Draft SEN legislation - worrying!

[AgnesDiPesto]

SOSSEN views on draft legislation here

If you have views you can submit them to Ambitious About Autism by 11 October here although probably other routes too.

SOSSEN urging everyone to complain to their MP about removing parental rights.

What's the difference between 'secure' and 'arrange'?

Does it take some onus off of delivery?

'He said that often just threatening court action gets the result you need'.

Hmm, well he would say that, - being a barrister and all. My experience is the opposite.

That was my concern Star.

In theory, secure sounds like a firmer commitment but the courts have already explored arrange and defined it, so why change it? I suspect it is not to 'firm up' children's rights.

The courts approach interpretation by applying the ordinary English meaning of the word when there is a lack of clarity and here I think there could be some wriggle room for LAs as it could be interpreted to mean obtain, procure rather than deliver.

Yes, - 'well, we've secured a contract with SALTs - go and pester them!'

Precisely! And it maybe that the courts would say, Parliament has changed the wording from arrange to secure for a reasons, Parliament meant us to interpret this differently.

"'He said that often just threatening court action gets the result you need'.

Hmm, well he would say that, - being a barrister and all. My experience is the opposite."

Well, hardly, seeing that if the threat means that you don't have to go to court it does a barrister out of a fat brief fee. However, if you do have to go to court, I understand that the case would be brought in the child's name and he would be entitled to legal aid, unless he's a lot richer than most children with SEN.

I disagree. The lure of 'threatening' court action but not having to actually go, gets legal firms money from parents who were not considering legal action at all, and brings them into a system where they could be throwing good money after bad.

I have had enough experience of SEN lawyers to know that whilst some are very good/ethical and do care, their agenda is not the same as parents, and there is also a hell of a lot to be gained for them from ambiguity.

"Yes, - 'well, we've secured a contract with SALTs - go and pester them!' "

It wouldn't work. The duty is to secure the provision, not to secure a contract. If anything, "arrange" could be seen as more dangerous - LAs might have been able to say "We've arranged SALT, it's not our fault if it didn't happen." But as we know the courts haven't interpreted it that way, and there's no reason to believe they would interpret "secure" any differently.

Don't get me wrong, I think there are a lot of problems with this legislation, but I think we need to concentrate on that rather than putting all our energies into concentrating on the total red herring about "best endeavours".

I think we should be focussing on the suggestion that SALT and OT won't count as educational provision and won't be enforceable, and the failure to put into the draft any duty for LAs to specify provision. That would mean that LAs could get away with nonsense like "X would benefit from contact with a specialist dyslexia teacher" which would mean that there would be no duty on LAs to provide any specialist teaching at all.

So what is provision and how is a contract not provision?

LA's always focus on the wooliest definition of provision rather than outcomes. They measure their success by what they put in, not what comes out. And if they have contracted someone else to provide, the haven't they secured provision regardless of whether or not it is actually provided?

I don't think anyone would mind too much about best endeavours occuring anywhere PROVIDED there is timely accountability SOMEWHERE.

Delalakis - I am afraid your barrister friend is wrong about the best endeavours duty on schools being new. It is not and it is not litigated on as it is near nigh impossible to enforce.

However, as you say, the best endeavours issue in relation to LAs is a red herring as the proposed bill does not reduce the duty on LAs to best endeavours.

It does however change the wording and it would be naiive not to address this. As a lawyer who has been involved in cases to Supreme Court level which frequently turn on the wording of Acts, I would say that, although it may not be a problem, it might be and any changing in the wording needs to be raised.

This means it can be commented on as the Bill passes and clarification can be sought to support the meaning if there is an intention to change it.

Secure might mean more than arrange but it might not. The ordinary English meaning is ambiguous and, in those cases, the courts can look to what was said in Parliament during the passing of the Act.

"I disagree. The lure of 'threatening' court action but not having to actually go, gets legal firms money from parents who were not considering legal action at all, and brings them into a system where they could be throwing good money after bad."

Yes, but practising barristers aren't part of legal firms. You can make the threat of court action yourself, but if you want a formal solicitor's letter you go to a solicitor's firm. The barrister I was talking to is a practising barrister who therefore isn't allowed to join a solicitor's firm, and he gets no money until someone is actually starting a court action. If the threat works so that court action isn't needed, there's no financial advantage to him.

I quite agree that if a law is ambiguous it makes money for lawyers, but that doesn't mean that what my contact said is wrong. After all, we can all see for ourselves the wording of the Bill. Also, as I have pointed out, if he is wrong, the follow-up is court action which the parents won't have to pay for because their child would get legal aid.

