Challenging Decisions
In this article, Irwin Mitchell provides guidance on challenging decisions on behalf of your child.
Katy Clarke is an Associate Solicitor in the Public Law and Human Rights Team at Irwin Mitchell. If you have any queries you can get in touch with Katy by email: [email protected], or call freephone on: 0800 023 2233.
All parents will find themselves needing to challenge decisions on behalf of their children at times. For instance, asking for more support at school, or asking for certain treatments and interventions in meetings with medical professionals.
Parents of children with complex needs often have to do this on a more regular basis, which can be in emotionally difficult, complicated, and sometimes urgent, circumstances. This responsibility can continue beyond childhood into adulthood and understandably can place a great deal of pressure on parent carers.
There can be a lot of different services and professionals involved in a child’s care, and many different decisions to be made. It can be overwhelming, and confusing to know when and how to challenge decisions made involving your child.
This article is here to provide you with some guidance on challenging decisions on behalf of your child. It is not intended to be a substitute for legal advice about challenging individual decisions. However, it will hopefully provide helpful tips to get started, and guidance on when and where to ask for further help.
What types of decisions can I challenge?
This article focuses on challenging decisions about health and social care, as these are common areas of concern for parent carers of children with complex needs.
Decisions that parent carers often wish to challenge include:
- A refusal (or delay) to assess needs for care and support
- Following assessment, a failure to provide any, or not enough, care and support
- A change to a care package which then no longer meets your child’s needs
- A proposal to move your child to a different accommodation
- A change to the type of funding that your child receives, for instance, from health to social care funding
- A refusal to provide a certain medical treatment or a disagreement over what type of treatment is best for your child
- A failure to arrange support set out in an Education, Health and Care Plan (EHCP)
I don’t agree with a decision that has been made; what do I do first?
Generally, you should speak directly with the service or individual responsible for the decision you wish to challenge. This is often called trying to resolve the issue “informally”.
Confirm the decision that has been made
A sensible first step is to ask for confirmation of the decision. You may wish to ask for this in writing.
Occasionally, disputes can arise simply due to a miscommunication. It may also be that a decision has not actually been made yet. Having something in writing can make sure that everyone is on the same page and help you to understand what has (or has not) been decided, and by who. However, depending on the nature of the decision itself, and the urgency of the situation, written confirmation is not always practical.
Ask for more information
It is a good idea to ask for more information about how the decision has been made. For instance, you may find it useful to see copies of related assessments, reports, minutes of meetings or case notes.
You could also ask for the reasons for the decision to be made clear to you. This will help you to understand where that person or organisation (“the decision maker”) are coming from, and why they have made the decision they have about your child’s care, support, or treatment.
If you still do not agree with the decision, you could ask if the decision can be reconsidered. It may also be possible to ask for a second opinion.
I tried to reach an agreement, but I am still not happy with the decision; what do I do next?
When it has not been possible to reach an agreement or change the decision, through “informal” discussions with the professionals involved in your child’s care, you then need to consider how (and with who) to raise your concerns further.
This may be by making a written (“formal”) complaint or appealing the decision. Alternatively, as outlined in the section below, it may at this point be necessary to seek legal advice about a more formal challenge.
Making a complaint
Who to send your complaint to
If you decide to make a “formal” complaint, there will be a policy on the organisation’s website about how to do this, setting out contact details and timeframes.
Local authorities are required to have a process for complaints about a child’s (aged under 18) care which involves three stages:
- Local resolution
- Investigation
- Review panel
If your complaint involves the NHS, then “PALS” (the Patient Advice and Liaison Service) can provide you with information about the relevant complaint procedure. Your GP surgery or hospital can give you details of your local “PALS”.
What to include in your complaint
It is not possible within the scope of this article to provide specific advice about what to include, as this is, of course, dependent on the nature of the decision being complained about, and your and your child’s individual circumstances.
As a general guide, it is best to keep communication straight to the point and factual.
You should clearly outline the decision you are unhappy with, including the date it was made and by who. This will help those investigating the complaint to quickly identify the relevant team or individuals involved.
It is useful to provide a summary of the background, including your child’s diagnoses, and how and why this decision came to be made.
It can be helpful to reference any relevant guidance or law which may provide a framework for the decision making which should have been followed. There may also be some guidance or law which sets out your and your child’s rights and the responsibilities of the organisations or individuals involved.
This article does not intend to provide a comprehensive overview of all related laws but below are examples of some legislation and guidance that may be of relevance to your complaint or appeal.
Children and Families Act 2014– Local authorities have a duty to assess whether a young carer or a parent carer has a need for support. Local authorities must also provide related advice and information for parents of children with disabilities or special educational needs.
The Act also sets out the provisions for Education Healthcare Plans (EHCPs) – which set out a child or young person’s (up to age 25) education, health and social care needs, and the support that will be put in place to meet those needs.
Please see our article for further information on EHCPs and how to appeal decisions here.
Care Act 2014 – The Care Act applies to adults over the age of 18 and sets out a legal framework for the assessment and meeting of eligible social care needs. It also contains some provisions relating to the transition from children’s to adult services.
