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Back Pay Bill Could Bankrupt LD Sector

September 6, 2017

Care providers for people with learning disabilities are facing a £400m bill for back pay that could bankrupt the entire sector, the charity Royal Mencap Society has warned.

HMRC is pursuing providers for six years of wages after the government reversed its decision that “sleep-in support” – where carers are present overnight but rarely called upon – is exempt from minimum pay legislation.

It means all organisations – from Mencap at one end of the scale to family-led businesses at the other, which together provide sleep-in support care for 178,000 people with learning disabilities – are at risk of insolvency, the charity says.

Enforcement action to claim the money deemed to be owed was stayed in July after pleas from providers, but it is due to resume on 2 October.

Mencap says the sector will be thrown into chaos if that happens without a government commitment to cover the back-pay bill.

Derek Lewis, the charity’s chair, said: “There would be, for a substantial period of time, chaos in the sector and the people who would suffer are people with learning disabilities, their families who would be subjected to great stress and the staff who care for them, many of whom would become redundant.”

Sleep-in support allows people with learning disabilities to live in their own homes and communities. Recent research suggested that 99.7% of sleep-ins are spent asleep.

When the national minimum wage – since replaced by the “national living wage” for workers over 24 – was introduced in 1999, time spent asleep by care workers in such circumstances was exempted in government guidance.

Instead workers were paid a flat on-call allowance, only being paid the minimum wage if their services were required during night. But after two individuals won employment tribunals claiming they were entitled to the minimum wage for the entire night, the government changed its advice saying the legislation did apply to sleep-in support.

Such care is commissioned and paid for by local authorities but HMRC has gone after the providers for the back payments with councils unwilling to foot the bill.

Mencap, one of the largest providers of sleep-in care, says it faces a £20m bill for the past six years, which will exhaust its reserves of £19.6m.

“Funding back pay would require highly damaging actions to sell assets, cut programmes and cancel investment,” Lewis said.

“Our plans to improve the lives of those with learning disabilities could be set back by a decade or more, as we struggle to repair the financial damage that would be caused by this liability.”

He said most of the reserves come from donors who did not envisage their money being used for such a purpose and would likely be put off giving in the future.

Mencap’s chief executive, Jan Tregelles, described it as “the worst crisis in our 70 years” and warned that it was the NHS “already about to face one of its toughest winters, that will have to pick-up the pieces”.

Celebrities including Jodie Whittaker, Joanna Lumley and Kit Harrington have joined the charity’s campaign for the government to intervene.

Research suggests the cost to the sector could total £400m. Smaller providers that are not incorporated could even face having to make back payments out of their own pockets. Many are unwilling to speak openly for fear of drawing HMRC’s attention.

One chief executive of a medium-sized provider in the West Midlands, said the organisation employs 300 people, delivering 1,100 hours of support and 27 sleep-ins every day.

He estimates its back-pay liability to be £1.5m compared with reserves of £1.4m, which include two care homes. “We would have to stop trading straight away, our contracts with local authorities would be toxic,” he said.

A Department of Health spokesman referred the Guardian to a previous statement by the Department for Business, Energy and Industrial Strategy, which said the government has “worked closely with the sector in response to concerns”.

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DWP Fights To Cover Up Differences Between Atos And Capita PIP Assessments

September 6, 2017

With many thanks to Benefits And Work.

The DWP is refusing to release training materials which would potentially highlight difference between the way that Atos and Capita carry out PIP assessments, Benefits and Work can reveal.

Back in June Benefits and Work made a Freedom of Information Act request for training and guidance materials issued by Atos to staff carrying out PIP assessments.

The detailed guidance covers issues such as the way in which requests for the recording of PIP assessments are dealt with.

However, the DWP refused to release the guidance on the grounds that it was commercially confidential.

We asked the DWP to reconsider their decision, because these are not commercially confidential matters and there is a strong public interest in knowing how the PIP system is administered on a day-to-day basis.

