CHAPTER 15
Legal Issues in Selective Mutism
What Support is a Child Entitled to?
Parents or guardians who are seeking help for a child who is consistently silent in certain situations but not in others may find it helpful to remember that they and the child have certain rights under current UK law – for example, the Equality Act (2010) or the Children and Families Act (2014). This may mean, for instance, that if a ‘Disability’ or ‘Special Educational Need’ has been specified, there are certain absolute entitlements for which your child may qualify. It is worth keeping in mind that a House of Lords amendment to the bill ensures that, in the Children and Families Act itself, Speech and Language Therapy remains an educational need. In other words, SLT is not entirely dependent upon ‘Health’ funding, despite any misleading statements to the contrary.
For legal purposes, it is essential for Selectively Mute (SM) children to have a firm diagnosis. This is because it is easy for uninformed people to assume that they are simply being unco-operative. SM is now officially classified as a disabling anxiety disorder (APA 2013; WHO 1999, updated).
To be diagnosed as ‘Selectively Mute’, a child must be consistently silent in some situations, but speak freely in others, usually at home; have attended school or nursery for more than one term; and been immersed or instructed in the dominant language for more than six months. The fact that there may be co-existing conditions or a variety of causes should not rule out a diagnosis of SM.
Some families with SM children will be involved in a productive partnership with the child’s school, working together to meet his or her needs. Some will receive support and intervention via the special educational needs (SEN) provision in their school or at home via Community Health. The school, or clinic, in partnership with the parents, understands the child’s needs and provides appropriate support. Assessment by a speech and language therapist and an educational psychologist is arranged by the school or Child and Adolescent Mental Health team to inform this provision.
For other families, the situation is very different and this chapter has been written to inform those parents of their child’s rights under current UK legislation.
The first recourse for parents is to try to negotiate support for their child via their GP (general practitioner) or the SEN process in school. There is now a revised Code of Practice recommending how children with SEND (Special Educational Needs and Disabilities) should be helped within the educational system. As the code has changed, it will be useful to understand its important features and to know where to seek help in navigating the new system.
The new Act comes into force in September 2014. However, its implementation will be subject to adjustments in practice. This will mean that parents are expected to put forward the case for individual children who do not have Education and Care Plans receiving any help they require.
The SEND Code of Practice provides statutory guidance on duties, policies and procedures relating to Part 3 of the Act and associated legislation and regulations (e.g. the Equality Act 2010).
A copy of these two important documents can be obtained from the following websites:
•Children and Families Act 2014: www.legislation.gov.uk/ukpga/2014/6/contents/enacted
•SEND Code of Practice 0–25: www.gov.uk/government/publications/send-code-of-practice-0-to-25.
In this new legislation, the definition of special educational needs has changed slightly. The new definition states:
A child or young person has SEND if they have a learning difficulty or disability which calls for special educational provision to be made for him or her.
A child of compulsory school age or a young person has a learning difficulty or disability if he or she:
•has a significantly greater difficulty learning than the majority of others of the same age; or
•has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions, including academies, special schools and free schools.
This second category may apply to children with SM if serious anxiety disorders prevent them from speaking at school.
To summarize, the major legislative and statutory changes include:
•Statements will be replaced by Education, Health and Care Plans (EHC). EHC plans will provide statutory protection comparable to statements. They will extend to age 19, whether or not the young person is at school.
•Consideration of Special Educational Needs will last until the age of 25.
•Health Services and the Local Authority will jointly commission and plan services as part of the EHC plan. Usefully, a ‘designated medical officer’ in the commissioning process can also be a ‘designated clinical officer’, for instance an SLT or psychologist.
•Parents and young people over the age of 16 may be given funding to purchase services identified on their EHC. However, it is expected that in reality the use of personal budgets will be limited.
•Local Authorities will publish a ‘local offer’, describing provision for pupils with SEN in their area.
•School action and school action plus will be replaced by a graduated approach.
•In due course, schools will also be required to publish their own SEN offers.
•Greater responsibility than before will be placed upon schools, therefore what they provide will inevitably vary.
•Quite complex arrangements for dealing with disagreements will be in place enabling both parents and older children to put forward their views and expectations.
For an analysis of the proposed changes, the following public service and voluntary organization websites are very useful:
•IPSEA (Independent Panel for Special Education Advice): www.ipsea.org.uk
•Public Service Info: www.publicserviceinfo.co.uk
•The Communication Trust: www.communicationtrust.org.uk.
It may not always be clear exactly who is responsible for funding these recommendations and ensuring that they are met. Families in some areas of the country may need to press quite hard for assessment and treatment, and for proper information to be made available to all the professionals involved with their SM child.
If an SM child is denied appropriate support via SEND pathways, there is powerful recourse for parents through an Act of Parliament described below. Parents will need to agree to their child being described as having a disability, which can be a difficult step to take. Also, the struggle to establish their child’s right to appropriate intervention can be emotionally draining, but the rewards can be great. The child’s school benefits too, with regard to better understanding of SM and wider disability issues. The definition of a disability in the Act is: a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This includes learning difficulties, mental health conditions, medical conditions and hidden impairments such as specific learning difficulties, autism and speech, language and communication impairments. Prevention of increasing disability is often the aim of treatment.
