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Education and Skills Committee
Inquiry into Special Educational Needs
Written submission from the Law Society
October 2005
The Law Society is the professional body for solicitors in England and Wales. The Society regulates and represents the solicitors' profession and has a public interest role in working for reform of the law.
We welcome the opportunity to submit evidence to the Education and Skills Committee's inquiry into the provision of education for children with special educational needs (SEN) and the legal system that supports this provision. We believe that the legal system must continue to support the right of parents to choose inclusion in mainstream education for their child but we also recognise that special schools currently have an important role to play within the overall spectrum of provision for children with SEN.
Provision for SEN pupils in 'mainstream' schools: availability of resources and expertise; different models of provision
We believe that the current legal framework provides an appropriate balance between ensuring that children with SEN can be included in mainstream schools, while also facilitating parental choice and where appropriate the placement of a child in a special school. The Education Act 1996 enables a parent, as part of the statementing process, to express a preference for a state school and for that preference to be acceded to unless: the school is unsuitable, having regard to the child's age, ability, aptitude or special educational needs; or this would be incompatible with the provision of efficient education for other children or the efficient use of resources.[1] There is also a parallel duty which requires that the local education authority (LEA) secures a place for a child with a statement of SEN in
a mainstream school, where the child's parent requests this, providing that this would not be incompatible with the provision of efficient education for other children.[2] This provides parents with a strong legal right to mainstream education. We believe that inclusion in mainstream education not only benefits many disabled children, providing a right to enjoy the same equality of opportunity as their non-disabled peers, but non-disabled children also benefit from being educated in a diverse and inclusive environment, which will lead to a reduction in oppressive attitudes towards disabled people. It is, however, important to emphasise that the law does not provide that a child with SEN must be educated in a mainstream school and recognizes that some children have severe and complex needs that require more specialist provision than is currently available in most mainstream schools. We believe that this is an important legal balance that must be maintained, at least until the same levels of good practice and provision that exists in special schools is also available in mainstream schools.
We are however concerned that many disabled children are effectively excluded from mainstream schools because of the failure to implement fully the provisions of the Disability Discrimination Act 1995 (DDA 1995). Schools are required under the DDA 1995 to prepare and publish plans to increase access to education for disabled pupils, and they must cover access to premises, the curriculum and providing written information in alternative formats.[3] However, research conducted by Ofsted found that over half of schools had no disability access plans and, of those that did exist, the majority focused only on accommodation and in too many cases the plans "were merely paper exercises to fulfil a statutory responsibility rather than demonstrating a clear commitment to improving access."[4] Under Part 4 of the DDA 1995 schools are also required to make reasonable adjustments to ensure that pupils are not discriminated against because of their disability: however the research found that over half of schools were unaware of this duty.[5] We believe it is crucial that schools fully comply with the requirements of the DDA 1995 in order to ensure that wherever possible the barriers to learning that many disabled children encounter in mainstream education are removed. This will become increasingly important after December 2006 when the provisions in the Disability Discrimination Act 2005 are implemented, which will place a new anticipatory duty on public bodies to have due regard to the need to eliminate unlawful discrimination, eliminate unlawful harassment and promote equality of opportunity for disabled people. The new duty will place greater responsibility on schools and LEAs to proactively eliminate discriminatory practices, policies and procedures, rather than providing restitution when a disabled pupil has been discriminated against.
Raising standards of achievement for SEN pupils
We are concerned that children with SEN are significantly over-represented in national statistics for poor attendance and exclusion. Pupils with statements of SEN are almost four times more likely to be excluded from school than the rest of the school population and pupils with SEN (both with and without statements) are more likely to be excluded than pupils with no SEN.[6] We recognise that some schools are fully committed to including children who have SEN and have developed effective strategies to support their inclusion. For example through the Excellence in Cities programme some schools have appointed learning mentors to support individual pupils with challenging behaviour, including those with SEN, and poor attendance, in working towards targets in individual education plans. We believe that examples of good practice which ensure support for individual children with challenging behaviour short of excluding them and providing for children with SEN in admission arrangements should be shared with other schools through practice guidance. We also believe that good practice and greater awareness of disabilities could be included in initial teacher training and the standards for qualified Teacher Status.
