Memorandum submitted by the Independent
Panel for Special Education Advice (IPSEA)
INTRODUCTION
This submission is made by the Independent Panel
for Special Education Advice, a registered charity which provides
advice and support for parents of children with Special Educational
Needs (SEN).
1. IPSEA'S APPROACH
IPSEA's general approach to the education of
children with special educational needs is close to that set out
in Chapter 1 of the 1978 Report of the Committee of Enquiry into
the Education of Handicapped Children and Young People ("The
Warnock Report")(1). Notwithstanding the dated terminology,
the following quotes exemplify IPSEA's understanding of the purpose
and the importance of special educational provision. They also,
in our opinion, describe the conceptual basis of the current law
on special education.
1.1 "We hold that education has certain
long-term goals . . . first, to enlarge a child's knowledge, experience
and imaginative understanding, and thus his/her awareness of moral
values and capacity for enjoyment; and secondly, to enable him
to enter the world after formal education is over as an active
participant in society and a responsible contributor to it, capable
of achieving as much independence as possible. The educational
needs of every child are determined in relation to these goals.
We are fully aware that for some children the first of these goals
can only be achieved by minute, though for them highly significant,
steps, while the second may never be achieved. But this does not
entail that for these children the goals are different. The purpose
of education for all children is the same; the goals are the same
. . . (1.4) . . .
1.2 ". . . There is in our society
a vast range of differently disabled people, many of whom would
not have survived infancy in other periods of history. In the
case of the most profoundly disabled one is bound to face the
questions: Why educate such children at all? Are they not uneducable?
How can one justify such effort and such expense for so small
a result? Such questions must be faced and must be answered. Our
answer is that education, as we conceive it, is a good, and a
human good, to which all human beings are entitled. There exists,
therefore, a clear obligation to educate the most severely disabled
for no other reason than that they are human. No civilised society
can be content just to look after these children; it must all
the time seek ways of helping them, however slowly, towards the
educational goals we have identified . . . (1.7).
1.3 "Moreover, there are some children
with disabilities who, through education along the common lines
we advocate, may be able to lead a life very little poorer in
quality than that of the non-handicapped child, whereas without
this kind of education they might face a life of dependence or
even institutionalisation. Education in such cases makes the difference
between a proper and enjoyable life and something less than we
believe life should be. From the point of view of the other members
of the family, too, the process of drawing a severely handicapped
child into the education system may, through its very normality,
help to maintain the effectiveness and cohesion of the family
unit" (1.8).
2. IPSEA'S ROLE
IPSEA was established in 1983, to coincide with
the implementation of the Education Act 1981, under which, for
the first time, parents of children with special educational needs
were given the right to challenge the decisions of Local Education
Authorities (LEAs) on the special educational provision (including
the type of school) required to meet their children's needs. IPSEA
currently assists 3000 parents and carers of children with SEN
every year, including over 25% of those making applications to
the Special Education and Disability Tribunal. We therefore have
a great deal of historical evidence from actual cases as to what
is happening to individual children with SEN throughout England
and Wales.
2.1 The need for an organisation such as
IPSEA was predicted in The Warnock Report:
". . . it has long been a function of voluntary
organisations to bring pressure to bear on national and local
government in two ways: first by seeking to ensure that authorities
are fulfilling their existing responsibilities for those with
disabilities and secondly by identifying the need for new forms
of provision and mobilising public opinion to demand them. For
example, as more children with disabilities and significant difficulties
are educated in ordinary schools voluntary organisations may need
to be increasingly vigilant to see that adequate special arrangements
are made for them . . . We would expect voluntary organisations
to exert pressure on behalf of individuals who cannot easily undertake
the task of seeing that statutory duties are carried out . . ."
(17.17/17.18)
3. THE STATUTORY
FRAMEWORK: ASSESSMENTS
AND STATEMENTS
The actual system
The Education Act 1981 established LAs' basic
duties towards children with SEN and these have remained unchanged
despite subsequent amendments to the law (in 1993 and 2001). These
duties are:
(i) to assess children who have, or probably
have, special educational needs which cannot be met by their school;
(ii) when assessment confirms that a child's
special educational needs cannot be met by their school, to issue
a "Statement of Special Educational Needs" which describes
those needs and "specifies" the special educational
provision necessary to meet them.
(iii) to "arrange" the special
educational provision specified in a Statement.
As with links in a chain, when implemented properly
these duties connect and deliver to a child with SEN a legal entitlement
to receive the provision which their needs call for.
3.1 The process of assessment and `statementing'
of children with special educational needs has been attacked as
being over bureaucratic: "the process for assessing pupils
and issuing statements is lengthy and expensive" (Excellence
for all children, DfES 1997) "statutory assessment is
a costly, bureaucratic and unresponsive process" (Audit
Commission 2002) "far too much of the expenditure on special
needs was taken up with the bureaucracy of assessments"
(Special educational needs: a new look, Mary Warnock 2005). IPSEA
receives many calls from parents who have been dissuaded from
seeking statutory assessment by being told by LEA staff that it
is wasteful, bureaucratic and that it achieves nothing for children.
We would make two points in response to such criticisms.
3.1.1 First, statutory assessment and the
issuing of Statements is a procedure which calculates then allocates
the additional financial resources (from the public purse) needed
by an individual child with SEN. For the sake of accountability,
this can only be done by a procedure which involves some bureaucracy.
3.1.2 Second, the process of assessment
and the production of a Statement is already as minimal as can
be envisaged without being ineffective. None of its critics have
yet suggested an alternative, quicker or reduced process. We ask
the Committee to consider which of these stages or elements they
think could safely be removed from the overall process:
(i) a request for assessment in writing
to the LA by either a parent or a headteacher;
(ii) a reply in writing by the LA;
(iii) if assessment is agreed, the start
of a 10 week period of collecting professional reports on a child's
needs and the provision required to meet them from an educationalist
(usually the child's teacher), an educational psychologist, a
medical officer, a representative of the Social Services Department
and the child's parent. (In practice, teachers and psychologists
often already have a good knowledge of the child and a considerable
body of evidence which can usually be submitted to the assessment
team in its original format. Where a child has no medical condition,
the Medical Officer's advice simply records this fact. Where a
child is not known to the SSD, their advice simply notes that
fact);
(iv) the LEA sends parents a copy of the
Statement in a proposed form;
(v) parents have a right to send in written
representations or to ask for a meeting to discuss the Statement;
(vi) having considered parents' comments,
the LA finalises the Statement.
3.2 The reality is that over the 22 years
of "assessment and statementing" the critics have been
the service providers (and those arguing their cause). Parents
of children with special educational needs and the organisations
which support them have never considered the assessment and statementing
procedure to be overly bureaucratic. On the contrary, assessment
and statementing is recognised by parents as a valuable protection
for children with special educational needs when the needs cannot
be met by their school. A clearly written statement, which quantifies
the provision a child should receive, is enforceable and for that
reason is generally honoured by an LA. Under 5% of the parents
contacting IPSEA for support complain of statemented provision
not being arranged and it is generally an easy situation for them
to put right: legal assistance in the child's name allows a parent
to make a credible threat of Judicial Review which invariably
results in an LA taking immediate action to correct the position
(ie fulfil their duty to "arrange" the special educational
provision on the statement). In 22 years of the legislation no
case has reached the High Court as a result of an LA resisting
a challenge to put in place the provision specified on a child's
statement. Further more, as we will argue in paragraph 8.5 below,
a well-written statement is an absolute requirement if inclusion
is to be successful. Vaguely written statements are a deterrent
to parents expressing a preference for a place in a mainstream
school.
