SEN0388

Written evidence submitted by University of Liverpool Law Clinic

These submissions are made on behalf of the University of Liverpool Law Clinic.  The Law Clinic has two solicitors who provide advice and assistance to parents of children with SEND in the Merseyside region.  The solicitors are assisted by University of Liverpool law students. 

Our service is free, and we ask that only those unable to afford to pay for legal advice use our service (though we do not means test).  We have assisted hundreds of parents since our service began in 2017.  We advise parents at all stages of education, though most of our clients have primary or secondary school age children. We do not generally represent parents, but we may assist them on an on-going basis where we consider it is necessary.  Our aim is to give as many parents as possible advice to enable them to progress.  We cover all aspects of SEND, from SEN Support through to appeals to the SEND Tribunal.  We also assist parents whose children have been excluded for reasons related to SEND and help parents who wish to complain to the Local Government Ombudsman (LGO).

Our service receives more enquiries than we can deal with.  Each year the demand for our service grows.  We are the main provider of legal advice in Merseyside. 

In addition to the provision of advice and assistance to individual parents, our services include providing training and Public Legal Education (PLE) to parents and providers, and supporting some schools to support parents. We are well known to local organisations, MPs and councillors. 

We only make submissions where our insights as a key provider of legal advice in Merseyside may be particularly useful to the committee.  We do not intend to address matters we expect parents or other organisations will frequently raise, or where issues have already been aired and are widely understood.  Given the nature of the enquiry and our duty of confidentiality towards our clients, though our submissions arise from the experiences of families who have sought assistance from the Clinic, they are made in general terms.

Support for children and young people with SEND

Our experience is that the quality of support in schools is patchy and inconsistent. It depends to a large extent on the ethos of the school, the leadership team’s approach to inclusivity, and the quality and experience of the SENCO as well as the time they have available to dedicate to their role.  Many teachers and leadership teams do not appear to understand the legal obligations set out in the Children and Families Act 2014 (such as when the threshold for an EHC assessment is met) and Equality Act 2014 and we have sought to provide training to schools in our local area to improve the quality of decision making around children with SEN. A requirement for regular training to ensure that the legal framework is understood may assist. 

It is also not always clear what level of training teachers and support staff access around specialist interventions. Clients report that staff appear to lack additional knowledge and skills in relation to speech and language or sensory interventions, for example.  This is particularly the case where a child has 1:1 support from a teaching Assistant (TA) who is responsible for delivering aspects of a specialist speech and language, occupational therapy or physiotherapy programme without any regular oversight and support from the professional that has devised the programme. 

A substantial cohort of our clients have children with ASD or/and ADHD.  A major factor for their children is class and school size. The majority of our clients seeking specialist places for their children do so because their children find the large mainstream environment to be overwhelming.  A particular issue locally is identifying a school place that is able to provide access to a stretching curriculum, which includes GCSEs, whilst appropriately meeting social, emotional and mental health needs or/and sensory needs. Locally this is generally only available in the independent sector, which is costly. 

A number of our clients report that they consider mainstream placements may have been more likely to succeed had early therapeutic intervention been provided – sensory diets and communication programmes, for example. 

When our service first launched in 2017 we advised often about SEN support in schools and do so rarely now. Parents tell us that they are not able to obtain support for their children without an EHC Plan or if support is provided it is inconsistent or inadequate.  Parents often report they are not kept informed by the school unless their child has an EHCP and even then, information sharing is patchy. 

Where assessments for plans are requested, our experience is that this is almost always done by parents, even where a school supports the application.  We rarely see clients where the assessment request leads to an assessment first time.  We occasionally see the wrong test being applied, authorities apply the test for issuing a plan after an assessment, rather than whether an assessment is required.  There is a perception that authorities “gate keep” at this stage to see whether parents appeal the decision to refuse to assess. 

