Review the System

Our Review of Support for Children and Young People: ages 0-25 with Special Educational Needs:

Educational Equality has consulted parents of children and young people with Special Educational Needs to confirm their concerns regarding the SEN Reforms which came into effect from September 2014. We have many years of experience in the SEN system and connections to hundreds of ‘Face Book’ parent groups. We have over 11’000 members in our own group.

There have been drastic cuts to the education budget in most areas and this has led to a reduction in staff and provision in all aspects;

causing delays in the process and lack of appropriate support for children and young people.

The emotional and financial cost to families is vast and out of balance with notion of a ‘free’ national education for all.

Parents report misinformation, avoidance of duty and illegal practice by Local Authorities; with SEND Tribunal appeal being their only redress. Many families report costs in the tens of thousands to gain appropriate support and costs are rarely awarded in their favour even if mal-practice by the Local Authority is evidenced during appeal. Like Tribunal appeal – Judicial Review is ‘solution based’ and does not usually offer any redress or accountability for emotional damage, loss of education, costs or illegal practice. In a situation where there is delay, the time taken to go through judicial review may actually extend the time available to the Local Authority to complete a process. It is important to consider that most SEN parents have experienced numerous issues from the list below in the pursuit of appropriate support for their child. They may also anticipate and experience repeated difficulties each year at annual review. G.P.’s report an increase in prescriptions of anti-depressants around this time. The emotional damage to them should not be underestimated, with many reporting mental health issues, absences from work and relationship difficulties and as a result.

ACCOUNTABILITY:

At the root of concerns is the lack of accountability of Local Authorities in the process of SEN duty of care; to ensure adherence to legislation. Parents often feel that they are left to police the system via complaints, SEND appeal or Judicial Review. They may not even be given adequate information to support this right.

Legislation which governs Local Authority adherence to greatly reduced educational budgets has priority over Children and Families Act 2014 legislation. This may lead to L.A. officers’ avoidance of statutory legislation regarding the needs of children, in favour of meeting targets and budget restrictions.

Accounting Officer Accountability System Statements for Local Government’ July 2016 archived document

This bias in regard to duty & accountability may result in some or all of the following…

Where it begins - The Narrative of Avoidance!

Parents report that their children’s difficulties are denied in schools or blamed on poor parenting until proven otherwise – often this is professionally assessed at parents’ cost. Amongst the worst cases; social services are ‘enlisted’ by Local Authorities to inspect parental ability. Issues such as Munchausen’s by proxy (now called Fabricated Illness) and attachment disorder may be incorrectly cited. Parents may be told that it is unhelpful to ‘label’ children. In fact, false claims of child disability are extremely rare and social workers need to be appropriately trained and their work transparent.

Parents are often told that they will not be able to get an EHCP for their child because of a lack of funding and that there is a lack of professional input available for assessment. They are frequently made to feel that other children with greater needs must take priority.

There are different ‘criteria’ set by Local Authorities which are not led by legislation, but by resources and may prevent children from accessing additional support. Local Authorities may not accept or recognise certain conditions such as PDA / SPLD / ADHD etc. and avoid support of these less easily identifiable difficulties. There is also a reluctance to accept that physical disability is a Special Educational Need.

It may be harder to demonstrate that a child is falling behind now that the previous base-line assessments have been replaced in schools. There is a lack of transparency of learning levels.

Schools should have to show value added to the child; for example if a child achieves ‘working towards’ on their school report in Year 1, if their Year 2 report states ‘working towards’ in a subject, this does not reflect progress made. Provision Maps state small ‘achievable’ targets predicted as such.

Parents feel that there is too much emphasis on children managing to meet a national average across the board and not enough focus on the individual’s talents and their ultimate potential. Subjects of interest and ability may not be conventional, but should be viewed with a vision of future niche employment.

We often hear that parents requests to involve therapists and other specialists are ignored, then the Local Authority will not provide reports for an EHCP stating that ‘the child is not registered with a particular service’ as a reason for lack of advice.

Local Authorities ‘refusal to assess’ – when the legislation clearly states that there is only the requirement that there MAY be SEN present. This forces parents to Tribunal or to give up. This may be followed by a ‘refusal to issue a plan’ and a further SEND Tribunal appeal. There is a lack of clarity about what level of funded support may apply to children without an EHCP – or contractual obligation to provide this support.