If there is a difference in the PIP is manged by different companies, then this is also a strong matter of public interest as claimants ought to be able to be sure that their assessment is a standardised one and not one based on which company carries it out.

The DWP, however, have once again refused to release the documents because they consider them to be commercially sensitive.

The DWP told us:

“Release of this information would reveal to their competitors commercially sensitive information which would disadvantage IAS’s [Independent Assessment Service, the name that Atos now use] competitive position in the marketplace.

“This in turn would prejudice the ability of the Department to secure best value for the taxpayer when the contract is re-tendered. Release of this type of key financial information would also undermine the effectiveness of the Department’s future dealings with IAS or other service providers.”

The DWP now routinely refuses a large proportion of freedom of information requests on the grounds of commercial confidentiality, without attempting to justify in any way how anyone’s interests would be threatened.

Benefits and Work is now applying to the Information Commissioner to have the documents disclosed. We’ll let you know what their decision is.

One In Three DLA To PIP Transfer Claimants With MS Lose Higher Rate Mobility

September 6, 2017

With many thanks to Benefits And Work.

Almost one in three claimants with multiple sclerosis (MS) who were getting the higher rate of the mobility component of disability living allowance (DLA) have had their award reduced after being forced to claim personal independence payment (PIP).

The figures were obtained by the MS Society, which also discovered that almost a quarter claimants with MS who were getting the higher rate of the care component of DLA had their award reduced after being assessed for PIP.

Genevieve Edwards, of the MS Society said:

“These staggering figures show how PIP is failing some people with MS who need the highest level of support.

“It doesn’t make sense that people are losing money they once qualified for, when they are living with a progressive condition.”

You can read the full story on the MS Society website.

LGBT Journalist Dean Eastmond, 21, Loses Cancer Battle

September 6, 2017

Same Difference just heard of Dean Eastmond yesterday, but we were so inspired that we just had to share some tributes.

Tributes have poured in for “inspirational” LGBT journalist Dean Eastmond following his death from cancer aged 21.

The editor of HISKIND documented his battle with Ewing’s Sarcoma, a rare form of bone and soft tissue cancer, openly and frankly in articles, interviews and on social media.

Following his diagnosis, he wrote in a HISKIND article: “I was diagnosed with soft tissue cancer in my rib (Ewing’s Sarcoma) after getting myself an Uber to the closest A&E thinking I had a broken rib after a large lump the size of a grapefruit appeared on the right hand side of my chest.

 
 

“Fickle and naive, being told there and then that this wasn’t a broken rib, but a cyst or a tumour saw a terrified Dean breaking down in the A&E waiting area, unable to decide whether to call his boyfriend or mother first.

“After a needle biopsy, I was diagnosed,” he added.

The much-loved British writer was overwhelmed with support in his last few months, with Nicole Scherzinger sending him a special video message.

 

Following his death, numerous fellow journalists and fans took to social media to pay tribute.

Author and Labour activist Owen Jones wrote: “RIP Dean Eastmond, an amazing, courageous, inspirational queer young journalist who has died of cancer. He moved so, so many people.”

He added: “He was so incredible, he moved so many people, he achieved so much, and he’ll be remembered forever.”

Radio host Philip Ellis said: “@deanvictorr achieved more in just a handful of years than most of us do in a lifetime and I will forever be in awe of him.”

The Royal Vauxhall Tavern, one of London’s most iconic LGBT venues, tweeted: “Saddened to hear that Dean Eastmond has passed away – he was an inspiring and brave person. We send our condolences to his friends & family.”

BBC journalist Ben Hunte added: “Devastated to hear @deanvictorr has passed away. I know that his AMAZING work will live on, but he will be so missed.”

Guardian journalist Chris Godfrey wrote: “You were an absolute hero @deanvictorr and an inspiring figure to so many. Grateful to have had the pleasure of knowing you.”

