Written evidence from Prof. Amel Alghrani (School of Law and Social Justice, University of Liverpool), Ms. Deborah Tyfield (of Law and Social Justice, School University of Liverpool) and Dr Seamus Byrne (Leeds Law School, Leeds Beckett University) (CFA0031)

 

HOUSE OF LORDS CHILDREN AND FAMILIES ACT 2014 SELECT COMMITTEE INQURY

 

 

Is the Children and Families Act 2014 fit for purpose?

Evidence submitted by Prof. Amel Alghrani (School of Law and Social Justice, University of Liverpool), Ms. Deborah Tyfield (of Law and Social Justice, School University of Liverpool) and Dr Seamus Byrne (Leeds Law School, Leeds Beckett University)

If you would like to find out more about the key findings, please visit the policy report:

https://www.liverpool.ac.uk/media/livacuk/law/4-liverpool-law-clinic/Liverpool,SEND,Report,Jan,2020.pdf?fbclid=IwAR3nV-FaOXVVlWt2eQKX-p5CJRVFLo6FX7SoNMjtB7pbZllgwfEFFMiQHK4

 

 

Introduction

  1.              We are a group of academics who work in the area of children with Special Educational Needs and Disabilities (SEND) and their rights to education, health and social care. This evidence is submitted in response to the Committee’s call for evidence around the question of whether the Children and Families Act 2014 is fit for purpose.  The evidence submitted herein is based on research that we carried out during 2019/2020 into the level and quality of service provision for children with a SEND in the Liverpool and Merseyside Area, and the Local Authorities’ (LAs) compliance with their legal obligations under the Children and Families Act (CFA) 2014.

 

  1.              Our findings, which will be discussed below, establish that the CFA 2014 was routinely misapplied in practice and often failed to adequately meet children’s education, health, and social care needs. Our findings further corroborate the well-established and intractable difficulties which have come to characterise the delivery of SEND services for children and their families.

Background to the Study

  1.              The study adopted a predominantly qualitative methodological approach. 17 semi-structured interviews with parents of children with SEND in the Liverpool/Merseyside area were carried out during 2019/2020 and 5 casefile reviews from the University of Liverpool Law Clinic were undertaken to ascertain the on the-ground experiences of parents in relation to SEND service provision. Of the 22 respondents who were involved within this study, 17 were within the Liverpool City Council local authority area, 2 were under the control of Wirral Borough Council and the remaining 3 were under the control of Sefton, Knowsley, and St. Helen’s Local Authorities respectively. Ethical approval for this research was granted by the University of Liverpool.

 

  1.              Semi structured interviews were selected as this allowed for a deeper assessment of parental experiences, while the case file reviews were conducted as these represented actual cases where parents had sought legal advice through the University of Liverpool Law Clinic in relation to their children’s care. No identifying features were revealed from the casefiles to protect and preserve the anonymity of the clients and to uphold their confidentiality. Participation was voluntary and the information was provided based on full, free and informed consent.

 

Key Findings

  1.              Six significant themes were arrived at from an examination of the interviews and the casefiles. These included:

 

  1. Delay on the part of the local authority to assess, identify and provide the necessary SEND provision for children within the prescribed statutory timeframe of 20 weeks. The evidence indicated that the issue of delay was a systemic and ubiquitous aspect of the SEND process in the Liverpool/Merseyside area.

 

  1. A clear lack of specificity and quantification within the EHC Plans when produced by the Local Authority was a common theme emanating from the research. Clear evidence of failure to abide by the principle of specificity regarding the formulation of EHC Plans was a common parental experience among the participants within this study.

 

  1. The absence of social care and/or breaks from their caring role for parents of children and young people with a SEND was frequently raised in the research. This absence was widespread. Furthermore, the lack of reference to social care among the participants indicated a broader unawareness and unfamiliarity with wider social care provision entitlements.

 

  1. Evidence among parents of personal and familiar stress and anxiety as a result of navigating the SEND process was extensive. Strong evidence of the negative impact which the process was having on parents; their health, livelihoods, and wider family was a distinct and prevalent reality among the respondents within the study.

 

  1. Evidence of schools not supporting children’s needs and engaging in unlawful school exclusions was a frequent aspect to parent’s experiences of the SEND process.

 

  1. A broader systems-wide failure characterised by a lack of communication and transparency, was evident from this investigation.

 

  1.              While our study does not seek to make broad-based generalised assertions or claims about the level of provision within the Liverpool and Merseyside area, it does however point to common themes and experiences among the parents of children and young people with SEND who participated in this study.

