A number of young people, aged under 18, have submitted formal complaints to the Department for the Economy for failing to comply with its equality scheme in relation to its decision to exclude young persons under 18s from the High Street Voucher Scheme.
The young people have been assisted in their complaints by the Children’s Law Centre (CLC). Both CLC and the Committee on the Administration of Justice (CAJ) had previously submitted complaints that the Department for the Economy had not equality tested the policy at all before making policy decisions to exclude under 18s.
The complaints by young persons were made on the basis of two key failures by the Department for the Economy. Firstly, that it failed to publicly consult on the policy, including with those directly affected. Secondly, that it failed to carry out an Equality Impact Assessment on the policy before making a decision.
Claire Kemp, Policy Officer at the Children’s Law Centre said: “This is a significant development and is the direct result of a number of failures by the Department for the Economy to comply with its own Equality Scheme. Had the Department consulted, and equality assessed the policy at the earliest possible stage, as it is supposed to, the negative impact of excluding children would have been highlighted and consideration for a more inclusive policy could have taken place.
“Equality screening should be carried out at the beginning of the process for a reason. It is there to highlight any negative impact on protected groups and ensure mitigating measures are put in place to avoid discrimination.
“It is not in the gift of decision makers or public bodies to disregard such an important step, or indeed to carry out their duties after the fact. The Equality Commission has also been clear that COVID-19 is no excuse for failing to abide by statutory equality duties.
“In any case, the High Street Voucher Scheme has been in development for close to a year now and it was only after we lodged a complaint with the Department that they carried out an equality screening, completing it just days before the scheme is scheduled to go live. There has also been no consultation with young people or mitigation to negate the adverse impact on under 18s.
“This policy has not been rushed, yet fundamental steps to avoid discriminating against protected groups, including young people, have been ignored or delayed to the extent of rendering them meaningless. The Department for the Economy is clearly in breach of its Equality Scheme.”
Only following the complaints by CLC and CAJ has the Department for the Economy belatedly produced an equality screening document. This however only considers the exclusion of under 18s as a ‘minor’ impact and does not propose any remedial action or commit to a full Equality Impact Assessment.
The Children’s Law Centre has warned that children with special needs and disabilities are once again being forgotten in the pandemic response. The warning comes after reports of disabled children facing severe negative impacts as a result of exclusion from education settings due to direct contact tracing or testing positive for COVID-19.
Rachel Hogan, Special Education Needs and Disability Expert with the Children’s Law Centre said: “We have consistently raised concerns that vulnerable SEND children have been some of the hardest hit during COVID-19. We voiced our concerns early during the first lockdown and it was too long before action was taken. We are seeing it again and it must be addressed urgently.
“Children with challenging behaviour on the edge of care are being sent home from special school when being identified as being a direct contact. Those who test positive are at home with no access to education or respite for ten days. Vulnerable children are suffering, parents and carers are being injured and families are facing breakdown.
“We are seeing the impact it is having on our clients in our day to day work.”
Mrs Hogan continued: “We need to see an urgent and joined up response from both the departments of health and education to protect these children. We cannot see the same mistakes repeated from the past. There can be no delay or failure to act collectively.
“We have already witnessed the drastic impact on vulnerable children when decisions are made without fully considering the adverse impacts. We cannot be looking back in weeks or months wishing action was taken earlier. Disabled children are being hit hardest when they are excluded from educational settings. Decision makers must do all they can to ensure their needs continue to be met.”
The Children’s Law Centre has raised concern at the exclusion of children from the high street voucher scheme. Writing to the Minister for the Economy, the Children’s Charity requested the rationale for the decision, including any equality screening or equality impact assessment carried out by the Department.
Speaking before the Committee for the Economy was due to discuss the scheme, Claire Kemp, said:
“The Children’s Law Centre are surprised at the exclusion of under 18s from the high street voucher scheme. Not only does this ignore the fact that children are major consumers on the high street, we are also concerned its introduction breaches the Department’s statutory equality duties. We have written to the Minister to request information on any equality screening and equality impact assessment carried out to assess the adverse impact the scheme could have on children.
“We cannot understand the rationale for the exclusion of under 18s, especially given the massive contribution many made in the response to COVID-19. Despite being some of the lowest paid members in our society, many young people worked throughout the pandemic as essential workers, playing their part in getting us all through it. To exclude them from participating in the recovery through the high street voucher scheme is incredibly unfair and potentially unlawful.
“The decision also ignores the reality of children’s lives. Some children live independently of adults and some are young carers. Why should they miss out on this opportunity simply because of their age?
“Children have suffered tremendously throughout the pandemic. Disruption at school, increased stress around exams and significant concerns around the impact COVID-19 has had on their mental health. Many children and families have also been further plunged in to poverty as a result of the pandemic. This was a chance to not only stimulate the economy but also help children living in poverty at the same time, but it will now be missed unless there is a major rethink.
