SCN0700

Written evidence submitted by Carol Long

 

 

Executive Summary

 

  1. The Children and Families Act sets out a requirement on local Authorities to work with children and young people and parents so that they are participating as fully as possible in decisions and are being provided with the information and support necessary to enable participation in those decisions.

 

  1. In the application of the Act there is an inconsistent approach to the development of Education Health and Care plans with the “Care” elements being particularly poorly addressed in terms of stated outcomes.

 

  1. With fewer “child in need” assessments for children with learning disabilities being undertaken it is important to get the Care element of EHCPs right.

 

  1. In publishing their local offer many Local Authorities do not make information about national services clear. This limits reasonable choice for parents and children.
  2. Local Authorities make decisions in special educational needs Panels regarding plans for children, from which parents are excluded. This could be contributing to the numbers of parents who appeal against decisions at Education Tribunals.
  3. Parents win at Tribunal in the significant majority of cases. Local Authorities incur significant spend on legal fees for Tribunals which comes from the public purse is this value for money?

 

 

Positionality

 

  1. I am a full time PhD researcher at Durham University, my doctoral thesis will be on the level of choice and control parents and young people feel they have in decision making around special educational needs for their children. I was the Chief Executive of the national charity for children with special educational needs.  I am a registered social worker with 33 years’ experience of the children’s sector. This submission is provided entirely in  a personal capacity as a researcher not on behalf of any organisation though I am drawing on my own professional observations in my submission. The views expressed are my own.

 

  1. I am submitting evidence because I believe there are still elements of the Children and Families Act 2014 in relation to special educational needs which are not working properly.

 

 

Background

 

  1. Section 19 of The Children and Families Act 2014 and accompanying SEND Code of Practice places a requirement on local authorities when carrying out their functions under the Act in relation to disabled children with SEN, to have regard to the views, wishes and feelings of the child or young person, and the child’s parents.

 

  1. The 2014 Act emphasises  the importance of the child, and their parents, participating as fully as possible in decisions, and being provided with the information and support necessary to enable participation in those decisions. This is not happening in important aspects of the child’s life.

 

  1. There is variability and a lack of consistency across local authorities in how they work within the provisions of the Act. Even Local Authorities that have been judged Good or Outstanding overall in Ofsted Inspections are not always been assessed as strongly in their provision of SEN services.

 

 

Education, Health and Care Plans

 

  1. The Children and Families Act 2014 requires agencies to work together to produce Education Health and Care Plans(EHCPs) based on a child’s assessed need. As a CEO of a residential SEN school I regularly reviewed children’s EHCPs to quality assure that my agency as a provider was working to the plans.

 

  1. I found that there is no standard format to the plans and each local authority produces their own version. This led to differential approaches. Quality was inconsistent exacerbated by there being no standard format about what is essential to include. Plans did not always reflect the child’s needs sufficiently. The description of their needs was poorly translated into the outcomes that were intended and lacked coherence.

 

  1. In particular I observed that the social care element was often poorly addressed.  In the context of providing services in a residential special school where a waking day curriculum is applied this is a wasted opportunity in setting out an integrated set of outcomes for the child.

 

  1. The Children Act 1989 provides the duty for local Authorities to assess the needs of children with disabilities (Section 17) This includes children with learning disabilities. Since the implementation of the Children and Families Act 2014, numbers of EHC plans have increased in comparison to Education Statements, but the number of Section 17 Child in Need assessments under the Children Act 1989 for children with learning disabilities has decreased. (Data taken from DfE annual statistical reports) If Children in Need assessments are less likely to be undertaken for children with SEN in favour of EHCPs then it is important the care elements of the EHCP are properly addressed.

 

  1. In a 2017 report on complaints received by the Local Government Ombudsman on Education Health and Care Plans it is stated that the statistics point to there being increasingly more complaints and people suffering as a result. The number of people approaching the Ombudsman while relatively small, is rapidly increasing with complaints and enquiries doubled between 2014/15 and 2015/16. Of these 80% are being upheld against an average of 57% being upheld for other types of Ombudsman complaints. This highlights problems with the system. This assessment corresponds strongly with my experience of working with parents and their feedback.

 

Training

 

  1. The quality of some of the plans as referenced above highlights the further training needs of staff involved in working with learning disability should be further considered. The Carter Review recommended this for student teachers, a Department of Health consultation has just closed on mandatory training for health staff in SEND and social work and social care staff get limited training in SEND specifically. Professionals in the field would benefit from further tiered levels of training according to roles and responsibilities.

 

 

Local Offer

 

  1. The Children and Families Act sets out a statutory duty on local authorities “to develop and publish a Local Offer setting out the support they expect to be available for local children and young people with special educational needs (SEN) or disabilities.”

 

  1. Parents reported to me that they were often not given good information on the types of services that might be suitable for their child and they found the published Local Offer in some Local Authorities was not comprehensive. They particularly noted gaps in relation to identifying nationally based specialist resources particularly for a child with very complex needs.

 

  1. The Department for Education’s own easy access guide  states

 

    1. “A Local Offer gives children and young people with special educational needs or disabilities and their families information about what support services the local authority think will be available in their local area.” 

 

    1. N.B the underlining above is made by the author of this submission  for emphasis

 

  1. This statement implies that services available are only in the geographical locality, though this ambiguity may not be what is intended.

 

  1. To test the reality as if I were an interested parent, I viewed info that was accessible on websites about the Local Offer in my own local area in the North East of England. One Local Authority lists only services within their own geography. Three others provided some information on services that are out of area, but these were only easy to find if you knew the organisation’s name. All information was relatively complicated to navigate once beyond a preliminary search. It would be difficult for a parent to become well informed about the Local Offer through the information on websites.

