Special educational needs - what's really happening?

On Thursday 10 March we attended the Kidz to Adultz event at the Ricoh Arena. We attend these events every year. Every year, we speak to increasing numbers of parents raising concerns. This year, we spoke with dozens of parents, more than ever before, all raising concerns about the behaviour of their local authority. That has prompted us to consider what is really happening with special educational needs.

As we know, the special educational needs and disability reforms came in with the Children and Families Act 2014. A significant motivation for that new Act was the Lamb Inquiry, completed in April 2009. The summary of the inquiry can be found and the full report here.

The main issues raised by the Lamb Inquiry were:

  • Parents had no confidence in the special educational needs system
  • Parents, and young people, felt ‘left out’ of important decisions
  • Schools were required to prepare too much documentation, especially for their policies
  • There was a general lack of accountability

The Inquiry made numerous recommendations around these central issues. As a key part of dealing with these findings and recommendations, the Children and Families Act was introduced. This was meant to involve families more, increase accountability and transparency and boost confidence in the system.

The event last week, and continued news pieces, are telling us that there has been little improvement in special educational needs services. It seems the reverse is true.

Cuts in special educational needs funding

Only this week, we posted about cuts being made by West Berkshire to the funding to special educational needs.

This is not the first, and certainly will not be the last cut to have been made. Over the last weeks, there has been cuts to special educational needs transport.

In addition, funding to local authorities is to be cut by £30 billion and redirected to schools. On the face of it, this seems positive. It is worth bearing in mind though that the Education and Adoption Act will likely have to effect of making most, if not all schools, academies which have a dubious record in supporting children and young people with special educational needs and disabilities.

One frustrating element for many parents is the huge amount of money that the Department for Education (DfE) has allocated to implementing the special educational needs and disability reforms. Grants of tens of millions of pounds have been announced, but there is no clear picture of the overall costs. We made a Freedom of Information request at the beginning of February 2016 for details of the costs. We are still awaiting the breakdown from the DfE, despite the deadline being 20 working days.

Failure / refusal to recognise children and young people who need support

The Joseph Rowntree Foundation published a report into the connection between special educational needs and disabilities and poverty. That report found that England is the only country in the UK that has a falling population of children and young people with special educational needs, linked here. We also noted the apparent disappearance of 250,000 children and young people with special educational needs and disabilities.

During the event last week, we were approached by dozens of parents who had been refused an Education Health and Care (EHC) needs assessment of their child or young person.

Schools and parents are being misled

In cases we act on, and in speaking with parents generally, we know that schools are being given too much to do. Much of the work that they are being asked to complete is not theirduty.

  • Local Offer

Guidance does suggest that it would be helpful for schools to have their own local offers. However, we are aware that many schools are being told by their local authorities that they must prepare a local offer. This has been used as a replacement for the local authorities’ own local offer(s). This is clearly unlawful.

  • EHC needs assessments and drafting EHCPs

For both ‘new’ entrants into the special educational needs system, and those moving from Statement of Special Educational Needs to Education Health and Care Plan (EHCP), an EHC needs assessment must be completed.

Many local authorities are expecting schools to liaise with the experts, seek and obtain advice, collate that advice and then prepare EHCPs. This is unlawful as the obligations to complete the EHC needs assessment, and prepare an EHCP, fall on the local authority.

  • Requests for an EHC needs assessment

Whilst at the Kidz to Adultz event, we spoke with many parents whose school was refusing to help with seeking an EHC needs assessment.

Many schools are informing parents that, before they can request an EHC needs assessment, an educational psychologist (EP) needs to assess the child or young person and advise that an EHC needs assessment is necessary. This is fundamentally wrong.

An EP assessment is part of an EHC needs assessment. To say that an EP assessment has to take place before the EHC needs assessment is the wrong way round. Schools are also advising that the EP assessment has to come out of their special educational needs delegated funding. It is therefore not surprising that schools are reluctant to apply when their funding is going to be affected, especially when the funding should not be used in this way.

Post-19 education is proving difficult

One of the biggest trends is that post-19 education and special educational needs provision is proving to be a difficult area.

A key element of the special educational needs and disability reforms was to extend the system of support to the age of 25. Previously, a Statement of Special Educational Needs would end at 19. A young person could access a Learning Difficulty Assessment (LDA) but they did not provide the same level of protection as  they are unenforceable.

The trend that is now arising is that local authorities are refusing to extend support post-19. For all young people approaching, or over, 19, local authorities should be reviewing their support and deciding whether an EHCP is necessary.

We have met, and acted for, several parents whose local authority has advised that there is “no point” in further special educational provision being made for the young person.

There is nothing in the legislative material which gives local authorities the ability to assess whether there is any “point” to the young person engaging in further education. The Children and Families Act gives young people the right to engage in further education post-19 and local authorities are tasked with ensuring “best possible” outcomes for all children and young people.

A refusal to make an EHCP, on the basis that the local authority considers there is no point to further education, has no basis in law and is likely to be unlawful as it can represent a failure to secure “best possible” outcomes.

Conclusion

The special educational needs system is in disarray.

Much of the mandatory guidelines within the ‘old’ system have been removed by the ‘new’ system. This was a deliberate move to allow local authorities greater discretion and to be responsive to their local needs. What it has actually meant is a significant disparity in procedure, decision-making and policies.

Parents and professionals alike seem confused about who should be doing what. It is only when parents actively seek assistance from support groups, solicitors, advice agencies, forums and / or social media that they are able to piece together what should be happening.

In our view, the special educational needs and disability system is rapidly becoming  a two-tier system made up of the children of families who have resources (time, stamina, patience, wherewithal, financial) to challenge a decision, and those that do not.

I am so happy at the outcome, I don't think we would have had such a comprehensive service from any other law firm, and you took the worry away...I do not regret a single second of the whole process, apart from the bit before you got involved. 

James' mother, Boyes Turner client

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