Memorandum submitted by the Children's
Legal Centre
1. INTRODUCTION
1.1 The Children's Legal Centre is the leading
provider of education law advice in England and Wales. The Centre's
Education Law and Advocacy Unit provides free legal advice and
representation to children and parents with concerns relating
to schools and local education authorities (LEAs). The Unit has
been awarded a Specialist Quality Mark by the Legal Services Commission,
together with a national contract to offer free legal advice and
assistance from Community Legal Service Direct. The Unit also
holds a contract specifically to provide support in the Eastern
Region. Issues surrounding special educational needs (SEN) form
a huge proportion of the Unit's work. Since July 2005, the Centre's
national education law advice line has received almost 2,000 calls,
around one-third of which concerned SEN.
1.2 Types of cases
1.2.1 The SEN cases dealt with through the
Centre's Education Law and Advocacy Unit cover a broad spectrum
of issues, including:
— Refusal to statutory assess or reassess;
— Refusal to issue a Statement of SEN;
— Failure to adequately describe the
nature of a child's SEN in Part II of a Statement;
— Failure to specify sufficient support
for a child's SEN in Part III of a Statement;
— Failure to provide the support specified
in Part III of a Statement;
— Refusal to name parents' preferred
school in Part IV of a Statement, or refusal to change a named
placement;
— Provision of free home-to-school
transport;
— Failure to adhere to statutory timescales
in the statementing process;
— Failure to implement the decision
of the Special Educational Needs and Disability Tribunal; and
— Exclusions arising from failure to
meet a child's SEN.
Two examples of recent cases undertaken by the
Children's Legal Centre are attached as Appendix 1.
2. PROVISION
FOR SEN PUPILS
IN MAINSTREAM
SCHOOLS
2.1 It is the view of the Children's Legal
Centre that inclusion can often lead to exclusion: exclusion is
not only expulsion from school, but also social isolation. For
those children with SEN who are placed in mainstream school, it
is often strikingly evident to them that they are "different"
to those children without SEN. This can also lead to bullying,
particularly where a child is regularly supported by a Learning
Support Assistant.
2.2 Although the Centre believes that as
far as possible children with SEN should be educated in a mainstream
setting, it is often the case that parents and children themselves
feel more comfortable in the environment of a special school where
other children have similar difficulties and teachers are fully
equipped to meet their needs.
2.3 For children with certain types of SEN,
such as those on the autistic spectrum, the structure of a mainstream
school is unsuitable. For these children, the size, particularly
of a mainstream secondary school, can be extremely difficult for
them to cope with, and this is often exacerbated by the numbers
of pupils and the need to move between classrooms and sometimes
buildings.
2.4 The Centre often assists parents in
obtaining a place at a special school where their child is not
coping in a mainstream environment. Often, we have found that
the lives of these children, and indeed their parents, once placed
in a special school have been totally transformed. Parents often
talk of dramatic improvements in behaviour at home, of seeing
their child happy when they arrive and leave school and of their
child wanting the school holidays to end.
3. THE SPECIAL
EDUCATIONAL NEEDS
AND DISABILITY
TRIBUNAL (SENDIST)
3.1 Funding
3.1.1 The Tribunal was intended to be a
reasonably informal arena in which parents would feel at ease,
and would feel confident about representing themselves. In the
Children's Legal Centre's experience, this is no longer the case.
LEAs are increasingly instructing barristers to represent them
at Tribunal and this puts parents at a major disadvantage. It
is very expensive for an LEA to conduct a statutory assessment
or place a child at a special school, particularly if that school
is residential and/or independent, so LEAs will try all means
of defending their decision. There is a major anomaly in the system,
as public funding is not available for parents to be represented
at the SENDIST, yet LEAs regularly use public funds to brief counsel.
3.1.2 The Children's Legal Centre currently
provides representation to parents at the SENDIST through charitable
funding received through the BBC Children in Need Appeal Funding,
but this funding is being withdrawn next year (as we have received
a grant for the maximum number of years possible through this
fund). It is sometimes imperative that parents receive representation,
as parents of children with SEN often have SEN themselves. In
addition, the challenge of arguing their case against an LEA which
is legally represented is a daunting prospect.
