Our concerns abut the Special Educational Needs System

By Zach Esdaile 3 years ago

Dear Mr Timpson


I write to you not only as a lawyer who practises in the area of special educational needs and disabilities but also as someone who has specific learning difficulties themselves. In my student years, I was diagnosed with dyspraxia and dyslexia. I was one of the few that was lucky enough to obtain support through a statement of special educational needs. It was because of the support that was put in place by my mainstream maintained school that I was able to go on to practice law and to develop a career to ensure the same opportunities would be available to other children to achieve their academic potential.

I have felt compelled to write to you because the picture that you presented in your report in no way reflects the reality of the struggle faced by families with children with special educational needs.

The reasons that I will explain in this letter later, the system that is currently put in place does not reflect your vision for children with special educational needs that you have described in your report as being “their aspirations are as high as any other young persons, that they achieve well at school and college, and lead fulfilling happy lives”.

Report produced by the Equality Human Rights Commission entitled “Being Disabled in Britain - A journey less equal “

I draw your attention to the report produced by the Equality and Human Rights Commission entitled “Being Disabled in Britain – a journey less equal”. In relation to education and attainment for children and young people, it found that the number of pupils diagnosed with special educational needs has reduced from 1,301,445 in 2015 to 1,228,785 in 2016. Of grave concern, in 2014-2015 the overall proportion of children with special needs in England who achieved at five A*-C GCSEs including English and Mathematics, was at 20%, whereas this was 64.2% for non-disabled children. The report rightly commented that not much progress has been seen in this area as this large gap has only got 1.8 percentage points smaller since 2009-10.

As a result of the gap in achievement between disabled and non-disabled pupils a UK Report by the Joseph Rowntree Foundation recommended that policy makers focus on special educations needs and disability as a priority. Evidence points out those children with special educational needs are more likely than those without to experience poverty, have an unfulfilling education and go on to be poor as adults.

Chillingly, the report quotes a survey of 585 members of the association of teachers and lecturers which found that education staff believed that children and young people with special educational needs and disabilities are not getting the support they need. A massive majority, some 83 % of respondents did not believe the current system enables all children with special educational needs and disabilities to be supported appropriately.

The Report also reviewed the situation in relation to exclusions from schools. The exclusion rate in England in 2014-2015 pupils with identified special educational needs accounted for just over half of all permanent exclusions and fixed period exclusions. Pupils with special educational needs support had the highest permanent exclusion rate and were over 7 times more likely to receive a permanent exclusion than pupils that did not have special educational needs.

It is with regret, that in consideration of the report, that you are not achieving your objective of ensuring an even playing field in terms of outcomes for those under a special need or disability and their peers.

The New Special Needs System

You say in your Forward, that the new system enables more confrontations to be resolved at an early stage. The research from CEDAR contained on Page 22 of your report provides an entirely different picture. It suggests that the appeals to the First Tier Tribunal were in their vast majority decided in favour of the parents or young persons (88% in 2015-2016). The mere fact that such a significant number of appeals were successful must show that the local authority’s decision making in those cases were flawed up to the tribunal hearing.

Further, 72% of tribunal cases in 2015-2016 were either conceded by the local authority or withdrawn by the parent or young person. If, the new system as you suggest, were assisting to resolve disputes on behalf of the children and young person at an early stage, why did it take in such a large proportion of cases to only obtain a concession from a local authority at a later stage.

CEDAR points out that many parents and young people found the periods spent preparing for a hearing the most difficult, with some finding the hearings themselves daunting and stressful. Issues were raised about the length of time found waiting for a hearing, the difficulties of putting together a legally watertight case and the costs to parents, in particular, reports and legal representations. Critically, and entirely contrary to your suggestion that this new process has enabled disputes to be resolved in a more collaborative manner, The review reported that the majority of parents following an appeal reported that their child’s educational situation had improved.

