Independent Panel for Special Education Advice (IPSEA) Defending children's right to special education provision

Rights at Risk?
A response to the Green Paper
Excellence for all children

December 1997

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...with the law as it now stands, children with special educational needs are entitled to have their needs met, whatever policies have been adopted by their LEAs. It is this principle, adopted by Parliament in 1981 as a safeguard to the interests of the most vulnerable children in the school population, that we believe to be threatened by the Green Paper.

Introduction

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IPSEA (the Independent Panel for Special Education Advice) is a national charity which since 1983 has been giving advice to parents and carers of children with special educational needs on Local Educational Authorities' legal duties and childrens' legal entitlement to provision. IPSEA is currently responding to over 3,000 calls a year. In addition, we advise approximately one third of the parents who bring appeals to the Special Educational Needs Tribunal. We have a national perspective, since the parents who contact us come from all parts of England and Wales.

While we welcome the government's commitment to the needs of disabled children, in particular its concern to see more children with special educational needs educated in mainstream schools, our over-riding concern is that the Green Paper threatens to weaken childrens' legal rights to the provision required to meet their needs.

Since 1983, children with special educational needs have been entitled in law to have their needs identified, to have them met by provision and to have them regularly reviewed. These entitlements are created through a series of interlocking legal duties placed on LEAs by the 1981 Education Act and reinforced in subsequent legislation. These duties are owed personally to the child and are non-delegable, as the 1996 Harrow judgment underlined.

No child is entitled to 'the best': no LEA should use their resources inefficiently. But, with the law as it now stands, children with special educational needs are entitled to have their needs met, whatever policies have been adopted by their LEAs. It is this principle, adopted by Parliament in 1981 as a safeguard to the interests of the most vulnerable children in the school population, that we believe to be threatened by the Green Paper.

We believe that it is the law, far from being 'red tape' or 'bureaucracy', which offers the only guarantee to parents that their child's needs will be met. The law only becomes 'bureaucracy' when it is treated with contempt by those whose job it is to administer it. The law is not a tedious formality but rather a process which secures proper provision for vulnerable children. Even with the law in place, it is hard enough for parents to secure the provision their children need. Without it, their situation would be hopeless.

The alternative to 'bureaucratic procedures' (or the law) is LEA discretion. The recent Tandy judgment showed that when LEAs are able to use their discretion then provision may cease to be related to the child's needs. It cannot be in the interests of disabled children for provision to depend on factors unrelated to their needs.

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What questions should be asked?

While questions do need to be asked about the provision for children with special educational needs, we do not believe that the Green Paper asks the right questions.

The over-riding question raised by the Green Paper itself is whether the Government intends to effect a reduction in the number of statements of special educational needs by:

(a) making the investment in terms of resources, training and teacher support to improve provision in mainstream schools for children with special educational needs so that the necessity for statements reduces over time as a natural and gradual process;

or

(b) relaxing LEAs' legal duties to assess children and issue and maintain statements, encouraging LEAs to reduce the numbers of statements maintained on children in ordinary schools without the prior development of schools' abilities to meet children's needs.

Only the first course of action can be in the interests of children with special educational needs.

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Chapter 1 Policies for Excellence

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How can we identify childrens' special educational needs earlier and ensure that appropriate intervention addresses those needs?

The current process of statutory assessment could work much more effectively if it was operated in a way consistent with the law. However, since some LEAs already operate (unlawfully) arbitrary criteria for identifying children likely to have special educational needs, many parents of young children already have to struggle for provision, even when their child has very obvious needs. IPSEA has recently advised, for example, the family of a child with quadriplegia and a child with acondroplasia, both of who had been refused a statutory assessment and were therefore without the provision which would enable them to join a reception class.

For many children with special educational needs, by the time they are of school age, they are likely to have become the subject of a Statement of Special Educational Needs. Consequently there is likely to be a wealth of information available on their needs.

Our experience is that at the moment there is often much uncertainty about placement, up to and beyond the date when the child is due to start school. Consequently much of the excellent work done with young children and their families, by, for example, Portage workers, is never coherently transferred into the new setting.

We should like to see a better developed mechanism for the transition of such children into full-time schooling. It would be helpful if the Guidance contained in Section 6:30 of the Code of Practice on the Identification and Assessment of Special Educational Needs were to become statutory, so that school placements were finalised by the beginning of the term before the child starts school. In this way, information about children with additional needs could be usefully shared with school staff and proper arrangements could be in place. In our experience the recommendations of the Code, clear though they are, have not led to satisfactory early decisions by many LEAs.

Amendment of the 1994 Regulations to include the time limit recommended in the Code of Practice would greatly assist the effective assessment of young children. Statutory arrangements are needed, since guidance (and LEA discretion) has not worked.

