Children and Families Bill

Memorandum submitted by Dr Debbie Sayers and Bethlyn Killey (CF 108)

Summary

· These submissions result from discussions between parents who live in different parts of the country and whose children have special educational needs ("SEN"). Experiences have been shared in a variety of different ways: through meetings, through personal association, and through support or advice groups. The authors make no claim as to the statistical significance of these submissions but, from the feedback we have received, we believe it is possible to draw out some common themes.

· These submissions comment on:

(i) some ways in which this Bill fails to address the ‘struggle’ experienced by parents in securing provision for their children’s SEN;

(ii) the Bill’s failure to prioritise the rights of the child; and

(iii) the pilot scheme relating to direct payments for SEN.

· Suggestions are made for changes.

Introduction

1. The delivery of high-quality provision to children with SEN is fundamental to any concept of effective inclusivity in our mainstream schools. At January 2010, only 2.7% of school-aged children and young people had a statement of special educational needs. [1] These children represent the most vulnerable in our school system. Yet, despite their extreme vulnerability, our clearly defined statutory framework and the risk of loss of opportunity associated with SEN not being met, SEN provision may depend on the tenacity, ability, and often the financial means of parents. A number of reports have evaluated aspects of the system, most notably the 2006 report of the Education Select Committee, [2] the Bercow report, [3] the Lamb Inquiry [4] and the Salt review. [5] These reports highlighted common problems: for example, poor communication with parents and lack of parental confidence in the system. The Government has similarly acknowledged that parents too frequently see the current system as adversarial, unfairly requiring them to ‘fight’ for the rights of their children. The Bill was intended to reduce this struggle.

(i) Reducing the struggle

2. The need for parents to ‘fight’ for their children’s educational provision is a consequence of the enormous power imbalance between the parties. Local Authorities (LAs) may be underfunded but they have extensive resources in terms of decision-making powers, access to external agencies and to limitless legal advice and representation. Additionally, they both assess needs and fund provision, creating an obvious conflict of interest. This situation places the parent, and consequently their child, at a significant disadvantage. Parents often find themselves facing huge costs in relation to legal representation and obtaining independent evidence if cases go to SENDIST (often in excess of £10,000). This is a financial hurdle many parents simply cannot surmount. Further, an appeal to Tribunal may take 6-8 months and this delay may benefit LAs financially as it carries no cost penalties and they will not have to pay for a child’s provision throughout this time. Many parents say that LAs deliberately push them to a Tribunal appeal to save money. Thus, even those parents with the capacity to ‘fight’ for a statement and specific provision may encounter unacceptable challenges and practices. [6] Back in 2006, the House of Commons Education and Skills Committee recognised 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. The link must be broken between assessment and funding of provision." [7]

This Bill does nothing to address this fundamental imbalance.

3. This power imbalance may lead to abuse. For example, in many cases, it is difficult to ascertain how and why decisions on SEN provision are made. Most LAs delegate this function to SEN Panels comprised entirely of LA employees. These 'Panels' have no legal status and frequently do not record their decisions, or fail to record them in detail. Thus, they lack the accountability and transparency usually required by law from public decision-makers. It has been suggested that Panels are purely an internal mechanism to delay decision-making and to save money by delaying putting provision in place. [8] The Bill should address this.

4. It is also common practice for LAs to base their decisions on funding policies or other criteria which have no statutory basis. Such policies are frequently applied by these Panels and they may be unlawful if they preclude appropriate focus on a child’s individual needs. In evidence given to the House of Common’s Education Committee’s recent pre-legislative scrutiny of the SEN reforms, one Director of Children and Young People’s Service, Dr Charles Palmer of Leicestershire County Council acknowledged this reality:

"Local authorities are having to restrict eligibility for statements now because of resource demands"

When asked by Mr Ian Mearns MP: "For the record, you are quite clear in your own mind that local authorities are restricting the number of children who are getting statements because of resourcing issues?" Dr Palmer confirmed:

"We have been explicit with families in my local authority that, in order to protect the needs of the most needy children…… we are having to restrict growth in the numbers of children being assessed". [9]

Such blanket policies are unlawful. [10] The fact that a senior LA official felt comfortable to share such practices with a Parliamentary Select Committee may demonstrate how common they are. The Bill does nothing to address this.

