Who cares for children with SEN when they are in care?

Can local authorities be effective parents?

Children with special educational needs rely largely on their parents to fight for their rights. But who fights for the rights of children in care? Formally, the Local Authority's Social Service Department are these children's 'parents' -- yet how independent can social workers be?

David Ruebain, head of Levenes Solicitors' specialist department in Education and Disability Law (and IPSEA's Honorary Legal Adviser), has written to Children's Minister Margaret Hodge, raising the issue of children with SEN who are in care. His letter follows.

Margaret Hodge MBE MP
Minister of State (Children)
Department for Education and Skills

12 December 2003

Dear Mrs Hodge

I am writing to you, as Minister for Children, in respect of a particular issue about which I have great concern.

I am a solicitor specialising in Education and Disability Law. Amongst other things, I am also the Honorary Legal Advisor to a large voluntary organisation that assists families of children with special educational needs, IPSEA (the Independent Panel for Special Education Advice), but please note that I am writing, in this instance, in a personal capacity and not in respect of any connection with any organisation. In any event, I attach a copy of my profile; solely for information.

In my work, I represent significant numbers of families of children with special educational needs, who are navigating the statutory regime for determining appropriate provision for those children. As, I am sure you are aware, that regime is in place to determine types and levels of support and which school (or which type of school) the child should attend. By and large (subject to a number of specific concerns) my view is that the statutory framework works well. However, I have, for some time, been significantly concerned that children who are in care, and who are neither fostered nor who have an effective parent (aside from the Local Authority in whose care the child is) are falling through the safety nets established by legislation; especially if they have special educational needs.

I understand that research undertaken by the Council for Disabled Children (through statistics obtained from the Department of Health) establish that, as at 31 March 2002, there was a total of 59,700 children who were recorded as looked after by Local Authorities. Of these, 33,800 were children of school age who have been looked after for a period of at least 12 months and of these, 26% have statements of special educational needs. This is as against an overall figure of roughly 2.4% of all pupils at secondary schools and 1.6 % of all pupils at primary schools (DfES, 2002) with statements and is, of course, a significant over-representation of children with special educational needs who require additional or different help, in care.

By and large, my experience is that parents wish to take an active role in their child's education; not least if they have special educational needs and, if necessary will utilise their appeal and other legal rights to the Special Educational Needs and Disability Tribunal and otherwise, where they are of the view that the provision being proposed by the child's local education authority is either inadequate or incorrect. However, for those children who are in care (and where there is no biological parent to share responsibility for the care) it would appear that the only person charged with scrutinising provision proposed by the local education authority, is the social worker employed by the very local authority as that which is responsible for the educational provision of the child. I trust that you will agree that such an arrangement is unlikely to ensure an independent and robust scrutiny or provision and, if necessary, the bringing of a challenge against the local education authority's decision where it is considered that what is being proposed is inadequate of insufficient.

Accordingly, in my view, those (roughly) 8,000 children who are in care, with statements of special educational needs, are entirely without the adequate protection afforded by the statutory scrutiny provisions given to parents, as contained within Part 4 of the Education Act 1996.

Of course, it is not only disabled children and children with special educational needs who require active scrutiny in respect of their education but, arguably at least, disabled children and others are especially marginalized and in danger of failing without adequate support and I am greatly concerned that it would appear that there is no provision in place to represent their interests, in these circumstances.

I am aware that the deadline for responding to the Government's recent green paper on children "Every Child Matters" has passed (although I am emailing this letter to the address given for responses, in case it may be used in any event) but I thought that I may write to you in the event that you would consider the concerns that I raise, in any of the developments that your department is taking. In particular, I am aware that the Government is considering establishing children's commissioners but at present, I am not sure that such a person would have the scrutiny role that I consider essential.

In any event, I would be most grateful for any thoughts that you may have and, in particular, for your agreement to give serious consideration to the points that I raise.

I am copying this letter to a number of individuals and organisations who I know have an interest in disabled children and children with special educational needs, for information.

I thank you for your consideration.

Yours sincerely

David Ruebain
Levenes Solicitors