The system of statements of need for SEN pupils ('the statementing process')
Within the current framework of practice we strongly support the statementing process and believe that the provision of a statement of SEN is vitally important for ensuring that LEAs provide appropriate support for children with SEN. Unlike children without statements, this gives the child a direct and personal right to receive the provision set out in the statement, rather than the LEA having a 'target duty' to provide.[7] Special educational provision must be specific and quantified and most importantly, the duty to arrange special educational provision set out in the statement is not subject to resource considerations, except that provision must be delivered in an efficient way. Our view is that this is an important legal right which is specifically targeted and helps to ameliorate disadvantage which arises from SEN.
As part of the statementing process, we believe that the right of appeal to the Special Educational Needs and Disability Tribunal (SENDIST) is a crucial and impartial tool in resolving disagreements between parents and LEAs, and one which is much valued by parents. Some appeals, particularly those concerning disagreements as to the type of educational provision that a disabled child requires, may reflect a genuine disagreement between parents on the one hand and LEAs on the other; while other appeals may be brought because the LEA has failed to carry out their legal responsibilities towards the disabled child. We believe that appeals to SENDIST therefore represent a key aspect of the matrix of arrangements for disabled children. It is important to recognise that in some cases when parents disagree with the decision of the LEA, for example over whether their child needs the support and protection of a statement, then a legal challenge may be the only course of action available.
The Law Society also supports the use of mediation to ensure that practical educational solutions, acceptable to all parties, are reached as quickly as possible so that there is minimum disruption to a child's education and to ensure that in time the number of appeals going to Tribunal will be reduced.[8] We are however concerned that the time limits for lodging a Tribunal claim, currently two months, means that the adversarial route often has to be pursued as well as mediation, even if it is eventually abandoned. We are also concerned that some parents are given access to the disagreement resolution service only when they have lodged an appeal with the Tribunal, by which time parents are unlikely to feel inclined to negotiate with the LEA. Furthermore, mediation is most effective when both parties have a genuine desire to negotiate and we are concerned that some LEAs operate policies which add rigidities to their decision making, for example setting a maximum amount of support that will be provided for children with SEN.
We believe that legal action should only be pursued as a last resort and that the most effective ways of ensuring this, and making the process less bureaucratic, would be for LEAs to comply with their legal responsibilities, for example: by producing statements within the statutory time-limits; specifying the provision in a sufficient amount of detail; and by providing whatever provision is set out in the statement. We would also welcome a greater commitment to long term strategic planning by schools and LEAs to anticipate the needs of pupils with SEN in their area and ensure that they can participate in mainstream education. The legal definition of SEN includes the fact of a learning difficulty, which is an objective test, but it also includes whether or not educational facilities within an area are available to meet the needs of the child with SEN, which is ultimately subjective.[9] It is therefore likely that as schools increasingly make provision to meet the needs of children with SEN, then the numbers of statements will correspondingly fall.
We also believe that the effectiveness of the statementing process would be increased by charging a central agency, such as Ofsted or the Audit Commission, with the task of monitoring the provision of education for children with SEN and ensuring that LEAs fulfill their legal duties. This would help to ensure a more consistent approach by LEAs across the country when providing support for children with SEN. It would also mean that legal action would no longer be the only available option for parents seeking to bring LEAs to account.
We are concerned about the operation of the complaints system regarding assessment and statementing at both LEA level and the Department for Education and Skills. We believe that there is a significant level of unlawful practice by LEAs (i.e. beyond the proper exercise of their discretion) in the preparation of both generic SEN policies and in the assessment and statementing of individual children. The handling of complaints by LEAs often does not appear to result in appropriate remedial action and there is very limited apparent direction of LEAs to take that action by the Secretary of State through exercise of her powers under the Education Act 1996. We therefore believe that more effective and preventative policing of LEA performance is required. The above mentioned regime of supervision by Ofsted or the Audit commission could meet this requirement.