Since it is frequently assumed that SM children are voluntarily withholding speech, the supporters of selectively mute individuals may need to explain that many of them become physically unable to speak, or may feel so terrified of speaking that even trying to do so is impossible. That is the explanation for an apparent refusal to speak in some cases.
Young people of secondary age and above have a legal entitlement to complain themselves if they are discriminated against or are not provided with services that help them to overcome disabilities. Mina in Chapter 16 did exactly this by writing to the mentor at her school and obtaining the help she needed to overcome her SM as she wished to do. Had this failed, she could have taken matters further.
Below, we outline relevant aspects of the Equality Act that parents and children can use to obtain suitable provision for their SM child, together with contact details of useful organizations.
The Equality Act (2010)
In October 2010, this Act replaced all existing equality legislation, including the Disability Discrimination Act (2005). As SM is categorized as an emotional disorder related to severe anxiety, it falls within the categories covered by this law. The term ‘protected characteristic’ is used as a convenient way to refer to categories covered by the law.
The Equality Act Guidance of February 20131 has been compiled to help, for example, schools and parents to understand what is covered under this important law. Chapter 4 of the Guidance is particularly relevant as it outlines schools’ responsibilities under the law, now incorporated in their SEND Code of Practice. These responsibilities are summarized here.
There are five kinds of unlawful behaviour that schools must avoid:
•Direct discrimination. This refers to the most obvious and clear-cut discriminatory behaviour. For example, an SM pupil fails to answer the register after repeated requests and is given a detention.
•Indirect discrimination. This occurs where a provision, criterion or practice is applied generally but has the effect of putting people with a particular characteristic at a disadvantage when compared to others without that particular characteristic. For example, a school uses oral group work to help pupils enhance their understanding of a topic by exploring meanings of key concepts, but the SM pupil is unable to participate without help that is not made available.
•Discrimination arising from a disability. A school must not discriminate against a disabled pupil because of something that is a consequence of their disability. For example, failing to assess and track an SM pupil’s reading attainments, due to the method used in the school to assess reading (which involves reading aloud in class).
•Harassment. This is defined as unwanted conduct related to a relevant, protected characteristic. A school must not harass a pupil because of her/his disability. For example, a teacher shouting at a pupil because the disability means that s/he is constantly struggling with certain types of classwork.
•Victimization. This occurs when a person is treated less favourably than they otherwise would have been because of something they have done (a ‘protected act’) in connection with the Act. A ‘protected act’ may involve, for example, making an allegation of discrimination or bringing a case under the Act. Also, a child must not be victimized because of something done by, for example, their parents, in relation to the Act.
So what is expected of schools with respect to the law?
1.Schools must make reasonable adjustments:
(i)Where something a school does places a disabled pupil at a disadvantage compared to other pupils, then the school must take reasonable steps to try and avoid that disadvantage.
(ii)From September 2012, schools are expected to provide auxiliary aids and services for a disabled pupil when it would be reasonable to do so and if such aids would alleviate any substantial disadvantage that the pupil faces.
(iii)Failure to make reasonable adjustments can no longer be defended as justified.
The Equality and Human Rights Commission (EHRC) has published guidance on the auxiliary aids duty.2
2.Schools must implement accessibility plans which are aimed at:
(i)increasing the extent to which disabled pupils can participate in the curriculum
(ii)improving the physical environment
(iii)improving the availability of accessible information to disabled pupils.
3.Schools must meet the Public Sector Equality Duty (PSED). Schools must show that they have due regard for the need to:
(i)eliminate discrimination and other conduct as prohibited by the Act
(ii)advance equality of opportunity between people who share a protected characteristic and people who do not share it
(iii)foster good relations across all characteristics
(iv)ensure that decision-makers in schools are aware of the duty to have due regard to the Act when making a decision or taking an action
(v)consider equality implications before and at the time that they develop policy and take decisions.
The PSED has to be integrated into the carrying out of the school’s functions. It must not be a tick-box exercise.
4.Schools must:
(i)publish information to demonstrate how they are complying with the PSED
(ii)prepare and publish equality objectives.
This information needs to be updated at least annually and objectives published at least every four years. The simplest way for schools to publish this information is to set up an equalities page on the school website. It must be accessible to the school community and to the general public.
Responsibility of Local Authorities
Local Authorities are under the same duty as schools:
•to have accessibility strategies
•to provide reasonable adjustments
•to provide auxiliary aids and services.
Discrimination claims
Specialist tribunals with experience and knowledge of disability issues hear cases of contravention of the educational provisions on the grounds of disability.
If a tribunal finds in a pupil’s favour, the remedy will be with a view to removing or reducing the adverse effect on the pupil concerned. There is no financial compensation. However, schools may have to allocate funds to remediate the issue.
The ‘questions procedure’
A pupil (or someone representing the pupil) can ask questions of the school before deciding whether to bring a case. There is information about this procedure on the website of the Equality and Human Rights Commission.3
If there is no response to these questions from the school after eight weeks, or the answers are vague or evasive, a subsequent tribunal can draw an adverse inference from this.