Exclusions are more frequent for children with SEN; ranging from exclusion within school – from activities and lessons – to permanent exclusion without sufficient reasons or alternative provision in place. Much illegal exclusion is reported, as are permanent, un-reviewed part time timetables.

Inappropriate time-scales during critical periods when children require additional support and are at significant risk of exclusion.

Support is not provided appropriately for anxiety and mental health conditions; which often result because of delays.

Failing to properly monitor/ document difficulties and progress. Parents are not adequately informed of assessment or additional provision which is put in place, or informed about the success or failure of any strategies used. There is a failure to consult or update parents termly; as per the requirements of the SEN Code of Practice.

School bullying of children with difficulties is not efficiently or appropriately dealt with.

Teaching and support staff may not be qualified to identify issues caused by special educational needs; a lack of appropriately qualified and experienced.

Poorly advised ‘SENCO’s’ may add to the difficulties. Staff may discourage parents from seeking further assessment. There is a lack of expertise in schools and much ignorance about neurodiversity, particularly in mainstream maintained school where ‘inclusion’ is not well supported. There is insufficient screening.

There are endemic delays in assessment/diagnosis; which appear to be designed to avoid funding support.

When professional assessments are made on behalf of Local Authorities, a major concern is that they are made with insufficient detail, and may underplay the difficulties which children experience. This is particularly prevalent during defence of SEND appeals for Local Authority funding. i.e. reports are often written to suit available provision, not the specific needs of the child. The previous legislation made stipulation for this – the Children and Families Act does not.

There is no legislation to state that ALL recommendations from professional reports must be included in provision for an EHCP – Local Authorities often pick and choose what to include to suit available provision.

A statement of truth is not provided as it is for Independent reports.

If parents provide independent professional reports at their own expense, these are often not accepted by Local Authorities or incorrectly entered in the EHCP.

Parents would like a more graduated approach to SEN support in transition to receiving an EHCP. They feel it is an ‘all or nothing’ process. Reports from parents indicate that, in some schools, all children on ‘School Action’ have been removed from the SEN register; although they still provide in-class support for some – effectively running an official and unofficial register. At some schools support for these children was simply stopped.

Parents do not feel that they are included enough in the planning and support of their children, they know best and could be a valuable resource of individualised advice.

Since Autism is genetic – there are some parents who feel that their own condition is being taken advantage of in order to avoid support of their children.

Recommendations and the necessary support systems are not put in place without the contractual obligation provided by an EHCP / Statement; whether the report is from an independent professional or those assigned by the Local Authority. Schools should be providing professionally recommended support from the initial SEN £6000 budget allocation.

Parents feel that the forgotten children are those who remain on ‘SEN Support’. Schools are now expected to fund up to £6,000 per year of SEN support; this appears to be influencing LAs to refuse EHC Needs Assessments and/or EHCPs for children who are not seen to be costing this much money. Since many schools cannot afford this level of support – so it may not a true reflection on the child’s needs. Tribunal panels appear to take this funding level into consideration when deciding if an EHCP is required. It also does nothing to help children where school staff are unqualified to recognise needs; which means the funding level spent on them will never reach £6,000.

This issue may also mean that many children will not receive OT or SaLT, as that funding has to be paid for by school unless the child has an EHCP which again means that if school does not refer your child to either of these services for assessment, children may not access this therapy support unless parents pay for a private assessment. Schools and LAs often try to ignore private assessments and only implement the provision in them when directed by a tribunal appeal, causing even greater expense and emotional cost to parents.

Following Acknowledgement of SEN:

Parents may be pressured to move their child to another school following diagnosis to avoid school -based funding.

Special Schools are too generic and various; often incompatible types of special educational needs are registered at the same school. There are not enough specialist maintained schools, which encourages parents look to elsewhere for support. Independent schools which tend to be more expensive are most fiercely contested by Local Authorities in Tribunal.

An Academy is an independent school, funded directly from the government and not the local authority. There are particular issues with Academies, where there may be a reluctance to admit children with SEN, or to follow the EHCP/Statement or guidance from the SEN team of the Local Authority. A lack of accountability and an avoidance of support for parents who wish to pursue an EHCP.

There may be a resistance in some schools of any type to administer medication or medical support. This also affects transport support.