I do hear what you are saying. But the barrister has a belief system that is embedded in legal action. How many people does he come across sorting things out without legal threats? And, do you not think that he benefits from waving in more traffic to his feeding solicitors?

I'm not suggesting that he is out to deliberately force parents to part with cash that they wouldn't otherwise, but it is his bread and butter, what he knows and this will be at least partly influenced by his aspirations for himself.

So, I guess this is one simple question for Edward Timpson?

Why have you changed this word? What do you have against keeping it as 'arrange'?

What I would be very interested to know is whether the new 'plan' means that ABA and other autism treatments and therapies can now be provided by Health, as it is in many other countries.

"He said that it's an improvement because it means that potentially cases can be brought in the child's name against both schools and local authorities - local authorities because they have an absolute duty, and against schools if you can say they haven't used their best endeavours."

I am sorry but your contact is wrong. This is not an improvement. The duty on schools is not new and it has always been open to parents to take action gainst schools.

This is because section 317 of the Education Act 1996 has long imposed a duty on schools to use their best endeavours to ensure that for any pupil who has SEN the special educational provision which his learning difficulty calls for is made.

If you ask any education lawyer, they will tell you that this is not litigated on as it is almost impossible to pin this duty down and it is too easy for the schools to say they 'did their best' and then to factor in cost restraints etc etc.

The duty on the LA has, however, always been absolute and this is why yoou litigate against the LA not schools.

The proposed Bill does not change the status quo in this respect save to change the wording of the LA's duty from 'to arrange' to 'to secure'.

Some of us are trying to organise our thoughts on this away from public gaze - I note alot of posters from other bodies have caught wind of this thread which is helpful but they may have their own perspectives.

PM me if you are interested.

"Delalakis - I am afraid your barrister friend is wrong about the best endeavours duty on schools being new. It is not and it is not litigated on as it is near nigh impossible to enforce."

Sorry, I think this is my error. He said it was an improvement basically because the list of schools is extended. The improvement in terms of being able to take more direct action is because the new academies have a clause in their agreements with the DfE which does impose a more direct duty on them.

The fact that section 39 is a repeat of the existing legislation does show again that the whole "best endeavours" point is a red herring. If the fact that the schools had a duty to use best endeavours didn't weaken the LA duty before, then it won't do so now. Yes, if it makes people happier to have "arrange" in the new Act instead of "secure", by all means say so, but I think it is a pity that Ms Nettleton went on the radio and told everyone that the Bill will mean that LAs only have to use their best endeavours when that's not the case. If we all start concentrating on parts of the Act that are not a problem we risk losing sight of the things that definitely are problems, which is probably exactly what Gove would love.

I'd like to help figure this out too AE! I don't have the skills that many do, in this area but don't see why the law shouldn't be clear to parents like me.

Thanks. Clearly someone made an error on section 39 but your initial post was also substantially incorrect.

Thanks for your advice but I think those of us who wish to organise can take up the points we feel are important for ourselves. I am a lawyer and very used to finding my way around Acts.

I note you are a new poster. What has brought you here?

Star - I think we will need to do this off-board.

I also think that it is really important that there is substantial input by parents and not run by lawyers, or even charities tbh. As I said before, their agendas are not the same (NAS anyone?).

I absolutely agree. A legal perspective might help you understand the proposed Bill (although if it needs legal interpretation it is not good drafting!) but what parents choose to do or say about it is a matter for them.

I have already had a poor experience with charities so knee-deep in their relationships with Gov departments and pathfinder projects that they have entirely forgotten what they are supposed to be doing.

Appropriately employed: I'm the mother of a three children, and I joined Mumsnet I guess for all the reasons everyone else does. I came to the SEN thread because one of my children has dyslexia. I've recently gone through the statementing process myself and therefore am particularly interested in developments in SEN including the Green Paper.

So, what brings you here and what is your appropriate employment with regard to education?

'So, what brings you here and what is your appropriate employment with regard to education?'

I guess it is because you don't know this, that you raise alarm bells.

You're welcome here, as are your contributions, but you have to realise that this board has an established community and appearing from nowhere (your posting history suggests you only began today) with forthright opinions is going to raise questions about your agenda.

I have been a regular poster here for over 4 years. The posters here have kept me going through all my many battles.

I noticed you were new and this thread was your first post. We have had several new posts on this thread from charities etc.

I have absolutely no appropriate employment with regard to education. Appropriately employed was a name change and a joke from a previous name. Those who know me understand it but we name change for many different reasons so it is probably wise not to explain the history

I am a lawyer by profession but I don't work in education and never have.