3.2 Free home-to-school transport
3.2.1 The provision of free home-to-school
transport is becoming an increasingly problematic area. LEAs are
now adopting a specific approach to dealing with this issue. If
parents express a preference for a school, LEAs will often agree
to the parents' preference, but will avoid having to provide free
home-to-school transport by stating that the LEA believes there
is a nearer suitable school for the child. Parents are then faced
with a dilemma: do they agree to transport their child to school
or send their child to a school which they do not feel is suitable?
The problem is that the SENDIST has no jurisdiction to deal with
the issue of transport. Thus, the only option for parents if they
want to challenge the LEA's decision is to ask the LEA to name
its preferred school in Part IV and then appeal to the SENDIST
on the named placement. If the SENDIST orders that the parents'
preferred school be named in Part IV, the LEA will have to provide
free school transport. However, there is, of course, always the
risk that the SENDIST will disagree with the parents' preferred
placement and there is the problem of where the child is educated
in the meantime—if the LEA's preferred school is named in
Part IV, the child must attend pending the decision of the SENDIST.
3.3 Children's views
3.3.1 Although the child's views will often
be sought during the process of statutory assessment, children
have no automatic right to be heard at the SENDIST. In practice,
if a child does attend the hearing, the Tribunal panel will often
seek the child's views, but few children do attend, as parents
are aware that the SENDIST is not an arena in which children are
likely to feel at ease. In addition, parents are often reluctant
to bring their child if the nature of his or her SEN is behavioural
difficulties in case he or she is disruptive during the hearing.
3.4 Looked after children
3.4.1 A statutory assessment can be requested
by any of the following:
— the health provider; and
— the social services department.
3.4.2 There are obvious difficulties for
children "looked after" by the local authority. If the
social services department requests a statutory assessment, as
the child's corporate parent, and the local education authority
refuses to conduct an assessment, that is the end of the matter,
unless a foster parent chooses to appeal, as one department of
the local authority cannot appeal against another. This situation
may become even more problematic as many local authorities are
combining education and social services departments under the
banner of "children's services".
4. DISABILITY
DISCRIMINATION
4.1 The provisions of the Special Educational
Needs and Disability Act 2001 extended the principle of disability
discrimination to schools. The SENDIST is now able to deal with
claims of disability discrimination, but only in specific circumstances.
4.2 Regardless of the type of school concerned,
the SENDIST always hears claims of discrimination in relation
to education and associated services—this includes exclusion
from school trips and such like. However, in relation to discrimination
in the context of admissions and permanent exclusions, the forum
for making a claim for discrimination is dependent upon the type
of school concerned:
| Independent and non LEA maintained schools
| LEA maintained schools |
Admissions | SENDIST
| Admission Appeals Panels |
| Permanent exclusions | SENDIST
| Independent Appeal Panels |
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4.3 The effect of this is that while children from independent
and non-maintained schools (ie a significant minority) will receive
a hearing from a body with extensive experience and specialist
knowledge of special educational needs, those in maintained schools
will be heard by a panel experienced only in exclusions or admissions.
October 2005
APPENDIX 1: CASE EXAMPLES
DANIEL
Daniel is 13-years-old. He has a Statement of SEN for his
behavioural difficulties, but he has no firm diagnosis of the
cause of his difficulties and his Statement is extremely vague
in Part II. Daniel was permanently excluded from his mainstream
secondary school in June 2005 for rude and abusive behaviour.
We represented Daniel before the Governors' Discipline Committee
and were successful in getting the exclusion overturned. We were
able to show that the school had failed to adequately support
Daniel's SEN. We also sought a statutory reassessment of Daniel's
SEN. The reassessment was refused by the LEA, despite the fact
that Daniel remains at extremely high risk of permanent exclusion
and has not been assessed by an educational psychologist since
he was 7-years-old. Daniel's difficulties relate to his behaviour
and speech and language delay. We are appealing against this refusal
to the SENDIST. We shall represent Daniel pro bono.
ROBERT
Robert is 16-years-old. He has a Statement of SEN for complex
motor learning difficulties. Since 2000, Robert has attended a
special school. The LEA agreed to name the special school on the
condition that Robert's parents were responsible for his home-to-school
transport. Robert's parents agreed to this as they believed they
had no choice. Until June 2005, Robert was travelling to school
as a concessionary ride in another pupil's taxi. This pupil has
now left the school, but Robert is pursuing post-16 education
there. The LEA has refused to fund Robert's transport. We are
currently trying to challenge this refusal and, if necessary,
we will seek a judicial review of the LEA's decision.
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