The EHCP (Education Health Care Plan):

The regional variation of EHCP formats can be misleading. For instance some counties use the term ‘My Plan’ for an EHCP.

There is widespread failure of Local Authorities in providing a full assessment prior to transfer to EHCP. There is specific guidance on EHCP assessment which is not followed. This is also the case for some Independent schools.

Provision is often removed by Local Authority officers in the process of conversion to EHCP. SEN Officers are not qualified to state that therapy or other special educational support is no longer required by a child or young person. Parents only redress is to appeal and often fund have to the cost of new assessments to retain provision.

Professional advice is often placed in section A as if it is parental view; parents may not appreciate that this is then not considered in terms of provision.

We hear very often that Local Authorities do not adhere to statutory time frames.

Schools preparing a proposed EHCP before the transfer meeting which is based on outdated information or simply cut and paste from old ‘Statement’.

Parents are not provided with full assessment reports and review pack – 2 weeks before the meeting as required.

Poorly written EHCP’s which do not follow guidelines correctly. In particular the lack of a category for ‘Preparation for Adulthood / self-help and Independence / Transitional Support – in Section F.Preparation for Adulthood (NEEDS Must be detailed in section F) No legislation to say that needs for this must be in section B or Outcomes. ‘9.63….. where the child or young person is in or beyond year 9, the EHC plan must include (in sections F, G, H1 or H2 as appropriate) the provision requires to assist in preparation for adulthood and independent living.

This category should have guidelines to clarify which issues should be covered – details should relate to the definitions of well being and adulthood – independence from care act and human rights act.

Preparation for Adulthood / Transitions / Self-Help and Independence should also be in Section B – since there must be provision to meet each and every Need.

Section F is often placed in a table format next to Section E – Outcomes which are very limited, and provision does not then reflect each and every NEED (Section B).

Failing to include current advice and professional recommendations available into the plan.

Provision not appropriately qualified and quantified.

LA professionals filling their reports with vague wording such as “access to” and “benefit from” instead of specifically stating that support will be provided.

Despite the theoretical aim of the SEN reforms to place the child and family at its centre, it is widespread practice to treat parents’ views as meaningless.

Farming out the writing of Statements transferred to EHCP to private companies under the remit of saving resources and thereby cutting provision included.

The lack of a timescale within which LAs have to issue a proposed/ amended EHCP or a decision not to amend following a review. Causing delay and avoidance of the parental right of appeal.

‘Outcomes’ (Section E) are not always included in professional reports, and, if they are, may be very limited as above.

Outcomes specified as SMART in guidance– We have seen many instances where ‘outcomes’ are set as very short term goals –this implies that once these targets are assessed to be met by Local Authority employees (schools and SEN Officers)that provision may be removed during review. Outcomes – Section E, are not given a timeframe, tend to be very limited and do not cover Short / Mid / Long term ambitions for the child or young person. These should relate to each category. They do not often include preparation for adulthood.

There is no clear pathway / process or guidelines for those who home school / Flexi-School. This is often a last resort because of lack of suitable provision. Support needs to be made more easily available. A client reports that Legal Aid was refused for a case for Home Education where support is needed through EHCP.

Looked-after children may be discriminated against since they do not have access to independent support provided by parents; this is a conflict of interests since the L.A. sets the funding and the provision often without being contested.

There is a tendency for Local Authorities to name a mainstream college for post 16 young people with SEN. Although the EHCP now supports them to the age of 25, there are very few specialist placements for this age group.

Written Mediation agreements made (Via the Mediation Service) are legally binding.

Transport issues continue – details are not regularly specified in an EHCP and parents feel that this should be specified in sections F or I. There is a lot of variation of ‘criteria’ for transport through the country. Legislation is not clear.

Assessments which were delayed or lacking prior to appeal are quickly put in place to defend the Local Authority position.

Local Authority maintained schools regularly and sometimes falsely deny difficulties during an appeal and feel under pressure from Local Authorities to resist stating that they cannot meet needs.

Local Authorities (and their legal representation) failure to respond to working documents, or parental reasons for appeal until the last possible moment before hearing. Only conceding following a great deal of emotional and financial cost to parents. Those who are not assertive, emotionally stable, are under-funded or inexperienced are at a disadvantage which may result in a lack of support for their children.