Post Mastectomy Bras Available At Debenhams

September 5, 2017

Updated: I’ve been informed in the comments of the above post that M&S has them, too. I’m even more impressed now!

 

SEN Assessment Is One Of Cameron’s Howling Disasters

September 5, 2017

It was March 2011 when the coalition government announced proposals to reform England’s special educational needs (SEN) system. Some of the initial noise around their plans was grim: government sources said as many as 450,000 children could be taken out of the category of special needs altogether, while the dependably sensitive Mail Online ran such headlines as “Schools on a scam and an excuse for lazy teaching”. At the same time, ministers made contrasting pledges, many of which I heard first-hand – not least the promises to make things “stronger and simpler” for parents and children.

But from the start, the changes were plagued by confusion, slipshod administration and the effects of austerity. SEN is inevitably a niche area of policy, but there is a big story here, of one of the David Cameron era’s most howling disasters, and an iron law of modern government: that to try to revolutionise a system in the midst of swingeing cuts is to invite chaos and failure.

My 10-year-old son is autistic. Before he started primary school, my partner and I began the journey to getting him a statement of special educational needs, which would set out the support he required in detail, and gave us a legally backed means of securing it. Throughout the process, I was painfully aware of how it favoured people with the money and time to pursue their case, and cut out many more for whom the SEN system was an impossible maze.

As with so many parents, our initial request for our local authority to begin the process of getting a statement was turned down – which entailed probably the most stressful experience I have ever had: months of legal argy-bargy, stop-start negotiation with our local authority and the frequent fear that we were about to hit a brick wall. Even with some of the correct arrangements in place, it took two attempts to get our son’s provision right, but with the help of two brilliantly supportive local schools, by the time he was nine, we were able to stop fighting and worrying, at least for the time being. He is now making real progress, both educationally and socially.

In our case, the announcement that the SEN system was to be overhauled triggered a deep ambivalence. The system had just about worked for us, and the prospect of its reinvention often seemed like yet another obstacle we would have to climb over. On the plus side, statements were to be phased out in favour of so-called education, health and care (EHC) plans – ours, we’re told, is on the way – which would go beyond education to cover health and social care, and run up to the age of 25. But the means of holding the providers of these services to account were unclear. Pilot schemes ran late. And it soon became apparent that amid cuts and the shrinking of local authority education departments thanks to Michael Gove’s academies and free schools drive during his time as education minister, councils were in no position to roll the changes out.

Five years on, it looks as if the already-difficult lives of parents and children in need of support have been made even more trying. Getting a halfway satisfactory EHC plan seems to be as difficult as securing a dependable statement. SEN insiders say councils are using the transition to plans to cut entitlements, often by changing specified provision (for example, weekly speech therapy) to much fuzzier commitments: the word “regular”, which can often mean almost nothing at all, is a favourite.

According to Melinda Nettleton, the lawyer whose book Special Needs and Legal Entitlement is something of a set text for people fighting their way through the SEN jungle, many councils are insisting parents try at least three terms of non-statutory provision before they apply for a plan: something that has no basis in legislation, and in many cases, means months of failure before any meaningful improvements can even begin. She also highlights the serial absurdities of SEN funding: schools are now meant to spend up to £6,000 a pupil each year on SEN support – but it is part of the Kafkaesque thinking at work that this figure is “notional” and can sometimes translate into as little as £200.

Self-evidently, tumbling school budgets are compounding the pain. Many authorities have long had a policy of pushing parents away from statements and plans towards their own non-statutory arrangements, so as to keep costs down.

One example was Devon county council, which involved hundreds of families in an ad hoc system called My Plan, with no formal legal entitlements. In a particularly cruel turn, the council announced at the end of this year’s summer term that it would be drastically cutting back this provision, and leaving schools and parents to apply for individual EHC plans. It is not hard to see what this move threatens to result in: even more children being left with little or no provision at all.