Where a child’s needs are formally assessed, the LA must obtain an educational psychologist report.  Our experience is that the quality and depth of the educational psychologist reports at this stage is inconsistent and in some, clear recommendations to allow for robust decision making are absent (for example whether the child requires a smaller class or a particular level of teaching assistant support). We are aware that there is a shortage of educational psychologists and therefore those who remain will have large caseloads. However, because of the lack of robust reports trust is lost and parents feel unable to understand what their children require.  If an EHCP is issued it will be based on the wording of the report and therefore may fail to specify and quantify provision (as is legally required). Parents may feel they have no choice but to appeal and obtain independent reports, often at considerable expense and for those not entitled to legal aid but on a low wage, considerable financial sacrifice.

In respect of making the EHC plan process more non-adversarial, we make the following observation.  A significant number of the parents we advise have children with EHCPs where the provision set out is not clear and leaves room for interpretation. Schools are sometimes not doing what parents thought was agreed.  Our view is that this lack of clarity often springs from professional reports from local authority or NHS commissioned services which are not precise, specific or clear.  There is a sense that this is deliberate - to allow room for interpretation (beyond which is appropriate for the professional working with the child) and it breeds distrust.

In addition, there is a sense amongst parents we assist that authorities simply do not follow the law.  For example, in relation to schools, parents report that they are told that schools are “full” and/or are not accepting referrals and therefore cannot be requested, even where it is a type a parent has the right to request and should be named unless an exception (under CFA 2014) applies. For parents who are less aware of the law, there is a misunderstanding that when the LA caseworker says a school is full, it cannot be requested and they cannot go any further.  Our sense is that this view may have been encouraged by local authorities, and when parents seek legal advice and understand the legal position, distrust grows. 

We are aware from some clients that when finalising plans, to comply with time limits LAs name a school which was not requested by a parent. Parents are told by caseworkers to exercise their right of appeal because they know the school named is not appropriate, but they could not identify an appropriate school with a place within the statutory time limits. This forces parents and LAs into the tribunal and parents lose trust in the decision makers. It is difficult to know what can be done about this without more school places which are appropriate to meet the needs of children with SEND being made available.  

Parents may also be told things like their local authority or school ‘do not provide 1:1 support’ despite the clear legal obligation to assess each child’s support needs on an individual basis.

Current and future model of SEND provision

In relation to LAs planning effectively, it is our experience that there appears to be very little evidence of local authorities completing sufficiency assessments that clearly consider how many special school places are needed. They are obliged to assess this but often the assessments appear to lack detail and fails to answer this key question

Our client work leads us to the following observations in respect of the effectiveness of multi-agency and joined up working cross education, health and social care. Our clients appear to have largely abandoned any idea that their children will receive assistance for social care needs, or that they will be offered support for a break from their caring roles.  Many of the (mainly mothers) who seek advice from us have given up their work or reduced their hours so that they are able to meet their caring responsibilities.  Obviously, this issue is exacerbated where a child has been excluded or put on a part time timetable or where parents are phoned regularly to collect their child in what is effectively an informal exclusion, which happens regularly.

In relation to health, many clients request advice from the speech and language therapy service or occupational therapy but very few can obtain any support.  Often there are long waiting lists which mean that EHC assessments are completed without a full picture of the child’s needs. Where there is some involvement, these services will usually apply their own criteria and only make recommendations in terms of blocks that fit their model of service rather than individual need. It appears greater integration is required but as a short-term solution, advice and provision could be sought from the private sector (it may be that funding is needed to allow this to happen).

In relation to excess profit-making in the independent sector being tackled without endangering current provision, our clients’ experiences demonstrate that the independent sector will continue to be the preference of many parents until and unless the non-independent sector is capable of making the provision in a child’s plan and being suitable for their needs, age, ability and aptitude.  Short term solutions are outside our remit and expertise but parents we assist are likely to continue to request their child is placed in a school in the independent sector when appropriate school places are otherwise unavailable.

Educators are best placed to provide evidence and detailed responses to the complex issue of long-term absences and adjustments to enable children to remain in mainstream schooling. As our submissions above indicate, many of our parents have children with ASD/ADHD and mental health issues.  We hear time and again that the mainstream environment is too big, busy and noisy, and overwhelms children with additional needs. In addition, our clients report that the pressures of the curriculum and the drive of schools to improve their performance data mean that the mainstream environment may not enable their children to thrive and places burdens on them they feel unable to bear. 