3.3 IPSEA casework has consistently shown
than Parents are made to feel they are being greedy, over-anxious
or unreasonable for requesting assessment for their child, and
both LAs and the Department for Education have been guilty of
implying that the issuing of statements is a purely parent driven
phenomenon, owing nothing to the actual needs of individual children
in our schools. Yet parents cannot demand assessment of their
child or demand a statement of special educational needs. The
legal duty to conduct a statutory assessment only arises when
an LA considers that a child has or probably has special educational
needs which cannot be met by the resources available to their
own school. An LA will only issue a Statement if an assessment
confirms that a child's needs cannot be met by their school alone.
Although refusal to assess and refusal to issue a statement can
be appealed against by parents, tribunals do not order assessments
or statements unless—again—there is convincing
evidence that the child has needs which are not being met by their
school. If a tribunal were to make an order in the absence
of convincing evidence (eg just because a parent was over-anxious
about their child's needs) the LA could and would appeal against
the order to the High Court, which in turn would look at the legal
issues raised by the tribunal's judgement (not the level of parental
anxiety).
3.4 IPSEA would also draw the committee's
attention to two court judgements which provide key underlying
principles to be applied in assessment and statementing, namely:
— what constitutes educational need
and provision as opposed to non-educational need and provision;
and
— the amount of discretion which the
law allows LAs in deciding how much they should spend on meeting
children's special educational needs.
3.5 In London Borough of Bromley and
Special Educational Needs Tribunal and Others, QBD and CA (1999)
ELR 260 considered what is "educational" as opposed
to "non-educational" needs and provision. At the time
of the judgment the child, S, was 12-years-old. He had quadriplegic
cerebral palsy and impaired vision. He was unable to walk, sit
up or stand and was totally reliant on adults for all his mobility
needs apart from head movements. He was unable to wash, dress,
toilet or feed himself. He was able to understand only a small
number of words in contexts which were familiar to him and was
considered to be functioning overall below the level of a one-year-old.
The Tribunal had ordered that S's needs for occupational therapy,
physiotherapy and speech therapy were educational needs and that
the provision to meet them, therefore, was special educational
provision for S. The LA appealed against the Tribunal decision
to the High Court.
3.6 The judgment took as its starting point
the definition of `education' in the Shorter Oxford English Dictionary,
which is: "the process of nourishing or rearing; the process
of bringing-up; the systematic instruction, schooling or training
given to the young . . . in preparation for the work of life."
The court considered evidence from an educational psychologist,
which had been placed before the Tribunal, ". . . that
the purpose of education for S was to maximise his control over
his own environment and that education for S involved a series
of over-learning the basic functions of his day: eating, drinking,
toileting, dressing, etc and co-operating about them."
The LA had argued before the Tribunal that S's needs as described
above were not educational and that the provision to meet them
could not be educational provision and this argument was the basis
of their appeal to the High Court. The importance of the case
for the LA was that they would have a strict legal duty to `arrange'
the special educational provision in S's Statement, but would
not have the same duty as regards the non-educational provision.
The parents argued that education for S would not be to teach
him Modern Languages or Physics but "to teach him so that
he may be prepared for the very limited work of his life".
3.7 Dismissing the LA's appeal, the High
Court ruled: "If, as is undoubtedly clear, S needs to
learn eating and drinking skills then, as it seems to me, to assist
him in learning those skills will be an educational provision
for him." The High Court's interpretation of the law
in this case provides firm legal underpinning for the principles
set out in the Warnock Report and quoted above in paragraph 1.1.
3.8 R v East Sussex County Council ex
parte T (1998) ELR 251 considered what the term "suitable
education" meant in relation to an LEA's duty in law to provide
for a child, T, who ME and was not able to attend school. The
case reached the House of Lords and the ruling eventually was
that to be "suitable" educational provision must be
suitable to a child's age, ability and aptitude and to any special
educational needs he or she may have. The ruling laid down clear
guidelines on the difference between and LA's statutory duties
and discretionary duties:
"There is nothing in the Act to suggest
that resource considerations are relevant to the question of what
is `suitable education.' On their face those words connote a standard
to be determined purely by educational considerations . . . There
is nothing to indicate that the resources available are relevant
. . . The argument is not one of insufficient resources to discharge
the duty but of a preference for using the money for other purposes.
To permit a local authority to avoid performing a statutory duty
on the grounds that it prefers to spend the money in other ways
is to downgrade a statutory duty to a discretionary power . .
. Parliament has chosen to impose a statutory duty as opposed
to a power, requiring the local authority to do certain things.
In my judgement the courts should be slow to downgrade such duties
into what are, in effect, mere discretions over which the court
would have very little real control. If Parliament wishes to reduce
public expenditure on meeting the needs of sick children then
it is up Parliament so to provide. It is not for the courts to
adjust the order of priorities as between statutory duties and
statutory discretions."
3.9 The Select Committee will receive many
submissions from service providers arguing that the law makes
an unreasonable demand on their resources, which is why we wanted
to bring this judgement to your notice. The legal duties which
LAs have towards children with special educational needs are statutory
duties, not discretionary duties. We hope that the Committee
will report on the extent to which LAs themselves are seeking
to downgrade their statutory duties towards children with SEN
to discretionary duties (see section 4 below) and that the Committee
will recommend that the Government should take firm action to
prevent this.
3.10 Even if the financial arguments used
to justify denying children their legal rights to appropriate
special educational provision are taken on their own merits (disregarding
the law), they do not work if any proper view is taken of all
the potential costs to society. Meeting children's special needs
adequately though their education increases the chances of them
leading independent lives as full members of society when they
become adults. By extension, it decreases the likelihood of the
need for costly social support systems during adult life. It can
also reduce other social costs: eg the majority of young men in
our prisons have learning difficulties which have not been adequately
addressed by the education system.
THE SYSTEM
AS PORTRAYED
BY THE
"SECOND WARNOCK
REPORT"
3.11 Mary Warnock's 2005 attack on statements
needs to be commented on because she is accorded the status of
special educational needs guru by politicians and the media, and
this risks her recent contribution to the debate being accorded
a significance which it does not merit.
3.11.1 Despite the respect still generally
accorded to the original "Warnock Report", on the evidence
of her 2005 pamphlet Mary Warnock would seem, now, to know little
of how the special educational needs system operates eg.
— the pamphlet asserts that 20% of
children have Statements of Special Educational Needs, when actual
figure is between 2% to 3%. The context of the error makes it
clear that it is the author's, not the typesetter's: ".
. . our original guess of how many children would receive statements
was wildly off the mark. We thought the figure would be around
2%. The actual figure was around 20%".
— the pamphlet asserts that parents
are dissatisfied with the Special Educational Needs Tribunal and
offers as an explanation "Local Authority officials who
could hardly be regarded as disinterested, chaired the tribunals
(Special Educational Needs Tribunals)." From the evidence
of IPSEA casework, this is wrong. In the main, parents are satisfied
with the operation of the Tribunal. The whole purpose was for
it to be independent, and, in fact, Chairs are qualified solicitors
(not LA officials), and are appointed by the Lord Chancellor.
— the pamphlet asserts "every
school now (has) to appoint someone as a Special Educational Needs
Coordinator (or SENCO), whose responsibility (is) to ensure that
all the procedures of assessment and statementing (are) properly
followed." This is wrong. Statutory assessment and the
drawing up of Statements is the responsibility of the LA, not
of school staff or SENCOs.
