Memorandum submitted by Independent Panel
for Special Education Advice (IPSEA)
1. INTRODUCTION
1.1 This submission is made by the Independent
Panel for Special Education Advice, a registered charity that
provides advice and support for parents of children with special
educational needs (SEN) and/or disabilities.
1.2 IPSEA was established in 1983 and currently
assists 3,000 parents and carers of children with SEN every year,
including over 25% of those making applications to the Special
Educational and Disability Tribunal (SENDIST). Our opinions are
therefore based on evidence from an authoritative sample of actual
cases involving SEN and disability throughout England and Wales.
1.3 IPSEA is concerned about various aspects
of the White Paper, notably the provisions regarding admission
to schools and discipline in schools. On the understanding that
other individuals and organisations will be making submissions
regarding the discipline issue, this submission is restricted
to the issue of school admissions.
2. SUMMARY OF
SUBMISSION AND
RECOMMENDATIONS
2.1 IPSEA's concern is that far from increasing
parental choice, this White Paper will radically diminish the
choice of parents of the most vulnerable children, namely those
with SEN and/or disability. This concern has two elements:
2.1.1 There is a significant risk that SEN
children will not be given fair admission to the various forms
of "independent" schools contemplated by the White Paper.
2.1.2 The current choice open to parents
of children with Statements of Special Education Needs under Schedule
27 of the Education Act 1996 will be taken away from them as regards
"independent" schools.
1. As regards the admission of all children
with Special Educational Needs (including those on School Action
and School Action Plus) the existing legal regime for what are
currently defined as "maintained" schools should apply
in future to all categories of state-funded schools created or
maintained by this White Paper, including Academies.
(i) the Admissions
Code should be binding (rather than just Guidance) on all schools
when admitting children paid for by public funds; and
(ii) the parental
entitlements under paragraphs 3 and 8 of Schedule 27 of the Education
Act 1996 should be maintained.
3. Choice Advisors should be independent
of Local Authorities.
3. THE RISK
TO ALL
CHILDREN WITH
SPECIAL EDUCATIONAL
NEEDS
3.1 The risk created by the White Paper
is that in practice the various forms of independent schools contemplated
by the bill (which we will collectively refer to as "independent
schools") will have less incentive to admit children with
SEN. This is because the objective of the White Paper is to improve
the performance of schools. One of the key practical measures
for this improvement will be outcomes in examinations. There will
therefore be an inevitable disincentive for independent schools
to take on children with SEN who are a high proportion of those
not achieving the target grades in SAT tests and public examinations.
3.2 Measures therefore need to be taken
to compel independent schools to take an equal proportion of pupils
with SEN. The White Paper lacks the necessary degree of compulsion
because it emphasises the freedom that independent schools will
have over admissions and will require them only to "have
regard" to the Admissions Code. If the legal status of Academies
is replicated for other independent schools, the playing field
is likely to become even less level (as we explain below).
4. We therefore recommend that as regards
the admission of all children with Special Educational Needs (including
those on School Action and School Action Plus) the existing legal
regime for what are currently defined as "maintained"
schools should apply in future to all categories of state-funded
schools created or maintained by the Act arising out of this White
Paper, including Academies. In particular the Admissions Code
should be binding (rather than just Guidance) on all schools when
admitting children paid for by public funds.
5. We are not persuaded that the provision
of "choice advisors to help the least well-off parents to
exercise their choice" will work if those advisors are employees
of Local Authority education department. The Local Authorities
will still have responsibility for assessment, Statementing and
ensuring the provision of SEN once a Statement has been issued,
all of which will continue to have resource implications for those
Authorities even if they are redefined as Commissioners rather
than Providers of education resources. It is therefore hard to
see how a Local Authority choice advisor could fully and impartially
support a parent in choosing a school placement which may have
significant impact on the same Authority's resource management.
We therefore recommend that Choice Advisors should be independent
of Local Authorities.
