Keep up to date with latest legal developments
Re: Special Educational Needs and disabilities inquiry
I have had the pleasure of representing scores of families in special needs cases over the past 25 years. The inquiry is a welcome opportunity to advance some of my thoughts in the hope that it will help achieve real improvement in an area which sadly is riddled with problems. Unlike an inquiry which some may say will provide a snap shot of the times, I have over the years interviewed and been involved in literally thousands of special needs cases. I speak not only as a lawyer who heads one of the largest education law departments in the country, but as a parent of a child with SEN myself. This is therefore not a one-sided view. I have also in my long career advised both schools and local authorities. To represent so many deserving families has truly been a privilege that has allowed me to derive such wonderful joy whilst at times terrible frustration, not least in sometimes having to inform parents that the law does not always provide all the answers. It is a sad indictment of our present times, that so many parents are having to appeal against poor local authority decisions. I am sure that members of parliament had sincere objectives to introduce a process in which lawyers were best left to deal with helping to protect and enforce rights of individuals as opposed to educating a side with better resources than parents in lessons of fairness, good practice and the law.
Examples of poor decisions
I have recently dealt with a case in tribunal in which a local authority withheld evidence from parents with regard to a school which the local authority wanted to, and in fact did name in an EHCP. Contrary to the truth, the local authority told the school that the parents wanted their child to go to the school when they knew that this was not true. When the school, undoubtedly, encouraged by the supposed preference, wanted to help, but honestly explained that it could not, the local authority withheld the evidence from the parents, later claiming that the letter was lost, and not scanned into its systems despite it being accompanied by e mail correspondence which basically said the same thing.
I have dealt with parents who were told that under no circumstances could they use private experts to influence the decision making. Parents who had wonderful relationships with the school, only to find that once they appeal, open communication between them and the school is lost due to advice received from a local authority to say nothing during the appeal process. A local authority which told a parent and a tribunal that a place was available at a primary school without referring to a letter from the school which said it was heavily over subscribed and could not accommodate. A parent who is denied legal help at a mediation which they hoped to engage in to resolve a dispute before going to tribunal despite the local authority arranging to bring a skilled representative. A parent who is told by a local authority that, if they appeal, they would lose any opportunity to seek financial help from the local authority which was available if they did not appeal. A parent who in a lunch break within a tribunal hearing, returns from lunch to hear that the school which was preferred by the local authority miraculously would create a “nurturing group” by design to defeat the parental criticism with regard to the school provision yet later finding that no such group was in existence or even planned. Indeed in that case the parent is later told by the head teacher that they were told to say so by the local authority representative, during a break in the proceedings because otherwise its case would fail.
I only learned today from a report on the BBC that this inquiry was progressing. I learned that the deadline for submission is tomorrow. I have therefore put some suggestions somewhat in haste to meet this. I make these suggestions not based on a short and limited inquiry, but based on the testimony of thousands of parents as well as personal and professional experience.
(a) First and foremost, legal aid should be extended to protect the vulnerable and afford them actual representation (not merely telephone or basic advice) at the actual hearing of a special needs case. A local authority has access to lawyers, experts etc whereas a parent is often alone. A David and Goliath experience is not in the child’s best interests.
(b) Parents should be able to decide which experts should be used in a special needs assessment as opposed to only those experts employed by a local authority or NHS. Experts who are constrained by their employment contract and policies fuel a perception of lack of objectivity. This creates conflict and parental/LA disputes. In the US, parents have a choice of (i) The experts to be used and (ii) The tests that those experts perform. This assists in providing comparative data and assists in tracking a child’s progress. Guidance issued by the Code of Practice should be updated to address this.
(c) Although a pilot project is underway in the tribunal, jurisdiction of the tribunal should extend to social and health care needs. A mere recommendation is insufficient as it again is likely only to fuel parental motivation to enforce through the courts. Parents frankly do not need this.
(d) The Equality Act 2010, and in particular the public law equality duty, should be redrafted to make specific rather than general duties. Too many local authority decisions escape legal scrutiny this way. It is pointless having a law that settles objectives without an ability to enforce. A lion should be able to roar and bite. Anything less leaves children without protection.
(e) Code of Practice guidance should ensure that schools be obliged to respond to parental enquiries within a time limit. This avoids the current practice often seen in which schools are told to stop communicating post an appeal being launched.
(f) Mediation involving local authorities and parents should permit a parent to be legally represented through legal aid support. Many parents of children with SEN often give up work to support their children. This therefore represents a group of people who are less likely to afford expert support. Too many children are exposed to one sided decision making as opposed to decisions that represent their best interests.
(g) All local authority representatives who are entrusted to deal with SEN cases should undergo basic legal training to ensure that they give proper advice as opposed to advice that does not represent the objectives and procedures laid down by the law. There is too much gossip on the streets which fail to represent reality and parents are accordingly misled however inadvertently.
(h) The statutory regulations that govern tribunal procedure should be changed so that decisions on costs in proceedings should be determined not on the evidence that is available as at the date of the hearing, but upon the evidence that was available when the local authority issued an EHCP. This avoids very poor assessments that fail the legal test, and lead to unacceptable situations in which correction is made when a parent appeals. A quality assessment should not depend upon the resources and propensity to appeal. Those whose parents cannot challenge the assessment are too often left without. If a cost sanction were to be imposed upon local authorities that fail to provide lawful assessments at the outset, more would be deterred from making bad decisions.
(i) Guidance should be updated to prevent local authorities piggy backing parental appeals to make substantial changes to an EHCP. Too many local authorities use intimidating tactics in which parents are frightened to appeal due to warnings that provision elsewhere may be changed. This leaves the parent vulnerable to fear that an appeal might leave the child without something that they fought hard to secure.
(j) No local authority EHCP should be treated as lawful without social care and health advice. Too many plans provide a perspective adopting a single lens. Children with SEN often have multi-faceted difficulties in which educational needs cannot be looked at in isolation from their social and health care needs. Too many children with mental health issues are not receiving adequate support from their local NHS trust.
(k) The Government might wish to ensure that competency and regulatory standards apply to those who are unqualified to represent parents.
The law has long established that the protection and safety of our children should be paramount. Leaving the current system in place without change is taking risks. Those entrusted to safe guard should never take risks.
CEO – Solicitor