“The Children’s Law Centre is clear, under 18s should not be excluded from the High Street Voucher Scheme.”
The Education Authority has published admissions criteria for children transferring from primary to post-primary education. This comes after the late cancellation of common entrance assessments. The transfer process now rests on a reliance, by the Minister of Education, upon schools’ Boards of Governors to develop and submit alternative criteria, without accounting for the adverse impacts of the ongoing emergency.
We cannot lose sight of the stress facing children this year. In my work at the Children’s Law Centre, I see every day the disproportionate impact that COVID-19 and policy responses to tackle the pandemic are having on groups of children. The stress and anxiety brought on by post-primary transfer in any normal year has been massively increased in the face of this year’s complexities. Then, set this beside the warnings from child health experts across the UK, including NI’s mental health champion, describing children’s welfare as “a national emergency”.
We must ask ourselves, are we doing everything in our power to help children and young people through this? Are we acting in their best interests?
Children who have been going through this constantly shifting and mentally draining process now face an array of alternative criteria, but will it end the uncertainty? The real concern now is that this is just the beginning of a new wave of stress and anxiety. This is simply not an acceptable situation for ten and eleven year olds, or their parents, to have to face when resilience is already drained.
The cold, hard reality is that P7 children are now facing the worst-case scenario, with their peers in P6 following closely behind. In a 2016 circular that was reissued in October of last year, the Department of Education stated that “all Boards of Governors are required by law to have regard to” recommendations on criteria, warning that “if a school fails to follow guidance and does not have sufficient reason for doing so the school may not be indemnified by the Education Authority if legal proceedings are initiated against the school”.
Despite these warnings, it became all too predictable that without active direction from the Department to support schools through this difficult year, children would face a wide array of different criteria, some on the ‘recommended’ list and some on the ‘not recommended’ list. Looking at schools who self-published early, that was exactly the picture emerging. Some schools adhered to the guidance, some clearly not. Ignoring guidance on non-academic criteria, or using unreasonable or unfair academic criteria, is likely to lead to legal action.
Children are now faced with criteria that differ from school to school and a long wait until they find out their fate in June. Add this to the possible prospect of a proliferation of litigation and we could see even more disruption to the transfer timetable.
That is why the Children’s Law Centre, along with 24 other organisations, wrote to the Education Minister on 13 January. In the letter we requested “that the Department of Education use its powers of Direction held under section 38(3)(a) of the Coronavirus Act 2020, along with Paragraph 14(4) of Part 3 of Schedule 17 and/or Article 101 of the Education and Libraries (NI) Order 1986 to direct school Boards of Governors of all grammar schools on suitable contingency admissions criteria for this academic year to ensure they do not unlawfully discriminate against any group of children and to consult with relevant stakeholders on what those admissions criteria should be.”
Children are facing an exceptional set of circumstances. The Department of Education holds the power to direct a fair and robust solution, in the best interests of children, that would enable the continuity of education and avoid disruption of the transfer timetable. Instead, even at this stage, it looks like children face even more uncertainty ahead.
The detrimental impact this is having on young children is playing out in front of our eyes. They are left carrying the cost of government inaction.
Rachel Hogan Special Educational Needs and Disability Expert, Children’s Law Centre
The Department of Education circular containing admissions criteria guidance can be found here.
A copy of the letter, sent by the Children’s Law Centre on 13 January, can be found here.
The Children’s Law Centre is an independent charitable organisation established in September 1997 which works towards a society where all children can participate, are valued, have their rights respected and guaranteed without discrimination and every child can achieve their full potential. The organisation is founded on the principles enshrined in the United Nations Convention on the Rights of the Child.
The Children’s Law Centre operates a dedicated free phone legal advice line for children and young people called CHALKY and provides legal information through an online platform known as ‘REE’ and legal advice through ‘REE Live Chat’ – https://childrenslawcentre.org.uk/clhexpert/.
Lauryn loved to walk. She would walk anywhere and she would walk for hours. She would walk in the countryside and through the woods. She would walk around the streets of East Belfast where we live.
She is a 17-year old person with autism, severe learning difficulties and mood disorder. When the first coronavirus lockdown began, she stopped walking. She would get up, go downstairs and sit in front of the TV, a device in her hands, scrolling through it to find new toys to buy. She would do that almost all day.
Lauryn is my daughter and the pandemic has brought our family close to breaking point. It didn’t have to be this way. If the government had fulfilled its legal obligations to us, the last six months would have been different.
We would not be beaten and bruised because of the way her mood swings have been exacerbated by the situation we are in. We would not have had to go to our neighbours to explain that it’s her attacking us, not us attacking her. She would not have been put on a new cocktail of drugs as a last resort to manage her behaviour. We would not have had to hold our daughter down on the floor every day to try and stop her banging her head as hard as she can against any hard surface and against ourselves.
