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Independent Panel for Special Education Advice 6 Carlow Mews Telephone: 01394 610023 Woodbridge Fax: 01394 384711 Suffolk IP12 1EA
Registered Charity No 327691 Company Limited by Guarantee No 2198066
Submission to the Education and Skills Select Committee
Inquiry into Special Education Needs
3 October 2005
Contents
Introduction 1. IPSEA's approach 2. IPSEA's role
The system of statements for SEN Pupils 3. The statutory framework: assessment and Statements 4. LEA law breaking 5. Central Government collusion 6. The second Audit Commission Report 7. Removing Barriers to Inclusion - Government policy continues the attack on assessment and statements
8. The education of children with sen in mainstream schools
9. The role of the Department for Education and Skills
10. The role of parents
11. The operation of the Disability Discrimination Act 1995 as amended by SENDA 2001
12. Transforming the Special Educational and Disability Tribunal
13. Conclusion: An improved future role for central government
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 LEAs' 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 LEA by either a parent or a head teacher; (ii) a reply in writing by the LEA; (iii) if assessment is agreed, the start of a ten 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 LEA 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 LEA. 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 LEA taking immediate action to correct the position (i.e. 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 LEA 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 LEAs 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 LEA considers that a child has or probably has special educational needs which cannot be met by the resources available to their own school. An LEA 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 (e.g. just because a parent was over-anxious about their child's needs) the LEA 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 LEAs 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 LEA 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 LEA 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 LEA 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 LEA'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 LEA'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 LEAs 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 LEAs 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: e.g. 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 e.g.
· 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 LEA 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 LEA, 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 LEAs 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 i.e. 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 of 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 LEA 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. LEAs 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 (15th 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 (e.g. 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 January 1st 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 (i.e. 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 e.g. "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 * 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; 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 (e.g. 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.
* * *
IPSEA
3 October 2005
Further information can be obtained from the principal author John Wright (jwright.ipsea@intamail.com) or IPSEA's Chief Executive Roger Inman (rinman.ipsea@intamail.com). IPSEA would welcome the opportunity to provide oral submissions to the Committee.
IPSEA 6 Carlow Mews Telephone: 01394 610023 Woodbridge Fax: 01394 384711 Suffolk IP12 1EA
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. DfES. 2002. 13. SEN Tool-Kit. DfES 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. |