L.A’s may propose an unsuitable school for a child as a response to an appeal without the parents or child having visited the school or without professional reports detailing how the child’s needs will be met by them. Parents may not be provided with accurate information regarding the school in question or the peer group into which their child would be placed. In some cases following an unsuccessful appeal the Local Authority named school does not have the provision stated, or an appropriate peer group.

Schools are pressured to state that they can meet needs, when it is clear that they are unable to do so or require additional resources.

Section E – Outcomes is not the subject of appeal; however the appeal often results in new assessment reports and further needs and provision, which make the previous outcomes outdated and incompatible with the document.

Initially the advice issued to Local Authorities stated that LA’s could not initiate an EHCP review when a parent had a right of appeal or during an appeal (in any circumstances) until it had concluded. This has now been updated - Departmental Advice was issued in October 2016 now states: “Where local authorities have issued a notice of their intent to carry out an EHC needs assessment, appeals cannot be made under the following sections of the 1996 Act” This means parents will not be able to appeal against the content of a ‘Statement of SEN’ if during their 2 months right of appeal period the LA issue them notice that they are commencing the EHCP transfer. This delays the whole process of providing support for at least another 20 weeks.

The SEN COP 2015 point 11.47 states; ‘the right to appeal a refusal of an EHC needs assessment will be triggered only where the local authority has not carried out an assessment in the previous six months’. If circumstances change within this period or a parent produces reports which disagree with the Local Authority findings there should be a right of appeal.

The Local Authority cannot make an EHCP/Transfer assessment if the case is in appeal regarding a Statement of SEN; however many parents feel that they would like to use this opportunity to produce an EHCP in place of a Statement, since the Local Authority could give them notice to transfer to EHCP immediately following an appeal and so leaving them open to the removal of support once again.

It is also possible to call a review of the document as soon as the appeal (for a Statement of SEN or an EHCP) is concluded and this also allows the Local Authority a further opportunity to amend support.

There is no longer the right to an emergency placement if the school or college is agreed during appeal – leaving the remaining sections in appeal. This means that parents are forced to make other provision in the case where a child has no support, until the case is close

The Appeal bundle of evidence submitted is now prepared by the Local Authority. This is a conflict of interest in appeal which leaves parents and their representatives to police the content of the Bundle and may not leave time before hearing to gather any outstanding documents. Strike out is ‘automatic’ for failure to provide the bundle by a set date; however there is no specification of this regarding the content of the bundle.

Where the placement is in question – Section I; Parental preference should be upheld, where previously it was simply a case of showing that the L.A. school named could not meet needs. SEND panels are increasingly scrutinising the parental choice (and professionals). The stance is often upheld when the maintained school say they will make additional provision as detailed – and yet the parental choice school is expected to have provision already in place.

Misappropriation of SEN Funding

Similar to the old system, there is a conflict of interest in that ultimately those funding support for our children are the very same people who decide what the child needs.

There has been a great deal of publicity regarding the tactics employed by certain law firms assigned by Local Authorities to defend cases against parental applications in SEND Tribunals. These firms have even been employed to provide training to L.A’s on how to defend their cases. There is a general consensus that funding of high level legal representation by Local Authorities should not be funded from the allocation for the provision of support to children with Special Educational Needs.

Parents feel that it is unfair that the Local authority – who are already more practiced in how to defend a case – may appoint high level legal representation, when many parents cannot afford to do the same.

Support Following EHCP

Parents report that therapy and specialist teaching time is lost because of staff absence and there is no cover staffing in place.

Therapists, T.A.’s and specialist teachers may be ‘shared’ between several children, when there is specific allocation of direct support in the plan.

Support may be too generalised and not individual to a specific child’s needs.

Reasonable adjustments such as flexibility of time-table or additional support; are not made sufficiently to enable children with Special Educational Needs to participate fully in all activities. If adjustments are made they may be sufficient initially but are allowed to dwindle rapidly. Some parents are required to attend school trips or activities such as swimming; otherwise their child won’t be able to join in with their peers.

Teaching assistants may be used to support the most challenging children in place of the main teaching staff. Parents feel that children with difficulties are kept from disrupting the majority of the class as a priority.

Support is subject to a postcode lottery dependent on the delegation of Local Authority funding and budgets.

Children with challenging or disruptive behaviour may be the subject of physical intervention and restraint; which may be inappropriate or incorrectly administered – used more frequently when there is a lack of sufficiently trained and experienced staffing.

