@TheTimeTravellersWife
I am a parent of a child with Special Educational Needs, who has a Statement of SEN. She is currently attending our local village mainstream primary, with a significant level of support, which we only obtained after taking the Local Education Authority to the SENDIST Tribunal.
What will happen in the case of children who already have Statements of SEN? Will they have to go through the Statutory Assessment process again? This would be unnecessarily costly for the LA and stressful for parents. Ideally, their Statements will be seamlessly converted to EHC Plans, without the need for re-assessment.
The Tribunal should be able to take into account unreasonable behaviour by LA during the process of the appeal. In my own case, the LA wilfully ignored the professional advice obtained during the Statutory Assessment; which is the reason why we needed to appeal. We wrote to the LA during the appeal, with a copy of the working document, and they refused to negotiate with us. This is totally unreasonable behaviour. The Statement was unlawful, as it did not specify and quantify provision, as required by the Code of Practice.
However, there are no effective sanctions available when LAs behave in this manner, other than for parents to appeal to the SEND Tribunal. The Tribunal agreed that my daughter required the level of support that was recommended by the professional reports and ordered the LA to amend her Statement accordingly. We suffered stress and expense solely due to the unreasonable attitude of the LA. The Draft SEN Bill proposes compulsory mediation, whilst the Green Paper acknowledged that mediation to date has not worked. Compulsory mediation will prove a failure and simply add to an extension of the overall time-scales involved and parental frustration.
The assessment process should be independent from the Local Education Authority or from the Health Authority, who sadly, will both be influenced by their budgetary constraints.
The Draft Bill does nothing to resolve the inherent conflict of interest between the LA both assessing and being responsible for providing special educational provision. In 2006, the House of Commons Select Committee recommended that ?the link must be broken between assessment and funding of provision?, having concluded that ?there is an inbuilt conflict of interest in that it is the duty of the local authority both to assess the needs of the child and to arrange provision to meet those needs, and all within a limited resource.?
It is not unknown for LAs to issue unlawful Statements, that fail to specify and quantify provision, as required by the Code of Practice, as at present there are no sanctions or penalties if they act in this way. The only redress that parents have is an appeal to the SEND Tribunal. LAs have at their disposal well staffed legal departments and ready access to education solicitors, LA Educational Psychologists and others. Parents do not; they either have to represent themselves or obtain legal advice, which is expensive, as are independent expert reports.
An appeal to SEND takes on average 6/7 months, and during that time LA know that they will save money by issuing Statements that do not properly support the child with SEN.
The system is stacked against parents, in favour of the Local Authority. This has to change. But the Draft SEN Bill does nothing to improve the position of parents.
The SEND Tribunal should be able to make an award of costs against a LA that has acted unreasonably - issuing an unlawful Statement is clearly unreasonable!
The threat of having an award of costs made against them by the SEND Tribunal would be far more effective in reaching agreement before Tribunal than the proposal for compulsory mediation.
At the moment no one is responsible for ensuring that LAs meet their legal obligations towards children with SEN. By default the task falls on parents and those organisations in the voluntary sector who advise and support them. When parents challenge LAs it is on an individual basis.
The SEND Annual report reveals enormous differences between the number of appeals lodged per LA; the reasons behind this need investigating. Some LAs habitual flout the current laws on SEN and hence, the higher number of appeals made to SEND. More importantly, the children of parents who either are unaware of the possibility of challenge, or who do not have the resources to challenge decisions, are disadvantaged if they live in LA that persistently and deliberate flout the law and with unlawful local policies on assessment and provision for special needs.
The SEND Tribunal have no power to compel an LA to change its SEN policy and practice in carrying out its duties, despite having heard repeated evidence on the same issue with the same Authority e.g. on speech and language therapy provision. This is an inefficient use of Tribunal expertise and resources as well as those of the LA.
The Government needs to take action against authorities which have "unwritten policies" applied through custom and practice which nevertheless result in unlawful Statements being issued, otherwise these practices will continue with the new EHCP. Central government need to provide information and training re: the local authorities? role, so that they can all know their responsibilities, and put into practice what is needed. Financial sanctions should be introduced for local authorities that do not comply with the SEN Statutory Framework.
There needs to be a better method of ensuring that the provision set out in the Statement/EHCP is provided. At the moment, the only method is by going to Judicial Review, which with proposed cuts to legal aid, is likely to be beyond the ability of the majority of parents to do.
I raised the point about retain the need to specify and quantify provision in the new EHC Plan with the previous Minister, Sarah Teather:
"There needs to be a legal requirement for the EHC Plan to specify and quantify the provision to be made, across education, health and care. The plan has to be legally enforceable, it is is not, then it will not be worth the paper it is written on and parents and children will find themselves in a worse situation than they are now.
Sarah Teather MPs replied:
"The new plan will be legally enforceable in the same way as statement. What we are aiming to do is to add to the protections children and families get and not take away from them."
But the Draft SEN Bill wording for how an Education, Health and Care (EHC) plan must describe special educational provision has replaced the current duty to specify with the watered down requirement it to ?set out?.
?Setting out? is not the same as ?specifying?, and the change of wording may be seen as an intentional difference by the Tribunal and the courts, potentially allowing special educational provision to be described in terms so vague that it will enable LAs to avoid their current legal duty to arrange/secure a specific amount and type of help for the child.
The meaning of ?specifying? has been interpreted by thirty years of case law and is fundamental to the child?s entitlement to the provision called for by their SEN.
Leading on from this, without the duty to specify and quantify provision in the EHC Plan, LAs will be not be able to provide a cost for the special educational provision the child needs. So how will LAs calculate the amount needed to be paid in direct payments to parents/children for these services?
Thank you for taking the time to read this, and I very much look forward to reading your response to the important points that I have raised.
Thanks for a thoughtful post. On the question of those children currently statemented, they will lose none of their services deemed appropriate within their current statement when moving to an EHCPlan. I want to make the transition from one system to the other as simple and straightforward for parents as possible and am considering how best to do this without causing too much pressure on the system as a whole.
On the 'set out' 'specify' point, the intention is not to change the duties or rights under the current system going forward and I have said I am happy to go back and endure the legislation is clear ion this point.
. However I would like to know if you will impose a minimum timescale for the issue of the new EHC plan.