Across England, the same story is glaringly clear: one failed regime being chaotically replaced by another, and all that initial hype dwindling into meaninglessness. The promise of a stronger and simpler system looks set to result in the exact opposite: a set of arrangements that are weak, absurdly complex and full of the same old trapdoors. The upshot, needless to say, will be tragic: dashed hopes, ruined lives, and a great ocean of educational potential left ignored.

The Crisis In School SEN Support

September 5, 2017

Two years ago, Ben Johnson, then aged nine, suffered a mental breakdown after years of difficulties at home and at school. His mother, Sonia Johnson, says he had deep anxiety and refused to go to school. From the first year of his schooling, she says, she had requested extra support, but the school did not offer the assistance she believed he needed. “I was made to feel I was hysterical and attention-seeking just for asking for support for my son’s needs,” she says.

The crisis brought things to a head. Ben’s GP signed him off. He has not been to school since.

His doctors – a psychiatrist, a paediatrician, a neurologist and his GP – had said he needed extra assistance at school. Ben was on medication for attention deficit hyperactivity disorder and had a diagnosis of autism, as well as paralysis to one side of his body because of a congenital brain problem. The headteacher, though, said Ben did not display enough difficulties to warrant the extra help his mother was calling for. Johnson felt the school’s response was “brutal”. But Ben did not have the vital document from his local authority that would help.

Since September 2014, the passport to receiving any extra services is no longer the “statement” of special educational needs (SEN) but an education, health and care (EHC) plan, intended to bring together a child’s education, health and social care needs. As under the previous system, pupils are not automatically entitled to be assessed. But now delays in the system are causing extra distress.

The Johnson family’s experience seems all too common. As council budgets and school funding have been cut, families of children with special needs increasingly find they have to battle for help – a fight some do not win.

Anyone can request an assessment, but local authorities can refuse if they believe a required threshold of needs has not been met. And councils are refusing more requests. According to Department for Education figures, there was a 35% increase between 2015 and 2016 in the number of local authority refusals to carry out EHC needs assessments on children. And for those who did get an assessment, in just over 40% of cases, the family had to wait longer than the 20 weeks cut-off date by which a decision whether to approve an EHC plan should be made, as councils struggle to do their job with the funding they have.

Even families who do get a plan still may not be given the services needed. More than 4,000 children in England with an approved EHC plan still receive no provision. The number of children and young people who are waiting more than doubled from 1,710 in 2016 to 4,050 in 2017 – and that figure is more than five times bigger than in 2010.

In Ben’s case, his mother says she was promised his school would refer him for an EHC plan, but teachers subsequently maintained he was managing. Three years later, in despair at Ben’s worsening physical and mental state, Johnson requested an EHC needs assessment herself. The council refused. She said she would appeal, but agreed to mediation first. As soon as the mediation meeting started, the assessment was agreed. Ben’s EHC plan was finally approved in February, but the document was received by his mother only in July – two years after her application.

Ben now has an out-of-school tutor and his mother says a range of professionals agree he may never be able to return to mainstream education because of all the negative experiences. “It’s been a really tough journey for the family. I feel that hopefully we’ve come over a really large mountain,” says Johnson. “I’m still worried for his future, and desperately sad and angry to see the damage caused.”

Figures from 2015 showed that when families challenged their local authority refusal to grant an EHC plan at a tribunal, 86% of council decisions were overturned. But the strain and cost of preparing a tribunal case mean many families cannot even try. One parent who talked to the Guardian spent £15,000 to employ a barrister, only for her local authority to cave in a week before the hearing. “It seemed a criminal waste of time and money,” she says.

Parents also worry that schools don’t have an incentive to offer enough help because a child with special needs is, bluntly, an expensive line on a headteacher’s spreadsheet. If an EHC plan is granted, schools must meet the first £6,000 cost of any extra support. This comes out of their overall budget.

