SCN0649
Supplementary written evidence from Matt Keer
Background
1) Many thanks for the opportunity to provide oral evidence to your Committee on 23rd October 2018. Having read the transcript, here are a few follow-up points concerning some of the SEND funding & SEND legal issues discussed in the session.
Question 55 – EHCP Delays & Funding
2) In my evidence, I referred to a “transmission belt” of misinformation about SEND funding, rights and statutory responsibilities from local authorities to school leaders.
3) This is based partly on evidence that Special Needs Jungle gathered from FOI requests into local authority high-needs funding criteria and banding arrangements in late 2017. It is also based on over a decade of personal experience in supporting parents of deaf children who have been given misleading information by school and LA staff about EHCP and funding criteria.
4) Other organisations who support parents (such as the IASS Network, IPSEA, and SOS!SEN), and organisations that support schools (including Whole School SEND, and the SEND Information Organisations Group), can corroborate the existence and extent of this misinformation, which almost invariably serves to deny, delay or limit LA expenditure and statutory duties.
5) The most common examples of misinformation include:
a) Arbitrary, unlawful LA policies that raise the threshold for considering EHC needs assessment above the legal test in the 2014 Children & Families Act. Examples of this include: telling schools that the LA will not consider an EHC needs assessment request until the school has commissioned an educational psychologist, or done two cycles of ‘assess, plan, do, review.’
b) Arbitrary, unlawful LA policies that raise the eligibility threshold for an EHCP above the legal test in CFA 2014. Examples of: blanket policies stating that severely deaf children are entitled to EHCPs, but moderately deaf children are not; or that children have to be ‘behind’ by a certain number of years to meet the EHCP criteria. In the worst example I have seen, one LA told a school that their pupil had to be six years behind her peers to be considered for an EHCP.
c) Telling schools that EHCPs do not automatically bring funding: Section 42(2) of CFA 2014 clearly states that the local authority – not the school – is legally responsible for securing (and thereby funding) the EHCP. So if the school cannot afford to make the provision happen in the EHCP, the LA has a legal duty to fund it. I reviewed 144 LA high-needs policies last year; none of these policies stated this simple, but crucial legal fact.
d) Pseudo-EHCPs: a growing number of LAs offer their schools arrangements (sometimes called My Plan, or My Support Plan) which purport to offer the advantages of an EHCP without the bureaucracy or delay of the EHC needs assessment process. This is an attractive offer – but these pseudo-EHCP arrangements do not come with any of the statutory protection that an EHCP provides, and many are just as bureaucratically burdensome on schools as the EHCP process. Ruth George MP has compiled examples from Derbyshire that illustrate this well.
6) There are many other examples of LA misinformation regarding the content of EHCPs. Other witnesses are better placed than me to provide examples of these.
Question 93 – SEND Reform Grants & Regular LA Spending on SEND
7) The Chair asked about the extent to which the SEND Reform & Implementation Grants had been used to prop up day-to-day spending. I replied by saying that “most of the money I tracked went in the general direction of SEN, but you can argue whether it is used effectively.” The answer I gave was not very precise, so I rechecked my research into how local authorities spent their £223m of DfE SEND grant money.
8) From the £158m of grant spending that I tracked, around £4m (3%) was allocated to SEND provision that would probably otherwise have been funded via the High Needs Block.
9) Most of the tracked grant money was spent on SEND administration. It is hard to tell how much of this £111m spend propped up day-to-day SEND administrative activity, but most of it (particularly in the 2017-18 period) was probably used for transitional purposes.
10) In my response to Q93, I referred to LA spending of DfE grant money that was allocated ‘in the general direction of SEND.’ As well as the money listed in paragraph 8 above, this included £7.45m of spending across a range of areas including legal services for Tribunal defence, staff sundries, conferences and off-site meetings. Personally, I would class this as day-to-day rather than transitional spending, but for some of the line items it was difficult to tell.
Questions 132-133: External Legal Support at SENDIST
11) There was some discussion in this part of the session about parental use of external legal services, (including barristers) and parental access to legal aid for SENDIST appeals.
12) There is no reliable evidence in the public domain to indicate how often parents or local authorities make use of legal advice at SENDIST. This applies both to the process of appeal, and to the SENDIST hearing itself. It is also unclear whether parents or LAs are making more frequent use of solicitors or barristers at SENDIST in either absolute terms, or as a percentage of the overall number of appeals.
13) This data is potentially available from the Ministry of Justice or HM Courts & Tribunals Service, but HMCTS has not published data on legal representation at SENDIST for many years.
14) Based on my experience in the SEND system as a parent and helping other parent, I would say that parental use of barristers is rare. Since the SEND reforms began I have assisted approximately 50 families of children with SEND with Tribunal preparation. Of these 50 cases:
a) About half of these cases had some degree of legal or paralegal assistance in the early appeal phase: usually an amateur advocate, sometimes a non-specialist solicitor providing a few hours of pro bono help, and less frequently a specialist education solicitor. In the other cases, parents acted for themselves.
b) Most of these 50 cases settled just before the hearing due to an LA concession. For the 12 cases that proceeded to a hearing, 5 had a legal or a paralegal representing parents on the day. In a further 7 cases, the parents represented themselves, and had no legal support on the day. No parents used barristers.
c) There was no particular pattern to LA use of legal counsel at these 12 SENDIST hearings – it varied according to each local authority. Some LAs decided not to bring a solicitor or barrister even when parents brought legal help. Others instructed a barrister even when parents were unrepresented.
15) It is important to be cautious about the relationship between external legal assistance and parental or local authority success at SENDIST appeals.
a) There are a small number of complex SENDIST cases where specialist external legal assistance can make a clear difference to the outcome.
b) However, most SENDIST cases do not revolve around complex legal issues – and from the limited data available, even the best lawyers acting for parents do not secure noticeably better outcomes at SENDIST than parents who represent themselves. The quality of evidence is usually the key determinant of the outcome of SENDIST appeals, rather than the availability of high-priced legal help for either party.
c) The example of Clifford Chance – a Magic Circle City law firm that works pro bono at SENDIST for the National Autistic Society, but achieves success rates no better than the national average – illustrates this point.
d) For most cases (including my own family’s), it is entirely possible for parents to represent themselves at SENDIST and succeed. It is a hard thing to do; it is time-consuming, nerve-wracking, and it means you spend less time with your children at a time when they need you the most. But the process and issues are not so complex that it can’t be done.
16) Finally, to clarify the issue of legal aid at SENDIST: very few families who appeal to SENDIST have access to legal aid during the appeal process. Access to legal aid for SENDIST was sharply cut following the 2013 legal aid reforms. SENDIST appeals now fall under the ‘legal help’ level of legal aid support, and this type of legal aid is very tightly means-tested.
17) For those families that are entitled to legal aid for SENDIST, the support they receive may include support from a paralegal or solicitor to prepare their case, and in some circumstances families might be able to obtain funding for obtaining additional evidence. However, legal aid will not pay for parents to instruct a representative to attend the SENDIST hearing.
18) Again, it is possible that the Ministry of Justice or HM Courts & Tribunals Service hold useful unpublished data on the frequency of use of legal aid for SENDIST appeals.
19) I wish you the very best of luck with the rest of your inquiry.
December 2018