Within your report, you seem to suggest that the parent’s right to have their cases adjudicated by a tribunal panel, that is a panel with a legal representative and at least one or two panel members with expertise in special educational needs will be removed. Under the guise of “removing unnecessary restrictions and how cases are determined” you suggest that some tasks, we presume judgments, can be passed to Judges from tribunal registers. This you say would enable judges to focus on matters where their legal expertise is needed. I ask you to give an absolute reassurance that families with children of special needs will have access to a tribunal panel to make determinations in relation to their child. In no circumstances, should parents’ rights to oral hearings, determined by a tribunal judge with experience of special educational needs law along with panel members who have experience in special educational needs be watered down. I must emphasise again the findings of CEDAR, 88% of parental hearings are properly determined by a tribunal 2015-2016 the decision made by the local authority is either changed or quashed.

What is clear is that the tribunal process is the ultimate safeguard and no provision should be put which places a bar on parents’ ability to access this provision. Parents must have access to tribunal panels.

Representation and obtaining evidence for the purposes of the Tribunal Process

Within your government response, you do not address parental concerns in relation to the costs of independent reports. As an advocate, I can tell you, that the tribunal although it does its very best to be a parental friendly jurisdiction and indeed does its very best to ensure that each case is heard, it has to by its very definition, as a tribunal panel, make decisions which accord with the evidence; it follows, that if parents cannot obtain independent expert reports to reveal and uncover the true nature of their child’s difficulties and what provision they require, it is extremely unlikely that they are going to be successful in a tribunal process. The local authorities, for their part, do not always act in an adversarial manner. In some cases, quite simply local authorities do not have the resources to obtain particular speech and language and occupational therapy reports in each case and neither do the parents. This means that there is a level of child’s needs which never gets addressed by meaningful provision. When parents, local authorities and tribunals panels do not have the evidence before it they will never be able to make decisions which enable a young person to achieve their academic potential. These children will forever be lost in the system.

You go on to describe within your response that legal representation is not necessary and does not provide a greater chance of success for a parent. Nowhere in your response do you recognise the huge burden that is placed upon parents entering a tribunal system. Firstly, the weight of expectation that lies on their shoulders is enormous. The tribunal does not merely address decisions about people’s financial wealth or issues of property; parents engage the tribunal process to try and safeguard the needs and the welfare of their child. To expect parents to go through this process without legal representation is with the greatest respect cruel. There are many complicated issues which may need to be determined which parents and young people require assistance with; this includes but is not limited to:-

1. Preparing a case, setting out clearly within grounds of appeal in a working document what provision and what needs their child has, what provision their child requires and what placement they should attend;
2. In cases relating to a placement, making complex arguments in relation to costs and also suitability;
3. In cases involving a boy over 16 who questionably lacks capacity being able to explain the situation to a tribunal and being able to make decisions in that young person’s best interests;
4. In cases where there is an argument in relation to education and healthcare provision, being able to advance a legal argument as to whether provision should considered to be special educational provision for the purposes of the Children and Families Act 2014;
5. When there is a dispute between expert evidence being able to understand where the difference lies and being able to evaluate expert reports.

Whilst the tribunal clearly has expertise to assist the parties and can act inquisitorially to try to ensure that it has made the right decision considering all of the evidence. It is reliant on the parties and the parent to be able to provide evidence and submissions to support their position. If a tribunal does not have evidence to support a case, it cannot rule in favour of a party. It follows, that a parent who is not legally represented can potentially be at a significant disadvantage when coming up against a local authority that can instruct any witness, expert or legal representative at will. There are no restrictions on the local authority either financial or moral in relation to who they can instruct.

Parents, who are of limited financial means, are now provided with very limited support by way of legal help, to include in some cases the provision of reports by way of phone support with a legal representative of a firm which has a legal help franchise. There is no provision, for example, for representation at tribunal hearings, the success of which will invariably determine the success of the case.