5. Blanket policies cause intolerable stress because parents know that their children are not being viewed individually but against hidden policy criteria. Parents who battle tenaciously may be treated appallingly by LAs without effective oversight or sanction. From discussion with parents, leading education lawyers and charities, it seems far from uncommon for parents to be subject to a variety of tactics to undermine them: e.g. use of vexatious procedures or even social services investigations. Yet, working with parents is supposed to be at the core of our system and parental involvement may save LAs time and money. Parents know their children best and they care enough to spend the time figuring out what works. Thus, parents may be able to offer cost-effective ways of implementing simple strategies that may even remove the need for additional, costly resources. All too often parents are not viewed as partners but are treated with hostility. The Bill does nothing to change cultural attitudes driven by resource shortages.

6. A further stress on the lives of families with a child with SEN is the bewildering patchwork of policies and approaches applied from LA to LA. LAs may also adopt very different positions on the efficacy of certain types of provision. [11] This creates a post code lottery. It also means that, having fought hard for provision, families can find it extremely difficult to move between one LA and another as this may prompt yet further assessments and perhaps fresh challenges to their child’s provision. This may severely restrict a family’s freedom of movement. The Bill does nothing to make provision transferable between counties.

7. Additionally, LAs routinely deliver SEN provision (such as speech and language therapy (SLT) and occupational therapy (OT)) via a variety of county specific Service Level Agreements and block contracts with the NHS. This means parents have no choice over the appointment of service provider. [12] The NHS provider commissioned to deliver the service will usually be working under a contract which stipulates what work the service will undertake e.g. to work ‘consultatively’ which means working indirectly through a TA and not directly with a child. This may influence the type of provision a service will recommend for a child irrespective of the LA’s statutory commitments under the Education Act 1996 which are based solely on the educational needs of the child. Further, it may not be clear where the lines of responsibility and accountability lie with block contracted provision. It is not clear that joint health commissioning will improve this lack of accountability, transparency and personal autonomy, particularly if commitments to direct payments (DPs) are undermined by block contracted provision. Additionally, NHS therapy departments may have their own eligibility criteria, for example, to see children only in school settings or to limit therapy to specific groups of children. These ‘hidden’ criteria bear no relation to the statutory criteria for meeting SEN and may also create ‘Cinderella’ services for children as compared with adults. [13]

8. Similarly, there is no requirement for LAs to have transparent methods of objectively and independently measuring the outcomes of commissioned provision. Ofsted has said that, even where SEN support is obtained, the evidence suggests that, too often, provision is not of good quality and does not lead to significantly better outcomes for the child or young person. [14] The Bill should address this by requiring LAs to independently monitor the outcomes of all their provision and publish data on these outcomes.

9. Frequently, the only way school-age children can access some types of NHS treatment is if it is specified in their statement and delivered at school. Consequently, if a child is not in school, they are highly unlikely to get access to the therapies to meet their SEN as services are withdrawn even where a clinical need exists. [15] This is not a model replicated in any other aspect of health care. The Bill should ensure that all children can legally enforce their access services to meet their SEN under their EHC Plan irrespective of whether they are at school.

10. There are no provisions to improve accountability or transparency or to permit challenges to decision-making save through Tribunal. The Bill proposes an obligation to confirm mediation has been considered before an appeal can be lodged. Mediation services will be contracted by the LAs and they will not be undertaken by lawyers. In whose interest is this provision? It is virtually never in the child’s interests to delay settlement if settlement is possible. Delay, however, invariably favours LAs, because the costs of provision between appeal and hearing are never recovered. The Bill fails to address the reality of the cause of delay in the system.

