IPSEA's comments on the proposals to revise the Code of Practice

Independent Panel for Special Education Advice (IPSEA)	Defending children's right to special education provision
Response to the Consultation Document on the Proposed Revision of the SEN Code of Practice and associated legislation March 1999 Back to home page	Introduction The Consultation over the Government's Action Plan presents an opportunity to argue for detailed changes to law which will improve the situation for children with special educational needs and their parents/carers. IPSEA welcomes this opportunity. In Section 1, we set out our responses to the proposals made and the questions posed by the Government in their consultation paper. In Section 2, we recommend nine further amendments to the law which we believe would improve the situation for children and their parents/carers and lead to fewer appeals being made to the Special Educational Needs Tribunal. In Section 3, we argue for a more fundamental examination by Government and voluntary sector organisations of ways to ensure greater compliance with the law on special education by LEAs.
Section 1 Flexibility IEPs Stages Children with non-English first language Parent partnership Child's views Conciliation Speech and language therapy Financial arrangements where parents seek independent school placement Back to top	Flexibility The danger in this proposal is in its seeming to weaken the legal status of the Code. In the current Code, the reference to flexibility relates to schools' interpretation of Chapter 2, the school-based stages. To emphasise flexibility with regard to all of the guidance in the Code would be misleading, as much of Chapters 3 and 4 actually paraphrase duties which are set out in law. Flexibility with regard to the interpretation of these sections could lead unwittingly to breaches of legal duty. Back to top Individual Education Plans Briefer IEPs, provided they offer adequate guidance to teachers and sufficient detail for parents to understand how much and what kind of provision their children are to receive, would seem to be a good idea. If Statements are drafted in accordance with the law, identifying all of a child's special educational needs in Part 2 and specifying the kind and quantifying the kind of provision required to meet each and every one of those needs in Part 3 should make IEPs redundant in the case of statemented pupils. By stating this clearly, the Code could encourage a reduction in paperwork. Back to top Stages of the Code Stages is as useful a term as any synonym which comes to mind. Retaining it would have the advantage of retaining the familiar and avoiding the risk of confusion. Reducing the Stages to two seems sensible, given that provision at the current Stage 1 represents individualisation of teacher approach which all children should expect, when necessary, whether or not they have special educational needs i.e. it should not be special educational provision. However, references in the current Code and associated literature to five stages of assessment are misleading. The school-based stages, currently 1, 2 and 3, are stages of need and provision, not of assessment. Stage 4 is the only stage of assessment with stage five being the statemented provision stage. Also confusing in the current Code and associated literature are references to a child's needs being met at Stage 4. A child being assessed by the LEA is likely to be receiving provision at Stage 3: there is no such thing as Stage 4 provision. Perhaps the revised Code could remove these sources of confusion for professionals and parents. Back to top Children whose first language is not English The Code should state clearly that, although having a language other than English as a home language cannot be the sole reason for a child having special educational needs, it does not preclude a child's having special educational needs, and that the principle task for an LEA with regard to such children is likely to be that of discriminating between the different needs and ensuring that both are met. In practical terms, LEAs need make sure that some of their E2L staff are trained also working with children with learning difficulties and vice versa; and that placement in special school does not automatically cut children off from the services of an LEA's E2L services. Back to top Parent partnership Although we accept that there are individual Parent Partnership Officers in some LEAs performing a useful role, our general view remains that Parent Partnership is a displacement activity, whose function is to distract attention away from the reality of LEAs avoiding their legal duties towards children in order to better control their resources. We believe that the money invested in these schemes would be better spent on direct educational services for children with special educational needs and, as we suggest in Section Three below, on mechanisms which ensure greater LEA compliance with the law. The Consultation Document seeks views on the role and functions which we would expect local partnership services to fulfil. IPSEA would like to see part of the role of these services to be to ensure compliance with the law, so that disagreements between parents and LEAs would focus more commonly on children's needs and the provisions necessary to meet them, rather than, as is the situation at present, on the LEAs observance (or otherwise) of their duties in law. If this were to be possible, direct partnership between parents and professionals would more often be a naturally occurring phenomenon, and the pretence that designated Officers can fake it in the absence of honest dealings between LEAs and parents could be dropped. Back to top The views of the child One of IPSEA's founding principles in 1983 was that the child's view should be taken into account whenever possible in making decisions about special educational provision. It is impossible to argue against the desirability of this. However, against the background of LEAs continuing to disregard their duty in law to provide children with the special educational provision to which their needs entitle them, arguing for greater account to be paid to the child's views can seem tokenist. When parents beliefs that LEAs should obey the law with regard to meeting children's needs are commonly disregarded, how can we believe that taking account of children's views will help ensure that their legal rights are respected ? We worry that this argument may function as a distracter, like the notion of partnership, and draw attention from the primary issue: resources. Back to top Conciliation As with partnership, the need for conciliation services (and expenditure on them) could be avoided if LEAs followed the law, which already provides negotiation phases and processes when statements are proposed, amended and reviewed and which does not prevent ongoing contact and discussion once statements