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The threat of judicial review (JR) has already achieved at least three wins for disabled people’s rights during the current crisis (thread to follow, JR explainer here) https://www.google.com/amp/s/rightsinreality.wordpress.com/2014/08/30/why-judicial-review-is-a-real-remedy-in-sen-and-disability-cases/amp/ (1)
First, a ‘letter before action’ (first step in JR) was sent by @Simpson_millar challenging guidance on ‘vulnerable’ children which wrongly suggested duties to children with #SEND had changed. Result - new guidance which accurately reflects current law https://www.gov.uk/government/publications/coronavirus-covid-19-guidance-on-vulnerable-children-and-young-people/coronavirus-covid-19-guidance-on-vulnerable-children-and-young-people#children-with-education-health-and-care-ehc-plans (2)
Second, letter before action sebt by @PeterTodd_ @hodgejonesallen challenging NICE guideline on prioritising treatment which risked discriminating against disabled people. Result - guidance amended, ‘CFS’ tool not to be used to assess disabled people https://www.nice.org.uk/guidance/ng159/chapter/1-Admission-to-hospital (3)
Third, letter before action sent by @BindmansLLP challenging govt guidance restricting exercise to once a day, again raising disability discrimination. Result - guidance amended, disabled people can exercise outdoors more than once a day if necessary https://www.gov.uk/government/publications/coronavirus-outbreak-faqs-what-you-can-and-cant-do/coronavirus-outbreak-faqs-what-you-can-and-cant-do#can-i-exercise-more-than-once-a-day-if-i-need-to-due-to-a-significant-health-condition (4)
Next up - @rachelklawyer has sent a letter before action for a disabled child challenging this guidance which repeatedly suggests councils can fail to comply with key children’s social care duties when the law hasn’t changed https://www.gov.uk/government/publications/coronavirus-covid-19-guidance-for-childrens-social-care-services (5)
Lessons from these cases: (1) JR remains an effective tool to quickly challenge potentially unlawful policies and guidance; (2) if public bodies engage even briefly with disabled people and allies in advance, their policies and guidance are far less likely to be unlawful...(6)
But the major problem with correcting guidance after publication on threat of JR is that the original version circulates and does its damage. So please spread the word far and wide about the changes summarised above (7) #SEND #socialcare #disability
I’m reminded that another key point on the amended ‘going out’ guidance is that it makes clear that disabled people / those with mental health conditions can travel outside their local area to exercise, if necessary https://www.gov.uk/government/publications/coronavirus-outbreak-faqs-what-you-can-and-cant-do/coronavirus-outbreak-faqs-what-you-can-and-cant-do#can-i-exercise-more-than-once-a-day-if-i-need-to-due-to-a-significant-health-condition
None of these cases happen unless people step forward to bring the claim. Take a bow @RachelAdamSmith (EHC Plan guidance), @LBBuryS (NICE guideline) and the two families who challenged the outdoor exercise guidance (8)
