Michael Charles’ response to the Welsh Government

Some of my comments on the Welsh Government’s proposals to reform the law relating to special needs provision in Wales were in the news last week. Most notably my expressed concern over the potential damage to the parent /school relationship, given the proposed shift of responsibility, in many cases away from local authorities to our schools, of the obligation to prepare maintain and review the legal document known as an individual development plan. This is to replace statements of special educational needs which are said to be “outdated” . I expressed concern that schools may not be encouraged by this increased bureaucracy, or its duty to identify, prepare and maintain what is a legal document never mind the likelihood of legal intervention against them should parents dislike the course that the school may adopt.

These are valid concerns, made by myself, a lawyer who has spent most of his professional life dealing with these types of cases, on behalf of often worried parents, and schools. A lawyer who has been involved in many of the leading cases in the category of education law, for over 20 years. To have my concerns publicly dismissed by the WAG, as the product of an “inaccurate understanding of the draft Bill” may to some strike as somewhat discourteous . This is ironically, during a time of consultation, in which the WAG are encouraging debate and critical feedback.

To be fair, the Bill is not all bad. There are encouraging signs not least the delivery of protective plans to all who may appear to have additional learning needs. The proposal to extend the plan beyond the current age limit of 19, to 25, is something to be applauded, as is the proposed extension of the jurisdictional limits of the special needs tribunal (soon to be known as the Education Tribunal for Wales), to resolve disagreement in cases involving post 19 year old students. Therefore whilst one may cautiously welcome good intention, it does not mean that a number of serious flaws ,highlighted by those with years of practical experience should be so curtly dismissed.

The WAG argued that my concerns, about school teachers becoming clinicians as opposed to the current practice of placing reliance upon a prescribed process of assessment, involving a team of experts, was “misplaced” because the Bill proposes that “children and young people who have needs that exceed the ccpacity of schools to deliver will be referred to the local authority”.
However what the WAG did not highlight or address was that within the same provisions of the Bill the local authority must then decide whether to prepare and maintain the plan itself, or if the child or young person is to attend a mainstream school, it can direct the school to maintain the plan or even prepare the plan, as well. This creates the absurdity. It suggests that where a school contends it lacks expertise to identify the child’s needs, or lacks the capacity to deliver the necessary provision, it can be nevertheless directed to do something that it has argued it cannot do. It is equivalent to a heart patient being treated by a dentist..

Neither did the WAG address the fact that many young people have needs that are notoriously difficult to even detect in the first place. Yet, these proposals will be inviting school teachers to detect, what even many specialist clinicians have great difficulty detecting.

The WAG claims that my fears over the proposed abolishment of the prescribed statutory assessment process is met by a contention that the proposed system will be not unlike “the current process by which children and young people are referred to the local authority for statutory assessment leading to a statement of special educational needs”.
Yet, what the WAG did not address, was that the current statutory assessment is prescribed by law, involving particular experts from different and relevant disciplines to address specific learning issues.. The proposals are to replace this process with a teacher assessment, following guidance issued by the WAG in its proposed code of practice. I argued that I could see little sense in abolishing the statutory assessment as it is a basic, but vital component in meeting a young person’s needs as it allows experts to acquire a proper understanding of what those needs actually are. One cannot decide need if one does not undertake a proper assessment? Neither does it address the likely perception that an assessment will fail to identify matters that those assessing are unqualified to detect.

The WAG answer this criticism, by claiming that the assessment obligations will be set out within its code of practice. What it did not say, was that the Bill proposes that the code is something that school’s and local authorities should “have regard to” which means there is far less legal protection against inadequate assessments. Indeed, the mandatory elements of the code only relates to the “preparation, content, form and review” of individual development plans, as opposed to the assessment process that leads to them being prepared in the first place.

The result – this proposed bill, if passed, will not only send schools into battle with parents, but will most certainly lead to potential litigation. That is neither healthy nor appropriate.

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