or amendments are finalized. The danger in conciliation services is that LEAs may use them in a manner which deters parents from using their right of appeal within the statutory two-month period and thereby losing that right. We believe that more effort should be put into examining the origins of conflict between parents and LEAs and taking action to prevent its occurrence, rather than attempting conciliation afterwards. Back to top Speech and language therapy We recommend that the following wording, from the Northern Ireland Code of Practice, be reproduced in the revised Code: Speech and language therapy may be regarded as either educational or non-educational provision, depending upon the health or developmental history of the child. In general terms, for the purpose of statements of special educational needs, it should be regarded as educational provision unless it is provided for the purposes of helping a child regain a level of speech or language lost through illness or accident This is a lucid paraphrase of the Lancashire judgement and we urge the DfEE to include it in the revised Code. Back to top Financial arrangements where parents seek independent school placement Superficially attractive in terms of parent's rights, this could be socially divisive and encourage LEAs to seek such arrangements as a policy, for financial purposes, as an alternative to acknowledging their legal duty to pay for out-county placements when their own provision cannot meet a child's needs. We welcome the proposals with regard to transfer between phases and establishing a right of appeal when an LEA refuses a schools request for assessment. Back to top
Section 2 Removing the disincentive to ask for a meeting with professionals Setting the deadline for finalising a statement Legally required content of Transition Plans Legal duty to quantify special educational provision Information which should be sought from professionals Proposal to amend a statement Ceasing to maintain a child's statement Continuing provision for post 16 children Back to top	Removing the disincentive to ask for a meeting with professionals involved in an assessment The problem Under Schedule 27 (4)(1)(b) of the Education Act 1996 on receipt of a copy of a proposed statement a parent has the right to ask for a meting with an officer of the authority for the purpose of discussing the proposed statement. Following this meeting, under Schedule 27(4)(2), a parent has the right to ask for a further meeting/further meetings with any of the professionals who provided the written advice on which the proposed statement is based. However, under Regulation 14(4)(d) of The Education (Special Education Needs) Regulations 1994 an LEA may cite the fact that a parent has asked for a meeting with a professional who has assessed their child as grounds for breaching the 8 week deadline for finalising a statement. In effect, this punishes the parent/carer wanting to discuss their child with the professionals and acts as a disincentive to them requesting such a meeting. It undermines the potential for reaching agreements at the proposed statement stage and adds to the pressure on parents to move to the finalised stage and appeal to the Tribunal. Further, it is often the case that professionals actually need to be present at the initial meeting with an officer in order to assist the officer respond to the parents concerns. Some LEAs seek to involve professionals at this earlier stage in the interests of speeding up the proposed statement stage. This seems to represent good practice as opposed to protracting the parental representation stage through the arranging of separate meetings with professionals. The child's interests would be served by parents, LEA officers and professionals concentrating their efforts at resolving differences at the first meeting at the proposed stage. In order to enable a parent to ask for a meeting with both the officer and relevant professional/s at a first meeting, The solution An amendment to delete Schedule 27(4)(2) and to replace it with: Where a parent requests a meeting under paragraph (I)(b) they may also require the authority to arrange the presence at that meeting of such person or persons as will enable the parent to discuss the relevant advice with the appropriate person or persons. An amendment to Regulation 14(4)(d) to delete: or under paragraph 4(2) of that Schedule has required a meeting with the appropriate person under to be arranged, or Back to top Setting the deadline for finalising a statement at 8 weeks from the issue of the first proposed statement, not any subsequent amended proposed statement The problem The proposed statement stage can be protracted beyond the 8 week deadline given in Regulation 14(3) of The Education (Special Education Needs) Regulations 1994 by an LEA issuing further amended proposed statements under Schedule 27(2) of the Education Act 1996. These further amendments may add nothing substantial to the content of the first amended proposed statement or contain changes which a parent has asked for at their first meeting and which could have been included in the first amendment produced. The child's interests would be served by both parents and LEA officers concentrating their efforts at resolving differences at the proposed stage and via the issuing of a single amended proposed statement, which indicates the authority's response to all of the concerns expressed by a parent in their initial meeting/representation rather than in a series of amended proposed statements, each one of which reactivates the 8 weeks deadline in Schedule 27(2). The solution An amendment to Regulation 14(3) of The Education (Special Education Needs) Regulations 1994 to delete 'a' from line one: where an authority have served a copy of a proposed statement.. Insert 'the first', to read: where an authority have served a copy of the first proposed statement ... Back to top Drawing authorities' attention to the legally required content of Transition Plans A carefully constructed Transition Plan is crucial to a young person's development from 14+ on. It was introduced by the 1993 Education Act to replace mandatory statutory assessment at 14+. Unfortunately, where such plans exist, they can be desultory and exert no influence at all on authorities' decisions with regard to young people's provision post 16. There are two problems with the Regulations with respect to Transition Plans: That they are given insufficient prominence: authorities are required to produce them as part of the 14+ review, yet Regulation 16, which sets out the procedure for the 14+ review, sheds no light on the content or purpose of the Transition Plan other than by a cross-reference to Regulation 15(8)(c). This is confusing for authorities and parents. That there is a contradiction within the Regulations on what information must be contained in the Transition Plan. Regulation 15(8)(c) seems