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Challenging the decision on school uniform grant?

April 16th 2018

Following the revelation that the Welsh Government is to scrap school uniform grants, Michael Imperato outlines the steps it should have taken in the run up to the decision.

The Welsh Government’s school uniform grant was available to Year 7 students eligible for free school meals, offering £105 towards the costs of essential kit. The announcement that it was to be scrapped came as something of a surprise. As a lawyer dealing with public law and Human Right challenges for vulnerable people I query whether the Welsh Government have complied with their ‘due regard’ under three different laws.

The Public Sector Equality Duty (PSED) and Due Regard

Section 149(1) of the Equality Act 2010 provides:

A public authority must, in the exercise of its functions, have due regard to the need to –

(a)         Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited under the Act;

(b)         Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)         Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

The requirements of the PSED are by now uncontroversial. The public decision maker has to have due regard to the need to take steps to meet the needs of persons.  They have to take steps to gather all the relevant information.  It must be considered with rigour and an open mind.  It must be an essential preliminary to any important policy decision, not a rear-guard action.  Consideration of the duties must be an integral part of the proposed policy not justification for its adoption.

Children are one of the protected characteristic groups. The grant clearly targeted financially disadvantaged  families. What information was gathered, how does this change of policy meet the needs of families who struggle to buy food let alone school uniform? What steps have the Welsh Government taken to mitigate the impact of the scrapping of the grant? Decision makers produce an Equality Impact Assessment (EIA), which should evidence the above – it would be interesting to see the EIA relating to this.

Due Regard to the UN Convention on the Rights of the Child

The Welsh Government must not just give due regard to the PSED but also to the UN Convention on the Rights of the Child. The UNCRC is an international agreement that protects the human rights of children under the age of 18. It was ratified by the UN General Assembly in 1989.

In 1991 the United Kingdom formally agreed to ensure that every child in the UK has all the rights listed in the convention. The Welsh Government adopted the Convention as the basis for policy making for children and young people in Wales in 2004. The ‘Rights of Children and Young Persons (Wales) Measure‘ 2011 received unanimous, cross-party support when it was passed at the National Assembly for Wales in January 2011.  It placed a duty on all Welsh Ministers to have due regard to the substantive rights and obligations within the UNCRC and its optional protocols.

The Children’s Rights Scheme

Section 2 of the Measure requires Ministers to publish a Children’s Rights Scheme which sets out the arrangements Ministers will have in place to have due regard to the UNCRC.  Welsh Ministers published their first Children’s Rights Scheme in May 2012. Central to this is the Children’s Rights Impact Assessment (CRIA).

Have the CRIAs undertaken so far delivered? This was looked at by Simon Hoffman of Swansea University on behalf of the Welsh Government in 2015. He was critical of the CRIA’s so far, stating that, ‘there were a number of findings that might get litigators thinking about the possibilities.’

The evaluation found:

  • Limited understanding of the objectives of the UNCRC amounts officials completing CRIA
  • Failure to consult with children
  • Limited use of available evidence
  • Tendency to assume positive benefits of policy
  • Reluctance to raise negative aspects of policy

The Social Services and Well-being (Wales) Act 2014

The Social Services and Well-being (Wales) Act 2014 includes provision that:

a person exercising functions under this Act in relation to a child ….must have due regard to Part 1 of the United Nations Convention on the Rights of the Child.”

This is a provision, which sets out the Welsh Government’s commitment to ensuring many of Wales’ most vulnerable children and young people receive services which respect and uphold their rights. This is a far reaching application of the due regard duty which has a direct impact on service delivery and requires providers of services to consider whether or not the way in which they are delivering services to children and young people upholds their rights under the UNCRC.

This significant obligation reinforces the way in which the regulations, statutory guidance and codes of practice under the Act have been or are to be child rights impact-assessed and where due regard under the Measure has been applied through the Ministerial duty.

Conclusion

The Welsh Government told BBC Wales many schools and local authorities in Wales have arrangements in place to support families struggling with the cost of uniforms.  A spokesman said: “Since the introduction of the grant… school uniforms have reduced significantly in price and their availability has increased.  We have also worked with school governing bodies to encourage schools to follow Welsh Government guidance on keeping uniform costs low.”

But the key legal questions are:

  • have they given ‘due regard’ to the PSED and the UNCRC?
  • How ‘robust’ was their ‘due regard’ duty applied?
  • How thorough were the EIA and CRIA?

It would be interesting to examine this, and a legal challenge might well test the Welsh Government approach to, and its commitment to, children’s rights in Wales.

Michael is a partner at Watkins & Gunn Solicitors and a trustee of the Bevan Foundation.

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