Local authorities have a duty to assess a child before they reach the age of 18; when it appears likely they will have needs for care and support after they reach the age of 18. Under the Care Act, local authorities must also assess whether a carer themselves has a need for support.
National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care – This sets out the process relating to NHS Continuing Healthcare funding (“CHC funding”).
If an individual over the age of 18 is assessed to have a ‘primary health need’ then the NHS must commission a care package to meet their assessed needs.
NHS Constitution for England– This sets out the rights of a patient accessing healthcare services. For example, the right to receive appropriate care and treatment that meets the patient’s needs and reflects their preferences.
Mental Capacity Act 2005 -applies to everyone over the age of 16. A person at the age of 16 will generally be able to make decisions for themselves; this means they have capacity to do so.
Sometimes, an individual is unable to make a decision because they have an “impairment of the mind or brain” which affects their ability to understand, retain, and use information relevant to that decision; this means they lack the mental capacity to make the decision.
The Act sets out some key principles. For example, a person must be assumed to have capacity unless it is established they do not. Steps must be taken to help the person make the decision for themselves.
The Act also provides a framework for best-interest decisions made on behalf of people who have been assessed as lacking the mental capacity to make the decision for themselves.
Timing
It is a good idea to make the professionals involved aware that you do not agree with their decision, as soon as it has been confirmed to you. That way, everyone knows where they stand at an early stage, and can hopefully work together to achieve agreement.
If you are not sure or do not feel comfortable voicing your concerns at the time, you could ask for more time to consider the decision. You could also ask for more information.
It is important to bear in mind that there are often set timeframes to challenge decisions, particularly if a formal, legal challenge is required. For example, a Judicial Review challenge must be brought “promptly” and within three months of the date of the decision.
Individual organisations have their own internal timeframes too. Their policy may say that they will only consider complaints made within a year from the date of the event, or decision, being complained about.
General tips
If you are in a meeting or having a telephone conversation, try to take your own notes so you can remember what you have been told. You could ask a friend or family member to help with this, so you can concentrate on what is being said.
You may find it helpful to take note of the names of people you have spoken to. Ask for their contact details, so you can contact them again to clarify anything afterwards.
You may also wish to follow up any conversations in writing, with an email, to confirm your understanding of what was discussed. This can help to avoid misunderstandings. If making a formal complaint, say this clearly in your email or letter. This should make sure it will be dealt with promptly, and properly.
It can be useful to provide copies of important documents relevant to the decision or outcome you are making a complaint about. For instance, emails or assessments.
Keep your communication clear and courteous. Focus on your main concerns and how you feel these can be resolved. Be specific about what outcome you are hoping for.
I have made a complaint about a decision; what happens next?
If you have made a formal, written complaint, there will be a timeframe in which the organisation aims to respond. You should usually receive an acknowledgement to confirm your complaint has been received, and when you should expect a response. Make a note of the date you sent your complaint and when it was acknowledged, so you can keep track of the timescales.
If you feel like your complaint needs to be dealt with more urgently, ask if this will be possible, explaining your reasons why.
There will be an investigation into your complaint, which should be independent. When the organisation has investigated your complaint, you may be offered the opportunity of a meeting, or written response.
If you are not satisfied with the response, you can ask for it to be reviewed.
Ombudsman
When informing you of the conclusions of their investigation, you should be informed of the option of referring the matter to an ombudsman.
An ombudsman can independently investigate complaints about organisations if it has not been possible to resolve the issue with the organisation directly.
If you are making a complaint about a local authority, this would be the “Local Government Ombudsman”.
The “Parliamentary and Health Service Ombudsman” investigates complaints about the NHS, as well as government departments and other public organisations.
Before the ombudsman will investigate, you must have given the organisation (ie. NHS Trust or local authority) time to resolve the complaint directly. The ombudsman may agree to consider a complaint if the matter is urgent, or if there has already been an unreasonable delay.
There is a 12-month timeframe to bring the matter to the ombudsman.
The ombudsman may not investigate a complaint if they think there is an alternative way of resolving the situation, such as a legal challenge.
When, and where, to get further help and assistance?
In some situations, you may wish to seek legal advice to assist you with challenging a decision made about your child. For instance:
- You have been unable to resolve the complaint.
- You may feel you are not making any progress in trying to resolve the dispute yourself.
- Discussions between yourselves and professionals involved in your child’s care might have broken down.
- You may have taken an internal complaints process as far as it can go, with no satisfactory outcome being reached.
- It may not be a complaint that an ombudsman will investigate, as there may be a legal challenge available that might resolve the situation instead.
Urgency
You may feel you are running out of time due to the nature of the situation. Urgent action may be required to help move things forward for your child and you may not agree with the course of action being proposed by the professionals involved in your child’s care. This can be the case for instance in medical treatment decisions.
Complexity
The situation may be particularly complex and difficult to navigate. You may want some guidance and advice about your and your child’s rights, so you know if you can challenge a decision, and how to do this.
For instance, your child might already have an EHCP in place, but you may not agree with some aspects of it and want to know if it is possible to challenge this, to make the changes you wish to achieve for your child.