to suggest that the content of the Transition Plan may be determined by those present at a review meeting: where a transition plan exists, the matters which it (i.e. the meeting) concludes ought to be included in that plan Yet Regulation 2 (Interpretation) specifies the information which must be included in a Transition Plan, creating a legally required content: the arrangements which an authority consider appropriate for a young person during the period when he is aged 14 to 19 years, including arrangements for special educational provision and any other necessary provision, for suitable employment and accommodation and for leisure activities, and which will facilitate a satisfactory transition from childhood to adulthood. Very few Transition Plans contain this breadth of information, which suggests that in many cases neither parents nor professionals are addressing these key issues at the 14 to 19 stage. The solution Structural amendments to The Education (Special Education Needs) Regulations 1994 which would transfer (or repeat) the interpretation in Regulation (2)(1) in Regulation 16 by creating a new Regulation 16(10) as follows: The Transition Plan referred to in regulation 16(9) shall specify the arrangements which an authority consider appropriate for a young person during the period when he is aged 14 to 19 years, including arrangements for special educational provision and any other necessary provision, for suitable employment and accommodation and for leisure activities, and which will facilitate a satisfactory transition from childhood to adulthood. The existing Regulation 16(10) would become Regulation 16(11). Back to top Creating a legal duty to quantify special educational provision in statements Many parents/carers are forced to appeal to the SENT simply to obtain clarification of how much provision is intended by Part 3 of their childs statement. Many LEAs routinely and a matter of policy disregard the Code of Practice at 4:28 on the issue of quantification. They claim that it is beneficial to the child for Part 3 to avoid quantification because it creates flexibility which allows provision to be quickly changed if need be. The Audit Commission/HMI report of 1992 (in paragraphs 40 t0 45) rejected this claim, stating that the desire to avoid spending commitments was the main reason for vaguely drafted statements. Any need for flexibility is adequately met by the amendment procedures in Schedule 27(11) of the Education Act 1996, which permit an authority to change a statement in 16 days maximum. The solution Amend Schedule Part, Part 3: Special Educational Provision, of The Education (Special Educational Needs) Regulations 1994 by inserting after 'specify the': 'type and quantify the amount of the' Back to top Making clear the information which should be sought from professionals in their assessment advice The problem Professional advice to an assessment frequently fails to give sufficient information as to the special educational provision required by the child. This contributes substantially to the failure of special educational needs officers to specify and quantify the provision in the statement of special educational need. Without the information in the professional advice the officer is unable to make a judgment about the kind and amount of provision which is needed. The solution Reg. 6 (2)c of the Education ( Special Educational Needs ) Regulations 1994 should be amended to read 'the type and amount of provision which is appropriate' Back to top Providing for parents to see clearly what are the intended amendments when the LEA issue a proposal to amend a statement of special educational needs The problem Many LEAs adopt a practice of sending to the parents an already amended statement -- usually stamped "proposed amended statement" from which it is not clear without going through it line by line what changes are in fact proposed. This can be particularly confusing where there is a particular area of dispute or negotiation of which the parents are aware, for example the school placement, but changes which have not been discussed are also made and are likely to go unnoticed by parents. The solution An amendment to Schedule 27 Para 10 to read (a) of all the text they propose to omit from the statement and all the text they propose to add to it. (b) ... Back to top Protecting a child's provision when an LEA decides to cease to maintain a child's statement, until the tribunal has considered an appeal The problem Schedule 27(11) of the Education Act1996, together with Regulation 14(7) of the Education (SEN) Regulations 1994, have created a situation in which LEAs may cease to maintain a Statement (involving discontinuing provision for children with special needs, including placements) before the tribunal meets to hear a parent's appeal against the decision. That this is so was confirmed in the case of R. v Oxfordshire CC ex parte Roast 1996 ELR 381. This has serious potential for disrupting a child's education. The likely sequence of events is as follows: An LEA writes to parents informing them that they have 'determined' to cease to maintain a child's Statement. The parents are given two months to decide whether or not they will appeal to the Tribunal. The LEA must continue to maintain the Statement during this two month period. Once the time limit for the appeal has expired the LEA may cease to maintain the Statement even though the parent has appealed. The child is then without special educational provision, which may include having to leave the school named on the Statement. It will be difficult for another school to accept the child until a tribunal has decided whether the Statement is to be resurrected, if only because of the financial implications. However, if the parent expresses a preference for a school in the meantime the admissions arrangements that apply to non-statemented children must be followed including any admissions appeal. The most likely position is that the child will be without a school place altogether for the five or six months it takes for the appeal to be heard by a tribunal. The tribunal hears the parent's appeal against the LEA's decision to cease to maintain On the most recent statistics ( SEN Tribunal Annual report 97/98) this is more likely to be successful than not. Stage 5. The tribunal order that the Statement "continues," although it has in fact ceased to exist. The LEA has to re-arrange the provision and the placement, following a disruption to the child's education which will have lasted several months. Other ground will have been lost, for example, trained personnel, for example non-teaching assistants who are familiar with the child's needs are likely to have found other work in the meantime. IPSEA believes that this procedure is educationally unsound and grossly unfair to children and their parents. The solution The law should be changed to protect a statement until such time