 

  1. Poor Local Offers means that parents often have to do their own research and investigate for themselves the possible resources that will meet their child’s needs. Awareness of a service is sometimes achieved by using word of mouth from within parent support groups but relies on the parent having a network.

 

  1. My professional experience is that some parents become very isolated when their child has complex needs and don’t always have access to networks.

 

  1. For a parent doing their own research this can also entail travelling to open days to appraise services for themselves, usually at personal expense. Parents often reported this was the only way they could find out fully what is available.

 

  1. The way that Local Authorities publish their Local Offers does not appear to meet the standard of ensuring children and parents  are provided with the information and support necessary to enable participation in decisions and to help them achieve the best possible educational and other outcomes, and in preparing the young person effectively for adulthood.

 

 

Panels

 

  1. Internal SEN Panels are often used by local authorities to make decisions about whether to assess for an EHCP, agree placements or consider funding for children with Special Educational Needs.

 

  1. Parents often report that they are not invited to the panel and therefore feel excluded from decision making. This does not appear to be in the spirit of the requirements of the 2014 Act which emphasises the importance of the child, and the child’s parents, participating as fully as possible in decisions.

 

  1. Parental perceptions shared during my professional role, including via parent forums, was that by holding a special educational needs panel without the parents present it made it easier for organisational decision makers to distance themselves from the individuals in the case and to more easily make decisions weighted by cost considerations over need. I am not aware of any published evidence on this, only anecdotal reports from parents but these were consistent. A panel that is assessing need as well as allocating funding  in times of austerity is likely to be conflicted.

 

  1. Statistics regarding Education Tribunals evidences that when families appeal against SEN decisions at these Tribunals, they win their case in the significant majority of cases. Local Authorities have to spend public funds on legal fees to defend a Tribunal case though their record of success on this is poor.

 

  1. Local Authorities often appoint Barristers to represent them whilst parents struggle to fund legal representation and are generally ineligible for legal aid.  Even with this disparity in the level of representation parents are still more likely to be successful in winning their case. This then raises questions about the decision-making process and that there are flaws at an earlier stage at the L.A Panel system. This is indicated by the success of parents at tribunal.

 

  1. In terms of the rights of parents and children it seems antiquated to have a system where decisions are made about a child’s plan where a key partner, the parent, is excluded.

 

  1. It has been shown that Panels also consider a number of different children’s cases at each session. There is a danger that those children considered towards the end of a session are at risk of their circumstances not getting full attention with resulting risks of poor decision making.

 

  1. A sampling of terms of reference on the internet for Education Needs Panels within local authorities where their guidance is published indicated that in the majority of Authorities parents are not invited to SEN panel. The examples given below are all from publicly available information accessed directly from the Internet via Google from Council websites on 29 April 2019. (The search title was “SEN panels UK”). Since information was in the public domain and accessible to all I have not anonymised it. This is not intended to be fully representative of all Local Authorities. The Authorities cited are transparent in publishing their terms of reference not all authorities are so open in publication on this matter.

 

  1. I was unable to find any examples of Local Authorities who do involve parents at panels.

 

    1. Cornwall states “Recommendations and decisions are based on the written evidence presented. Parents and schools are informed of the Panel's decision by their SEN Casework Officer via phone or email.”

 

    1. North Somerset panel is attended by professional’s only. In 2016 it was stated “The SEND panel has piloted inviting parents to participate in discussion regarding decisions made about their child. The results of this pilot are currently being reviewed.” I have not been able to find info on outcome of this pilot

 

    1. The Isle of Wight :Parents are not able to attend the SEN Panel as the purpose of the meeting is to consider “every case as fairly and objectively as possible, making decisions based on the written evidence.” (This begs the question are parents not able to be fair in informed discussions?)

 

    1. Bradford: Includes only professionals on its panel, and states in its terms of reference  “the purpose of the SEN panel is to ensure that Bradford Local Authority statutory processes are transparent, consistent and fully compliant with the Children and Families Act (2014).” Whilst the aspiration is to be transparent it does not directly involve parents.

 

    1. London Borough of Ealing: Panels are made up of professionals, but terms of reference describe that a representative of the Family Voice is to be agreed, and that this would be a stakeholder for Ealing parents/ carers/ families. This suggests an advocate arrangement rather than a parent’s presence.

 

 

Recommendations

 

  1. A consistent format for Education Health and Care plans should be developed.

 

  1. More training should be developed for professionals on meeting the needs of children with special educational needs

 

  1. More attention needs to be paid to how social care needs are addressed in EHCPs

 

  1. There should be more clarity in guidance on what the Local offer should contain, and this should then reflect in quality of information available to parents. Relevant national or other area services should be included. Local Authorities should not take an overly narrow approach.

 

  1. Parents should be included in panel decision making, it should not be a meeting from which parents are excluded.

 

  1. Panels should separate out assessments of need from funding considerations.

 

  1. The expenditure on Tribunals by Local Authorities should be assessed. Given the majority of Tribunals are won by parents, does this offer value for money to the public purse.

 

 

References

 

  1. 1Department for Education(2018) Characteristics of children in need: 2017 to 2018  England National Statistics

 

  1. Department for Education(2018) Statements of SEN and EHC plans: England, 2018 National Statistics

 

  1. Local Government and Social Care Ombudsman (2017) Education, Health and Care Plans: our first 100 investigations: Focus Report: learning lessons from complaints, October 2017

 

May 2019