 

  1.              This findings from this study were shared with Liverpool Local Authority.

 

Delay

  1.              Local Authorities have specific obligations pursuant to the statutory framework the CAFA and accompanying guidance in the field of SEND. Firstly, when a Local Authority decides not to conduct an Education and Health Care (EHC) assessment a child or young person, it must notify the parents of the child or the young person within 6 weeks of the request for an assessment. When a Local Authority decides, following an assessment, that it is not necessary for special educational provision to be made in accordance with an EHC plan, notification must be given as soon as is practicable, but in any event within 16 weeks of the request for an assessment. However, if the Local Authority decides that special educational provision is required, then they must send the finalised EHC plan to the child’s parent, or to the young person and to the school named in the plan, as soon as is practicable and in any event within 20 weeks of the local authority receiving a request for an assessment.

 

  1.              Out of the 17 semi-structured interviews, 16 respondents had formally applied for an EHC plan to the local authority. Out of the 16, only 2 (12.5%) had their plans finalised within the relevant time period. One respondent was refused an assessment on the basis that top-up funding would be provided.

 

  1.         Delay was found at each stage of the process: in determining whether a child will be assessed, in sending a draft EHC Plan for comments and a school to be named by the parent, to issuing the final EHC Plan and in conducting an annual review.

 

  1.         The causes for the delay were varied and included the parties waiting for an expert report, the Local Authority on occasion trying to persuade parents to accept a school they did not name/want and sometimes the school failing to provide information to the LA when requested.

 

 

  1.         Participants also reported delay in entering the statutory process, often because of information provided by a school, or the belief that they must obtain evidence before a child would be assessed under the Children and Families Act 2014.

 

Lack of Specificity and Quantification Within Plans

 

  1.         While no standard single template for an EHC Plan exists, the regulations nonetheless set out what an EHC Plan must contain. Guidance about the contents of plans is provided in the SEN Code of Practice. EHC Plans must specify the special educational provision required to meet each of the child or young person’s special educational needs.

 

  1.         Out of the 17 semi-structured interviews, 16 parents had formally applied for an EHC Plan to the Local Authority. As previously stated, only 2 participants (12.5%) had their plans finalised within the relevant time period. Just over one third of the respondents, 6 out of the 16 participants (37.5%) reported that their plans were vague, imprecise, and lacked specificity.

 

 

  1.         Two out of the five casefiles reviewed also revealed parental dissatisfaction with the wording and provision of the EHC Plans on the basis of their vagueness.

 

  1.         Many parents reported that they felt the vagueness and imprecision of the EHC Plans was intentional and deliberate. They noted the frequent use of phrases such as ‘access to’ and ‘benefit from’ within their children’s EHC Plans.

 

 

  1.         Parents reported that the vague nature of EHC Plans was a contributory factor in the delay in finalising them, while some participants reported that the Local Authority told them that they would have to check with schools whether a EHC Plan could be made more concrete, or not.

 

Social Care

  1.         Local Authorities have duties towards ‘children in need’ in their area and disabled children constitute ‘children in need’. Parents and carers of disabled children are furthermore entitled to be assessed as carers. The majority of the participants within this study reported mental health difficulties and/or stress on their finances and family life and are accordingly entitled to an assessment. Furthermore, EHC Plans are designed to be holistic. Therefore, health and social care needs and the corresponding provision to meet such needs should be recorded.

 

  1.         The evidence from this study was that the few respondents that requested social care support, received it. When families were given support, this was usually in the form of some sort of a short break – usually delivered via Fusion which is provides short term breaks in the Liverpool and Merseyside area.

 

  1.         Very few of our participants were in receipt of support from social services, though a number had requested it. In sum, only 5 out of the 17 participants in the semi-structured interviews referred to such support.

 

  1.         The type of support our participants requested from their social services departments was predominantly to give them a break from their caring role.

 

  1.         Those who were accessing support told us about significant delay.

Impact on Family and Personal Life

 

  1.         One of the major findings from this investigation was the unanimously negative and debilitating impact which navigating the current SEND framework was having on parents. Many respondents reported that they were suffering from increased levels of stress and anxiety, either as a direct result of seeking and applying for the relevant support for their children or looking after their children’s needs in the absence of such support. While the EHC planning process is envisaged to be collaborative and person-centred, many of the respondents within this study reported being ignored or lost in the system and of decision makers having very little understanding of their lives, which further caused them considerable stress and anxiety.

 

  1.         In this present study, 15 out of the 17 respondents (88%) from the semi structured interviews reported that the process had a direct and negative impact on their health and personal and family life. This impact ranged from directly affecting the parental relationship itself to causing stress and anxiety among parents.

 

 

  1.         14 out of the 17 respondents (82%) in the semi-structured interviews reported having to pay for either privately commissioned expert evidence to support their applications for an ECH Plan or had to obtain external legal and advisory assistance to enable them to succeed in their applications for support.