— the pamphlet asserts that "Since
2002, heads and governors have been liable to criminal charge
if they exclude a disruptive child from a mainstream school against
the wishes of the parent. " This is not true.
This degree of factual error alone would suggest
that Mary Warnock's opinions on the operation of the special educational
needs system should be treated with some wariness.
3.11.2 A further reason to guard against
uncritical acceptance of the views put forward in the 2005 pamphlet
is that, in the pamphlet, Mary Warnock claims falsely that her
Committee `invented' statements. This risks the unwary reader
concluding that: "If Mary Warnock is coming out against statements,
when they were her idea in the first place, there must something
seriously wrong with them!"
The 2005 pamphlet claims:
"We (the 1978 `Warnock' Committee) invented
the statement of special educational need. This was to be a document
issued by the local authority, after expert assessment of a child's
abilities and disabilities, which would list the extra support
that he would need in order to make progress, the provision of
which would be a statutory duty laid on the local authority."
In fact, the 1978 Report does not contain the
term "Statement". Nor did it recommend that LAs would
have a statutory duty to provide the help described in it. What
"The Warnock Report" recommended should happen, following
assessment, was:
"We consider that the process of multi-professional
assessment of a child's needs . . . should be concluded by the
completion of Form SE4 . . . The detailed profile of the child's
needs and the recommendation (our emphasis) for the provision
of special help entered on this form will . . . provide the basis
for a judgement by the local education authority as to whether
the child should be recorded as requiring special educational
provision (4.66).
The process of recording a child as requiring
special educational provision will entail entering in a file at
the local education authority's offices the completed Form SE4
with a profile of the child's needs and with a recommendation
(our emphasis) for the provision of special help, as well
as a separate note on how that recommendation is being met in
practice together with the name of a person designated by the
multi-professional team to provide a point of contact for the
parents. These documents will form the record of the child. (4.70).
"The recording of children as in need of
special educational provision will enable their parents to satisfy
themselves that the children are receiving a suitable education.
The profile of their child in Form SE4, as well as the documentation
filed by the authority alongside Form SE4 recording how the child's
needs are being met, will afford the parents a basis on which
to make representation to the authority and subsequently, if necessary,
to the Secretary of State if they consider that their child's
needs have been incorrectly assessed, or that the recommendation
(our emphasis) for meeting them is inadequate, or that the
authority is failing to make suitable provision." (4.73).
What the 1978 Warnock Report proposed was a
new use for an already existing form (Form SE4), that being to
trigger the "recording" of children as in need of special
education provision. The Report neither recommend nor described
by another name a document with the legal function of the Statement
ie a contract which would make it mandatory on an LEA to arrange
the provision specified in it. The Report referred to parents
being able to use their general right to make representations
to the Secretary of State if unhappy about an aspect of their
child's education, but this is a very different (and a much weaker)
right than the right to seek Judicial Review if your child is
not getting the provision specified in his or her statement.
In fact the Statement, and its binding nature,
was the creation of the drafters of the 1981 Education Act. It
was not so much as hinted at, let alone "invented",
by the Warnock Committee.
We would re-iterate the following regarding
the actual assessment and statementing process:
(i) For the sake of accountability, a proper
process is necessary which will inevitably involve an appropriate
amount of bureaucracy;
(ii) The current process is already as minimal
as it can be if it is to be effective;
(iii) The citizens using this process, the
parents or carers of children with SEN, find it a vital protection
for their children;
(iv) This vital protection is all the more
necessary if increased inclusion of children with SEN in mainstream
schools is going to succeed.
4. LA LAW BREAKING
In 3, above, we likened the legal duties which
create a child's entitlement to special educational provision
to links in a chain. However, as with a chain, it only needs one
link to be broken for the legal entitlement to be destroyed. LAs
learned this quickly and are now very practiced at refusing to
assess children on spurious grounds and refusing to say in Statements
exactly how much help a child should receive.
4.1 It has been long known that very many
LEAs have sought to ignore the law on special education since
its inception over two decades ago. As a leader in The Times
Educational Supplement put it, the law on special education
has been "more assiduously circumvented and breached than
honoured by many Authorities. "(3)
4.2 The first Select Committee to consider
the implementation of the 1981 Education Act (4) heard evidence
from the National Association of Headteachers that 80% of special
school heads believed statements were "being prepared
directly in keeping with what was available rather than in terms
of the specific needs of the particular child."
Researchers from the University of London told
the Select Committee that they had found that `professionals
may tailor their advice to coincide with what they know is available'
rather than what they believe is necessary to meet a child's
needs.
The Select Committee's report to the Government
(15 December 1987) concluded: ". . . the lack of specific
resources has restricted implementation of the 1981 Act. "
One of the Committee's recommendations was that "the Act
should be more effectively monitored and resultant guidance given.
This should be carried out by the Department . . ." (4)
4.3 The Government's response the Select
Committee's report was to issue fresh statutory guidance on the
Education Act 1981. It contained the following, strongly worded,
advice to LEAs:
"The LEA is legally bound to provide whatever
is specified in Section III, which should specify in detail the
special educational provision that they consider appropriate for
the special educational needs identified in Section II. It is
important that this information should be easily understood by
all those involved in a child's education, including the parents,
so that they know exactly what is required. Statements that fail
to specify in detail what provision the particular child requires
are of little use to parents and to the professionals who are
to act upon them." (5)
But LEAs ignored this guidance and continued
writing vague Statements.
4.4 In 1991, Jack Ashley MP tabled an Early
Day Motion on IPSEA's behalf which drew attention to what IPSEA
described in its briefing paper as "LEA Law Breakers".
This included the following:
"Many LEAs write statements in such vague
terms that parents are given little indication of the kind or
amount of provision to be made for their child . . . One statement
issued by a South-East Authority deferred any decision by recording
that "the nature of (the) support will be decided as a
result of discussion between the Head teacher, the Educational
Psychologist and the parents." A South West Authority
avoided being specific about the amount of help a child with a
statement would receive by using the phrase "up to 5 hours".
A North West Authority issued a statement which simply offered
"some help from an adult." (6)
The EDM "called upon the Government
to ensure that all Local Education Authorities fulfil their legal
duties under the 1981 Act" It was signed by 250 MPs from
all political parties.
4.5 The EDM was quickly followed by an Audit
Commission/HMI Inquiry, which reported in 1992 that in one in
six LEAs the 1981 Education Act had never been implemented or
had collapsed within a few years of implementation. Also, in only
one of the twelve LEAs surveyed were statements being written
in accordance with the duty in law to "specify" the
special educational provision required by a child. The Audit Commission's
analysis of the cause was frank: ". . . there is an incentive
for LEAs not to specify what is to be provided because they thereby
avoid a long-term financial commitment. " (7)
4.6 In 1992, in its response to the Audit
Commission report, the Government announced their intention to
amend the law on special education and to create a Tribunal, which
would hear and decide upon disputes between parents and LEAs arising
from situations which included LEAs refusing to assess children
and issuing Statements which failed to specify the provision which
children were entitled to.
4.7 IPSEA proposed an amendment to the law
which would have created a mandatory duty on an LEA to "specify
the type and quantify the amount" of special educational
provision in Part 3 of a child's Statement, but this was resisted.