(ii) The child’s voice

11. Education plays a critical role in relation to dismantling barriers, promoting a human rights culture and developing informed citizens who are able to participate in and build a more inclusive society. Within the microcosm of the education system, we should be able to construct and develop a paradigm of inclusion which connects and empowers all children and young and people.

12. It is vital, therefore, that all decisions about provision are driven by what is best for children in accordance with Article 3 of the Convention on the Rights of the Child. This should be an explicit requirement on the face of the Bill.

13. Children and their parents have rights under the ECHR which may be affected through the SEN Process: for example, the right to privacy and family life under Article 8. Children with SEN which are considered disabilities also have rights under the Equality Act. The Act should explicitly make reference to the connection between SEN, disability, human rights and the Equality Act.

14. There are other international conventions which offer protection to children generally, and more specifically, to children with disabilities. For example, Article 12 CRC requires that a child’s views are taken into account when decisions are made which affect them. Children also have rights to health care and to live a full and decent life under Article 23 and 24 CRC. Article 24 UNCRPD sets out the right of people with disabilities to be able to "access inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live". The Bill should state that this human rights framework should inform and guide the actions and decisions of all public authorities wherever they are likely to impact on a child’s human rights.

(iii) Direct payments for special education needs

15. Direct payments (DPs) for special educational needs provision could be an important way of reducing ‘struggle’ in the system by letting parents have control over who will support their child. Parents may feel more able to trust the views of someone they have instructed themselves and who is not tied to the LA. Further, independent practitioners may be more capable of responding flexibly to suit a child’s individual needs. More consistent and, perhaps, higher-quality and cost-effective provision may be offered through the use of a single, long-term provider who might be a specialist rather than a generalist and who may be willing to work directly with the child across settings unconstrained by local protocols. The experience of the parents we have spoken to is that LAs and their NHS providers have a tendency to monitor provision by inputs (how many visits, how often etc) rather than outcomes (what has been achieved). Parents want outcomes and DPs may be a way to help them secure this.

16. It is, therefore, helpful that Section 532A of the Education Act 1996 creates a power for local authorities to make a payment to a person with a SEN statement for the purpose of securing the special educational provision specified in the statement. Currently, LAs are only permitted to make such a payment in accordance with a pilot scheme made under section 532B. Section 532B enables the Secretary of State to make pilot schemes by order. The Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012 (SI 2012/206) ("the Order") came into force on 30 January 2012. The pilot applies to the "pathfinder" local authorities listed in Schedule 2. Wiltshire Council is one of those pathfinder authorities.

17. The Order places a number of mandatory duties upon pathfinder authorities and the relevant paragraphs can be summarised as follows:

o The local authority must provide information and advice about direct payments under section 532A(1) of the 1996 Act to parents ……whenever it serves a copy of a SEN statement or amended statement … (Schedule 1, paragraph 3 of the Order );

o The local authority must consider any requests for direct payments for SEN (Schedule 1, paragraph 3 of the Order) in accordance with Schedule 1, paragraphs 10-12 of the Order;

o Where a local authority decides not to make direct payments, it must inform the proposed recipient and parent ….. of the decision and its reasons. They have a right to request a review (Schedule 1, paragraph 13 of the Order).

18. However, LA Pathfinders seem, at best, ambivalent about direct payments for SEN provision despite the clear obligations under the Order which enables them to trial DPs and obliges them to consider any application from a parent in accordance with the Order. The Order does not give Pathfinders the discretion to choose whether they wish to abide by it and it provides no provision delaying its implementation to a later date. The mandatory elements of the Order fell to be complied with as soon as the Order came into force.

19. It is, therefore, deeply worrying from a parental and a legal perspective that LAs appear to be either confused or resistant to the terms of the law as it stands. This does not bode well for the wider introduction of the scheme and potentially undermines the reliability of this Pilot.

20. Dr Debbie Sayers’ experience of making applications for DPs is as follows:

"In February 2012, I made a request for direct payments for speech and language therapy provision so that I could instruct my son’s own speech and language therapist to deliver his provision. Lengthy correspondence ensued between myself and Wiltshire Council, now a Pathfinder ‘Champion’. The Council refused to allow me to make an application.

