Children and Families Bill

Memorandum submitted by Paula Jewes (CF 78)

1 Summary

To make this Bill effective, a Government-appointed body should identify and penalise abusers of the First Tier Tribunal System (SEN cases). Including such a mechanism in the Bill would show a real commitment to improving outcomes for children and young people with SEN and disabilities.

In other spheres, tribunals are good mechanisms for ensuring compliance with legislation (parties do not need legal counsel and the process is more informal than a County Court or High Court). However, in this case, the system is unbalanced. Families of disabled or SEN children are extremely vulnerable and are less able than average people to advocate for themselves. On the other hand, some Local Authorities are highly motivated to avoid their legal obligations. Special education is extremely expensive. Local Authorities often perceive SEN legislation to be unjust because it requires them to meet an individual’s assessed need without consideration of their own limited resources.

2 My background and expertise

· 15 year old daughter with Autistic Spectrum Disorder

· Trustee, Merton Mencap

· Lead Parent, Kids First (Merton’s Forum for Parents of Children and Young People with Disabilities and Special Needs) which has 330 members. In 2006, I gave oral evidence to the House of Commons Education Select Committee’s review of SEN on behalf of Kids First

· I speak to over 100 parents of children with disabilities every year and represent their views in London Borough of Merton and beyond. I have been doing this work on a voluntary basis since 2004. I engage regularly with Head Teachers, other school staff, voluntary sector providers, and Local Authority officers

· Occasionally, I lead small consultancy projects analysing services for disabled children (Short Breaks, SEN Transport, Post 16 Transition)

· 1983 – 2000 Executive, Shell International Petroleum Company, BA (Hons) Oxon.

3 Explanation

4 The current SEN system is often implemented poorly, in fact unlawfully, by Local Authorities. If you intend the Bill to help the most vulnerable families, then a practical means of ensuring general compliance should be sought and included in the Bill.

5 There is currently no effective means of addressing widespread abuse of the Tribunal System by Local Authorities. This is because the tribunal can only give directions on a case by case basis. Whilst their judgements set legal precedents and clarify general understanding of the law, widespread abuse of the system occurs prior to judicial decisions e.g. attempts to bully parents submission by taking cases to the tribunal door and then negotiating, talking hearings through to a second day (normally not timetabled and so heard some months later), and using poor evidence or "long shot" cases in order to delay delivery of an expensive provision.

6 There is a large amount of public money potentially wasted by LAs who recruit expensive barristers, prepare a case but later concede, or who employ "tribunal specialists" such as educational psychologists, whose only job is to fight difficult tribunal cases for their LA.

7 The First Tier Tribunal will acknowledge that they rarely award costs for vexatious behaviour despite having the power to do so, partly because this could affect parents who present a poorly prepared case driven by their desire to obtain the best provision for their disabled child.

8 Many Local Authorities lose cases regularly because of poor quality assessments, blanket refusal to state provision clearly in statements (EHC plans), or they regularly negotiate settlements at tribunal door. They are able to continue doing this week after week. The First Tier Tribunal has tried to change its procedures to tackle some of these problems, but with little effect.

9 The most recent published data (2009) shows that 32% of cases registered at the First Tier Tribunal were conceded by Local Authorities before the hearing. 76% of decisions made at hearings were in favour of parents and a further 11% were partially in favour of parents. Of the remaining 13%, some were referred back to LAs for more evidence. This data supports our observation that parents are often forced to appeal to tribunal even when the weight of evidence is heavily in their favour.

10 This Bill does not make mediation compulsory, and parents are not convinced that mediators will be professional or fair enough to create a level playing field, so it is likely that the First Tier Tribunal will continue to be the main mechanism for SEN dispute resolution.

11 If there were a requirement for an independent body to look at the patterns of behaviour exhibited by First Tier Tribunal parties and penalise repeat offenders, then this Bill would become significantly more effective.

12 Only a small number of families have the resources to use the First Tier Tribunal (the vast majority being White British), but policing the abusers would benefit all families by ensuring more consistent compliance with the law.

13 I propose that you place a requirement on the Department of Education or a nominated body to review First Tier Tribunal Statistics at certain intervals and look for repeat offenders. These would be Local Authorities who take a large number of cases to tribunal, lose a large majority of these due to poor quality evidence, consistently resolve disputes at tribunal door, and repeatedly violate the Code of Practice (e.g. refusal to quantify provision, refusal to update EHC Plans, refusal to assess despite overwhelming evidence and so on). If strong sanctions were applied, those LAs would have to comply with the law and perhaps would seek more positive, creative and longer-term solutions.

14 In general, the intent behind this Bill is excellent and the draft Code is good (although a few tricks have been missed). It will be a shame if the battle-ground culture continues unabated after this unique opportunity to improve the system, wasting private and public money in the proc ess.

April 2013

Prepared 19th April 2013