here.

Remember when you are writing a letter like this, focus on the impact of any decision on the child/young person and their family. This is because human rights are person-centred, the impact of a decision is different for everybody, so it’s important to make the local authority aware of exactly what is happening in your case.

Click here for our template letter.

Click here for our example letter created in collaboration with Sheffield SENDIASS. 

Step 4: Submit a formal complaint

Written complaints as set out above may or may not satisfy the formal complaints policy of a local authority, as each have their own systems for complaints. Every local authority and school must have a formal complaints policy that you can find on their website - if you can’t find it, get in touch and request it.

Formal complaints are effective because they set out clear timelines on when your issue will be addressed, what to do if you need to escalate the complaint and if your complaint is not resolved at the very highest level, you can then take your case to the Local Government and Social Care Ombudsman.

You must follow the complaints policy exactly to ensure it meets the criteria. If you don’t, it might not be considered a formal complaint so you can’t rely on a response as set out in the policy. Sometimes the policy might feel complicated, but don’t be discouraged and make sure you follow each step. If the school/local authority do not respond in the required timeframe, make a note of this and let them know, usually this will automatically escalate your complaint.

Remember to set out your human rights complaint clearly, it may be helpful to follow the template in Section 3 above.

Step 5: Taking your issue to the Local Government and Social Care Ombudsman

Formal complaints are often an effective way to address an issue as they require a proper response that can be escalated and then resolved. However, if you ‘exhaust’ (this means you have followed the policy all the way to the top and it’s still not resolved) the complaints policy, you might be able to make a complaint to the Ombudsman.

An Ombudsman is a body who investigates unresolved complaints about an organisation. They are free, independent and impartial – this means they don’t take sides and they consider all the facts of a case. There are many different Ombudsmen, but for cases relating to local authorities, SEN provision and school exclusions, the one to contact is the Local Government and Social Care Ombudsman (LGO). The LGO can only investigate matters the local authority is responsible for.

The LGO cannot currently investigate any issues relating to academies. If you need to raise an unresolved complaint with an academy, you must contact the Secretary of State for Education, through The Department for Education's complaint form.

If the LGO agrees with you, they may ask the local authority to do one or some of the following:

• Apologise to you
• Provide a service you should have had
• Make a decision it should have done before
• Reconsider a decision it did not take properly
• Improve its procedures so similar problems do not happen again
• Make a payment (this will only be to put you in the position you should have been, it is not as a punishment to the local authority).

The LGO will always publish their decision on their website within 6 weeks of making it. Sometimes, they will produce a very detailed report into an issue they think other local authorities could learn from, this is called a ‘Public Interest Report’ and anyone mentioned in it will be anonymised.

Click here to find out exactly how to complain to the LGO.

This final instalment of our SENDIASS blog series was designed to create a practical framework to use the information shared in the project to protect the rights of children and young people in the SEND sphere. The step-by-step process above can also be applied to any other human rights issue, but the Ombudsman may change depending on which public body is responsible for the decisions.

The Human Rights Act is a powerful tool to ensure that all local authorities, schools and academies are respecting, protecting and fulfilling all children and young people’s rights across all their actions. It adds legal weight to any argument when trying to ensure a child or young person is given the right educational support so that their needs are met, regardless of how complex those needs may be. Being able to understand and use the rights protected in the Human Rights Act is the first step towards an education system that puts human rights at its heart, which will give the best outcomes to all who interact with it.

If you work for a SENDIASS or Local Authority and would like to find out more about training on the Human Rights Act you can find out about our SENDIASS training here.

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.

A reminder of our blog series

1. introduction to the Human Rights Act and how it can be used, using Article 8 as an example.
2. Article 3 with a focus on residential schools and very high care needs students.
3. Article 1 Protocol 1 focus – fiddle toys and other learning aid provision.
4. Blanket policies in schools – uniforms and behaviour policies
5. School transport and the right to education.
6. A practical tool to use – a letter template for bring up human rights issues with public bodies.
   
   

You can find all published blogs here: SENDIASS Blog series

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