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Are we now seeing the reality of the SEND reforms?

We are approaching the end of the academic year. This is normally a busy time for education lawyers, particularly those of us who specialise in special educational needs.

This year, however, has been the most hectic I have experienced in nearly 10 years of practice.  The Special Educational Needs and Disability Tribunal (SENDIST) is overrun with appeals. I have heard reports that the Tribunal is dealing with more than 350 appeals in the month of July. I am receiving Orders from the Tribunal throughout the weekend, for the first time.

The reason for this is clear; the special educational needs and disability (SEND) reforms.

What is happening?

Local authorities cannot cope.

There has been much discussion about why this is. A lack of money (although half a billion has already been spent on the SEND reforms) has been cited.

We think that the answer is more straightforward. There are simply not enough skilled personnel in local authorities to manage the demand of the SEND reforms.

We are aware that a number of local authority special educational needs teams have recruited heavily to meet the challenge of the SEND reforms. The difficulty is that these ‘new’ staff appear to receive limited training, potentially extending no further that the local authorities’ policies. This is rarely reassuring or effective.

Local authority special educational needs teams are still responsible for all the old Statements of Special Educational Needs (SSEN) and requests for assessments of SEN. In addition, all children and young people who have an SSEN must, by March 2018, be issued with an EHCP as a replacement for their SSEN.

The SEND reforms came in in September 2014. As such, we are a little over 18 months into the process. The strain is showing.

We are seeing the following very frequently:

  • EHCPs being written exclusively on the basis of the outgoing SSEN
  • Local authorities relying on historic (5 years plus) expert advice when writing EHCPs
  • EHCPs containing little or no specification and/or quantification
  • Social care and Health sections in the EHCP are blank
  • School placements for September 2016, still not being confirmed in July 2016

The last of the above bullet point is a particular focus at the moment.

A child or young person with special educational need should know by 15 February in the calendar year of their move which school  they will be going to from September. That is two months before the ‘admissions day’ for pupils without special educational needs. The reasons for that are obvious. For young people moving on to college, the deadline for finalising the EHCP is 1 March. It is shocking to see dozens of cases where no placement has been found, or young people being informed of their post-16 placement now, in July; four months late.

How to write an EHCP

In theory, the preparation of an EHCP should not be difficult.

When a child or young person is due to convert from SSEN to EHCP, the local authority must seek advice about their SEND. The advice should be from parents, the young person, school, medics, social care, educational psychology and any other expert the parent/ young person ‘reasonably’ request.

The advice must be provided to the local authority within six weeks. The local authority must then prepare a draft EHCP for consideration by parents/ young person. The local authority should consider any response made by the parents/ young person and then issue a final EHCP naming an educational placement.

The whole process should take up to 20 weeks.  In February 2016, only 1 in 5 EHCPs were prepared within 20 weeks. Our experience is that it is getting worse.

In practice, this is the same process local authorities should have employed when preparing a SSEN. The only real difference is the enhanced involvement of Health and Social Care. This is causing real difficulties as, in our experience, Health and Social Care very rarely provide any advice. Others have noted that 64% of local authorities struggle to secure advice from Health, and 53% struggle to secure advice from social care.

It is well established principle that the EHCP must set out precisely what support is available. It is hugely disappointing to still be reading content like the following:

Opportunities to access support for communication needs as appropriate.

This is obviously inadequate. The EHCP is a legally binding document. It is impossible to enforce a provision when it affords nothing.  The above should look more like;

Direct 1:1 speech and language therapy, in school, with a qualified speech and language therapist, once a week for a period of not less than 30 minutes on each occasion.

Is this it?

We are concerned that this is what the SEND reforms have created.

The reforms were intended to ensure that children and young people with SEND, up to the age of 25, were provided with help, support and provision to enable them to reach their best possible outcomes.