as a tribunal has considered a parent's appeal against a proposal to cease to maintain it. This would maintain the status quo and can be managed by LEAs without any additional financial or administrative burden. LEAs would need to plan further in advance to allow a period of six months to take account of the time taken to allow the appeal to be lodged and determined. Back to top Ensuring continuing provision for post 16 children who may still require placement within the school sector The problem A child ceases to be the responsibility of the LEA if they have attained the age of 16 and are not registered in a school (Education Act 1996 s321(3) ) Where a child is at a school where he or she is unable to continue past the age of 16 unless a decision is taken sufficiently early to allow an appeal to be heard before the end of the school year, the child may be deprived of further placement in another school and the parent may lose their opportunity to appeal to have the issue decided by a tribunal. Even if the parent has appealed while the child is still registered at a school, the appeal can be struck out later under Regulation 36(2)(a) (Special Educational Needs Tribunal Regs) on the grounds that the appeal is no longer within the jurisdiction of the tribunal. This situation appears to produce the following anomalies An inefficient LEA, or worse, one who is seeking to avoid financia responsibility, can avoid responsibility for a child simply by failing to make a decision in respect of a child before he or she attains the age of 16 and leaves school or by making a decision too late. A parent of a child over 16 who considers their child needs to be placed in an independent school until they are 19 can ensure that the tribunal hears the issue by placing the child at the independent school and paying the fees until the tribunal has heard the matter. A child at an independent school is the responsibility of the LEA under s321(3)(c) Education Act 1996. A parent of a similar child with similar needs will be unable to have their appeal heard if they cannot afford the fees of an independent school even for a short period and so cannot place their child there. A parent who is able to register their child at any maintained or grant maintained school, however inappropriate it is for the child's special educational needs, is able to have their appeal heard. Where the local schools will not register a child over 16 or will not register this particular child, the parent cannot have the appeal heard. This is likely to result in the most needy children being without the chance to have their case put before the tribunal for decision. The DfEE has suggested that the detailed guidance given in the SEN Circular Letter 1/96 is incorporated in the Revised Code. Unfortunately the guidance, though sound at the date of issue, was based on the decision in R. v Dorset County Council and the dictum that a statement continues 'unless and until amended or ceased to be maintained on a proper proposal by the LEA'. This view was not accepted in the Court of Appeal case of R. v Oxfordshire CC ex parte B 1997 (ELR 90) where it was made clear that statements can lapse under Schedule 27 Para 9(2)(a) which does not impose the formality otherwise required under the Paragraph where the LEA cease to maintain a statement 'for a child who has ceased to be a child for whom they are responsible'. In this case the inflexibility of the law was recognised by the court who were considering the theoretical position of a child if the proposal that he attend a Further Education College did not work out. This problem is unlikely to be a rare one where the unrealistic ambitions of young people might need to be given a chance before the need for further school placement is appreciated. The solution Change to s312(5): 'definition of child in Part IV of the Act: "child" includes any person who has not attained the age of 19.' Change to s321(d) to delete 'over compulsory school age'. Back to top
Section 3 Back to top	The assessment and statementing processes are prescribed in law and their net outcome is the creation of an entitlement for children with special educational needs to receive the special educational provision their needs call for. However, although the law gives children with special educational needs a clear legal entitlement to special educational provision, there is no adequate system of policing LEAs' observance of this law. In practice, the onus is on individual parents to ensure that their LEA fulfils its legal duty towards their own child. Many parents are disadvantaged by this system, especially: those on low incomes who are unlikely to be able to afford solicitors or private psychologists to help them fight for their child's rights; who lack the knowledge or confidence, to challenge LEA professionals or officers; whose first language may not be English; who themselves may have learning difficulties; who may be coping with numerous problems (as single parents, perhaps unemployed, perhaps with housing difficulties) and for whom taking on their LEA is simply one additional struggle too many. A recent study by Strathclyde University found that children from better-off families get special education help more easily. These are not necessarily the people in the greatest need. In fact, the people in greatest need often have the double problem of disability and low social status. IPSEA's casework bears out this finding. Last year our Advice Line received over 5,000 calls from parents/carers, over 2,000 being first time callers, a 33% increase on the previous year. 50% of these parents/carers were from families with overall household incomes of below 15,000 per year; 25% were below 10,000 per year. As a charity, our primary concern is for those children whose parents are less able to police the LEAs' performance of their legal duties. But we believe that we also should be seeking an alternative way of ensuring that LEAs respect children's legal entitlement to special educational provision, in order not to place sole reliance on individual parents/carers abilities to challenge Authorities. We should be seeking to devise a mechanism which would ensure LEA compliance with the law on special education, rather than continuing to rely solely on individual parents/carers abilities to enforce the law. The practicalities have yet to be explored. Perhaps this could be a role for an expanded Ombudsman's service; perhaps a system analogous to the guardian ad litem. At this stage, IPSEA can go no further than pointing out the benefits of a compliance mechanism for those children whose parents/carers find it difficult to protect their rights, and urging the Government and interested voluntary organisations to engage in debate on a practical form this mechanism could take. Even though, were such a mechanism to be put in place, IPSEA's reason for existence will largely disappear. Back to top