Coercion of parents and young people to attend unsuitable schools or to withdraw to home educate.

Failure to amend a plan to name a placement, even when the child has already started attendance, simply to avoid the obligation to provide transport.

Schools which ignore advice from professionals and do not implement recommended support. Often the only way parents become aware of this is if the child reports this to them.

Parents would like recognition that a child or young person may struggle with mental health issues / anxiety or behavioural issue which specifically relate to the extended or lack of appropriate previous support or incorrect unqualified management. It may not be appropriate to label these children with EBD per-se, but they will require specialist assessment and transitional support to overcome this damage.

Parents report a misuse of ASD units or PRUs. Children are pushed back into mainstream settings too quickly, or when they are not suitable; with reduced support. Temporary solutions in general which are removed once the child regains a little confidence, only to have it damaged again.

Exams:

Some parents report that children are withheld from examinations to avoid low grades being listed in league tables.

There is a lack of understanding and comprehension from the DfE in regard to differentiating assessment. This may be confined to spot testing in examination conditions, rather than assessment of course work. For many children, the anxiety caused dissuades them from showing their true ability and reaching their potential.

Access to exams for those who home school needs to be clearly defined.

Parents feel that there should be fixed prediction of pass marks for G.C.S.E’s in Maths, English and Science, instead of the moveable goals that currently exist.

There should be more variation of subjects, with many schools reducing access to the arts, music, sports and differentiated subjects which align with the special talents (too frequently labelled – ‘Obsessions’) of SEN Students.

It must be recognised that the Local Authority works for and on behalf of families; as a service provider to the community. This service is funded by public taxes.

Transparency and Information:

The common practice of ‘pre-meetings’ whereby professionals have a meeting/make decisions and the parent(s) are invited afterwards to discuss options and contribute to a decision which has already been made.

Minutes of SEN Panel meetings are not systematically recorded or shared; for many Local Authorities, it is general procedure NOT to keep details of reasons discussed for refusal to provide support or action as requested by parents.

When records are requested from Local Authorities and Schools – these may be edited to remove information which may be damaging to their case. Frequently, Local Authority officers involved in the decision making are given the role of compiling the information. This should be conducted independently by the legal department.

Information regarding parental rights and duty of care is withheld or difficult to find. In worst cases parents are given misinformation. School staff; and in many cases Local Authority officers, are not sufficiently trained and knowledgeable of the EHCP process or the legal position regarding duty of care etc.

There is a lack of sign-posting and information regarding difficulties, mental health support, parental group support and legal rights following initial diagnosis or assessment of SEN.

Parents should be provided with information regarding the Code of Practice and SEN Legislation as a standard minimum.

Many parents feel that there is a general lack of transparency, and a tendency for agencies to discuss families and their children behind closed doors, leading to the construction of strategies to avoid responsibility. There is a great deal of mistrust in the professionals assigned by, and working for, the Local Authority – with their priority being to adhere to budgets.

Parents do not feel that the ‘Independent parental supporters’ SENDIAS etc. are truly independent and it appears that they are still funded and influenced by Local Authorities.

Inspections:

Parents note that Schools may send children home or remove from lessons to avoid their presence during OFSTED inspections.
OFSTED inspection reports of Local Authorities should include more consultation with parents of children and young people with SEN.
There needs to be a clear course of action in place to correct mal administration of legislation and the attitude in approach towards families of those with SEN.

Complaints:

Delaying and distraction tactics regarding complaints, which include scheduling meetings and then cancelling them at the last minute, to be re-scheduled repeatedly.
Failure to make complaints procedures available and clearly defined.
Failure to keep records of complaints.
Local Authorities who do not follow their own complaints procedures.

Legal Aid:

Legal Aid services for Educational Appeals are extremely under supported– some state a limitation on hours available to spend on a case. Many parents report lack of support, mismanagement of cases. There is a reluctance to provide Independent professional reports which families are entitled to, and also a reluctance to work along-side advocacy organisations whom may be able to provide additional time to assist with these cases.

If you have any further comments to make or can suggest methods to raise awareness and bring about changes to improve the process and outcomes for children and young people with Special Educational Needs.

Please contact us via: enquirieseducationalequality@hotmail.com

Review the System