What has actually happened is that SSENs are being replaced by woefully inadequate EHCPs that contain little or no enforceable provision. Those EHCPs are causing local authorities significant expense and loss of time, meaning that existing services are deteriorating.

Our concern is that we are only seeing the beginning of the problem. Schools Week reported earlier this month that only 18% of SSENs had been converted to EHCPs. This should be closer to 40%.

The means that there are two options:

  1. The Department for Education seeks to amend the legislation so that the implementation of the SEND reforms is given more time. The current suggestion is until 2020.
  2. Local authorities are either going to have to further rush the preparation of EHCPs, or will face a situation of having to publish thousands in the last few months leading up to April 2018.

Neither option is attractive. Extending the timetable to 2020, in our view, will only extend the period of difficulty. Giving more time will not actually relieve any pressure. The extra time will help to process the backlog, but not the ongoing workload. Alternatively, sticking with the current deadline only means that a crisis is looming.

What can be done?

Expert personnel, cooperation, training, time and resources are all needed. Without all of them, the implementation of the SEND reforms will continue to fail.

The only body currently making the SEND reforms remotely work is SENDIST. It is ‘fixing’ the deficient EHCPs and decision-making by hearing appeals by parents. That is obviously a slow, stressful and costly process. Equally, in our view, SENDIST should not be the body responsible for ensuring the success of the SEND reforms.

Whatever is done, it needs to be done urgently. This summer has shown just how badly things have gone. Without significant changes, next year will be the same with an increasing back-log of transitions from SSEN to EHCP.

If you would like to talk about your child’s special educational needs then please contact us at [email protected] or call 0800 884 0723 – our specialist SEN solicitors are here to help.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought. This news story comes from publicly available sources. Where it concerns one or more of our clients this is clearly stated.

5 Comments on “Are we now seeing the reality of the SEND reforms?

  1. Absolutely the case and totally predictable. Also lack of support at school SEN support is making more parents apply for need zero assessment than might be the case if services hadn’t been so drastically cut and school budgets so stretched. Chaos.

  2. Absolutely the case and totally predictable. Also lack of support at school SEN support is making more parents apply for needs assessment than might be the case if services hadn’t been so drastically cut and school budgets so stretched. Chaos.

  3. Extremely well said.
    Excellent timing, as many plans are being put on hold for summer perhaps gov and LA’s can use the summer break to take steps to support solutions. Before a crash next year?

    While some might say this is all scare mongering and just teathing troubles, this is to be reasonably expected following reform, it doesn’t feel so simple and transient a problem to parents and yp. For parents caught up in growing ehcp strife, it feels like a storm, rolling and lurching. Yet it is predicted here that the storm has yet to hit. Many parents world be tempted to agree.

    Other issues:
    >A family today have been given 15x days to consider a draft EHCP – there is not a single outcome within it. Meeting was months ago, no one can remember or else no one noticed O’s were missing.

    >A final plan received this week was issued despite a written request to meet and discuss unacceptable proposed final plan content. Advices still outstanding but parent told that these could be added afterwards, if they arrive. (And how does the plan with no outcomes proceed…ask for the statutory meeting, and wait to be ignored?!)

    >Some school SSEN transfers that relate to transition, where ehcp not complete before feb/march deadlines, are now being rushed this term (as this article mentions, add LDA transfers too!). In some cases, school places were allocated by new (unreviewed) statements in spring. All seemed ok, a compromised sort of ‘ok’ as parents releived to have their chosen schools named. Parents not advised when LA’s realised oversight, of the fact this was an ‘alternative’ to the advertised statutory transition-transfer ehcp process, unaware. Without full assessment, pre-spring ‘naming’ statements, were based on out of date or no advice. So, roll on summer term, all will be brought into check by a spate of fast tracked ehcp’s to set the record straight. However, the summer term ehcp’s are now revealing placement decision flaws – at the last minute. Concerns are arising from new assessment evidence which should have been sought/made available/ discussed prior to spring school consultations. Schools are now (rightly) exercising their (late) right to a second (ehcp) consultation. This is unexpected by parents who thought schools were already securely ‘named’ in spring statements. In two cases this looks likely to necessitate further school
    placement discussions, summer holiday or post September placement solutions yet to b be worked out, under duress. Under considerable distress.

