| Independent Panel for Special Education Advice (IPSEA) | Defending children's right to special education provision | |
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Draft Code of Practice: IPSEA writes to the Secretary of State and the Secretary of State replies |
IPSEA believes that the words lost from the draft Code and changed in the Regulations in their draft form represent an attempt to weaken and ultimately change, by stealth, the laws that protect the educational support for children with significant disabilities and difficulties. Even though the changes carry immense significance for all schools and all children with statements, the consultation is rushed and sketchy. On behalf of IPSEA, John Wright wrote to David Blunkett, whose reply on the issue of ‘set out’ replacing ‘specify’ in both the Regulations and the Code is quoted below. John Wright for IPSEA replied to David Blunkett asking if he realises what effects this policy will have on children and parents. |
IPSEA asks the Minister to explain exactly what the Department means by ‘set out’. The Minister responds: the change in wording is deliberate – the Government wants to discourage quantification in favour of ‘flexibility’. |
IPSEA asks what is intended by the proposed changes of law and guidance on specification and quantification of provision in statements |
The documents propose removing the duty to ‘specify’ from the Code and the Regulations and removing the guidance that provision should normally be ‘quantified’ in a child's statement Under the guise of a consultation exercise, your Department would seem to be trying to effect the most significant change in special education law for almost twenty years – weakening the duty on LEAs to make clear in a statement how much help a child should receive. If followed-through, this change would totally undermine the purpose of Statements, which is to protect provision for children with special educational needs. Accompanying the draft Code are proposals to change the wording of the Regulations in relation to LEAs' duties when writing statements. In place of the current duty to ‘specify’ special education provision in Part 3 of a Statement, the new Regulations will require LEAs to ‘set out’ provision. The Code itself has been changed to reflect this, substituting ‘set out’ for ‘specify’ when describing an LEA's duties with regard to the content of statements. The current Code contains a four-line guide to the meaning of ‘specify’ to the effect that this will normally mean quantifying the numbers of hours or sessions of help. The proposed new Code contains no guidance to LEAs on the meaning of ‘set out’. A DfEE spokesperson informed IPSEA that, according to Department lawyers, there is no difference in meaning between ‘specify’ and ‘set out’ and that the change had been made purely in the interests of accessibility of language and plain English. When asked why the guidance on the meaning of ‘specify’ had been removed, but not replaced by guidance on the meaning of ‘set out’, the DfEE spokesperson claimed this was in the interests of brevity – seemingly the retention of these four lines would have made this 4,796 line document just too long ! Neither of these explanation is credible: changing a word in law risks the courts providing a reinterpretation of meaning. Because of this, the four-line guidance is made more, not less, necessary by such a change. The Regulations as a whole have not been rewritten to make them ‘simpler’. Only the word ‘specify’ has been chosen for replacement. Seriously, Mr Blunkett, would you believe the explanations being offered by your Department in these circumstances? Because of the timing, we ask that you respond with urgency to these requests. IPSEA is seeking legal advice on the course of action which may be open to us if you fail to respond to what we believe are very reasonable requests. A complaint to the Parliamentary Ombudsman is also being considered. We trust, however, that action on your part will make further complaint by IPSEA unnecessary. |
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The Secretary of State responds: the DfEE have accepted an argument that quantification hampers ‘flexibility’ |
You expressed particular concern over our proposal to change the wording in the Code, and in the associated SEN Regulations, to require provision in statements of special educational needs to be ‘set out’ rather than described in terms that were ‘specific, detailed and quantified’. We are proposing this change for good reasons. The Education Act 1996 does not use the terms “detailed and quantified” but does require provision to be specific – that would not change. Changing the phrasing in the Code from “specify” to “set out” is designed to simplify the language, not change its meaning. We favour “set out” because we believe that conveys more clearly the importance of setting out fully the needs of the individual child and the provision that is necessary to meet them. This is consistent with the intention of the law – that provision in statements should be clear, so as to leave no room for doubt that what has been decided is necessary in each individual case. In cases where it is necessary, provision would be quantified. In others it would not – just as now. Our earlier consultation and preparation work on the draft revised Code revealed a concern that the existing Code focused too heavily on quantification and that this was limiting the ability of the education service to act flexibly in the interests of each child. The proposed changes would, in our view, better encourage sensible flexibility. |
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IPSEA responds to the Secretary of State |
Dear Mr Blunkett, Thank you for your letter of July 27th , which clarifies the thinking behind your proposal to change 'specify' to 'set out' in the new Code of Practice on SEN and the Regulations. Last week a DfEE spokesperson told IPSEA that, according to the Department's legal experts, there was no difference in meaning between ‘specify’ and ‘set out’. Further, we were assured that the Government intended there to be no change in meaning. We were told that the sole aim of the exercise was to translate the Code and the Regulations into ‘more accessible English’. However, as your letter of the 27th shows, the proposed change from ‘specify’ to ‘set out’ is intended by your Department as a change in meaning: “ ... Earlier consultation and preparation work on the draft revised Code revealed a concern that the existing Code focused too heavily on quantification and that this was limiting the ability of the education service to act flexibly in the interests of each child. The proposed changes would, in our view, better encourage sensible flexibility.” This will:
