Examination of Witnesses (Questions 380-387)
MR JOHN
WRIGHT, MS
JULIA THOMAS,
MS CHRIS
GRAVELL AND
MR DAVID
RUEBAIN
18 JANUARY 2006
Q380 Mrs Dorries: You do agree that
is an issue. Do you think the SENDA Act 2001 has made life worse
or better for children with Special Educational Needs?
Ms Gravell: There were two completely
separate bits in that Act, were there not, there was the bit which
opened up the possibility of disability discrimination claims
for children in schools, and that is an absolute gain which has
been needed for a lot of years. There is no way anyone can say
that has not made life better. With regard to SENDA in terms of
the SEN law, it was a lot of small changes to bits of the legislation.
Yes, I think all of those were positive changes. However, the
difficulty in your question is if this is a law on a piece of
paper, is it being enforced? Is it a good Act in terms of improving
the situation?
Mr Ruebain: Broadly I agree. I
wonder if there is something specific you have in mind, Mrs Dorries,
but I think SENDA was a great triumph for disabled children.
Q381 Mrs Dorries: My second question
is about SEN tribunals and the cost and disparity between access
to SEN tribunals. Because authorities are not honouring their
statutory obligation to statement many parents have to go to the
point of a tribunal, which is at a huge expense. Do you have any
particular experience of parents who have had to go to huge expense?
Also, is it the case that when parents do get there and they do
fight their case, they are almost always successful?
Ms Thomas: No. I think the tribunal
needs to be looked at. We have made a point in our submission
about looked after children. We have a huge concern about looked
after children because at the moment the only people who can make
an appeal to the tribunal on behalf of a looked after child are
the social workers who are employed by the same authority that
the appeal is being made against. This is a huge problem. Ironically,
because of the Every Child Matters agenda, local authorities
are now merging their social services and education functions
into one department. In fact, that is now going to get worse because
it is not even one department against another department, but
it is the same department. These looked after children are being
left and I have a concrete example of this. I have a child and
a statutory reassessment was requested by a social worker on my
advice. I then had to put in a complaint to the local government
ombudsman against the authority in question. She then was told
not to have any more contact with me. When the county where he
was living refused to do the assessment, she did not appeal and
she did not even tell me that they had refused. Consequently,
he completely lost his right of appeal and had no access to the
tribunal. That is a very serious issue. It must be addressed because
the most vulnerable children—and there are very many looked
after children with special needs—are losing that right
completely, so that is major.
Q382 Mr Chaytor: Can one of our witnesses
clarify the distinction between the processes that apply to academies,
in terms of the naming of schools with statements, and those that
apply to all of the schools?
Mr Ruebain: It is a live issue
at the moment, and I think we are still waiting for further clarification
from the DfES about how this is all meant to work. As I understand
it, academies will be non-maintained schools, so they are technically
independent, albeit funded centrally by the Government. If they
are treated then as independent schools, they do not come directly
within Schedule 27 of the 1996 Act, which are the arrangements
whereby parents can express a preference and the LEA must then
consult with the school and name that school, unless certain conditions
arise. It is outwith all of that. What we do not know is how that
is all going to be resolved. Is it the case, on the one hand,
that academies will not have to take children with statements
unless they happen to agree? Can they be ordered to by the tribunal?
What I understand to be the case is that the DfES are proposing
to set up a section within them to deal with applications by parents
of children with statements for their children to go to academies
so that the DfES will deal with those specific questions. How
that will fit with a tribunal procedure, which is designed to
deal with these questions, I do not know. It does seem to me to
be potentially a huge mess. I would hope that whatever is determined
in the end would allow at least the tribunal to make orders to
name academies because that would be wholly consistent with their
existing powers. I cannot answer your question about how is it
going to work because I am not sure yet that the scheme has been
designed by the DfES.