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Chapter 2
Working with parents

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How can we make sure that parents receive the support they need at all stages of their child's education?

How can we encourage dialogue between parents, schools and LEAs and resolve disputes about SEN as early as possible?

IPSEA' s case work shows that many parents need support simply because LEAs are failing to fulfil their statutory duties. Situations of this kind include

(a) Continuing refusal to accept case law rulings when deciding where in the statement to place speech therapy as a need and as a provision.
(b) Refusal to specify provision.

In deciding to issue a Statement of Special Educational Need, an LEA is deciding that they, as opposed to someone else, must determine the provision required to meet a child's special educational needs (R vs Secretary of State for Education and Science ex parte Lashford 1988).

Yet LEAs are issuing statements which fail to specify provision, relying instead on vague formulations such as "Assistance, as appropriate." As a defence, LEA representatives are informing Tribunal panels that 'in our LEA it is left to the Head teacher to decide on the provision that a child requires' and that the right place for provision to be specified in the Individual Education Plan drawn up by the Head Teacher of the school. This view ignores the Lashford ruling.

In their judgments, tribunals have generally rejected this argument. However, we believe such appeals, which are brought simply because an LEA has failed to follow its legal duty, are a waste of time and resources for parents and Tribunal staff, as well as causing unnecessary stress and anxiety to parents.

In a number of cases, we have advised parents to complain at an early stage to the Secretary of State for Education and Employment under Section 497 of the 1996 Education Act, expecting that the Secretary of State would intervene and thereby prevent the necessity of an appeal to the Tribunal. However, in the majority of cases the Secretary of State has declined to intervene and has simply directed the parent to the Tribunal.

In IPSEA's view, this refusal to take a strong line with LEAs creates considerable unfairness and stress to parents. Evidence presented during the hearing of the Select Committee in March 1996 expressed concern about inequality of access to the Tribunal system. IPSEA shares that concern: certainly, more articulate and educated parents are best placed to make use of the system. Consequently in many LEAs a two-tier system of special education is emerging, with parents who appeal to the Tribunal achieving statements that are consistent with the law, in sharp contrast to those who do not appeal.

We believe that the most effective way to support parents would be for the DfEE to intervene robustly in response to parental complaints against LEAs who have failed to fulfil their legal duties towards children with special educational needs. If LEAs were thus directed, then many parental appeals to the Tribunal would be unnecessary.

If the Secretary of State were to take action against LEAs who pursue policies which are inconsistent with the law, then this would not only promote equality of opportunity for less articulate and educated parents but would decrease the need for support of individual parents.

In a situation where one of the members of a 'partnership' holds all the power, the purse strings and the decision-making functions, then the other must be able to rely on the fair execution of statutory functions. When this does not happen, then parents look to the Secretary of State to uphold the legal framework which Parliament intended would protect their children.

IPSEA was very concerned that the composition of the Advisory Group, despite the assertions in the White Paper, Excellence in Schools, that it would include 'representation from voluntary bodies representing children and parents' was, instead, heavily weighted with LEA representatives. Consequently the Green Paper is a reflection of the views of service providers, not the users of those services.

Are changes needed to improve the effectiveness of the SEN Tribunal?

(a) LEA policies

In our experience the impartiality and independence of the SEN Tribunal has earned the respect of parents.

We view with alarm the suggestion that Tribunals might be required to take into account an LEA's policy or provision for children with SEN.

The basic brief of the Tribunal is to look at the evidence on a child's individual needs and the provision required to meet them. It should consider the issue of 'efficient use of resources' as and when the legislation specifically requires it to do so.

The Tribunal is currently the final and decisive stage of appeal in all but a very small number of exceptional cases. In our view this proposal, were it to be formalised, would simply provide LEAs with a pretext for appealing against decisions which they were unhappy with but which could not be challenged on the grounds of 'legal error'. Consequently the result would be further delay and litigation and further deterioration of relationships between LEAs and parents.

(b) Evidence from teachers and other professionals

Parents sometimes report that LEA professionals, whom they have called as witnesses at their child's Tribunal hearing, have been told by their employing LEA that they should not attend. The President of the Tribunal referred to this problem in his 1995 report and the Secretary of State has also acknowledged it in a Circular to LEAs. However, it is still a difficulty. IPSEA is aware of a number of cases where professionals have been put under pressure not to appear at Tribunals as witnesses for the parents' case.

Many parents have been profoundly shocked by examples of this kind of pressure, which has the potential to destroy permanently any trust between parents and LEAs.

We should like to see included in the Code of Practice a statement that it is part of a professional's duty, when asked by a parent, to give evidence at the Special Educational Needs Tribunal. This statement should include an acknowledgement that Head Teachers and Special Educational Needs coordinators will need training to perform this duty effectively.