I contacted the Department of Education and the then Minister Ms Sarah Teather confirmed: "Local authorities named in the order are required to consider any such request [for a direct payment]."

Despite sight of this letter, the Council consistently refused to let me make an application. Additionally, it asserted by letter that "there is no requirement to issue information about our pilot scheme whenever a Statement of Special Educational Need is issued or amended."

In August 2012, their Head of Commissioning and Joint Planning repeated the refusal to let me apply and stated in the publication ‘Children and Young People Now’: "I do not see what it is that Wiltshire is doing that is not in accordance with the legislation….Our approach has been seen by the Department for Education (DfE) and no concerns have been raised, furthermore it is a similar approach to that being taken by many other pathfinders." [16]

Wiltshire Council consistently refused to let me make an application irrespective of the clear terms of the Order. This position was clearly unlawful so I sought legal advice and legal aid was obtained in my son’s name to make a challenge by way of judicial review. Wiltshire Council then conceded that they would receive my application but still disputed the nature of their obligations under the Order. In December 2012, Wiltshire Council finally agreed to make DPs for our speech and language therapist. It took a further 4 months for direct payments to start after threat of further legal action.

Despite their previous position, Wiltshire Council has now issued a leaflet confirming that parents are entitled to apply for DPs for their children’s SEN provision in line with the terms of the Order. Thus, it is profoundly concerning that public money has been spent on legal aid to bring a challenge in the light of the very clear wording of the Order and despite the Council’s apparent consultation with the Department of Education. This is typical of the battles many families face when confronting the ‘reality gap’ between the law and LA practice and it is hard to see how the Pilot scheme is going to produce reliable evidence if other Local Authorities replicate this type of practice.

It is also worrying that LAs wish to apply separate practices for the evaluation and monitoring of SEN provision made under direct payments. Wiltshire Council have asked for my son’s provision, delivered by an experienced and qualified SLT, to be monitored and evaluated by another SLT working under their own block contract. This seems like an unnecessary cost in terms of duplication. However, if independent evaluation and monitoring is to be applied, it would clearly be in children’s interests for this to apply across the board and not just to DPs. A LA should apply the same standards to their own block contracted provision particularly in view of the significant sums of public money and numbers of children involved.

Another concern is that the existence of block funding is being used as a blanket reason to refuse applications without individual consideration. We made a further application for DPs for OT in February 2013 and despite the fact that our son was receiving no OT in contravention of the terms of his statement, our request was refused solely on the grounds that a block contract for OT existed. On review, the Council’s written position was "occupational therapy services are not cash releasable as they are currently provided under the terms of a block contract. To provide these services under any other form of contract would not be compatible with the authority’s efficient use of its resources."

This is clearly a blanket use of the exemption under section 11(d) of the Order and suggests a real unwillingness on the part of the Council to trial direct payments. Where does this leave direct payments in reality? The Bill and associated Regulations must address this issue."

21. It is also worrying that recent research has demonstrated that, by February 2013, more than half the councils meant to trial personal budgets had failed to produce plans to implement them. [17]

22. We also have concerns that the Regulations setting up the pilot scheme to trial DPs have given head teachers a veto over whether students or parents could use personal budgets in relation to their school. If LAs do not wish to entertain DPs, they can clearly put unseen pressure on schools to allow them.

Recommendations

Recommendations in relation to amendments to the Bill include:

1. No progress in enhancing children’s rights can be made while the link between LA assessment and funding remains. The Government should radically alter the lives of children by establishing an alternative and wholly independent method of assessing children’s SEN.

2. If the status quo remains, the Bill should require LAs to issue decisions in relation to EHC Plans in a far more transparent and accountable way. For example, Panels, if used, should include parental representation and independent practitioners and parents should have the right to observe their operation. This may reduce unlawful policies based on resource allocation which continue to undermine children’s rights.