 

  1.         Many respondents also reported that the process had a direct economic impact on their lives with 7 out of the 17 respondents (41%) reported having to give up work, close their business, or drop to part-time hours.

 

Failures at School Level

  1.         For children and young people with SEND, the right to education plays a crucial role in equipping them with the skills to live full, free, and independent lives. Indeed, those aims, in addition to enabling children and young people with disabilities to transition into adulthood, either in terms of employment, training or further and higher education are a central objective of the CAFA and legislative framework governing the provision of SEND services.

 

  1.         The accounts given by the respondents within this study revealed clear variable practices regarding SEND provision within schools. In some instances, parents reported outright failures on the part of the school itself to assist, develop or support their children’s needs.

 

  1.         16 out of the 17 respondents in the semi- structured interviews directly referred to the role of the school regarding their children’s SEND provision with 15 out of the 17 respondents (88%) reporting instances where they felt the school were unhelpful towards and/or unsupportive of their children’s needs.

 

  1.         In some cases, parents reported conduct which amounted to schools engaging in illegal behaviour with 5 out of the 17 respondents (29%) conveying examples of unofficial and unlawful school exclusion.

 

  1.         An examination of the 5 casefile reviews revealed that children 3 out of the 5 parents (60%) had experiences of their children being excluded from school. In some cases, children had suffered multiple exclusions while in one instance, a child was told not to come back to school, otherwise a permanent exclusion would follow.

 

 

  1.         The case-file review also revealed that 4 out of the 5 parents (80%) expressed negative feelings about the school’s ability to assist their children’s need while the remaining parent conveyed a tentative and look-warm approval of the school’s support.

 

Systems-Wide Communication and Transparency Failures

 

  1.         The accounts given by the respondents within this study revealed clear systems wide communication and transparency failures in relation to the overall process to obtain the relevant SEND provision for children. These failures ranged from examples of the school and Local Authorities misinforming parents, not responding to phone calls and emails to instances whereby communication between parents and the school and/or local authority had either broken down or was severely strained.

 

  1.         Of the 17 respondents who took part in the semi- structured interviews, 16 had formally requested SEND provision. Out of these 16 respondents, everyone reported some evidence of systems-wide failings which either prolonged the delay in obtaining the relevant support for their child or exacerbated the stress and anxiety attached to the process.

 

 

  1.         An examination of the 5 casefiles revealed that 4 out of the 5 parents (80%) had experienced some level of communication difficulties with the school and/or local authority in relation to SEND provision for their children. This ranged from tension between the parents and the school and/or local authority to the outright refusal of the school to talk to the parent in one particular instance.

 

The Impact of the Covid-19 Pandemic

  1.         Whilst our study was conducted prior to the pandemic, research has since shown the disproportionate and devastating impact which Covid-19 has had on children with SEND. This has further exacerbated the pre-existing weaknesses and infraction points within the SEND system. Previous evidence submitted by Professor Alghrani and Dr Byrne to the Education Committee on the impact of Covid-19 on education and children’s Services, based on a survey of 234 parents/carers of disabled children, revealed the adverse and debilitating impact which Covid-19 was having on the education rights of children and young people with SEND and their families.[1]   In particular, 87.8% of the respondents in that study revealed the broader devastating effect which Covid-19 was having on the health and well-being of their child and the wider family unit. Declining mental health, increased anxiety, social regression, behavioural breakdowns, and a cessation to essential health and therapeutic services were recurrent themes within the responses received.

 

  1.         Additional research carried out by Ashworth et al (2022) further underscores the adverse impact which Covid-19 has had on children with SEND, their education, their health, their socialisation and right to development, and their wider family life.[2] 

 

Conclusion

  1.         What this study highlighted was that in response to the central question of this committee, namely whether the Children and Families Act 2014 has achieved its aim of improving the lives of children and families, particularly the most vulnerable children and young people in our society, the answer for the participants our study in the Liverpool / Merseyside area, would be no and that much work remains to be done.

 

Contact details

 

Professor Amel Alghrani: A.Alghrani@liverpool.ac.uk

 

Dr Seamus Byrne: S.D.Byrne@leedsbeckett.ac.uk

 

Ms Deborah Tyfield: dtyfield@liverpool.ac.uk

 

 

This study/project was funded by the School of Law and Social justice, University of Liverpool. 

 

The views expressed are those of the author(s) and not necessarily those of the University of Liverpool.

 

April 2022

7

 

[1] For more on this submission, see https://committees.parliament.uk/writtenevidence/5816/pdf/

[2] For more on this study, see Ask Listen Act Study Summary (ljmu.ac.uk)