Written evidence from IPSEA (HRO0011)

Introduction

1. IPSEA (Independent Provider of Special Education Advice) was established in 1983 and currently advises more than 4,000 parents and carers of children with special educational needs and/or a disability (SEND) every year.

2. We deliver free and independent telephone advice services to parents and carers and young people. Our Advice Line provides legally-based next step advice on any educational issue that relates to a child or young person’s SEND, such as exclusion from school, discrimination and the process for securing additional support.

3. We run a Tribunal Support Service through which we represent parents who are making appeals or claims to the SEND Tribunal. Our helplines and Tribunal Support Service are largely delivered by volunteers, which enables us to provide our services to parents free of charge.

4. As well as training parents and carers on the SEND law framework, IPSEA also provides regular training to bodies such as SEND Information, Advice and Support Services (SENDIASS), education professionals and local authorities.

5. Our views are based on evidence from what parents and carers tell us and our experience while supporting them to navigate the SEND system and obtain redress for their children when this is required.

6. IPSEA is happy to provide any further information that the Committee would find useful.

Should there be a Human Rights Ombudsperson?

7. We are in favour of increasing access to remedies for children and young people with SEND, who depend on human rights protections to enforce their legal right to special educational provision and support that meets their needs. We would therefore support the creation of a Human Rights Ombudsperson.

8. We note that the Council of Europe is broadly in favour of the expansion of ombudsman schemes – including for covering human rights violations.[1] The Council of Europe makes clear that individuals with particular vulnerabilities, including people with disabilities and children, need to be assisted in making use of Ombudsman schemes.[2] These schemes are often more accessible to vulnerable groups than the court system.

9. The Council of Europe also suggests that, “Member States should consider granting ombudsman institutions competences enabling them to perform the functions foreseen by relevant international conventions in the field of human rights”.[3] We would strongly support this. The status of international law means that people in the UK cannot easily rely on international conventions in court. If a Human Rights Ombudsperson could fill that gap, it would be very welcome.

10. While we believe that a Human Rights Ombudsperson would make human rights redress more widely accessible, it should be noted that judicial review is likely to become less accessible as a consequence, for two reasons:

• First, because judicial review is supposed to be a remedy of last resort. (It would make sense to suggest that complaints to the Ombudsperson should have a suspensive effect on time limits to apply to a court or tribunal.)
• Second, because overlapping jurisdiction may be prohibited. (By way of analogy, the Local Government and Social Care Ombudsman cannot investigate complaints that are linked to matters being dealt with by the SEND Tribunal.) Overlapping jurisdiction is also very confusing for parents of children and young people with SEND, and for young people themselves who may be making a complaint or Tribunal appeal in their own right. That said, this should not be inevitable: as per the Venice Principles, “the right to complain to the ombudsman is an addition to the right of access to justice through the courts”.[4] It could be that deadlines for legal claims could be suspended whilst the Human Rights Ombudsperson route was being pursued, with the possibility of following up with a traditional legal claim.

11. If there is to be a Human Rights Ombudsperson, we believe that:

• It must be properly funded and effectively constituted so the process is not subject to unreasonable delay which in practice makes redress illusory.
• Available remedies should be sufficient to act as a deterrent for violations of human rights.
• Decision-makers must be properly trained and qualified. 
• It must be properly independent. Given the current political climate, the risks attached to this are genuine and significant. 

23/06/2022