Instead, the Government decided to address the issue of "quantification"
in a Code of Practice, introduced for the first time to accompany
the 1993 Act. Thus, the following guidance was given to LEAs on
how the legal duty to "specify" special educational
provision should be interpreted: "The provision set out
in this sub-section should normally be specific, detailed and
quantified (in terms, for example, of hours of ancillary or specialist
teaching support) although there will be cases where some flexibility
should be retained in order to meet the changing special educational
needs of the child concerned. " (8)
4.8 But LEAs ignored this guidance and continued
to refuse to quantify provision in Statements, just as they had
ignored the guidance in Circular 22/89. Many of the appeals made
to the newly established Special Educational Needs Tribunal represented
attempts by parents to find out what exactly the Statement entitled
their child to by way of provision, rather than disputes about
the kind or actual amount of provision on offer. These were unnecessary
appeals, made necessary by LEAs' failure to fulfil their duties
in law to write Statements which make it clear how much help a
child should receive.
4.9 In 1996, a Select Committee of the House
of Commons undertook a further enquiry into the operation of the
new Code of Practice and the Tribunal. Paul Vevers, who carried
out the research for the Audit Commission, told the Committee:
"The majority of statements (our emphasis) are so
vague that it would not be possible to tell whether what should
be delivered, is being delivered." (9).
5. CENTRAL GOVERNMENT
COLLUSION
Up until the mid-1990s, central government had
reacted positively to the evidence from the two Select Committees
and the Audit Commission Inquiry which showed that the law on
special education was not working as Parliament had intended,
even though the action taken—issuing guidance—had
proved ineffective. But in the mid-1990s, central government seemed
to change its stance on the issue of LEA law breaking.
5.1 In 1995, 59 separate LEAs, the Society
of Education Officers and the Department for Education and Employment
came together to form "The SEN Initiative". A City accountancy
firm (Coopers and Lybrand) was commissioned to undertake a survey
of LEA practices with regard to financing special educational
provision and to make recommendations. Their report, published
in 1997, also called "The SEN Initiative" (10), presented
an account of LEAs' powers and duties which was totally at odds
with the law's requirement that children be assessed as individuals
and that statements be issued when a child's needs can not be
met by the provision available to them from their school's resources.
Instead of the individual needs-led approach prescribed in law,
the `SEN Initiative' recommended:
"The LEA can and should make its own
decision on the definition of SEN which suits its own particular
circumstances. It should also decide the level of SEN it considers
should be protected by a statement—and therefore additional
resources . . . Once the LEA has determined which cohort—and
the size of the cohort—of pupils with SEN it considers to
need extra resources, it can then decide what extra resources
to devote to this group. (Realistically, it will have an eye on
this when determining the size and nature of the cohort . . .
each LEA should identify broad categories of SEN—probably
using those in the Code of Practice (and) for each category decide
the percentage of pupils it wishes to target for extra resources—say
1%, 2% or 3% . . .
So it would be possible to consider each child
currently with a statement at the annual review and to remove
the statement in cases where the child would not, under the new
criteria, receive a statement . . .
There is a wide disparity in what individual
LEAs spend on children with apparently similar needs. This means
that an LEA can decide where to position itself on a spectrum
in relation to expenditure on these pupils."
Long time observers of the SEN scene were not
overly surprised by the Society of Education Officers' involvement
in the "Initiative". It was, however, a disturbing development
that the Department for Education had contributed £10,000
to the costs of the "Initiative"; and still more disturbing,
that the Department had been represented on the steering committee
which had approved the final draft of the report, including the
above recommendations.
5.2 Looking back, the "SEN Initiative",
begun in the last years of the Conservative administration, was
very much a tipping point after which governments stopped trying
to curb LEA law breaking (albeit too meekly) and instead started
colluding with the law breaking.
5.3 The "SEN Initiative" was published
in 1997, as New Labour took power. IPSEA wrote to the incoming
New Labour Secretary of State, asking for an assurance that his
Department would play no further role in the "Initiative"
and that it would not receive further government funding. We received
neither acknowledgement nor reply.
5.4 New Labour came to power with immediate
plans for special education, its Green Paper "Excellence
for all children" being issued within the year (11). Clearly
aimed at promoting increased inclusion, it also (inexplicably,
in IPSEA's view) linked this goal with a series of unsubstantiated,
negative assertions about the assessment and statementing procedure,
including: "the process for assessing pupils and issuing
statements is lengthy and expensive . . . resources that could
be used to give practical support to pupils are being diverted
into procedures . . . resources allocated to those with statements
are diverted away from the majority of children with SEN but without
statements . . . statements can act as barriers to full inclusion
of pupils with SEN".
Some of these assertions echoed those of the
SEN Initiative. Although the Green Paper made clear that the Government
were not proposing to alter the law on assessments and statements
in the short term, it reported: "In the longer term we
will consider whether statements in their present form are the
best way of carrying out the functions . . . " IPSEA's
impression has been that LEAs interpreted The Green Paper as the
declaration of an "open season" on assessments and statements
and that LEA disregard for the law has spread alarmingly since
1997, fuelled in part by subsequent actions of the Government
which signalled their lack of commitment to the legal framework.
5.5 In July 2000, the draft of a new Code
of Practice was released for consultation. It omitted the guidance
from the first Code that normally provision should be quantified
in terms of numbers of hours or lessons a week unless the changing
needs of the child required there to be "flexibility".
The omission was noted by most of the organisations in the voluntary
sector with a concern for children with special educational needs,
and by many professional associations, and it was condemned universally.
Later in the year, the debate on the Code in
the House of Commons showed that MPs were very well aware of the
significance of the "quantification" issue and very
unhappy with the omission of clear guidance from the new Code.
Two days later the Code was due to be debated by the Lords and
there were three motions tabled calling for the Government to
take it back and amend the guidance on quantification. Unexpectedly,
it was announced that the Code was withdrawn and would be presented
to Parliament in the autumn of 2000, with the original guidance
on quantification reinstated.
There was no further consultation, but the revised
version of the Code, unveiled in October and approved by both
Houses, repeated almost word for word the guidance from the 1994
Code of Practice:
"Provision should normally by quantified
(eg in terms of hours of provision, staffing arrangements) although
there will be cases where some flexibility should be retained
in order to meet the changing special educational needs of the
child concerned." (12)
This version of the Code, together with the
new law and regulations, came into effect from 1 January 2002.
5.6 As if to pre-empt the effect of its
defeat over the statutory guidance on "quantification"
in the new Code, the DfES launched a new document giving non-statutory
guidance on, among other things, how to write statements: the
"SEN Tool-kit" (13). Chapter 7 of the Tool-kit went
far beyond the Code (and existing case law) in suggesting to LEAs
situations in which they might be justified in refusing to quantify
special educational provision in statements:
"LEAs are required to be specific about
provision. Provision should normally be quantified, for example
in terms of hours and frequency of support, but there are times
where some flexibility needs to be retained either to meet the
changing needs of the child or to allow for appropriate and
alternative responses from within the school to reflect particular
class or school arrangements. (our emphasis).
This was so general as to undermine completely
both the requirement in law that provision must be specified and
the guidance in the Code and that normally it should be quantified.
In addition, the Tool-kit suggested that quantification
may not be required when children are placed in special schools:
"LEAs will always need to specify provision
but they will need to consider whether there are times when
it would be inappropriate to provide further detail or quantify
provision when a child is placed in a special school . . .
" (our emphasis).