Independent Panel for Special Education Advice (IPSEA)

Defending children's right to special education provision

Response to the Consultation Document on the Proposed Revision of the SEN Code of Practice and associated legislation

March 1999

Back to home page

Introduction

The Consultation over the Government's Action Plan presents an opportunity to argue for detailed changes to law which will improve the situation for children with special educational needs and their parents/carers. IPSEA welcomes this opportunity.

In Section 1, we set out our responses to the proposals made and the questions posed by the Government in their consultation paper.

In Section 2, we recommend nine further amendments to the law which we believe would improve the situation for children and their parents/carers and lead to fewer appeals being made to the Special Educational Needs Tribunal.

In Section 3, we argue for a more fundamental examination by Government and voluntary sector organisations of ways to ensure greater compliance with the law on special education by LEAs.

Section 1

Flexibility

IEPs

Stages

Children with non-English first language

Parent partnership

Child's views

Conciliation

Speech and language therapy

Financial arrangements where parents seek independent school placement

The danger in this proposal is in its seeming to weaken the legal status of the Code. In the current Code, the reference to flexibility relates to schools' interpretation of Chapter 2, the school-based stages. To emphasise flexibility with regard to all of the guidance in the Code would be misleading, as much of Chapters 3 and 4 actually paraphrase duties which are set out in law. Flexibility with regard to the interpretation of these sections could lead unwittingly to breaches of legal duty.

Individual Education Plans

Briefer IEPs, provided they offer adequate guidance to teachers and sufficient detail for parents to understand how much and what kind of provision their children are to receive, would seem to be a good idea. If Statements are drafted in accordance with the law, identifying all of a child's special educational needs in Part 2 and specifying the kind and quantifying the kind of provision required to meet each and every one of those needs in Part 3 should make IEPs redundant in the case of statemented pupils. By stating this clearly, the Code could encourage a reduction in paperwork.

Stages of the Code

Stages is as useful a term as any synonym which comes to mind. Retaining it would have the advantage of retaining the familiar and avoiding the risk of confusion.

Reducing the Stages to two seems sensible, given that provision at the current Stage 1 represents individualisation of teacher approach which all children should expect, when necessary, whether or not they have special educational needs i.e. it should not be special educational provision.

However, references in the current Code and associated literature to five stages of assessment are misleading. The school-based stages, currently 1, 2 and 3, are stages of need and provision, not of assessment. Stage 4 is the only stage of assessment with stage five being the statemented provision stage.

Also confusing in the current Code and associated literature are references to a child's needs being met at Stage 4. A child being assessed by the LEA is likely to be receiving provision at Stage 3: there is no such thing as Stage 4 provision.

Perhaps the revised Code could remove these sources of confusion for professionals and parents.

Children whose first language is not English

The Code should state clearly that, although having a language other than English as a home language cannot be the sole reason for a child having special educational needs, it does not preclude a child's having special educational needs, and that the principle task for an LEA with regard to such children is likely to be that of discriminating between the different needs and ensuring that both are met. In practical terms, LEAs need make sure that some of their E2L staff are trained also working with children with learning difficulties and vice versa; and that placement in special school does not automatically cut children off from the services of an LEA's E2L services.

Parent partnership

Although we accept that there are individual Parent Partnership Officers in some LEAs performing a useful role, our general view remains that Parent Partnership is a displacement activity, whose function is to distract attention away from the reality of LEAs avoiding their legal duties towards children in order to better control their resources. We believe that the money invested in these schemes would be better spent on direct educational services for children with special educational needs and, as we suggest in Section Three below, on mechanisms which ensure greater LEA compliance with the law.

The Consultation Document seeks views on the role and functions which we would expect local partnership services to fulfil. IPSEA would like to see part of the role of these services to be to ensure compliance with the law, so that disagreements between parents and LEAs would focus more commonly on children's needs and the provisions necessary to meet them, rather than, as is the situation at present, on the LEAs observance (or otherwise) of their duties in law. If this were to be possible, direct partnership between parents and professionals would more often be a naturally occurring phenomenon, and the pretence that designated Officers can fake it in the absence of honest dealings between LEAs and parents could be dropped.

The views of the child

One of IPSEA's founding principles in 1983 was that the child's view should be taken into account whenever possible in making decisions about special educational provision. It is impossible to argue against the desirability of this. However, against the background of LEAs continuing to disregard their duty in law to provide children with the special educational provision to which their needs entitle them, arguing for greater account to be paid to the child's views can seem tokenist. When parents beliefs that LEAs should obey the law with regard to meeting children's needs are commonly disregarded, how can we believe that taking account of children's views will help ensure that their legal rights are respected ? We worry that this argument may function as a distracter, like the notion of partnership, and draw attention from the primary issue: resources.

Conciliation

As with partnership, the need for conciliation services (and expenditure on them) could be avoided if LEAs followed the law, which already provides negotiation phases and processes when statements are proposed, amended and reviewed and which does not prevent ongoing contact and discussion once statements or amendments are finalized.

The danger in conciliation services is that LEAs may use them in a manner which deters parents from using their right of appeal within the statutory two-month period and thereby losing that right.