Adding to the pressures, since the Children and Families Act (2014) local authorities have been landed with effectively limitless liability for SEN: as a matter of equality, because students with SEN need longer to learn, legislation now says they may be entitled to educational support until the age of 25 – five to six years longer than before. Local authorities say they have received no funding for this.

David Ellis, chief executive of National Star College in Gloucestershire, says that when it comes to children over the age of 16, councils are reluctant to pay for specialist provision such as that offered by his college, because of the cost, even when there is nothing suitable locally. This means young people are often forced repeatedly to fail at local colleges that do not meet their needs, he says. “There is a central government solution, which is to recognise that not everyone who needs an EHC plan can have a local solution. There are only three or four high needs students per local authority per year. For those students, you need national centres of excellence.”

Decisions all seem to be about funding, says Barney Angliss, a former local authority commissioner, now an SEN and disability consultant who advises parents. “Councils are wrestling with the cost of everything, and they are saying we simply have to balance the books. … If you talk to parents, they will say we want a decision that is needs-led. If you talk to local authorities, they say they are on their knees because of special needs. It is breaking them. Their core argument is that they don’t get the money from Westminster to be able to do it.”

Richard Watts, chair of the Local Government Association’s children and young people board, says councils have been put in an impossible position. He says the LGA warned the government from the outset that the SEN reforms in the Children and Families Act were significantly underfunded.

The LGA also says mainstream schools are becoming wary of taking children with SEN, even if their needs could reasonably be supported. “If we’re to make sure that all children get access to a mainstream education, the government must urgently provide additional funding,” says Watts.

Mia Appley, whose seven-year-old son, Sam, has autism and problems with speech and communication, says it’s wrong that local authorities are driven by controlling costs rather than what is right for young people. “If you want anything more than the absolute minimum they force you to fight for it.” When her local authority had to cut costs, it withdrew Sam’s language therapy support, Appley says, and was able to do so because at that point he had no EHC plan.

When Sam’s EHC plan came through, within hours of the 20-week deadline, it emerged that professionals’ recommendations for the type of therapies he needed had been ignored in favour of a standard “autism package”. “I had to go to mediation and then apply to tribunal,” says Appley. Her local authority capitulated weeks before the deadline requiring tribunal papers to be lodged.

Over time, the anxiety experienced by parents such as Appley and Johnson is debilitating. “I think what they do is make it so hard that lots of people give up,” says Johnson.

The pressure on budgets is also leading to schools operating “selection by stealth”, says Vic Goddard, principal of Passmores academy in Harlow, Essex. His school takes 53% of children with special needs in Harlow – which has five secondary schools – so his budget is disproportionately hit to the tune of about £370,000 a year. He is proud, he says, that parents choose Passmores, but notes pointedly that none of the other local secondaries “are queuing up to give me the £6,000 they’re not spending by not taking their share”.

Goddard says performance on SEN should be a limiting provision in Ofsted inspections, meaning a school could not be graded outstanding if its share of this group of children on roll was not representative of the need in the community.

The Association of School and College Leaders’ deputy general secretary, Malcolm Trobe, agrees some schools are “not acting ethically and are looking at ways of not taking certain young people because of the pressures they believe they will put on the school”. He says the government has not caught up with the cost implications of there being higher numbers of children with significant needs.

A government consultation specifically about SEN funding closed in March. The results have yet to be published.

Robert Goodwill, the minister for children and families, says the government’s planned new funding formula for schools, due to start in 2018, will deal with the issue. “We recognise the importance of ensuring that schools have the necessary resources to meet the range of special educational needs. Fairer schools funding – backed by £1.3bn of additional investment – will mean protection for those with high needs and will ensure every local authority is in a position to give schools a cash increase through the new formula.”

Meanwhile, though, Goddard says: “As a society we are letting down the parents, and if I’m honest it feels like we’re blaming and punishing them for having a child with special needs.”