If provision for children in special schools
is not quantified in their Statement, it is left up to the staff
of the school to decide what a child will receive (which is at
odds with case law); but, also, it means that the provision can
be reduced without the child or the parent having recourse to
appeal to the Tribunal. Special schools are as vulnerable to the
effects of expenditure cuts as are mainstream schools and, particularly
with regard to therapies being provided, the need for the guarantee
which a quantified statement provides is every bit as crucial
for children in special schools as it is for those in mainstream
schools.
The Tool-kit also suggested that schools could
take over the LEA's role as "determiner" of needs and
provision and that this could serve as a reason why a Statement
might fail to quantify provision:
"Schools and LEAs will need to make decisions
about the interventions and provision appropriate to each pupil
on an individual basis. This can sometimes only be done by a careful
assessment of the pupil's difficulties in the school and classroom
context. It may therefore sometimes be inappropriate to quantify
in advance the action that might be taken in terms of how much
individual tuition a pupil might need, or how many hours
of in-class support may be necessary, or what size of teaching
group may be most appropriate." (Emphasis in Toolkit)
This was not only at odds with case-law, but
directly challenged the function of the statutory assessment,
which is to do precisely what the Toolkit was now proposing should
only be done after assessment and the issuing of a Statement.
5.7 IPSEA sought Judicial Review of the
Secretary of State's actions in publishing the guidance in the
`SEN Tool-kit'. The High Court deemed there was no illegality
on the part of the Secretary of State on the basis that the Tool-kit
was non-statutory and did not remove or over-rule the statutory
guidance in the Code. However, LEAs were advised by the Court
not rely on the Tool-kit as a defence if they were challenged
for producing vague statements and the Secretary of State was
invited to consider rewording the Tool-kit (14). This invitation
was ignored. The Tool-Kit remains in circulation in its original
form, signalling again the Department's low esteem for the law
on special education (and the High Court's interpretation of it).
5.8 There were other changes to the guidance
in the Code of Practice (and to the regulations) which the Department
attempted to make, and in one case made, when the new Code was
introduced. These affected the legal entitlement of children whose
SEN arose from medical conditions, the duty of educational psychologists
to consult other psychologists who have knowledge of a child,
and the right for parents to know what type of school the professionals
who had assessed their child believe believed would best meet
their needs.
5.8.1 Under s312(2)(b) Education Act 1996,
children with medical needs which do not in themselves give rise
to learning difficulties but which prevent or hinder them "from
making use of educational facilities of a kind generally provided
. . ." are entitled to be considered for statutory assessment.
The original (1994) Code provided clear guidance to LEAs on the
duty to assess children for SEN when they have medical conditions,
by:
(a) giving examples of some of the commonest
medical conditions which give rise to SEN: "congenital heart
disease, epilepsy, asthma, cystic fibrosis, haemophilia, sickle
cell anaemia, diabetes, renal failure, eczema, rheumatoid disorders,
leukaemia and childhood cancers" and
(b) advising LEAs "where there is
clear recorded evidence that the child's medical condition significantly
impeded or disrupts his or her access to the curriculum, ability
to take part in particular classroom activities or participation
in aspects of school life . . . the LEA should very carefully
consider the case for statutory assessment of the child's special
educational needs." (15)
The revised Code when laid before Parliament
in 2001 omitted the examples, omitted the guidance on when a medical
need might give rise to a special educational need and omitted
any reference to LEAs' legal duties with regards to assessing
children with medical needs.
In IPSEA's view this posed a clear risk that
LEAs would believe that the law with regard to children with medical
needs had been changed (which it had not) and that this in turn
would prejudice the educational rights of these children. We wrote
to all MPs in advance of the Commons debate on the Code. IPSEA's
Patron, Baroness Darcy de Knayth, wrote directly on IPSEA's behalf
to the Minister. As a result, the decision to reinstate clear
guidance on children with medical needs in the Code was quickly,
and quietly, made. But why had it been removed in the first place?
Crudely, to reduce the number of Statements which an LEA would
have to issue and maintain? No explanation was ever given.
5.8.2 The Education (SEN) Regulations 1994
placed a duty on educational psychologists, at the time of statutory
assessment, to `consult' other psychologists with knowledge of
the child concerned, and this requirement was paraphrased in the
1994 Code of Practice. Although the duty was reproduced unchanged
in the 2001 Regulations, the new Code of Practice contained no
reference to it.
The omission was potentially disadvantageous
for parents who had obtained a second professional opinion from
an independent psychologist on their child's needs, for there
was a clear danger that LEA psychologists relying entirely on
the Code for their knowledge of the law would assume that this
consultation was no longer required.
IPSEA would have challenged the omission, but
did not detect it, and the change to the Code went through, although
the duty in law remained unchanged.
Two years later the Association of Educational
Psychologists circulated amongst its membership a paper entitled
"Guidance to Educational Psychologists in Preparing Statutory
Advice to the LEA." This advised educational psychologists:
". . . there is no longer an obligation to consult with
any other psychologist who might be involved with a view to summarising
the psychological advice." This wrong advice, based on
the change to the Code, was questioned by some members of the
Association, causing the AEP's Secretary to seek clarification
from the DfES.
The clarification needed was for the AEP to
be told that there had been no change to the regulations on psychological
advice since 1983 (ie for some 21 years) and that the duty placed
on educational psychologists when producing psychological advice
for the purpose of statutory assessment was, if they had reason
to believe that another psychologist had "relevant information
relating to or knowledge of the child" to "consult"
that other psychologist.
Instead of explaining that the duty to "consult"
remained in force by effect of the regulations, the DfES official's
advice stated that "although there was no longer an obligation
to summarise other psychological advice, it remained good practice
for educational psychologists to seek this information."
On the basis of having received this rather obscure advice (which
confuses "summarising" with "consulting"),
the AEP stood by its original advice to members: "there
is no longer an obligation to consult with any other psychologist.
" To IPSEA's knowledge, this legally incorrect advice to
AEP members remains on record. (A copy of the document which
substantiates this point is available, on request)
5.8.3 Under the 1994 SEN Regulations, all
professionals giving advice for the purpose of assessment were
allowed to refer to the type of school they felt was appropriate
for the child. With no prior discussion or debate, the Government
changed the SEN regulations in order to prohibit professionals
from referring to the type of school they believed would best
meet a child's needs in their statutory advice.
When IPSEA noticed this change, the new regulations
had already been approved by Parliament and we assumed that it
was a printer's error. But a DfES official confirmed on the telephone
that the change was not inadvertent, that it had "the Minister's
approval" and that it was aimed at making the new section
316 (on inclusion) `work smoothly.' In other words, in order to
promote inclusion, the Government had legislated to prevent parents
from knowing the views of the professionals who had assessed their
child on the type of school which would best meet their needs.
And they had done this without consulting or informing anyone,
inside or outside of Parliament.
A letter from our Patron, Baroness Darcy de
Knayth, to the Minister, Cathy Ashton, persuaded the Government
to make an immediate amendment to the newly approved regulations,
removing the gag on professionals before it had been generally
noticed. (A copy of the documents which substantiate this point
is available, on request.)