(c) Legal Aid

IPSEA's experience of Tribunal judgments is in the main positive. Yet in cases where there may be a need for legal challenge of a Tribunal judgment, often the way forward is barred to parents who do not qualify for Legal Aid. It was established in 1995 that since it is the parent, not the child, who is the party to an appeal, then legal aid applications cannot be made in the child's name.

With Legal Aid unavailable to children, the full advantage of Part IV of the 1996 Education Act is lost. The Act is likely to require interpretation from the High Court to clarify the law both for LEAs and SENT members.

IPSEA believes that the most effective remedy would be to make special provision for appeals from the SEN Tribunal to the High Court within the Legal Aid legislation and regulations. This has already been done in respect of certain specified proceedings under the Children Act 1989.

Such a change would recognise the intention of special education law to entitle all children to receive the provision appropriate to their needs, regardless of the level of their parents' income.

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Chapter 3
Practical support: the framework of SEN provision

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Will it be helpful to review the Code of Practice, with a view to a revised version in 1999? If so, which aspects of the Code need particular attention? How can we reduce the paperwork associated with the Code?

This comment contrasts with the conclusions of an account of the outcomes of research into the role of SENCOs, undertaken by the Special Needs Research Centre in the University of Newcastle and published by the DfEE in September 1997, just a month before the Green Paper was published. Having examined the responses of SENCOs to the demands of their (still) new role in almost 900 schools, the research concluded :

Overwhelmingly, SENCOs told us that many of their initial anxieties about the demands of their new role were giving way to familiarity and confidence. In particular, they gave their wholehearted support to the Code's underlying principle of responding quickly, professionally and effectively to pupils' difficulties so that all children have access to educational experiences of the highest quality.

The emphasis in the Green Paper on the need to reduce 'bureaucracy' and 'paperwork' does not tackle the real problems faced by SENCOs, namely, lack of freedom from teaching duties to do their job and often the lack of secretarial and appropriate IT support.

How might we secure greater national consistency in making statements, or in placing children at other stages of the Code of Practice?

The Green Paper reflects the problems experienced by LEAs in relation to statementing, not the experiences of parents. It proposes that national expectations of statemented children might be developed and cites 2 per cent as a possible target. We would respond with a number of questions of our own:

(a) Why 2 per cent?

In paragraph 11 of Chapter 3 the Green Paper refers to a 'steep increase in the number of statements'; then in paragraph 12, to 'the recent rapid increase in the number of statements.' The Green Paper records that 233,000 pupils or 'almost 3 per cent of pupils' now have statements. The exact figure is 2.7 per cent. The Government's aim is to reduce this to 2 per cent.

A common explanation of the origin of the figure of 2 per cent is that it derived from the number of special school places (and the proportion of school children filling them) in London at the time when the first educational psychologist, Cyril Burt, took up his post.

Alternatively, it is argued that the figure of 2 per cent derives from standard intelligence tests (of which the first was the Stanford Binet, devised in France) and the curve produced by the way intelligence is 'normally distributed' throughout the population in the results of such tests.

Either way, the figure of 2 per cent is arbitrary and has never corresponded closely with the numbers of school children with special educational needs i.e. requiring additional or different provision because of their learning difficulties and/or disabilities. For example, if 2 per cent represented the special school population in Burt's day, it left out the numbers of children in ordinary schools who required different and/or additional provision because of their special needs.

If 2 per cent represented the proportion at one end of a 'distribution curve' derived from standard intelligence tests it left out the numbers of children with physical difficulties and sensory impairments who have always been considered to be part of the group with special educational needs despite scoring at average or above on intelligence tests.

In short, the 2 per cent was always a statistical artifact at some distance from reality.

(b) Why not 2.7 per cent?

The Green Paper does not seek to examine or explain why 2.7 per cent of the school population currently have statements of special educational needs. It simply assumes that this is 'unnatural' i.e. resulting from factors other than the incidence of needs which cannot be met by resources ordinarily available to schools.

However, there are perfectly reasonable explanations available for the rise in the numbers of children with special educational needs in the half century since the '2 per cent' was put forward as a measure. For example:

  1. Medical advances have undoubtedly resulted in higher rates of survival of children with severe impairments;
  2. In 1972 children with severe developmental delay who were deemed 'ineducable' and till that date the responsibility of hospitals, not schools, became the responsibility of the education service;
  3. Given that the requirement for a statement rests in part on the inability of an ordinary school to make provision for pupils with special educational needs, the abolition of the Education Priority Area Grants, the growth in class size and the underfunding of schools under 18 years of Conservative government might all, possibly, explain a reduction in a school's ability to meet children's needs - and in consequence a growth in the necessity for statements.

(c) Why not more than 2.7 per cent?

