Post 16 Special Needs Provision in Wales. A lost generation ?

Message from Michael Charles in speech to the Wales Autism Show.

Yesterday I attended the Wales Autism Show. Thank you to all who came to hear me speak. I relayed responses I had received to a freedom of information request I had issued to the Welsh Government.

I spoke of a national scandal, and of a potential lost generation. As a lawyer working in both Cardiff and London I am able to compare the laws in both England and Wales.

As the BBC and other media outlets rarely devote much time to Welsh news I thought I would say something.

The questions presented during Q and A were alarming in the sense that the extent of knowledge regarding basic statutory rights in the world of disability law was terrifyingly low. Basic rights were not known and parents were being led to believe things that were simply wrong. The impact of this, cannot be ignored.

However on the topic I spoke about in the lecture, post 16 special needs education, and to those who did not attend the seminar I thought I should summarise what I said.

In Wales the way to secure specialist help for post 16 young people with special needs is to secure a learning and skills plan (known in law as a section 140 assessment). The Welsh Government are obliged to do it only for those who held a statement of SEN. It is otherwise discretionary.

In England approximately 20% of the SEN population at school hold the statement equivalent (EHCP). In Wales despite having a higher overall percentage of SEN in its population that figure is approximately 12%. This disparity equates to approximately 8000 children in Wales are having to go without.

Having said that it is rare for a statement of SEN or EHCP to ever cross my desk, previously untouched by a lawyer, that I have ever regarded as sufficiently lawful and not requiring significant amendment. We of course therefore do not know how many are fit for purpose but sadly in my experience it will be an even lower percentage.

Each school year between 900 to 1000 SEN children leave school in Wales to go to a specialist college.

During 2015 to 2018 only between 107 to 136 young people secured such a placement. This out of a percentage of SEN young people in Wales represents a very small percentage indeed. You of course can do the Maths.

However, whereas those people had previously been given three years to study, the Welsh Government have since said it should be only two years, based on the logic that mainstream children usually follow a two year further education course and young people with SEN should be treated the same way.

Because of this the Welsh Government have reduced dramatically the numbers of people given a three year course from 60 in 2015 to only 17 in 2018.

Why the change?

In its guidance introduced silently without media scrutiny the Welsh Government say

“73. The Welsh Government should not receive an application for a programme of study lasting more than two academic years unless exceptional reasons relating to ghe individual young persons capability to learn are demonstrated. Even in these cases funding is unlikely to be offered for more than two years in the absence of objective evidence demonstrating that the provision identified as necessary to meet the young person’s established needs cannot realistically be provided by a study programme of two years ”

This paragraph sets a very high hurdle. For those who have the fund to secure the evidence that they need perhaps from an independent expert, it is possible but for those without such means, some may say it is almost impossible. It is not helped by the fact that the Welsh Government also issued guidance to careers advisors not to engage educational psychologists to help perform section 140 assessments.

The guidance says this

This process will not involve the input of an Educational Psychologist unless
“exceptional circumstances” exist (paragraph 76 of the guidance) for
example:
o there is significant but conflicting / contradictory evidence available, or
o the majority of information available is considered outdated (for example beyond 3- 5 years) and
the needs of the young person are known to have changed, or
o there is insufficient or no information or specialist input available for that young person.”

Where does this leave the population with SEN believing belatedly that they might need a specialist college but never having held a statement of SEN? .Answer. Firstly they do not have a right to a section 140 but only the right to ask. A high hurdle some may say.

Where does it leave a parent or young person with special needs without the means to obtain evidence to get an extra year to perhaps retake a course because they may have failed?

Answer. Having to jump a very high hurdle.

Mainstream people are always aware of the potential to retake something which they might have failed. Yet the SEN population in Wales are told two years is your limit unless exceptional circumstances apply and even that may not be enough.. For the SEN population who need to resit within a specialist college, some may say they face an extremely high hurdle. What if the course was not right or they performed well in some components and not others? Should they be expected to live by their mistakes in choosing the wrong course or with their mistakes in having failed?Should they not be helped?

In 2017 and 2018 the Welsh Government only awarded 17 people the chance to do a three year course. This was a drop in percentage terms within an already small percentage population of those who manage to get through from just over 50% to only just over 14%..

That is of course 14% of the already very small percentage who get that far.

Alarmingly out of an SEN population who do get that far it represents between a 0.7% to 0.8% chance of securing an extension from a two year to a three year course. Some may be excused in believing that this is a hurdle far to high to cross.

Yet despite this the law expects the Welsh Government to “encourage” the participation of young people with SEN to continue to receive education. Yet statistics provided by WAG show that since 2015 only one young person aged 23 and above was given support to go on to undertake even a two year programme. . A fraction of a percentage point of the SEN population in Wales over three years.

A lottery win some may say?

Yet despite the law saying what is does, and despite even Parliament stressing in its explanatory note when passing the Learning and Skills Act 2000 which still applies in Wales, that people with learning difficulties often need and can be expected to take longer to complete a course of study we are expected to live with this guidance and these figures.

Where is the evidence that the Welsh Assembly Government are complying with the true objectives set by Parliament on these figures?

. Are people really being encouraged to justify that the Welsh Government is doing its best to encourage young people to participate in Education?

When the guidance says they cannot go on beyond two years? When those who may need to retake something that they fail or need more time to complete, is this evidence supportive of compliance with the objectives of Parliament?

The Welsh Government might seek to be excused by claiming that they only respond to applications made by young people perhaps through schools, parents, careers services etc. They may say that they should not be criticised for merely responding to those who have had the good sense to pursue their rights and make a claim. Ignorance of the law and rights is not merely their fault. Does this mean the fault lay elsewhere? Yes we all play a part in having a duty to promote our rights and hold our Government to account when they get it wrong. If we do not, we are of course also responsible for the society that we create for our children and young people. People may not know and some may not publicise that legal aid still exists for people who may wish to bring a High Court challenge of this kind in the post 16 world (as unlike in case of children there is no tribunal to which you may bring the claim at present. You only have the court.)

Whilst the Welsh Government continue to build its fences into the sky in poorly drafted guidance, hurdles , for those with special needs to cross, let’s remind ourselves that this is the same Government that has passed a new law which purports an aim to improve the lives of young people with learning needs in Wales from sometime in 2020. Have we heard this before?

The new law once again is tasking our schools to once again do the majority of the job along with parents and individuals even though statistics say what statistics say. It will be they, our school and parents who will expected to take the initiative. Once again I can hear the excuse. “It isn’t us who are responsible, as a Government we only produce laws and we expect the good sense among individuals to ensure that rights provided by law are pursued and applied for”

If history is anything to go by I will not hold my breath.

In an effort to spread awareness Sinclairslaw hope to arrange a series of SEN seminars that will be free to attend.

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