3. All LA decisions should be judicially reviewable to prevent the consistent use of delay tactics by diversion through SENDIST. Currently, if a decision is open to appeal in SENDIST, it is unlikely to be judicially reviewable causing inequitable delay to the child. This should be stopped.

4. The Bill should guarantee legal aid for Tribunals in the child’s name so that s/he may have their voice heard, through their parents if necessary. This would put families on a level playing field. The current system is reliant on the means, tenacity or financial ability (or all three) of parents to pay for independent evidence and representation. This is unacceptable and it means that many children are being failed under the current system.

5. Cost penalties should be imposed on LAs who delay decision-making until Tribunals hearing and the cost of provision should be reimbursed to schools and through additional provision for the child.

6. The Bill should confirm that the use of DPs is a right granted to parents unless the LA can show that it would not be in the child’s best interests to obtain provision this way. DPs should not be tied to the LA’s efficient use of resources because the existence of block contracts will simply preclude access to these payments. DPs for social care are not currently limited in this way.

7. EHC Plans should be transferable between LA’s with no need for further re-assessment, save for the usual annual review.

8. The Bill should entitle children to continue to access services under their EHC Plan even if they are out of school.

9. The Bill should confirm that all decisions must be taken in the best interests of the child.

10. The Bill should demand an increase in partnership working with parents and should set out what that means in statutory terms.

11. The Bill should better articulate the right of the child to be heard.

April 2013


[1] This includes all maintained, non-maintained and independent schools.

[2] House of Commons, Education and Skills Committee Special Educational Needs, T hird Report of Session 2005–06 .

[3] The Bercow report: a review of services for children and young people (0-19) with speech, language and communication needs (DCSF-00632-2008), 2008.

[4] The Lamb inquiry: special educational needs and parental confidence, 2009.

[5] Salt review: independent review of teacher supply for pupils with severe, profound and multiple learning difficulties (SLD and PMLD), (DCSF-00195-2010), 2010;

[6] See, for example, ‘ NHS trust apologises to newsreader after changing son's autism diagnosis’, Telegraph, 5 April 2009, http://www.telegraph.co.uk/health/healthnews/5109442/NHS-trust-apologises-to-newsreader-after-changing-sons-autism-diagnosis.html

[7] The House of Commons Education and Skills Committee, 'Special Educational Needs', Third Report of Session 2005–06, HC 478-I, para 99.

[8] Clements and Thompson, ‘Community Care & the Law’, (5th edn), Legal Action Group 2011).

[9] House of Commons Education Committee, Pre-legislative scrutiny: Special Educational Needs - Volume II , 6th Report, HC 631-II, 19.12.12, Evidence of 24.10.12 at Q61 .

[10] This has been clarified many times. The DfES, Letter to CEOs / Directors of Children’s Services, 15 November 2005, regarding Special Educational Needs. This issued guidance to local authorities stating that any “blanket policies” about who will and will not be issued statements of SEN was illegal.

[11] The House of Commons Education and Skills Committee, 'Special Educational Needs', Third Report of Session 2005–06, HC 478-I.

[12] Direct payments for statementing provision are currently being trialled by Pathfinder authorities.

[13] Kennedy, 'Getting it right for children and young people: Overcoming cultural barriers in the NHS so as to meet their needs', September 2010.

[14] Ofsted, ‘ The special educational needs and disability review: A statement is not enough ’ 14 Sep 2010 http://www.ofsted.gov.uk/resources/special-educational-needs-and-disability-review

[15] Ibid.

[16] See, ‘ Parent threatens legal action against SEN pathfinder council’, 28.8.12

[16] http://www.cypnow.co.uk/cyp/news/1074413/parent-threatens-legal-action-sen-pathfinder-council

[17] Guardian, 'Councils 'failing special educational needs children'', 25.2.13 http://www.guardian.co.uk/education/2013/feb/25/councils-failing-special-educational-needs-children

Prepared 26th April 2013