6. THE SECOND
AUDIT COMMISSION
REPORT
In June 2002 the Audit Commission (AC) published
its second report on special education provision, titled "Statutory
assessments and statements of special educational need: in need
of review?" (16) This was a very different report to that
of 1992. Like the first report, it identified widespread LEA law
breaking. But unlike the first report, it blamed the law itself
for the problems caused by the LEAs who were flouting it. For
example:
6.1 On page 16 of the report, "one
family's experience" purports to reveal the weakness in the
assessment process by setting out the chronology for a boy named
Mark:
"— at 3 he had little language
and throws temper tantrums
— at 4 his class teacher said he
was clumsy
— at 6 he was falling behind with
his reading and writing
— at 7 he was assessed and found
to have dyspraxia
— at 8, eventually, Mark received
the provision his needs called for"
Yet, far from showing that statutory assessment
was ineffective for Mark, the chronology shows that assessment
was not invoked soon enough. When it was, it led to Mark's needs
being met within a year. The chronology may be evidence of the
LEA's failure to identify Mark's needs (a legal duty from a child's
birth); it may show that the parent was not informed of her right
in law to request assessment when problems began; it may show
the failure of professionals to advise the parent of this right.
But the assessment, as such, was effective and speedy, once initiated.
The law on assessment needs to be obeyed for children like
Mark, not changed.
6.2 On page 18 of the report, a case is
described of a parent saying: "I found it difficult to
start the process. I had to phone, I had to beg . . . "
Yet the law gives parents the right to request assessment of their
child's needs, following which an LEA has a strict legal duty
to respond within a 6 week deadline. The law is not in need
of "review" here. It is in need of enforcement.
6.3 Another parent is reported on page 18
as saying: "Professionals' advice is based on funding
not the needs of the child. " Yet the law clearly sets
out the content of professionals' reports and insists that they
cover the needs of the child and the provision required to meet
those needs. It is simply not lawful for professionals to distort
their opinion on a child's needs in order to save their employer
(the LEA) money. Again, the law is not in need of "review"
here. It is in need of enforcement.
6.4 On page 24, the report says researchers
found situations where there were "delays in provision
(such that support was not forthcoming for many months . . .)
" Yet LEAs have a duty in law to arrange the provision specified
in a statement from the date of its issue. The law is not in
need of "review" here. It is in need of enforcement.
6.5 Also on page 24, the report says researchers
found situations in which there were "shortfalls in provision
(support was provided, but to a lesser extent than set out in
the statement). " Yet LEAs have a strict duty in law
to arrange all the special educational provision specified
in a statement. Again, the law is not in need of "review"
here. It is in need of enforcement.
6.6 The Audit Commission urged the Government
to review the statutory framework, but the problems described
in the report arose not from the detail of the law (which in fact
is what provides children with the legal entitlement to have their
needs met) but from LEAs' disregarding the law.
7. "REMOVING
THE BARRIERS
TO INCLUSION"—GOVERNMENT
POLICY CONTINUES
THE ATTACK
ON ASSESSMENT
AND STATEMENTS
The Government rejected the Audit Commission's
call for a review of the legal framework, but made no comment
on the extent of LEA law breaking which the AC report had uncovered.
Later in the same year (2004), the government published further
policy proposal's for SEN, under the title Removing the barriers
to inclusion. (17) Removing the Barriers contained
many cross-references to the AC report in the form of negative
comments on the assessment and statementing processes eg. "They
(the AC) also found that statutory assessment was a `costly and
bureaucratic process' which could divert specialist staff from
working in schools." It was later revealed by the Times
Educational Supplement (18) that Removing Barriers, the
government's policy statement, was in fact written by the same
person who wrote the Audit Commission report—obviously,
by invitation. So, despite having rejected the AC Report's call
for a review of the law, the Government was happy for its hostility
towards assessments and Statements now to be promulgated as Government
policy.
8. EDUCATION
OF CHILDREN
WITH SEN IN
MAINSTREAM SCHOOLS
Has the inclusion of children with special educational
needs in mainstream schools really been a disaster, as claimed
by Mary Warnock? For the reasons set out in 3.4, above, it is
necessary to examine carefully, again, what is being claimed for
the 1978 `Warnock Report' in Mary Warnock's 2005 pamphlet.(19)
Mary Warnock describes integration/inclusion as: ". .
. possibly the most disastrous legacy of the 1978 Report . . .",
as if the Warnock Report gave birth to the concept of inclusion
and was responsible for it being written into education law. Neither
is true.
8.1 In 1928 the Wood Committee stressed
the unity of educational provision, special and non-special. During
the debate on the 1944 Education Act, the Parliamentary Secretary
Chuter Ede said: "May I say that I do not want to insert
in the Bill any words which make it appear that the normal way
to deal with a child who suffers from any of these disabilities
is to be put into a special school where he will be segregated."
In line with this, s33(2) of the 1944 Education Act provided for
the majority of disabled children to be educated in ordinary schools
and the subsequent Department guidance contained detailed suggestions
as to how this might be achieved. In 1970, the Chronically Sick
and Disabled persons Act ( a private members bill) required LEAs
as far as was practicable to provide for the education of deaf-blind,
autistic and acutely dyslexic children in maintained or assisted
schools. The Education Act 1976, in Section 10, required LEAs
to arrange for special education of all handicapped pupils to
be given in county and voluntary schools, except where this was
impractical, incompatible with efficient instruction in the schools
or involved unreasonable public expenditure. Section 10 was to
come into force on a date selected by the Secretary of State and
in January 1997 the Secretary of State announced that before deciding
upon a date she would consult widely, and await the outcome of
the Warnock Committee's enquiry. At the same time she made it
clear that the new legislation was not introducing a new principle,
but rather giving new impetus to an old one.
8.2 When published, The Warnock Report made
no new or original recommendations with regard to the law on integration/inclusion.
It merely recommended that "before Section 10 (of the
Education Act 1976) comes into force the Secretary of State for
Education and Science should issue comprehensive guidance to local
education authorities on the framing of their future arrangements
for special educational provision. " (7. 59)
8.3 The Education Act 1981 included the
qualified duty to integrate children with special educational
needs in ordinary schools for the first time in implemented legislation
and took over from s10 of the Education Act 1976. The 1981 Act
added the duty on LEAs to take parents' views into account and
added a duty on school governors to use their best endeavours
to ensure that children with special educational needs engage
in the activities of the school together with children who do
not have special educational needs. But the basic "integration"
duty in the Education Act 1981 simply re-stated s10 of
the Education Act 1976 and owed nothing to The Warnock Report.
8.4 Around 20% of pupils are considered
as having special educational needs at some point in their school
life and the large majority of these are educated in mainstream
schools, as has been the case for many decades. No one (including
Mary Warnock) argues that all children with special education
needs should be in special schools; nor even that the majority
of them should be. It is therefore unfortunate that Mary Warnock's
intemperate dismissal of inclusion ignores the large measure of
common ground which exists amongst parents, professionals and
government on the issue of inclusion. She refers to the very real
problems facing some disabled children, who are bullied in mainstream
schools, but is it really an acceptable adult response to suggest
that the solution lies in removing the victims of the bullying
to special schools? Mary Warnock also refers to the ideal of the
`small school' and it is true that some parents of children with
special needs (and some professionals) feel strongly that school
size is a crucial factor in determining whether a child's inclusion
is possible, or likely to be beneficial to the child. This is
an important issue, but Warnock's seeming determination to grab
the headlines and politicise the attack on inclusion has ensured
that the detail (bullying, school size) has simply not been discussed.
8.5 IPSEA's experience is that a well-written
statement, quantifying the support a child is entitled to receive
and thereby guaranteeing that support, is an absolute requirement
if inclusion is to be successful. Vaguely written statements are
a deterrent to parents expressing a preference for a place in
a mainstream school. They do not know what support their child
will receive; still worse, there is no guarantee that their child
will receive any support.
8.6 It is an irony that the Government should
have launched an attack on the statementing system in 1997 at
the same time as launching its attempt to promote inclusion. It
is extraordinary that, some eight years later, the Government
is still unable to grasp the contradictory and self-defeating
nature of these policies, despite the growing backlash against
inclusion which it has itself provoked.