Ms Gravell: As far as I understand
it, there are now three consultancies involved in the dispute
resolution test planned. It is meant to resolve an objection by
an academy principal to the local authority naming the school
for a child with a statement for SEN. It is not planned to meet
problems that parents and children meet in perhaps a hostile reaction
when they first go to talk to an academy about their child going
there, which could be enough to put a parent off. We have had
a case on our advice line of that happening. It is planned to
do some mediation between the academy and the LEA. Where ordinarily
the parent has rights to talk directly to the local education
authority, to go into dispute resolution with the local education
authority if necessary and thereafter the LEA may direct a school
to take the child if the school is a maintained school, we cannot
see what the parent and the child are doing while this conversation
between the academy and the LEA is going on and then if that is
not resolved, with the escalating dispute resolution up to the
Secretary of State if necessary, how far the parents for the child's
rights are protected in that process. Can I make a point about
autonomous schools' admissions as well? You referred to trust
schools being just like foundation schools. If I go back to our
concern about non-statemented children who are sometimes the children
who lose out on the admissions process because statemented children,
to some extent, are protected by the statement and their parents'
rights. In the Which? research on admissions, they showed
that SEN is only rarely listed as a criterion in over-subscription
criteria for admissions. For community schools it is 48%, which
I think is pretty poor, that is with the current Code of Practice
in place. For voluntary aided and foundation schools combined
it is only 15%. The more autonomous the schools are, the less
they tend to give preference to vulnerable children.
Q383 Mr Chaytor: Does it follow that
rather than establish the new SEN disputes resolution procedure
within the DfES—
Ms Gravell: For the academies?
Q384 Mr Chaytor: Yes, it would be
simpler, cheaper, less time-consuming, more efficient and in the
interest of parents and children with SEN to put academies on
the same footing as all other schools?
Ms Gravell: Yes.
Q385 Chairman: You are also saying
there should be much closer attention to that in the code of admissions?
Ms Gravell: Yes. I think for all
publicly funded schools we should have preference for vulnerable
children of all kinds, otherwise schools will want to refuse.
It is not in their interest to do so.
Q386 Mr Chaytor: Can I ask one specific
legal point to David on this. Given the issue is that academies
are legally defined as independent schools, non-maintained schools,
even though they are maintained, what amendment to the law would
be required to cut through that anomaly?
Mr Ruebain: There are various
references to the obligations of maintained schools: powers of
tribunals, for example, and independent appeal panels in respect
of them. I suppose the most straightforward amendment to the law
would be to add whatever is the technical legal term, presumably
maintained schools and academies, because that would still exclude
truly independent schools from the provisions but would bring
in those schools which are state funded even though not maintained.
Q387 Mr Chaytor: An amendment involving
two words would cut through the whole of this?
Mr Ruebain: It seems to me that
would work.
Ms Gravell: You should include
CTCs as well.
Mr Ruebain: Many of them are going
to become academies.
Mr Wright: I did not get an opportunity
to say anything about Scotland when someone mentioned that as
an example of an alternative way forward. I am happy to send you
some information through the post.
[55]We
worked in Scotland for a lot of years and we have a sister organisation
there. We went through
the changes to the law which happened with our sister
organisation. There are some very damaging changes to the law
which have happened there. It only came in in November, but our
organisation in Scotland is monitoring the effects of this law.
I would like to urge caution before there is an over-easy acceptance,
"Scotland can do without statements so why can we not?".
In the end, it is what the children in Scotland can do without
in terms of provision that is the question and we do not yet know
how this is working. I would like to send you some details specifically
on the rights that were stripped out of the law in Scotland on
Special Educational Needs in its passage from A to B.
Chairman: Interestingly enough, I have
to apologise to the witnesses today, this is one of the few occasions
when the Chairman has been unable to get our side to get through
the programme entirely. There are some questions I wanted to ask
you that we did not get to. One of them was when we were talking
about Special Educational Needs, the statementing process. The
Conservative Party's Commission has just come out with some suggestions
about alternatives and we did not get time to get to that second
part and to pull that out. When you go away, if there are things
that you thought we should have asked you and did not ask, please
be in communication with us. Our only interest is to make this
as good a report as we can. We very much value your evidence today.
Thank you very much.
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