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Specialist Education Law Firm Responds to Welsh Consultation

The specialist education law solicitors within the team at Sinclairslaw have responded to the Welsh Consultation on reform of the law relating to special educational needs. The firm has highlighted that there is no real need to change the SEN (special educational needs) term to Additional Learning Needs. It has highlighted the danger of removing the statutory assessment leaving a general requirement upon schools to identify need as opposed to to a prescribed system of expert assessments. Whilst welcoming the extension of suppprt plans from the current age of 19 to 25, the firm has also highlighted that the idea of leaving out the voice of parents for over 16 year olds is a danger. The Higher Education Law Department has also expressed concern that there is a missed opportunity to deliver certain support to those at University. SEN law in England is a reasonable model to work with and explore ways to improve it as opppsed to making radical changes that may threaten over burdened schools with more administration. Michael Charles CEO at Sinclairslaw has already made his concerns known in the media about the dangers of placing the initial decision making on to schools which might also threaten the important teacher parent relationship. This response to the welsh government, was issued following media reports which highlighted some of the concerns raised by special educational needs lawyer Mr Michael Charles (our CEO). Following on from from those reports the welsh minister for education issued a public statement which can be viewed here. Mr Charles replied initially to this statement through the media in the following way (see reply by clicking here) Read Sinclairslaw's response below: Dear Sir RE: DRAFT ADDDITIONAL LEARNING NEEDS & EDUCATION TRIBUNAL WALES BILL Education Law solictiors within this firm respond as follows;- We have already made our views known to the Welsh Government in respect of the draft Additional Learning Needs & Education Tribunal Wales Bill. Some of the concerns have been raised in the Welsh media. The purpose of this letter is to provide a series of representations based on the views and experience of this firm’s Education Department as a whole. Some of the points have been made previously. Sinclairslaw became involved in education cases in England and Wales since 1997. The Head of Department (a proud Welshman) was involved in education law cases as long ago as 1994. We set out our views based on concerns that many parents and schools have raised with us over this period. We also focus on the type of practical difficulties that we envisage will occur. There are a number of points that we believe should be applauded within the Bill. Introducing support for young people up to the age of 25, such that they will receive a plan, is welcome, as is the right that parents and young people will have to launch any challenges in respect of a plan before the SEN Wales Tribunal. It is absolutely right that those who may have special learning needs have a forum within which to resolve their disputes and it made no sense to limit the jurisdiction of the Tribunal to the age of 19. The extension of the jurisdiction to the age of 25 is a welcome change. In relation to the unified planning process, envisaged to increase the participation by children and young people, we believe that the objective is a sound one but in practice the resolution of disputes in respect of only the educational element is something that we believe ought to change. Young people with learning difficulties have needs that cross the boundaries between education, social care and health. We see within the English Children and Families Act 2014 a statutory power and indeed duty upon health departments to resolve disputes that may exist pertaining to NHS services. The idea that that NHS must agree to a service before the provision is enforceable is a concern. Indeed, it renders redundant the idea that this is realistically going to become a unified process from which a parent or young person can ultimately have their difficulties resolved. Young people who may have behavioural problems associated with their disability will almost certainly have social care difficulties. It is important that need is not compartmentalised, such that one’s educational needs are looked at in isolation from one’s social and health care needs. Again, if one is educating a young person properly one would envisage that a young person is capable of generalising skills across settings, such that the problems that may be experienced at home or outside of school need to be fully recognised and resolved. The Tribunal will not be tasked with resolving social care issues and as we say in relation to health, this is an area of concern. We would suggest that the legislation should properly incorporate each of the needs, providing a forum to resolve the dispute, without compartmentalising the need. In so far as the term, additional learning needs, is concerned, one does not have any significant view in relation to this, save, that the term additional, may to some appear unnecessary. The term ‘special’ appears to be term that we have not recognised amongst the population of our clients to be a term that has caused any concern whatsoever. Indeed, to some, describing young people as special may appear to be gentler. For example, a parent tasked with explaining to their child that they have autism can often be difficult. Explaining to a child that they may have additional needs may, to a child, appear somewhat burdensome. Contrast that with explaining to a child that they have special needs, indicating that they are after all special and should celebrate being unique. This highlights the strengths not the just weaknesses. We do not consider that the Bill is robust enough. Neither do we consider that it is safe to abolish the statutory assessment process. The assessment of young people is the most critical stage in understanding and thereafter addressing the needs of a young person with disabilities. It is a process adopted not only in England and other European countries but largely across the Western world. In the US, for example, The Individuals with Disabilities and Education Act recognises and puts at the forefront the importance of undertaking proper assessments. Parents in the US can, for example, play an active part in suggesting what particular tools of assessment and what particular experts ought to be involved in addressing the needs of their child. The idea that we leave the prescribed assessment that we currently have in the law to teachers who will be expected to follow general guidance is, in our respectful view, misconceived and unsafe. This firm’s CEO, Mr. Charles, has already made his view along with the views of those he represents known in the media. Teachers, we would respectfully suggest, need to undertake the tasks that they are trained to do, namely, to provide the excellent support to young people in order that they may learn. They are not clinicians and neither should the law expect them to be. In the Wales Policy Forum the SENCO’s present made it known that they were concerned that they would have to move to a non-teaching role in order to administer this legislation. This puts them in the same position as the local authority officers who, at present, are tasked with dealing with this. However, a teacher/SENCO, will not have the same level of administrative or clinical experience that a local authority has. Neither will they have at their disposal the kind of experts that are at the disposal of a local authority. We cannot, for example, expect a teacher to diagnosis or set out learning provision for a child who may have complex multi-faceted difficulties. These may range from educational issues to health. We certainly do not accept the argument raised in the media by the Welsh Minister for Education that this area of concern is addressed adequately within the Bill in which it is envisaged that schools that consider themselves incapable of undertaking these kinds of assessment can send it up to a local authority to decide. We raise our concern in this respect for the following main reasons.