However, the situation is even worse for those who fall between the gaps between legal aid and private support. There are thousands of people that do not qualify for legal aid but cannot obtain the independent reports to neither uncover their child’s needs nor obtain legal support. In such circumstances, they are already litigating with one hand behind their back. This is because it may be sure that a child has a particular need or difficulty but cannot afford to obtain the independent expert evidence to uncover the same. Secondly, they are reliant on charitable organisation to provide representations. There are a number of charities who assist and do outstanding work to include IPSEA, SOS SEN, and the National Autistic Society. However, as these groups advised the government previously the assistance of volunteer support through advising the parents of the tribunal process and also assisting on occasions during the hearing is no alternative to the support provided by a solicitor or a trained legal advocate.

Your report, in no way addresses the “inequality of arms” between local authorities who are able to instruct legal representatives to assist them in all elements of the case to include representation against unrepresented parents. A local authority that wishes to defend their position has the ability to instruct any expert and obtain legal advice at will. With respect, this cannot be claimed in any way, that there is an even playing field between parents of young people with special needs and local authorities. This is a distorted version of reality.

The tribunal, for its part, works extremely hard to try and provide an appropriate forum to address these complex cases. However my experience and the experience of other advocates that the staff including office staff is stretched to breaking point. The pressures that are placed upon the system are simply enormous. This is in no way reflected in your report.

The artificial separation between Educational, Social Care and Health Care Provision.

Finally, I have to address your comments in relation to the education, health and care plan providing a more “holistic approach”. One of the most significant difficulties of the new plan is that it provides an uncashable cheque in relation to social care provision. The law is clear, local authorities do not have to provide the social care provision set out within an education, health and care plan. It merely has to have regard to it. There are no reasonable mechanisms provided by the children of the Families Act 2014 to provide social care or health care within the plan. The only mechanism to obtain social care for a child is to ask for an assessment under the Children’s Act 1989. The concern is obvious. The plan pretends to be something that it is not; a code of document which codifies all of the child’s needs.

In relation to health care, the situation is slightly better with a statutory duty codified within the Children and Families Act 2014 with all health provision set out in the plan must be provided by the relevant health care authority. It leaves parents with one simple question, what mechanisms are available to ensure that health care provision is placed within the plan? If there is no mechanism or reasonable mechanism to enable healthcare to be placed within the plan and for a body to adjudicate between a healthcare authority and a family as to what provision a child may require when there is disagreements, there is no point having a legal duty to provide healthcare provision. To put it simply, it is a statutory duty which is not worth the paper that it is written on.

This artificial separation between special educational provision, healthcare provision and social care provision is antiquated and nonsensical. It has indeed caused great confusion. There is no clear dividing line (see Bromley judgment). The task is left to local authorities and tribunals stepping into their shoes to try to disentangle what is educational provision and what is social care and health care provision.

It is respectfully submitted that a child cannot be departmentalised into requiring education, health and social care provision. Whilst this local authority and tribunals do try and differentiate between these three domains. It is with respect a nonsensical distinction. The only person that suffers is the child or young person who, if their needs are defined as being health or social care will have less right to that provision. It is now time, for you, the government to acknowledge social care and healthcare provision on an even playing field with educational provision and express this in statute and give tribunals total jurisdiction over this social care and healthcare provision elements of the plan.

We acknowledge that you have started a pilot where tribunals were given the opportunity in discreet cases to make recommendations in relation to health and social care. Whilst I understand this may well be a step forward, we wish to understand what benefit of recommendation by the tribunal in relation to health and social care if there was no force to place the same within the document and within the case of social care, there is no absolute duty to provide the social care provision within the plan.

Next Steps

As the appropriate minister, we would ask you to implement the following:

(a) To respond to the contents of this letter;

(b) To agree to meet with parents of children with special educational needs who have gone through the tribunal process and also the conversion to the education, health and care plan with a statement of special educational needs.

It is, in my respectful view, critical that you not only have the report of CEDAR that you are also able to hear from people that have been engaged in the fight to obtain the right to educational provision for their child.

I look forward to hearing from you with a response. I would ask that you respond no later than 28 days.

Yours sincerely


Education Law

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