Thank you for your frankness in providing this clarification, in the light of which we would like to place on record the following response. The overwhelming majority of children with Statements of Special Educational Needs have learning difficulties/disabilities which remain stable over the long term. They are children who, typically, are born with the conditions which give rise to their learning difficulties, e.g. children with Down's syndrome, autism, cerebral palsy. As their needs tend to remain stable, so does the level of provision required to meet those needs. In the rare instance where the volatility of a child’s needs requires their provision to be varied in the short term, this can be managed effectively via an LEA's power to review a Statement at any time and the power to amend a Statement within16 days (under Schedule 27(10) of the Education Act 1996). This gives LEAs more than sufficient power to ‘act flexibly in the interests of each child’. Your proposed change will undermine parents’ ability to appeal to the Special Educational Needs Tribunal against the amount of help specified in their child's Statement, for they will not know what it is they are appealing against. It will undermine parents’ ability to appeal against the school named in a Statement on the grounds that it can't provide the help their child needs – for parents will have no measure of the provision required by which to judge a school. The ability of the Tribunal to make informed judgements in the best interests of the child will be impaired, as a result of LEAs withholding information on how much help they have assessed a child as needing. Your proposed change will further encourage LEA Officers to write Statements which are at odds with case law (L vs Clarke and Somerset County Council 1998), leaving their employing Authorities not only at risk of Judicial Review proceedings but also (following the House of Lords ruling this week) of possible costly negligence actions. Your proposal will create a contradiction between the new Code and Regulations (which will give an LEA the duty to ‘set out’ special education provision in a Statement) and the Education Act 1996 (which will continue to give an LEA the duty to ‘specify’ special education provision in a Statement). This will trigger an early legal challenge, in effect delegating responsibility for law-making on this issue to the courts, when it properly belongs with an elected Parliament. It is not just a question of what Parliament originally intended by the term ‘specify’; the decision by an LEA to make a Statement is, at one and the same time, a decision that they (as opposed to schools, teachers, governors, etc.) will ‘determine the special educational provision’ required to meet a child’s needs (s324 (1) Education Act 1996). To leave provision in a Statement unspecified, in order that a school can vary it, contradicts both the intent and the letter of the law. Your Government accepted the recommendation of the Disability Rights Task Force that a denial of aids and services to disabled children in schools should not constitute discrimination on grounds of disability. The Government’s reasoning was that special education law and the Statement already provided an enforceable right to provision. IPSEA corresponded with your Department and the Disability Rights Commission on this matter at the time, pointing out the impossibility of enforcing vaguely written Statements. We felt your decision was naive. But for the Government now to remove the element of enforceability (which hinges on quantification of provision) from special education law, having refused to install it in disability discrimination law, we find to be not so much naive as irrational and irresponsible. You seem to have been persuaded that the existing Code’s emphasis on quantification is ‘limiting the ability of the education service to act flexibly in the interests of each child’. We would very much welcome your sharing with us the evidence which has led you to this opinion. Our impression is that it is LEAs – the providers of the service – who are pressing your Department on this issue. We know of no organisations representing the interests of children with learning difficulties/disabilities which believe that children's interests will be served by Statements being less specific. We believe that LEAs have their sights set not on the best interests of the individual child, but on avoiding their financial commitment to the individual child. In this, our view is identical to that of the Audit Commission and HMI in their 1992 report: " … there is an incentive for LEAs not to specify what is to be provided because they thereby avoid a long-term financial commitment." The Audit Commission/HMI report persuaded the Government of the day of the need for a Code of Practice which would include guidance to LEAs on the meaning of the duty to specify i.e. that normally this meant provision should be quantified in terms of numbers of hours or lessons a week. Weaken or remove this guidance in a revised Code and you send the unmistakable message to LEAs that your Administration approves of their attempts to avoid making long-term financial commitments to children with special educational needs; and, an unmistakable message to parents and carers that your Administration is neither committed to meeting their children's needs, nor to maintaining the legal framework. We find it difficult to believe that New Labour wishes to send these messages. Your proposals, in themselves, are evidence that parents/carers cannot rely on the new (or any) DfEE Code of Practice to defend their children's right to special education provision. IPSEA will, therefore, be calling on MPs of all parties to press as a matter of urgency for the following amendments to be made to the 1996 Act and Regulations:
IPSEA will be submitting a further response to the draft Code, in due course. But I would like to remind the Secretary of State that the majority of IPSEA’s trustees and volunteers are themselves parents of children with special educational needs. They are well aware of the actions of LEAs … with regard to the wording of Part 3 of Statements. There is an overwhelming feeling of anger at what you are proposing amongst our trustees and volunteers. You expressed the hope that conflict could be avoided. Unfortunately, on this issue, IPSEA can see no way to avoid conflict if children's right to special educational provision is to be protected. |
Weaken or remove this guidance in a revised Code and you send the unmistakable message to LEAs that your Administration approves of their attempts to avoid making long-term financial commitments to children with special educational needs; and, an unmistakable message to parents and carers that your Administration is neither committed to meeting their children's needs, nor to maintaining the legal framework. |