Mental capacity issues
If your child is aged over 16 and lacks capacity, then the situation is often more complicated too. Decisions for individuals who lack capacity must be made in their best interests, and where disputes arise and cannot be resolved, an application to the Court of Protection may be required.
If the individual is in a registered care home or hospital, and “deprived of their liberty” (ie. not free to leave and subject to continuous supervision) then the issue may need to be referred to the Court of Protection more quickly.
This would also apply if the decision you wish to challenge relates to serious medical treatment.
How to get legal assistance
The Law Society has a ‘Find a Solicitor‘ database which can be searched by type of legal issue and location.
Depending on the decision to be challenged, you may need a solicitor with expertise in Public Law, Judicial Review, Court of Protection, or Education Law if you are looking for advice regarding a challenge about your child’s EHCP.
The Court of Protection makes decisions on behalf of people who lack capacity, in areas affecting their welfare, and also their finances.
Judicial Review is a legal challenge of a decision made by a public body. It can only be brought where the public body has acted unlawfully. For example, this may be by failing to meet its duties or acting outside its powers. You can find more information here.
Legal aid funding may be available, subject to financial and merit eligibility. A solicitor would need to advise you further on availability based on your individual circumstances.
For Education Law, legal aid is available in limited situations. The Civil Legal Advice line can put you in touch with a legal advisor if you are eligible.
In some cases, other alternative funding can be explored, such as crowdfunding.
Other sources of support
In addition to legal advice, there may be other forms of assistance available to you such as from independent advocates, charities and other organisations, such as WellChild.
Eligibility for support from independent advocates is outside the scope of this article, but it is helpful to be aware that there are some circumstances where an advocate must be provided.
For instance, an independent mental capacity advocate (IMCA) must be involved where serious medical treatments are made on behalf of a person who lacks capacity.
There are some other situations where independent advocacy support may be provided too, subject to eligibility. For instance, NHS complaints advocacy and Care Act advocacy.
Case Studies
Below are some examples of where Court of Protection and Judicial Review cases have successfully helped families or individuals to challenge a decision they were unhappy with.
Judicial Review:
- Fresh Hope For Life-Changing Drug For Cheshire Girl After Court Of Appeal Rules Decision Not To Grant Access To Spinraza Must Be Reconsidered. The Court of Appeal held that decisions made by two doctors not to provide a young girl with a drug to treat a rare condition were unlawful and irrational. The Court held that decision-makers should consider all the relevant evidence and not just evidence within clinical records. The Court said that the doctors must reconsider their decision, making sure to take into account all the relevant evidence.
- Homeless Father & Son Get New Accommodation After Benefit Cuts Force Them Onto The Street. A father and son, both with care and support needs, were homeless after being evicted from their rented house. The son had significant mobility issues following a serious car accident and his father was his sole carer. His father also had health needs due to having diabetes. Following an urgent letter sent to the local authority regarding their duties under the Care Act, both father and son received accommodation and support.
Court of Protection:
- Vulnerable Man Moves From Residential Care to Own Home. There was a disagreement between the parent of a young man with learning disabilities and the professionals involved with his care. He had been moved to a residential placement with high levels of supervision and significant restrictions on his life. The young man had been assessed as lacking the mental capacity to decide for himself where he should live. His social worker felt that he needed the restrictions to keep him safe and that the residential care placement was in his “best interests”. However, his Mum believed that the restrictions in his environment were making his anxiety much worse. The Court of Protection ultimately decided it was in his best interests to live in his own bungalow with a package of care.
Summary
Though being a parent carer can feel isolating at times, and the responsibility of challenging decisions on behalf of your child can be daunting, it is important to remember that you are not alone. Support is available, whether through charitable organisations, peer networks, social or healthcare services, and advocacy organisations.
If necessary, you may also be able to access legal advice to provide you with some more formal advice and assistance with challenging decisions on behalf of your child.
Ultimately, parent carers and professionals are both aiming to achieve an outcome that is the best for the child. Though there may be differences of opinion, it is possible to effectively challenge decisions whilst still maintaining good working relationships with the professionals involved and, most importantly, whilst keeping your child’s interests at the centre of the decision-making process.
In deciding to challenge a decision on behalf of your child, you are simply doing your best to advocate for your child and get them the best support. Knowing your and your child’s rights, as well as knowing where to go for more information, and further help when you need it, is invaluable in giving you the confidence to effectively challenge decisions on behalf of your child.
Hopefully, this article has provided a useful starting point for you to feel better equipped to advocate for your child.
Useful information and resources
Irwin Mitchell’s website has many factsheets about Education, Health and Social Care, and Mental Capacity. There are also template letters available to download, including:
- Requesting an EHC needs assessment and requesting amendments to the plan
- Making a complaint about the failure to arrange provisions in the EHCP
- Making a complaint about a cut to services or challenging a refusal to assess
You can view them all here.
Other helpful resources include:
The information in this article was correct at the time of publishing but may be subject to change
If you have any comments, ideas, or suggestions about this article don’t hesitate to get in touch with us at [email protected]
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Katy Clarke, Associate Solicitor
Kathy Gibson, Digital Information Officer
First published: June 2024
Review due: June 2025