The role of parents in decisions about their children's education
The Law Society is concerned that children with SEN in the care of local authorities, who have no biological parent to share responsibility for their care, are unable to gain access to SENDIST. The law requires that only a 'parent' may bring an appeal or complaint to the Tribunal, which is widely defined in section 576 of the Education Act 1996 to include anyone who has care of a child but critically does not include the child him/herself nor anyone with an interest in the child but who does not have care of the child - such as an advocate or relative. This means that for a child who is in the care of a local authority where there is no individual person who has parental responsibility who is taking an active role in their life, the only 'parent' who might bring an appeal or complaint to the Tribunal is the local authority - the same body which has made the decision in the first place. We believe it is almost impossible, and virtually unheard of, for a social worker to take such an independent, robust stand against their employer.[10] According to Department for Education and Skills and Department of Health figures, a disproportionately high number of children with SEN are recorded as being looked after by local authorities.[11] Accordingly children who are already marginalised and disadvantaged through being in care and disabled, do not have access to any independent scrutiny body able to check whether the education provision they receive is appropriate or, indeed, lawful. We are concerned that this represents a significant lacuna in the statutory framework.
We recognise that parents often face significant difficulties when seeking to challenge the decision of an LEA about their child's education, due to the inequality of arms in the legal process. The Education Act 1996 allows for parents to be represented at the SENDIST, but makes no provision for the funding of that right. Free legal assistance is available for people on low incomes for preparatory work, including formulation of written grounds and representations for SENDIST hearings, from a solicitor contracted with the Legal Services Commission; however public funding is not available for legal representation at the Tribunal. The gap in legal representation is currently filled by voluntary organizations, such as the Independent Panel for Special Educational Advice, and lawyers working on a pro bono basis. This inequality is particularly marked when challenges need to be made in the High Court concerning the provision of education by way of judicial review. In contrast, the LEA has access to expert legal advice and representation and can easily access experts who can attend hearings on their behalf. A further extension of this disparity may occur with the introduction of the proposed 'Second Tier' Special Educational Needs and Disability Tribunal which is proposed in the new unified Tribunal service being established by the Department for Constitutional Affairs in 2006. We believe that this inequality of arms means that children are less likely to receive the support they need and encourages parental distrust in the system.
The Code of Practice on SEN acknowledges that parents have unique strengths, knowledge and experience to contribute to the shared view of a child's needs and the best way of supporting them. It requires all LEAs to make arrangements for parent-partnership services which must be publicised and
must meet certain minimum standards.[12] The obligations include the provision of information on the decision-making process and the provision of a disagreement resolution service where parents' views differ from those of the education professional. We support these initiates and believe that parent-partnership services can help parents to navigate the education system. We are however concerned that the parent partnership service is funded by the LEA, which raises a potential conflict of interest.
How special educational needs are defined
We believe that the legal definition of SEN is an effective means of ensuring that children with SEN are properly identified and supported. Part 4 of the Education Act 1996 defines special educational needs as a learning difficulty that calls for special educational provision to be made. Special educational provision is defined as provision that is additional to or different from that made available for children of the same age in mainstream schools in the area.[13] The Law Society believes that these definitions are sufficiently broad and flexible to enable decision makers to take into account the individual needs and circumstances of children as well as the provision that is already available locally. As previously noted, this definition of SEN includes both an objective and subjective element, which recognizes that not all children with a disability will have special educational needs. This ensures that the pupil's individual needs should be the starting point for decisions on special educational provision rather than using an inflexible categorisation of disability.
We believe that the existing statutory framework provides an effective mechanism for ensuring that children with SEN are identified at an early stage. Each Local Education Authorities (LEA) is under a statutory duty to undertake an assessment if it considers that a child has, or probably has, SEN requiring the LEA to make special educational provision which any, or all, of the child's learning difficulties calls for.[14] If the LEA complies with this duty, and undertakes a full and comprehensive assessment in accordance with legal requirements, children with SEN will be identified at an early stage.[15] This system is supported by the Code of Practice which establishes pre assessment responses to children with learning difficulties, such as early years action/school action or early years action plus/school action plus; if properly resourced, these responses should also ensure the early identification of children with SEN and the provision of appropriate support.[16]
We believe that some confusion in the law has arisen from having a separate definition of disability in the DDA 1995 and a definition of special educational needs in Part 4 of the Education Act 1996. This means that where a pupil is deemed to be disabled, in the sense that they require a statement of special educational needs, they are not necessary covered by the DDA 1995; even though in practice the vast majority of those with special educational needs will also fall within the definition under the DDA 1995. We believe that the law should be amended to provide that all children with a statement of SEN are automatically defined as disabled for the purposes of the DDA 1995. This would provide greater clarity and reduce the complexity of many Part 4 DDA 1995 cases.