We believe that more effort should be put into examining the origins of conflict between parents and LEAs and taking action to prevent its occurrence, rather than attempting conciliation afterwards.

Speech and language therapy

We recommend that the following wording, from the Northern Ireland Code of Practice, be reproduced in the revised Code:

Speech and language therapy may be regarded as either educational or non-educational provision, depending upon the health or developmental history of the child. In general terms, for the purpose of statements of special educational needs, it should be regarded as educational provision unless it is provided for the purposes of helping a child regain a level of speech or language lost through illness or accident

This is a lucid paraphrase of the Lancashire judgement and we urge the DfEE to include it in the revised Code.

Financial arrangements where parents seek independent school placement

Superficially attractive in terms of parent's rights, this could be socially divisive and encourage LEAs to seek such arrangements as a policy, for financial purposes, as an alternative to acknowledging their legal duty to pay for out-county placements when their own provision cannot meet a child's needs.

We welcome the proposals with regard to transfer between phases and establishing a right of appeal when an LEA refuses a schools request for assessment.

Section 2

Removing the disincentive to ask for a meeting with professionals

Setting the deadline for finalising a statement

Legally required content of Transition Plans

Legal duty to quantify special educational provision

Information which should be sought from professionals

Proposal to amend a statement

Ceasing to maintain a child's statement

Continuing provision for post 16 children

Removing the disincentive to ask for a meeting with professionals involved in an assessment

The problem

Under Schedule 27 (4)(1)(b) of the Education Act 1996 on receipt of a copy of a proposed statement a parent has the right to ask for a meting with an officer of the authority for the purpose of discussing the proposed statement.

Following this meeting, under Schedule 27(4)(2), a parent has the right to ask for a further meeting/further meetings with any of the professionals who provided the written advice on which the proposed statement is based.

However, under Regulation 14(4)(d) of The Education (Special Education Needs) Regulations 1994 an LEA may cite the fact that a parent has asked for a meeting with a professional who has assessed their child as grounds for breaching the 8 week deadline for finalising a statement. In effect, this punishes the parent/carer wanting to discuss their child with the professionals and acts as a disincentive to them requesting such a meeting. It undermines the potential for reaching agreements at the proposed statement stage and adds to the pressure on parents to move to the finalised stage and appeal to the Tribunal.

Further, it is often the case that professionals actually need to be present at the initial meeting with an officer in order to assist the officer respond to the parents concerns. Some LEAs seek to involve professionals at this earlier stage in the interests of speeding up the proposed statement stage. This seems to represent good practice as opposed to protracting the parental representation stage through the arranging of separate meetings with professionals.

The child's interests would be served by parents, LEA officers and professionals concentrating their efforts at resolving differences at the first meeting at the proposed stage. In order to enable a parent to ask for a meeting with both the officer and relevant professional/s at a first meeting,

The solution

An amendment to delete Schedule 27(4)(2) and to replace it with:

Where a parent requests a meeting under paragraph (I)(b) they may also require the authority to arrange the presence at that meeting of such person or persons as will enable the parent to discuss the relevant advice with the appropriate person or persons.

An amendment to Regulation 14(4)(d) to delete:

or under paragraph 4(2) of that Schedule has required a meeting with the appropriate person under to be arranged, or

Setting the deadline for finalising a statement at 8 weeks from the issue of the first proposed statement, not any subsequent amended proposed statement

The problem

The proposed statement stage can be protracted beyond the 8 week deadline given in Regulation 14(3) of The Education (Special Education Needs) Regulations 1994 by an LEA issuing further amended proposed statements under Schedule 27(2) of the Education Act 1996. These further amendments may add nothing substantial to the content of the first amended proposed statement or contain changes which a parent has asked for at their first meeting and which could have been included in the first amendment produced.

The child's interests would be served by both parents and LEA officers concentrating their efforts at resolving differences at the proposed stage and via the issuing of a single amended proposed statement, which indicates the authority's response to all of the concerns expressed by a parent in their initial meeting/representation rather than in a series of amended proposed statements, each one of which reactivates the 8 weeks deadline in Schedule 27(2).

The solution

An amendment to Regulation 14(3) of The Education (Special Education Needs) Regulations 1994 to delete 'a' from line one:

where an authority have served a copy of a proposed statement..

Insert 'the first', to read:

where an authority have served a copy of the first proposed statement ...

Drawing authorities' attention to the legally required content of Transition Plans

A carefully constructed Transition Plan is crucial to a young person's development from 14+ on. It was introduced by the 1993 Education Act to replace mandatory statutory assessment at 14+. Unfortunately, where such plans exist, they can be desultory and exert no influence at all on authorities' decisions with regard to young people's provision post 16. There are two problems with the Regulations with respect to Transition Plans:

That they are given insufficient prominence: authorities are required to produce them as part of the 14+ review, yet Regulation 16, which sets out the procedure for the 14+ review, sheds no light on the content or purpose of the Transition Plan other than by a cross-reference to Regulation 15(8)(c). This is confusing for authorities and parents.
That there is a contradiction within the Regulations on what information must be contained in the Transition Plan. Regulation 15(8)(c) seems to suggest that the content of the Transition Plan may be determined by those present at a review meeting:
where a transition plan exists, the matters which it (i.e. the meeting) concludes ought to be included in that plan

Yet Regulation 2 (Interpretation) specifies the information which must be included in a Transition Plan, creating a legally required content:

the arrangements which an authority consider appropriate for a young person during the period when he is aged 14 to 19 years, including arrangements for special educational provision and any other necessary provision, for suitable employment and accommodation and for leisure activities, and which will facilitate a satisfactory transition from childhood to adulthood.