    >Ehcp reviews taking place before first ehcp complete and no independent support available to correct poor first reviews, no means of insisting on assessment at review even if this was unsatisfactoty at first or transfer ehcp.

    > growing number of parents who may next overstretch mediation, dispute resolution complaints and LGO in due course.

    I could go on and in and on.

    Usually, in my experience as PVI parent supporter, by the time any EHCP is complete, there have been MULTIPLE breaches of law (and policy too). This diminishing service standard does not provide a platform upon which to build culture change. In fact, as this article illustrates, in a number of ways problems will be multiplied. The net result will be to further undermine confidence. It’s not as though there was a lot of confidence in the first place – we wouldn’t be reforming if there was.

    Culture change must be born out of correct process and capacity to deliver the minimum required of the law. Those who are accountable must uphold law robustly, not wait-and-hope. Parents do not have ready access to effective redress and certainly should not have to massively police the system designed to help them and their vulnerable children and families.

    Ignorance and denial is simply not acceptable and must be stamped out by gov, not parents. Only yesterday a SEND team manager told a family I support, that if family is not already known to Social Services then SS aren’t involved in EHCP’s, despite process including SS assessment request form, and of course statutory duty. We had to correct.

    My own officer (transfer =10+months) told me that if my package isn’t changing (transition/PfA assessment & planning meeting so who knows what’s changing yet?!) then SWorker will not attend planning meetings. Had to correct.

    The law is here, now, (nearly two years in fact!). It should be applied now to make a clear commitment to change.

    Wishful thinking alone can’t make nearly enough positive difference and won’t make it go away. Should just do as Reforms intended. Reform!

  4. This is a simplistic analysis and excludes a number of important factors:

    1. The Children and Families Act extends legal protection to 25 and as a result more appeals can be expected because more children and young people are coming into the new system.

    2. The Tribunal is overloaded because it is not fit for purpose. It does not use its case management powers effectively to filter out bad appeals and its expedition of secondary transfer appeals has clogged up the system rather than finding a way to manage them better with central government. For example, why provide parents with potentially 3 months to appeal (2 ordinarily + 1 additional month with a mediation certificate). This means all cases can only be heard in June/July and the result is chaos.

    3. Approximately 4000 appeals are registered each year. This is hardly representative of systematic failure given the number of children nationwide with SSENs or EHCPs.

    4. Local Authority resources are strained but they have been given impossible deadlines to meet by central government and lack the ability to compel health and social care to provide the advice and support that the new reforms require.

    5. Major reforms take time to embed.

    6. The Tribunal is not the fixer of the problem. It is a problem in itself because of the way appeals are poorly managed. Active case management is required.

    Parents are spending between £20k and 50k to bring an appeal and thus questions should be asked why this area has been allowed to develop into an adversarial and costly process, which excludes those without the money to challenge decisions. Perhaps this is question you could also consider?

    • Thanks for responding Steven.

      All of your points are absolutely right. They all feed to the broader point that we make which is that local authorities are struggling and not coping. This is having a significant impact on the service receivers – parents, children and young people. In terms of filtering cases, better case management would be helpful. However, almost 90% of appeals are currently successful. That would suggest that there are not many ‘bad’ appeals slowing the system.

      In terms of the costs of the proceedings, there is still legal aid available in this area of law. There are also free advice agencies that are set up to assist parents. Unfortunately though, parents can face very adversarial opposition to appeals. That is not what the Tribunal expects, and the procedural rules expressly guide parties away from such conduct. We completely agree that a reduction of costs, adversarial conduct and formality would be ideal.

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