9. THE ROLE
OF THE
DEPARTMENT FOR
EDUCATION AND
SKILLS
As part of its casework IPSEA is asked by parents
to consider and advise on the generic policies and practices employed
by LEAs in the discharge of their duties under education law.
As will be clear from this submission, we have detected a consistent
and persistent quantity of breaches of the law by LEAs, in particular:
— policies containing unlawful criteria
for the statutory assessment of special educational needs.
— blanket policies of not "specifying"
provision for special educational needs in Statements of Special
Educational Needs.
When unlawful policies have been brought to
our attention we have made complaints to the Secretary of State
for Education under ss496-497 of the Education Act 1996.
9.1 We have been disappointed by the inadequate
response that we have received from the Secretary of State's Department
(the DfES) to complaints about LEAs, in particular, with regard
to:
— the time taken to resolve
complaints;
— the methodology used by the
DfES in its complaints handling; and
— the sufficiency of the outcome
of complaints, specifically the failure of the DfES to make any
binding direction on LEAs to reform their practice.
9.1.1 Complaints take far too long to be
investigated. The complaints we make to the DfES should be familiar
and straightforward to its staff, normally involving allegations
of either blanket policies denying statutory assessment of special
educational needs; or, failure to meet the statutory duty to specify
provision in Statements. The response we would expect would be
for the Department to:
(a) examine the documents complained about;
(b) talk to the LEA involved and require
evidence from them;
(c) examine the evidence and discuss it,
when appropriate, with the LEA and/or the complainant; and
(d) make a decision and direct the LEA to
take action when required.
However, in our experience this process can
take up to a year, resulting in very serious denial of entitlement
under the law to large numbers of children and their families.
9.1.2 The DfES's method of investigation
is inadequate. In a recent complaint the Department did not appear
to have obtained basic documentary corroboration of the assertions
they have received from the relevant LEAs when investigating our
complaint. They simply relied on the LEA's word.
With regard to outcomes, our complaint is that
the Secretary of State never uses his or her power to issue an
Order. Instead, the outcome of formal complaints tends to be a
letter assuring us (as complainant) that the LEA has been spoken
to, now accepts the error of its ways, and has promised not to
err like this in the future. But given LEAs known track record
in treating both the Secretary of State's guidance and the law
itself with disdain, seriously, how reassured can we, and the
parents we support, be?
The Secretary of State's failure to take strong
action to control LEAs risks making LEAs even more disdainful
of the law. We believe that if the Secretary of State made formal
directions and enforced them, the operation of SEN provision would
improve and the number of SENDIST cases would reduce, with a consequent
reduction of the enormous personal costs to SEN children and their
families in battling with this poorly policed special needs system.
9.2 IPSEA has recently sent the Parliamentary
Ombudsman a bundle of examples of complaints which we consider
have been dealt with inadequately by the DfES. We would be happy
to provide copies of the bundle for the Committee, if this would
assist the inquiry.
10. THE ROLE
OF PARENTS
Guidance in the Code of Practice affirms: "Partnership
with parents plays a key role in promoting a culture of co-operation
between parents, schools, LEAs and others . . . All parents of
children with special educational needs should be treated as partners.
" (paragraphs 2.1/2.2) However, the Code also makes clear
that the role envisaged for parents in this "partnership"
is to act as "informant": "Parents hold key
information . . . They have unique strengths, knowledge and experience
to contribute to the shared view of a child's needs and the best
ways of supporting them. " There is no acknowledgement
in the Code that parents are obliged to police their LEA,
in order to ensure that their child receives the provision which
their needs call for, nor that most parents will need considerable
support to be able to fulfil this role.
10.1 The law on special educational needs
does not in itself make heavy demands on parents; it is LEAs breaking
the law—and the lack of an effective enforcement mechanism
or agency—which places the greatest burden on parents. And,
it is a burden which less able and/or less confident parents simply
cannot cope with. The consequence is that children with SEN whose
parents are less able and/or less confident end up being the least
likely of all the children with SEN to receive the provision they
need.
10.2 Children in the care of their LEA are
particularly vulnerable under the present arrangements, having
no "parent" figure to act as "informant" on
their needs and, critically, no-one to act as watchdog on the
LEA. In practice, the social worker assigned to a child assumes
the parental role of policing the LEA and ensuring that the child
receives the provision they are legally entitled to. The fact
that social workers are employed by the Authority which is making
the decisions means it is impractical to expect them to be able
to assume this role in any meaningful way. And, in practice, they
don't.
There is a pressing need for legislation to
address the position of children in care who have special educational
needs.
11. THE OPERATION
OF THE
DISABILITY DISCRIMINATION
ACT 1995 AS
AMENDED BY
SENDA 2001
When Conservative Minister for the Disabled,
Nicholas Scott, introduced the DDA1995 to Parliament he explained
the absence of measures covering discrimination in education by
claiming that special education law was so effective that disabled
children needed no further protection and no additional legal
rights. This was despite the fact that by the mid-nineties it
was widely known that there were serious problems with regard
to the enforceability of the law on SEN.
11.1 The issue was re-examined four years
later by the Disability Rights Task Force (DRTF), established
by New Labour, who recommended an extension to the DDA to cover
education (20). But, yet again, on the quite wrong assumption
that special education law provided all the protection disabled
children needed, the DRTF advised that there was no need to include
the denial of education aids and services as a ground of discrimination.
As a result, the most worrying, damaging and persistent form which
disability discrimination takes in the school system—the
denial of the special educational provision required by a child
in order for them make progress commensurate with their ability—was
expressly excluded from the DDA.
11.2 IPSEA urges the Select Committee to
examine closely the "fit" between SEN law and disability
discrimination law, in particular with a view to recommending
legislative change to ensure that a child's right to special educational
provision is reinforced by the DDA, rather than ignored by it,
as it is at present.
11.3 It would be desirable for a Tribunal
hearing a claim of disability discrimination to be able to issue
an order compelling an LEA to `make-up' for the absence of statemented
provision where the details of a parent's claim reveals that there
has been a failure on the Part of the LEA to fulfil its legal
duty to "arrange" the special educational provision
specified in a statement. This would be a useful supplement to
the current available remedy, the threat of Judicial Review of
the LEA, which although effective in terms of future provision
does not compensate for a lack of statemented provision in the
past.
11.3 There is a lacuna in the legislation
with regard to children with Emotional and Behavioural Difficulties
(EBD) who, in IPSEA's experience, form the largest group within
those children excluded from school in situations where the special
education provision they need has not been put in place. Because
EBD is not covered by the definition of disability in the DDA
1995, parents are not able to bring claims to the Tribunal, although
children whose behaviour problems arise from specific conditions
(eg autism) are protected by the DDA by virtue of their condition
being defined in law as a disability.
We therefore ask the Select Committee to recommend
an amendment to the DDA 1995 to include a child with a statement
of special educational needs under the definition of "disability"
contained in that Act.
12. TRANSFORMING
THE SPECIAL
EDUCATIONAL NEEDS
AND DISABILITY
TRIBUNAL
IPSEA welcomed the recognition by The Leggatt
Report that "tribunals are well placed to pick up systemic
problems in decision-making which are confusing, through administrative
systems which muddle or miss key facts, to a flawed decision-making
process which leads to misconceptions of the law." (21) We
also welcomed Leggatt's aspirations ". . . to make sure that
a new system enables primary decision-makers to learn the lessons
of adverse decisions."