Very few Transition Plans contain this breadth of information, which suggests that in many cases neither parents nor professionals are addressing these key issues at the 14 to 19 stage.

The solution

Structural amendments to The Education (Special Education Needs) Regulations 1994 which would transfer (or repeat) the interpretation in Regulation (2)(1) in Regulation 16 by creating a new Regulation 16(10) as follows:

The Transition Plan referred to in regulation 16(9) shall specify the arrangements which an authority consider appropriate for a young person during the period when he is aged 14 to 19 years, including arrangements for special educational provision and any other necessary provision, for suitable employment and accommodation and for leisure activities, and which will facilitate a satisfactory transition from childhood to adulthood.

The existing Regulation 16(10) would become Regulation 16(11).

Creating a legal duty to quantify special educational provision in statements

Many parents/carers are forced to appeal to the SENT simply to obtain clarification of how much provision is intended by Part 3 of their childs statement. Many LEAs routinely and a matter of policy disregard the Code of Practice at 4:28 on the issue of quantification. They claim that it is beneficial to the child for Part 3 to avoid quantification because it creates flexibility which allows provision to be quickly changed if need be. The Audit Commission/HMI report of 1992 (in paragraphs 40 t0 45) rejected this claim, stating that the desire to avoid spending commitments was the main reason for vaguely drafted statements. Any need for flexibility is adequately met by the amendment procedures in Schedule 27(11) of the Education Act 1996, which permit an authority to change a statement in 16 days maximum.

The solution

Amend Schedule Part, Part 3: Special Educational Provision, of The Education (Special Educational Needs) Regulations 1994 by inserting after 'specify the': 'type and quantify the amount of the'

Making clear the information which should be sought from professionals in their assessment advice

The problem

Professional advice to an assessment frequently fails to give sufficient information as to the special educational provision required by the child. This contributes substantially to the failure of special educational needs officers to specify and quantify the provision in the statement of special educational need. Without the information in the professional advice the officer is unable to make a judgment about the kind and amount of provision which is needed.

The solution

Reg. 6 (2)c of the Education ( Special Educational Needs ) Regulations 1994 should be amended to read 'the type and amount of provision which is appropriate'

Providing for parents to see clearly what are the intended amendments when the LEA issue a proposal to amend a statement of special educational needs

The problem

Many LEAs adopt a practice of sending to the parents an already amended statement -- usually stamped "proposed amended statement" from which it is not clear without going through it line by line what changes are in fact proposed. This can be particularly confusing where there is a particular area of dispute or negotiation of which the parents are aware, for example the school placement, but changes which have not been discussed are also made and are likely to go unnoticed by parents.

The solution

An amendment to Schedule 27 Para 10 to read

(a) of all the text they propose to omit from the statement and all the text they propose to add to it.
(b) ...

Protecting a child's provision when an LEA decides to cease to maintain a child's statement, until the tribunal has considered an appeal

The problem

Schedule 27(11) of the Education Act1996, together with Regulation 14(7) of the Education (SEN) Regulations 1994, have created a situation in which LEAs may cease to maintain a Statement (involving discontinuing provision for children with special needs, including placements) before the tribunal meets to hear a parent's appeal against the decision. That this is so was confirmed in the case of R. v Oxfordshire CC ex parte Roast 1996 ELR 381.

This has serious potential for disrupting a child's education.

The likely sequence of events is as follows:

An LEA writes to parents informing them that they have 'determined' to cease to maintain a child's Statement.
The parents are given two months to decide whether or not they will appeal to the Tribunal. The LEA must continue to maintain the Statement during this two month period.
Once the time limit for the appeal has expired the LEA may cease to maintain the Statement even though the parent has appealed. The child is then without special educational provision, which may include having to leave the school named on the Statement. It will be difficult for another school to accept the child until a tribunal has decided whether the Statement is to be resurrected, if only because of the financial implications. However, if the parent expresses a preference for a school in the meantime the admissions arrangements that apply to non-statemented children must be followed including any admissions appeal. The most likely position is that the child will be without a school place altogether for the five or six months it takes for the appeal to be heard by a tribunal.
The tribunal hears the parent's appeal against the LEA's decision to cease to maintain On the most recent statistics ( SEN Tribunal Annual report 97/98) this is more likely to be successful than not. Stage 5. The tribunal order that the Statement "continues," although it has in fact ceased to exist. The LEA has to re-arrange the provision and the placement, following a disruption to the child's education which will have lasted several months. Other ground will have been lost, for example, trained personnel, for example non-teaching assistants who are familiar with the child's needs are likely to have found other work in the meantime.

IPSEA believes that this procedure is educationally unsound and grossly unfair to children and their parents.