  1. Parents should have a close relationship with their child’s school built upon trust. If they seek to challenge a school’s view – that trust may be jeopardised. The parents may have a perception that schools that send the issue up to a local authority lack the necessary skill and the trust in the relationship can be damaged.
  2. The legislation, in any event, envisages that when a local authority decides what a child needs, it can remit the matter back to a school to carry out the same. In our respectful view, that cannot be right and the legislation should build into it appropriate safeguards. For example a school when sending the matter up, should be expected to first agree to a local authority’s direction before that direction is made. Otherwise it may lead to a view that schools are being expected to do something which they have already expressed they are incapable of doing. We can see no sense in the argument that the safeguard against inadequate assessments is to suggest that the current system of a local authority assessment will be engaged as a secondary decision maker when this legislation is being made in order to bring about change. It is analogous to saying that the current law should continue and in our respectful view this makes no sense.
We have also made the general point that it is wrong to place such an administrative burden upon our schools. We remind ourselves that the law has already significantly changed in Wales, which actually puts schools at risk of being issued with warning notices if they do something that a local authority disagrees with (The School Standards Organisation Act). Schools may be very worried about making the wrong decisions or may feel concerned if they send matters up to a local authority which might expose them ultimately to criticism that they are not doing something properly. Schools should not be expected to adopt the role of county hall representatives. They are professional teachers. From a costs perspective we doubt that to expect SENCO’s to undertake the task of drafting plans etc. that is currently the task of administrators within a local authority, will result in a costs saving, when more likely it will be the opposite. Highly specialist teachers will now be required to undertake these administrative roles. Further teachers will now have to be hired to take their place in the classroom. We fail to see how this can be economic. In respect of question 3 – High aspirations and improved outcomes – we would respectfully submit that this has nothing to do with the legislation but more to do with its implementation. The key issue that is missed is that we doubt that this objective can be achieved if we are expecting teachers to do what the law currently expects Educational Psychologists (EP’s), Speech and Language Therapists (SLT’s), Occupational Therapists (OT’s) and doctors to do. We welcome the idea that there should be increased collaboration between young people and the agencies that are entrusted to afford support to them. However, we expressed concern about parents losing any opportunity to play a part when a young person turns 16. If the legislation will not expect the collaboration between schools, EP’s, clinicians, SLT’s, OT’s etc. we cannot see how it can possibly be envisaged that this legislation will increase collaboration. We can with confidence express that this is a view that is shared amongst many practitioners in both education and the law. We welcome the idea that one should avoid disagreements and offer early disagreement resolution but are deeply concerned that the legislation does not envisage that parents should play a part at a critical phase in a post-16 year old’s life. There are three educational stages in a child’s life that are critical. The starting school stage, the moving between primary and secondary stage, and the moving beyond school stage, which to some may seem the most critical. Parents often have an important role to play and they can give sound advice to their children. Many of us practising today in professions may not be in the position that we are in if we had ignored the views of our parents at this critical stage. It is important to involve parents through the entire period within which young people are children (as referred to by the UN Convention on the rights of the child). We do not agree that important changes to the way in which an assessment can be conducted should be introduced through amendment to a code of practice, as opposed to the safeguards that are built in to amending law. The current legislation suggests that the Welsh Ministers may revise a code of practice and may impose requirements. We would respectfully submit that this will potentially lead to too much State interference, particularly if judicial interpretation of the legislation is something that does not appeal to politics. Our overall view in relation to this legislation is that assessments of young people being left to schools will mean that those who are sufficiently well off will be more able to obtain expert reports at their own expense. This makes it more likely for them to challenge and secure provision than those who can ill-afford to instruct such experts. A two tier assessment process is likely to emerge. We would respectfully submit that this would achieve greater inequality for the people of Wales. We cannot see why change is needed for changes sake. Neither should we, in Wales, ignore the voices of the large population of people, as well as experts, that live in England who have played an active part in reforming the law, bringing about The Children and Families Act 2014. This Act has made improvements but may not have gone far enough. We would encourage the Welsh Ministers to think again in relation to this legislation, adopting most, if not all, of The Children and Families Act 2014 and then improving upon it. It is simply not fair that children and young people in England will have better assessments and rights than the people of Wales. Yours faithfully SINCLAIRSLAW
The Welsh Ministers responded to education law solicitor and Sinclairslaw CEO, Michael Charles: Written Statement by the Welsh Government Michael Charles gives his thoughts on the Welsh Government's response here