SEN0458

Written evidence submitted by Sally Capper and John Wright

We, John Wright and Sally Capper, worked together as parent-advisors for IPSEA for eleven years (though this joint submission is in our names, not IPSEA’s). We fully endorse the views expressed in each other’s contribution to this submission.

Statement from John Wright (MA(Ed), Dip Education Law), founding CEO of the Independent Panel for Special Education Advice (IPSEA), parent advisor on SEN for the Advisory Centre for Education from 1983 and for IPSEA until 2014. Author: ‘Taking Action – your child’s right to special educational provision.’

The special educational needs and disabilities (Send) problem does not lie in the legal framework, which from the 1981 Education Act on, through several iterations in law, has provided a necessary legal entitlement for children with special educational needs to receive the provision required to meet their needs. Rather, the problem is inherent in the delivery ‘mechanism’, in that the body responsible for assessing a child’s needs and for specifying those needs in contracts (i.e. Education, Health and Care Plans, which must specify the kind and amount of provision to be made) is one and the same body which, at the end of the process, is going to have to arrange and pay for that provision.

From the ‘81 Act (implemented 1/4/1983) on, local education authorities (LEAs), constrained as they are by budgetary limitations, have sought relief by ducking and weaving around their legal duties to provide for children. They have done this in a variety of ways including denying the existence of needs or minimising the extent of them, often acting contrary to the professional advice of their own staff, and refusing to be specific about the amount of specialist provision a child is entitled to when drafting EHCPs (e.g. using phrases such as ‘speech therapy as appropriate’). Hence, the role of the Tribunal hearing a parent’s appeal is often simply to order an LEA to draft their child’s EHCP in line with their own professional advice and/or to be specific about the kind and amount of help guaranteed, as the law requires. It is wholly unremarkable, then, that in the overwhelming majority of cases Tribunals support parents’ appeals and overturn LEA decisions.

Tinkering with or, indeed, making sweeping changes to the legal framework itself risks weakening children’s current entitlement. Instead, the attempt to improve on the current ‘crisis’ should focus on making the following changes:

1. The drawing up of an EHCP should be undertaken by the local professionals (educational psychologists, speech therapists, specialist teachers, etc.) who have actually undertaken the assessment of a child, rather than officers of the LEA, who are inevitably compromised by their real or perceived duty to act within their authority’s budgetary constraints.

2. Central government should fund all staffing provision specified in EHCPs, thus effecting what is crucial – the separation of the power to assess needs from the duty to make the

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provision required to meet those needs. The precedent would be the arrangement for reimbursing LEAs with the cost of teaching of English to the children of newly arrived immigrants since the 1960s. Because the costs of employing E2L teachers fell unevenly across LEAs, often more heavily on less well-resourced inner city authorities, the government introduced a mechanism of reimbursement through Section 11 of The Local Government Act. The parallel with send funding is that it tends to be the less well-resourced authorities which, for socio-economic reasons, face the biggest challenges in terms of the occurrence of send in their school populations.

In the long term the efficient education of send pupils and students will benefit the economy as a whole by enhancing their prospects for future employability (and hence the prospects of growth across the country) and by reducing their need for support as adult members of society.

From Sally Capper (LLB Hons Barrister at law) Former Education Advocacy Officer for the Down’s Syndrome Association (DSA) and seconded to IPSEA from 1994 -2005. SENDIST Judge from 2005 – 2012.

From my experience as an advocate for parents of children with special needs and subsequently as a Tribunal Judge I have concluded that SEND appeals fall into various categories. There are those where parents and professionals differ as to the needs of the child and the necessary special educational provision to meet them. Here there are substantial issues to be determined which clearly call out for determination by an independent body such as the SEND Tribunal.

Another category is where the LEA has written a document, EHCP or formerly a statement, which neither adequately describes the needs of the child, or, more commonly, fails to specify and quantify the provision required to meet those needs. Sometimes the LEA has not followed the advice of the professionals who have assessed the child but the professionals may also have also have failed to be specific. Without such specification and quantification the EHCP will not become the guarantee it is intended to be. Parents cannot accept such an inadequate document and rightly appeal to the Tribunal. Such cases are invariably successful either by the LEA settling the case shortly before the hearing or after a full hearing.

It is in the interests of the child that his/her special educational provision is identified and provided as soon as possible. What many LEAS are doing is pulling in the opposite direction. It is in the interests of the LEA who has the responsibility for financing the provision and is likely to be short of funds, to delay the start of its responsibility as long as possible. The

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interest of the child is thus thwarted by inadequate preparation of EHCPs This kind of case leads to unnecessary and expensive appeals.

I agree with John Wright that the only way to end this continuing problem is to ensure that the person responsible for the content of the EHCP is not the person responsible for its finance.

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January 2025