12.1 The Government is going ahead with
fundamental changes to the Tribunal Service and we ask the Select
Committee to give some thought to how a transformed service could
better protect children with special educational needs, in particular
those children whose parents are less likely for whatever reason
to bring an appeal on behalf of their child.
Useful changes could include, for example:
— Where an LEA's Statement of Case
(the stage before the hearing) reveals unlawful decision-making
the Tribunal could be given the power to require the LEA to retake
the decision, this time in accordance with the law, and in the
event of an LEA refusing, the parent's appeal could be automatically
upheld.
— Where unlawful decision-making comes
to light in the course of a hearing, costs could automatically
be awarded against the LEA.
— If, following either of the above
situations another parent lodges an appeal against the same LEA
and the paperwork reveals a repetition of the unlawful decision-making,
the parents' appeal could be automatically upheld.
These are punitive measures, but necessarily
ones, in IPSEA's view. At present we have the situation where
SENDIST can only make an order with respect to the individual
case before them, leaving the LEA free to continue with unlawful
decision-making, disadvantaging in particular those children whose
parents are less likely and/or less able to appeal.
12.2 IPSEA has welcomed the proposal to
create an upper tier of tribunals which will consider appeals
on the grounds of legal error and be able to establish case law.
We believe that this would be quicker, cheaper and more parent-friendly
a process than the current system which involves appeals to the
High Court. However, because of the legalistic nature of appeals
to an upper-tier, the majority of parents will continue to be
disadvantaged unless legal assistance is made available to support
them with appeals to a new `upper tier'. We ask the Select Committee
to consider making this recommendation to the Government.
12.3 Around 60% of children excluded from
schools have SEN. In most cases, they are excluded as a result
of provision to meet their needs not being made. The current appeal
arrangement—to local Independent Appeal Panels—is
totally inadequate. We therefore ask the Select Committee to consider
the unsatisfactory nature of the current arrangements for parents
who wish to appeal against their child's permanent exclusion from
school. Parents run a double gauntlet of Governors' meeting and
Independent Appeal panel, neither of which is truly independent.
We believe that the new Tribunal Service should have a remit which
includes hearing appeals against all school exclusions.
13. CONCLUSION:
AN IMPROVED
FUTURE ROLE
FOR CENTRAL
GOVERNMENT
Although the law on special education places
the primary duties on local government, there is an important
role for central government in enforcing the law (via the Secretary
of States powers under sections 468 and 469) and also in signalling
Government's respect for individual children's legal entitlement
to special educational provision.
History shows that prior to 1997 Government
attempts to bolster the law (for example by issuing statutory
guidance, setting legal deadlines for assessments and by creating
the Special Educational Needs Tribunal) although necessary, were
insufficient to persuade LEAs to obey the law.
13.1. Since 1997, the situation has worsened
in that the Department itself now signals a disregard for the
legal framework which is alarming for parents of children with
special educational needs, and which should be alarming, also,
for any citizen with a concern for parliamentary democracy.
13.2 This is not the place to speculate
on the Government's motives in 1997. Perhaps an attempt to balance
the views of the disability movement, who were pressing for total
inclusion, with the views of LEAs, who were pressing for a reduction
in the restrictions which special educational needs law placed
on how they could `spend their own' money, is what formed government
policy. There was very much a `road to Damascus' conversion at
the end of the 1990s, with LEAs who had the worst record of opposing
inclusion doing an about turn. SEN Officers woke to find they'd
been re-titled "Inclusion Officers". In some LEAs, even
the officers who deal with school exclusions are now called "Inclusion
Officers".
It is hard to resist the suspicion that the
conversion was brought about by a covert offer from the government
to LEAs along the lines of: `help us with our goal of inclusion
and we'll get the law off your back as best we can, because
— First, there was the attempt to remove
the duty to "quantify" provision in statements which,
at a stroke, removes the duty to "arrange" the provision
as quantified. When this failed through the revised Code a further
attempt was made via the SEN Toolkit.
— Second, there was the attempt to
weaken LEAs' duties with regard to assessing children whose SEN
arise from medical conditions.
— Third, there was the attempt to withhold
professionals' views on the type of placement which would best
meet a child's needs from their parents—which would clearly
damage the chances of parents appealing against LEA placement
decisions.
— Fourth, there was the (successful)
attempt to mislead psychologists via the Association of Education
Psychologists on the legal duty to consult other psychologists
who know a child.
All these moves would be welcome to LEAs. All
would be damaging to children and their parents. They would be
likely to increase the numbers of children included in mainstream
schools, but at the price of an increased risk that children's
needs would not be met, their provision not protected.
For children with SEN and their parents, these
have been particularly difficult years. For their sakes we ask
the Select Committee to send the following clear messages to the
Government:
(i) Respect the law and put aside
all covert attempts to manipulate the legal framework in ways
which favour the service providers over the children they are
meant to be serving;
(ii) Enforce the law, and if the
Secretary of State is not prepared to use her or his powers vigorously,
then empower the new Tribunal service to do so;
(iii) Pursue inclusion only by enhancing
and guaranteeing adequate provision in mainstream schools
through reinforcing, not weakening, the assessment and statementing
procedure, and by not by seeking to limit parents' access to professionals'
opinions on their children's needs. Create a system in which parents
will choose inclusion because there is a legal guarantee (via
the Statement) that their child's needs will be met in the mainstream
and because, with this guarantee, they can trust that this is
where their child's needs will best be met.
REFERENCES
1. The Report of the Committee of Enquiry
into the Education of Handicapped Children and Young People. HMSO.
1978 (The Warnock Report')
2. Special Educational Needs— a new
look. Mary Warnock. Philosophy of Education Society of Great Britain.
2005.
3. Editorial, Times Educational Supplement
9.8.91.
4. Third Report from the Education, Science
and Arts Committee, Session 1986/7, Special Educational Needs:
Implementation of the Education Act 1981. HMSO. 1987.
5. Circular 22/89. DfEE. 1989.
6. LEA Law Breakers. IPSEA.1991. An account
of the EDM campaign is contained in "From Bill to Act—the
passing of the 1993 Education Act", in "Equality and
Diversity in Education 2", OUP/Routledge 1995.
7. Getting in on the Act, Audit Commission/HMI,
HMSO 1992, p25.
8. The Code of Practice on the identification
and assessment of special educational needs.HMSO.1994.
9. Second Report of the Education Committee.
SEN: the working of the Code of Practice and the Tribunal. HMSO
1996.
10.The SEN Initiative—managing budgets
for pupils with special educational needs. SEO/CIPFA/Coopers and
Lybrand. 1997.
11. Excellence for all children—meeting
special Educational needs. DfES. 2002.
12. Special Educational Needs Code of Practice.
DES. 2002.
13 SEN Tool-Kit. DES 2002.
14. R (Ipsea Ltd) v Secretary of State for
Education and Skills (2002) EWCA 504, 26 March (Admin)
15. See 9, above.
16. Statutory assessment and statements
of special educational needs— in need of review? Audit Commission.
2002.
17. Removing the barriers to inclusion.
DfES. 2004.
18. Times Educational Supplement Extra:
Special Needs. Jan/Feb 2004.
19. See 2, above.
20. From exclusion to inclusion: a report
of the Disability Rights Task Force on civil rights of disabled
people. DfES. 1999.
21. Tribunals for users: one system, one
service (The Leggatt Report) HMSO.2001.
October 2005
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