International conventions
The legal position is further strengthened by means of two international conventions, as described below.
The United Nations Convention on the Rights of Persons with Disabilities
On 23 December 2010, the European Union ratified the UN Convention on the Rights of Persons with Disabilities. Ratification means that EU is now bound to ensure that the rights of persons with disabilities are respected, protected and fulfilled. Furthermore, recent decisions of the European Court of Human Rights have broadened the scope of protection for people with disabilities.4
It will be useful for parents to remember that from 2007 educational establishments in the UK have a responsibility to consider the social and emotional development and wellbeing of pupils (i.e. their mental health), in addition to their inclusion, access to the curriculum and academic progress (DFES 2007).
Where SM is concerned, this involves ensuring that all staff become well informed about the condition, and in particular the adult attitudes and behaviours that are likely to make it worse. Staff should also be aware that treatment is possible and best put in place at an early age.
The fact that neglecting an obvious communication difficulty can be damaging to a pupil’s academic, social and emotional progress is becoming well understood. However, it can go unnoticed that mute youngsters, who seem to comply peacefully with the demands of school or college life, can be in serious danger of similar neglect.
The European Convention on the Rights of the Child
Certain rights apply to everyone under the age of 18. The Convention, adopted by the UK in 2008, specifies, among many other rights, those of children to:
•say what they think should happen, when adults are making decisions that affect them and to have their opinions taken into account (article 12)
•get and to share information, as long as that information is not damaging to them or to others (article 13)
•be protected from violence, abuse and neglect (article 19)
•receive special care and support if they have any type of disability, so that they can lead full and independent lives (article 23)
•receive legal help if they are accused of breaking the law (article 40).
Governments should make the Convention known to parents and children (article 42).
Duty of care
As shown in this volume, ‘selective’ or ‘situational’ mutism can happen for a number of reasons, few of them under a child’s voluntary control. For this reason, a variety of professionals who may be in a position to provide assistance could be said to have a ‘duty of care’ toward children thought to suffer from the condition. In present circumstances, however, it is not clear whether sufficient scientifically validated information is available to all professionals who might be liable or whether the services in which they operate have the capacity to include these children in their remit.
What is clear is that:
•selectively mute behaviour can and should always be identified by teachers and nursery nurses
•speech and language therapists can and should fully assess all aspects of communication ability in children thus identified by visiting their homes or obtaining reports and recordings from parents or guardians
•a variety of treatment approaches appear to have potential and require further investigation by a number of different professional groups.
The criminal justice system
Children as witnesses
Children who are required to appear as witnesses in criminal proceedings seldom find this an easy task. Support is now always available for minors. In the case of children with any type of speech, language and communication needs, specialist support is available and families can insist that this is arranged. Court appearance would be highly likely to feature as one of the situations that a selectively mute child would find inhibiting. For this reason, such a child might need to give evidence in an unconventional way. A method would need to be devised imaginatively by a supporter who thoroughly understood the condition.
Children who may have committed a crime
A selectively mute child accused of a crime would be in an especially difficult position. It seems likely that his or her silence would be interpreted by most adults as voluntary and therefore an indication of guilt. In a situation like this, there would be an absolute necessity to involve a specialist practitioner who could devise methods of responding and explain that, although guilt could be a reality, the accused’s silence is likely to be be attributable to an anxiety condition formally recognized by the Royal College of Speech and Language Therapists, DSM-5 and ICD 10.
Voluntary organizations supporting families
•Independent Panel for Special Education Advice (IPSEA) www.ipsea.org.uk is a long-established organization with an excellent reputation. It has an advice line, advice on ‘how to take action’, and a tribunal helpline (Tel. 0845 602 9579).
•Advisory Centre for Educational Advice (ACE) Education www.ace-ed.org.uk is another long-established organization offering advice on special educational needs and disability discrimination (Advice line: Tel. 03000 115 142).
•Afasic www.afasic.org.uk (Advice line: Tel. 0845 355 5577 or 0207 7490 9420/9421).
•Parent Partnership is an organization in each Local Authority, funded by LAs but independent of them. All schools should be distributing Parent Partnership leaflets outlining the local service, which includes information about LA arrangements for SEN, and representation at school and LA meetings when required.
•Special Needs Jungle www.specialneedsjungle.com
See in addition:
•Government guidance The Parents’ Guide to the SEN and Disability Reforms, which can be accessed on https://www.gov.uk/government/publications/send-guide-for-parents-and-carers or requested as a paper version.
•There is also a useful app produced by the Council for Disabled Children to enable families and young people to store, organize and share information about them and the support and services they receive, available at www.councilfordisabledchildren.org.uk/what-we-do/networks-campaigning/early-support/early-support-app.
Notes
1This can be found in full at www.gov.uk/equality-act-2010-guidance.
2It is available at: www.gov.uk/government/publications/equality-act-2010-advice-for-schools.
3Available at www.equalityhumanrights.com/advice-and-guidance/education-providers-schools-guidance.
4For further information, visit www.equalrightstrust.org.