Provision for different types and levels of SEN, including emotional, behavioural and social difficulties (EBSD)
We recognise that much conflict can arise between parents and LEAs about the best educational provision for individual children with autism. For example there are a range of views on the best way to treat children with autism and a range of therapeutic interventions available, including: the TEACCH approach (Treatment and Education of Autistic and related handicapped children), the SPELL framework, the NAS EarlyBird Programme, Lovaas based on intensive behavioural therapy, applied
behaviour analysis (ABA) and the Son-Rise Program. Many of these interventions are conflicting, which results in the difficulty of parents requesting a particular form of therapy which the LEA will not or cannot fund. We believe that autism presents particular and growing challenges for schools and LEAs, as increasing numbers of children are diagnosed with conditions on the autistic spectrum, presenting with a wide range and complexity of needs.[17]
The legislative framework for SEN provision and the effects of the Disability Act 2001, which extended the Disability Discrimination Act to education
We are concerned that where children with SEN, both with and without statements, are excluded, the Independent Appeal Panel is not the appropriate forum for deciding such cases. As previously noted, children with SEN are significantly over-represented in national statistics for poor attendance and exclusion. We therefore support the recommendation of the Council on Tribunals that exclusion and admission appeals should be heard by the Special Educational Needs and Disability Tribunal because of the link between exclusions and special educational needs.[18]
Conclusion
We believe that the legal system must continue to support the right of parents to choose inclusion in mainstream education for their child but we also recognise that special schools currently have an important role to play within the overall spectrum of provision for children with SEN. Continued efforts are called for to ensure that more mainstream schools are able to admit and support pupils with a range of different needs. We believe that the current legislative framework and judicial system is an effective mechanism for enabling children with SEN and disability to participate fully in mainstream education. The only major changes that we regard as necessary are the rationalisation of the definitions of SEN and disability and extending the remit of the Special Educational Needs and Disability Tribunal to exclusion and admissions appeals.
For further information please contact:
John Ludlow, Head of Parliamentary Unit. Tel: 020 7320 5858 Email: john.ludlow@lawsociety.org.uk
[1] Schedule 27 [2] Education Act 1996 Section 316 (as amended by the Special Educational Needs and Disability Act 2001) [3] Section 28D Disability Discrimination Act 1995 [4] Special educational needs and disability: towards inclusive schools (2004) Ofsted: para 103 [5] Ibid, para 104 [6] 44 in every 10,000 pupils with statements of SEN and 46 in every 10,000 pupils with SEN without statements are permanently excluded from school. This compares with 6 in every 10'000 pupils with no SEN (Permanent and fixed period exclusions for schools and appeals in England 2003/4 - DfES). [7] see R v ILEA ex parte Ali [1990] COD 317 [8] The Special Educational Needs Code of Practice sets out the minimum standards required in delivering an effective disagreement resolution service [9] Section 312 Education Act 1996 [10] The Independent Panel for Special Educational Advice estimates that in the last 10 years it is only come across 10 appeals to SENDIST concerning children in care, and many of these are likely to have been initiated by foster parents [11] As of March 2002, there were 59,700 children who were recorded as being looked after by local authorities. Of these 33,800 were children of school age who had been looked after for a period of at least 12 months and of these 26% had statements of special educational needs [12] paras 2.18 and 2.21 [13] Section 312 [14] Education At 1996 section 323 (1) [15] the detailed assessment procedures are set out in the Education Act 1996 and the 2001 regulations Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 [16] Special Educational Needs Code of Practice DfES 581/2001 [17] In a recent survey by the National Autistic Society, primary school teachers reported a prevalence rate of 1 in 86 pupils in school. [18] School Admission and Exclusion Appeal Panel: Special Report (2003) Council on Tribunals |