|
Memorandum submitted by John Wright
1. This submission is from John Wright. I have advised parents of children with sen on their rights and their children's rights since 1982 (i.e. before the implementation of the 1981 Education Act), first for the Advisory Centre for Education (ACE), then for the Independent Panel for Special Education Advice (IPSEA). This submission is being made in a personal capacity.
2. My main points: a. that the DfES undertake responsibility for organising assessments and the drawing-up of Statement of Special Educational Needs; b. that the 1996 Education Act and its regulations be amended in order to require - professionals to include their opinion on the type and the amount of provision a child's needs require in their assessment advice and in their reports for Annual Review;. - Statements to specify the type and quantify the amount of provision in Part 3; - requests for assessment made jointly by head teachers and parents should be automatically accepted and acted upon.
Separation of duties - the ultimate solution?
1. Local Authorities have both a legal duty to assess children's special educational needs and, where assessments show that additional or different provision is required which cannot be provided by their 'ordinary' school, a duty to 'arrange' that provision (including, ultimately, the duty to pay for it).
1.1 In their 2006 report (1), the Select Committee rightly describe this as an 'an inbuilt conflict of interest.' And it is a conflict which impacts not just on parents and children. Special educational needs professionals also suffer, because of the pressure Local Authorities, as employers, put on them not to record in their assessment advice their full and honest opinions on children's needs and the provision required to meet them.
1.2 An early example of pressure on professionals was the sacking by Solihull Local Education Authority in 1991 of psychologist John Linsie. Solihull had ordered its educational psychologists not to record their views on appropriate placements for children in their assessment Advice. In response, John Linsie added an introductory paragraph to his reports, explaining (mainly for parents' benefit) why his reports contained no reference to placement i.e. because of the Authority's prohibition. Linsie was ordered to remove his explanatory paragraph. When he refused, he was charged with gross misconduct and sacked. (2) 2 1.3 Fast forward to Oxfordshire, 2005. A parent calling IPSEA had been told by the educational psychologist who assessed her child: 'I am not allowed to specify hours in my advice.' A formal request by the Independent Panel for Special Education Advice (IPSEA) under the Freedom of Information Act flushed out the County Council's 'Guidelines for the completion of Psychological Advice'. These guidelines repeated, in two separate sections, the statement 'It is not expected that the educational psychologist will indicate specific amounts of teaching time of Learning Support Assistance under this or any other heading.' Challenged on the legality of this, the Authority argued: 'The LEA denies it maintains a blanket policy preventing an Educational Psychologist giving recommendations about the amount of provision. It is clear that the policy you refer to ... simply suggests that it is not expected that recommendations about the quantity of provision would be made.'
2. A common-sense reading of the law suggests that gagging professionals is unlawful. The SEN Regulations place a clear duty on Authorities to 'seek' professionals' advice on 'features which appear to be relevant to the child's educational needs' and 'the provision which is appropriate for the child in the light of those features'. (3) This duty is hardly fulfilled by an Authority which says to its professionals, in effect, 'Tell us what type of provision you think this child needs, but not how much.'
3 2.1 How might assessment of special educational needs be undertaken other than by the relevant local authority without the establishment of a new separate agency for the purpose? Of the existing bodies, I believe the most appropriate to perform the assessment function would be the Department for Education and Skills. It would need to establish a panel of assessors (including educational psychologists, speech therapists, occupational therapists, specialist teachers, etc) and a team of statement writers, to analyse professional advice and translate it into the legal format of the Statement. The Department has the advantage of being democratically accountable, plus it has legal powers of enforcement and so could ensure (through the courts if necessary) that its independent assessments and statements would be honoured by Local Authorities.
2.2 How might local accountability for assessment be maintained if the local authority does not directly undertake the assessment? Other bodies have been suggested as repositories for the assessment function (SENDIST and OFSTED, for example), but they lack formal accountability and legal powers of enforcement. It has also been suggested that Local Authorities could themselves establish regional panels of professionals for assessment and statement writing, which would guarantee independence by ensuring that professionals would not become involved in assessing children for whom their employer is responsible. But again, problems of accountability and enforcement arise. As well as the suspicion of deals being struck between Authorities ('You gag your professionals when they're assessing our children and we'll gag ours vice versa'). Using the Department, an already existing body with already existing 4 accountability and enforcement powers potentially effective, albeit not 'local'), would remove the need for wholesale change to the legal framework.
2.3 What
other issues need to be addressed in order to make the separation of assessment
and provision effective? There are some small changes to the law which would be needed if the separation of duties were to produce the desired result - children actually receiving the provision required to meet their needs.
2.3.1 First, the Regulations setting out the content of professional advice for assessment (see 4) should be amended to make it absolutely clear that advice must describe the child's needs and both the type and the amount of provision required to meet them. The drafters of statements cannot hope to produce honest and accurate documents unless they are informed by professional opinion on the amount of special educational provision a child's needs call for. And parents have a right to expect to be told the professionals' opinions on the amount of extra help their children need.
2.3.2 Second, the law setting out the content of statements (4) should be amended in order that Part 3 specifies the type and quantifies the amount of help to be provided. All statements should unambiguously quantify the special educational provision which a child requires. Regardless of who's written it, a vague statement cannot protect the level 5 of provision a child needs. The separation of duties will be an empty gesture unless the law covering the content of statements is tightened up.
2.3.3 Third, the Regulations covering the procedure for Annual Review (5) should be amended in order to require professionals contributing to statement reviews to set out their opinion on whether the amount of provision specified in a statement remains appropriate or whether it needs amending
2.3.4 Fourth, obviously a change in the law would be needed to switch the decision to assess a child from Local Authorities to the DfES, but in the interests of swift intervention, an amendment is needed to ensure that where both school and parents make the request, assessment is automatic, and never refused.
3. Separating the duties to assess and provide should not be too complex a task, and would improve the situation for parents and professionals. As would amending the existing law to make clear that professional advice and statements must specify the quantity as well as the type of special education provision a child needs. Whatever changes are made, however, will only be effective if the law is enforced. Unfortunately, so far we've not had a Secretary of State (Conservative or Labour) with the political will to use their power of enforcement to tackle seriously the problem of Local Authority disregard for the law on special education.
6 References 1. Special Education Needs. House of Commons Education and Skills Committee. The Stationery Office. 2006. 2. An account of this sorry saga can be found in MP John Butcher's statement to the House of Commons. See House of Commons Hansard Debates for 18 June 1991 on UK Parliament website. 3. The Education (Special Education Needs) (England) (Consolidation) Regulations 2001, regulation 7(2). 4. s324(3) Education Act 1996. 5. The Education (Special Education Needs) (England) (Consolidation) Regulations 2001, regulation 20(5) (g) & (h).
June 2007
|