When the lockdown began, her school closed and with it all the support she gets, from occupational therapy to art therapy, ended. While the children of key workers had somewhere to go Lauryn, who requires constant supervision, was left at home. No emergency provision or supervised education placement was granted despite the efforts of our family, the Children’s Law Centre, our MP and our child psychiatrist.
During lockdown, my mother died. My son went into hospital for an operation. My mother-in-law was diagnosed with dementia. The grief is incredible but I have not been able to grieve. I went to my mother’s funeral but then, because the support we had been promised was retracted, I had to go home straight afterwards to look after Lauryn. I couldn’t even go to my own mother’s wake. We have just had to continue moving from one day to the next, in a constant state of emergency, always feeling as though we are about to crack.
Lauryn is a very routine-orientated person and during lockdown her routine has changed completely. She sits on the sofa all day, dictating what we can or cannot watch on TV. Normally, we wouldn’t give in to such demands but in order to try and avoid meltdowns we have been giving in to her a bit more than usual. She has become very lethargic and refuses to do anything for herself, demanding that others do it for her, shouting, “Mummy, help” or “Daddy, help”. She even shouts out in the night for certain toys that she wants, ones we can never find.
In the absence of having her special educational needs met, her behaviour escalates. She attacks us and she attacks herself
A lot of the time, frustration about not knowing what’s going to happen next sets Lauryn off. Because of her autism, she craves certainty, structure and control of day-to-day activities. In the absence of having her special educational needs met, her behaviour escalates. She attacks us and she attacks herself. I have to lock myself in rooms and people outside are thinking that it’s Lauryn being attacked, not me. She’s screaming, “Mummy, stop, stop” because I have the door closed. She wants the door to be opened so she can attack me. The neighbours tell me not to worry but it’s embarrassing having to go to them and explain what’s happening.
Since the lockdown began we have asked again and again for help from the Department of Education, the Education Authority (EA) and from Lauryn’s school. It has been a humiliating, degrading and traumatising experience. I used to work full-time but had to take redundancy last year in order to look after Lauryn. Now I work part-time as a teaching assistant but even that feels close to impossible.
At one point, later on in the first lockdown, I filled in the “Vulnerable Child” form on the EA website, which was the process made available at a late stage to seek help if the child’s school was unable to offer a supervised education place. Weeks later I got an automated response that told us we wouldn’t be helped and concluded:
“As you may be aware the school is currently closed. I have made the Principal aware of the application and should they be able to open, a risk assessment will be carried out. I will come back to you if I receive any more information.”
No-one came back to me. An alternative specialist school placement was finally secured in August, but that was swiftly interrupted due to positive Covid cases.
Her dose of anti-depressants was doubled. She was then put on a huge dose of diazepam
What has happened instead is that drugs have been thrown at the problem. Lauryn had always been on medication to help her sleep, but during the lockdown she has been chemically restrained. Her 100mg dose of the anti-depressant Sertraline was doubled to 200mg. She was then put on a huge dose of diazepam, and we’re currently working with her doctor on slowly reducing that. The withdrawal is hellish.
Rather than going to school – rather than putting in place measures to respond to this extraordinary situation – they are medicating the problem, and if there are horrendous side-effects for us to deal with then so be it. Lauryn’s consultant psychiatrist has indicated that this chemical restraint would have been unnecessary if she had the structure and routine of school attendance. I am sure it is also contributing to her lethargy and to her new refusal to walk.
Rather than find respite in nature, we have the indoors and we have the internet, which she uses to buy toys. Lauryn’s obsession with toys is longstanding but there is no escaping it now. When she was little, she used to think that they came alive when she went to sleep. Then she wanted to stay up and watch them come to life. Then she wanted to stay up, watch them and film them on her iPad. In the daytime, all she wants to do is look for new toys to buy on the internet. She can’t talk about anything else, but then once she’s bought that toy, it gives her satisfaction for about an hour and then it’s on to the next thing.
There are toys that she cherishes, but there are many more that are bought, played with for an hour, and then discarded. We spend thousands and thousands of pounds every year on these toys. The house is buckling under the weight of them: characters from television shows, furry animals, dress up dolls, figurines, you name it. If she watches a programme on TV she can never just buy the toy for one character, it has to be the whole set. The toys themselves are always cheap and cheaply made, but so often they come from China or the US, so the shipping costs are exorbitant.
It’s like a metaphor for our society, really. People think that these cheap products will make them happy but they don’t. When Lauryn is at school, she can’t get online to buy toys because she’s not allowed her phone. At home, if we try and stop her she flies into a rage and she won’t calm down until we let her get back to scrolling and buying. The fallout if we tried to do anything more to stop her would be horrendous. The internet is the devil. Ebay is the devil. Lauryn’s speech is extremely limited but she can find anything she wants online.
I’m not a negative person by nature, but I feel totally overwhelmed and am not sure I can carry on. The threat of a second lockdown looms on the horizon and we are terrified that we will be placed back in the same untenable position, at home without support of any kind. If we don’t get any help this time round, I’m not sure what will happen to our family.