The solution

The law should be changed to protect a statement until such time as a tribunal has considered a parent's appeal against a proposal to cease to maintain it. This would maintain the status quo and can be managed by LEAs without any additional financial or administrative burden. LEAs would need to plan further in advance to allow a period of six months to take account of the time taken to allow the appeal to be lodged and determined.

Ensuring continuing provision for post 16 children who may still require placement within the school sector

The problem

A child ceases to be the responsibility of the LEA if they have attained the age of 16 and are not registered in a school (Education Act 1996 s321(3) )

Where a child is at a school where he or she is unable to continue past the age of 16 unless a decision is taken sufficiently early to allow an appeal to be heard before the end of the school year, the child may be deprived of further placement in another school and the parent may lose their opportunity to appeal to have the issue decided by a tribunal.

Even if the parent has appealed while the child is still registered at a school, the appeal can be struck out later under Regulation 36(2)(a) (Special Educational Needs Tribunal Regs) on the grounds that the appeal is no longer within the jurisdiction of the tribunal.

This situation appears to produce the following anomalies

An inefficient LEA, or worse, one who is seeking to avoid financia responsibility, can avoid responsibility for a child simply by failing to make a decision in respect of a child before he or she attains the age of 16 and leaves school or by making a decision too late.
A parent of a child over 16 who considers their child needs to be placed in an independent school until they are 19 can ensure that the tribunal hears the issue by placing the child at the independent school and paying the fees until the tribunal has heard the matter. A child at an independent school is the responsibility of the LEA under s321(3)(c) Education Act 1996. A parent of a similar child with similar needs will be unable to have their appeal heard if they cannot afford the fees of an independent school even for a short period and so cannot place their child there.
A parent who is able to register their child at any maintained or grant maintained school, however inappropriate it is for the child's special educational needs, is able to have their appeal heard. Where the local schools will not register a child over 16 or will not register this particular child, the parent cannot have the appeal heard. This is likely to result in the most needy children being without the chance to have their case put before the tribunal for decision.

The DfEE has suggested that the detailed guidance given in the SEN Circular Letter 1/96 is incorporated in the Revised Code. Unfortunately the guidance, though sound at the date of issue, was based on the decision in R. v Dorset County Council and the dictum that a statement continues 'unless and until amended or ceased to be maintained on a proper proposal by the LEA'.

This view was not accepted in the Court of Appeal case of R. v Oxfordshire CC ex parte B 1997 (ELR 90) where it was made clear that statements can lapse under Schedule 27 Para 9(2)(a) which does not impose the formality otherwise required under the Paragraph where the LEA cease to maintain a statement 'for a child who has ceased to be a child for whom they are responsible'. In this case the inflexibility of the law was recognised by the court who were considering the theoretical position of a child if the proposal that he attend a Further Education College did not work out. This problem is unlikely to be a rare one where the unrealistic ambitions of young people might need to be given a chance before the need for further school placement is appreciated.

The solution

Change to s312(5): 'definition of child in Part IV of the Act: "child" includes any person who has not attained the age of 19.'

Change to s321(d) to delete 'over compulsory school age'.

Section 3

The assessment and statementing processes are prescribed in law and their net outcome is the creation of an entitlement for children with special educational needs to receive the special educational provision their needs call for.

However, although the law gives children with special educational needs a clear legal entitlement to special educational provision, there is no adequate system of policing LEAs' observance of this law. In practice, the onus is on individual parents to ensure that their LEA fulfils its legal duty towards their own child.

Many parents are disadvantaged by this system, especially:

those on low incomes who are unlikely to be able to afford solicitors or private psychologists to help them fight for their child's rights;
who lack the knowledge or confidence, to challenge LEA professionals or officers;
whose first language may not be English; who themselves may have learning difficulties;
who may be coping with numerous problems (as single parents, perhaps unemployed, perhaps with housing difficulties) and for whom taking on their LEA is simply one additional struggle too many.

A recent study by Strathclyde University found that children from better-off families get special education help more easily. These are not necessarily the people in the greatest need. In fact, the people in greatest need often have the double problem of disability and low social status.

IPSEA's casework bears out this finding. Last year our Advice Line received over 5,000 calls from parents/carers, over 2,000 being first time callers, a 33% increase on the previous year. 50% of these parents/carers were from families with overall household incomes of below 15,000 per year; 25% were below 10,000 per year.

As a charity, our primary concern is for those children whose parents are less able to police the LEAs' performance of their legal duties. But we believe that we also should be seeking an alternative way of ensuring that LEAs respect children's legal entitlement to special educational provision, in order not to place sole reliance on individual parents/carers abilities to challenge Authorities. We should be seeking to devise a mechanism which would ensure LEA compliance with the law on special education, rather than continuing to rely solely on individual parents/carers abilities to enforce the law.

The practicalities have yet to be explored. Perhaps this could be a role for an expanded Ombudsman's service; perhaps a system analogous to the guardian ad litem. At this stage, IPSEA can go no further than pointing out the benefits of a compliance mechanism for those children whose parents/carers find it difficult to protect their rights, and urging the Government and interested voluntary organisations to engage in debate on a practical form this mechanism could take. Even though, were such a mechanism to be put in place, IPSEA's reason for existence will largely disappear.

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Last revision July 1999