6. REDUCTION
IN THE
RIGHTS OF
PARENTS OF
CHILDREN WITH
STATEMENTS OF
SPECIAL EDUCATIONAL
NEED
6.1 These children are amongst the most
vulnerable in society. Although the legal entitlement to a Statement
of Special Educational Needs (a "Statement") has not
changed in recent years, in practice the issuing of new Statements
fell from 32,000 in 1998 to 26,000 in 2004.[24]
Those children still with Statements therefore really need them
to get the help they require, and their parents are entitled to
as much say as possible regarding their school placement. This
White Paper completely lacks the safeguard needed to ensure that
the choice of these parents is safeguarded.
6.2 Paragraph 3 of Schedule 27 of the Education
Act 1996 allows parents to express a preference for a school when
a Statement is in draft form. The LEA must agree to name the school
of the parent's preference subject to it being suitable for the
child in question and not incompatible with the "efficient
education for the children with whom he would be educated or the
efficient use of resources".
6.3 Paragraph 8 of Schedule 27 of the Education
Act 1996 allows an identical expression of preference by a parent
when they want their child to change maintained schools at a time
12 months or later after the Statement has been completed or a
previous similar request has been made.
6.4 Parental preference under paragraphs
3 and 8 of Schedule 27 of the Education Act 1996 already does
not apply regarding placements in Academies because they are independent
schools in law. The consequence of this is that at the proposed
Statement stage, the parent can only "make representations"
for the Academy to be named in the final Statement under Section
9 of the 1996 Act. This is a significantly weaker right than the
right to express a preference. The LEA must consider the parent's
representations by having ". . . regard to the general principle
that pupils are to be educated in accordance with the wishes of
their parents, so far as that is compatible with the provision
of efficient instruction and training and the avoidance of unreasonable
public expenditure". There is nothing binding about this
obligation and frequently the parental representation can be ignored
because the school that the parent wants is more expensive than
the school that the LEA want to nominate.
6.5 Even if the LEA does name the Academy
in Part 4 of a Statement, the Academy can refuse to accept the
child, in which case a parent's only recourse is an application
to SENDIST. Independent schools have to agree to admit a child
before a Tribunal will even consider such an appeal, so the Secretary
of State at DfES has informally instructed SENDIST to ignore that
requirement. If SENDIST makes an order that an academy should
be named in Part 4 of the Statement, the Secretary of State will
need to exercise her rights under her contract with the Academy
to ensure admission actually takes place.
6.6 A considerable number of admission cases
involving Academies are waiting to be heard by SENDIST, and we
have already conduced a case successfully involving an Academy
in Lambeth who had no arguable objection to admitting the child
in question. This is a growing issue that we would invite the
Committee to keep under close scrutiny.
6.7 As regards contracts with independent
schools, each Academy contract is separately negotiated with the
Secretary of State and some anecdotal evidence is emerging that
"fair" arrangements for critical issues such as exclusion
are not being written into those contracts (eg no guarantee of
an impartial appeal panel for exclusions). Our concern is that
fair SEN and Disability practice will not be guaranteed under
these contracts.
6.8 As regards Academies, this mixture of
informal arrangements and reliance on individual contracts is
no substitute for the well established and necessary parental
right to express a preference under Schedule 27 of the Education
Act 1996. The loss of the Paragraph 3 preference during the
preparation of a Statement or Amended Statement hugely reduces
a parent's rights in the critical discussion as to where their
child should be placed.
6.9 The White Paper lacks any reassurance
that the system for admission of SEN children will be replicated
in Trust Schools, which will eventually comprise the vast bulk
of state-funded schools. This will massively reduce parental choice
across the system. In particular, paragraph 8, Schedule 27's right
to ask for a change of school at other times than the preparation
of a Statement will be removed altogether. This is a crucial entitlement
for a parent who feels their child needs a new school and whose
only alternative is to request a re-assessment of their child
which will trigger a process which can take up to six months before
any new school placement is agreed (if it is agreed at all without
recourse to SENDIST).
6.10 We therefore repeat our recommendation
that as regards the admission of all children with Special Educational
Needs (including those on School Action and School Action Plus)
the existing legal regime for what are currently defined as "maintained"
schools should apply in future to all categories of state-funded
schools created or maintained by the Act arising out of this White
Paper, including Academies. In particular the entitlements under
paragraphs 3 and 8 of Schedule 27 of the Education Act 1996 should
be maintained.
November 2005
24 DfES (2005) Special Educational Needs in England,
January 2005, SFR 12/2005, p 2. Back
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