We are very aware of the disproportionately high exclusion rates for students with SEND. We have seen a significant increase in enquiries from parents of children with SEND who have been, or are at risk of being, permanently excluded.  The quality of those decisions and approach of head teachers to permanent exclusion vary. 

Some of our clients say that their child is excluded because the school is not suitable to meet their needs and that in an environment where their needs are met, they would not be at risk of exclusion for reasons related to their SEND.

Where a child is at risk of exclusion, we make a number of suggestions based on our casework and PLE.

First, where a child without an EHCP is at risk of exclusion, we would suggest that where they have a diagnosis, are on the pathway for a diagnosis, or are exhibiting behaviours which may indicate they have SEN, the school should commission an educational psychologist report to advise on approaches to reduce the likelihood of permanent exclusion.

Alternatively, or in addition, they should themselves consider requesting a statutory assessment of the child’s Special Educational Needs if they are unable to identify what further support is required to meet the child’s needs, and to seek professional input as appropriate.

Where a child has an ECHP they should call a review as soon as difficulties appear.  Schools are required under the Suspension and permanent exclusion from maintained schools, academies and pupil referral units in England, including pupil movement Guidance for maintained schools, academies, and pupil referral units in England August 2024 to do so but our experience is that this does not always happen.

At that review care should be taken to ensure that a child’s provision is stated clearly, so staff working with them are aware of what they must be doing to meet their needs.  If professional advice is required, this should be commissioned, and they should attend the review of the EHCP.

Our experience of assisting parents whose children have been permanently excluded suggests a more robust, effective and speedy remedy to challenge the exclusion is required.  

Currently a parent may ask that an Independent Review Panel (IRP) considers the decision of a governing board, which reviews the decision of the headteacher to exclude.  The IRP applies judicial review principles, but Legal Aid is not available for the IRP and parents are required to represent themselves. Consideration should be given to extending the scope of Legal Aid. 

This panel can quash an exclusion following the hearing and recommend or direct a governing board to reconsider whether to re-instate.  Though the decision is binding, the governing body is only required to re-consider their decision and is free to make the same decision again. 

The only way to challenge the second decision of the governing board if it upholds the exclusion is by way of judicial review. Consideration should be given as to whether a decision of the IRP to quash the exclusion and direct or recommend re-instatement should be strengthened so that the governing board must re-instate the child. As an alternative, whether the IRP is still the appropriate forum to challenge exclusions needs to be re-examined in light of the increase in the number of exclusions. 

It is also possible to make a claim for disability discrimination where the exclusion relates to a child’s disability, but this is narrower that matters considered by an IRP and any claim is put on hold until the IRP has made a decision and the governing board has re-considered the exclusion.

Finance, funding and capacity of SEND provision

We make one observation in relation to funding.  We hear from some parents that schools appear reluctant to apply for, or support a request for, an EHCP.  This may be because they will be required by the LA to use their notional SEN budget (up to £6000) to make the provision in a child’s plan.  This is problematic for them because that notional budget does not tie to the individual child and schools may use the amount to buy in services, such as TAs or an educational psychologist, for the benefit of all SEN children. 

Accountability and inspection of SEND provision

As stated above, SEN provision is patchy and dependent on the leadership team’s approach and expertise.  In relation to SEN Support, parents have no means to challenge a school, which often leads to a request for an EHCP.  If the current system continues, a separate SEN complaints process for parents where a school is not complying with the SEN code of practice, with a SEN expert providing their views, may assist.  It may also assist if parents were able to bring complaints to the Local Government Ombudsman in relation to schools (not just LAs).

The Children and Families Act 2014 requires LAs to establish advice services to support parents (SENDIAS).  Though their assistance is invaluable, we are aware that our local SENDIAS team can only assist a fraction of those who require help because of staffing constraints.   Often the service they can provide is advice only rather than the more practical support sought by families (such as attending meetings or practical assistance filling in forms).

Finally, many of the clients we assist are likely to be entitled to Legal Aid.  The majority of those clients do not know they are entitled until we discuss it with them.  Even where they are entitled to Legal Aid, we are aware that there are difficulties in accessing timely good quality legal advice.  

January 2025