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.