The growth in understanding of the nature of children's problems over the past 50 years has inevitably led to a measurable increase in the numbers of children identified as requiring educational provision in addition to or different from that available in ordinary schools. As a single example, it is likely that the diagnosis of Asperger's Syndrome has added 30,000 children to the current group of statemented children who would not have been deemed to be in need of special educational provision 15 or even 10 years ago. Of course, this growth would be off-set in part by a parallel increase in the abilities of teachers in ordinary schools to recognise and meet an increasing range of children's needs.

What could be expected, then, is fluctuations in the short term, but stability in the long term, of the proportion of children deemed to be in need provision in addition to or different from that which can be provided by ordinary schools.

The Green Paper, in Chapter 3, takes a short span -- 1990 to 1996 -- in order to make the points that the number of children with statements has doubled and that this indicates that there is something dramatically wrong with the system. But what emerges if we look at the figures over a longer span, say 20 years ?

In 1976/7, the national total for children with disabilities and/or learning difficulties in special schools or special classes set up by LEAs was 176,688. This represented 1.7 per cent of the school population. Under current arrangements, these children would have statements.

In addition, in 1976, 40 per cent of schools in England and Wales had 'special classes' which they had established themselves for meeting the needs of children with disabilities and/or learning difficulties. 458,087 pupils were accommodated in these on account their having learning difficulties of some sort. 81,856* of these children spent more than half the school week in the 'special class'. Children receiving this amount of specialist withdrawal provision under the current arrangements and having regard to the Code of Practice (paragraph 3:49) would have statements.

Adding these totals (176,688 plus 81,856) produces a figure of 258,544, which represents 2.6 per cent of the total school population at that time. This would seem to indicate that the proportion of pupils with severe and complex difficulties who require statements is remarkably stable over the long term and there is nothing particularly comment-worthy about the figure of 2.7 per cent. What does require explanation is why the overall number of 'statementable' children has fallen by over 1/4 of a million in the last 20 years.

* Whether this represents the actual total of children in mainstream schools in need of support for their learning difficulties spending more than half their time in 'special classes' depends on why there were no 'special classes' in the remaining 60 per cent of schools in England and Wales. If this was because of lack of resources in those LEAs or lack of positive policies towards meeting these children's needs, then it may be the case that the number of children needing this level of help at the time was considerably higher.

(d) Criteria and the law

The Green Paper paraphrases the definitions of special educational needs and special educational provision in Chapter 1 paragraph 2, but omits mention of a crucial distinction in the law, namely between special educational provision which can be arranged by an ordinary school from the resources available to it, and special educational provision which cannot be arranged by a child's school.

With regard to this second situation, the law requires an LEA to undertake formal assessment of the child's needs, 'determine' the provision required to meet those needs and then 'arrange' it. The Code of Practice provides guidance for LEAs on making the judgment as to whether they are legally obliged to undertake an assessment and/or issue a statement on an individual child, as follows:

"In deciding whether to make a statutory assessment, the critical question for LEAs will be whether there is convincing evidence that, despite the school, with the help of external specialists, taking relevant and purposeful action to meet the child's learning difficulties, those difficulties remain or have not been remedied sufficiently and may require the LEA to determine the child's special educational provision." (CoP, para. 3:49)

In short, since the 1981 Education Act, LEAs have had a duty to assess and statement a child when the evidence shows that his or her school cannot meet their special educational needs. Given this basic duty, the Green Paper is inviting trouble by suggesting in Chapter 3, paragraph 19, that there might be 'quotas' which the Government would 'expect LEAs and schools, as well as those involved in resolving disagreements, to have regard to ... in setting their criteria for assessing needs.'

Are not quotas impossible without changing the fundamental nature of the law on special education ? And if this is not to be changed, will not encouraging LEAs to meet quotas or targets risk them coming into conflict with the law ? And will it not significantly increase the number of Tribunal appeals ?

(e) The effect of criteria

We can see what the effect of the introduction of criteria might be if we look at the practice of those LEAs where, apparently, such policies are already in operation, in IPSEA's view unlawfully.

Kelly is 12 and attends a mainstream school in Essex. She has always had difficulty with reading and writing. Her Reading Age is currently 7 and her Numeracy age is 6. She has a speech problem and has difficulty making herself understood. She is clumsy and needs help to dress. She has been medically diagnosed as dyspraxic. She is unaware of danger and requires constant supervision. Her problems at school have worsened dramatically since she started secondary school. She has severe emotional problems, due to her frustration at school. She manages to behave at school but at home her behaviour has become bizarre and distressing both to her and her family. Her parents have been awarded Disability Living Allowance because of her problems.
All the professionals involved with her family - Social Services, her GP, a child psychologist - have called for additional help for her at school. Her school has recognised her difficulties and has given her as much help as they have available. Her parents, supported by every professional who had contact with Kelly, requested an assessment. They were turned down on the grounds that Kelly did not meet Essex's criteria.They appealed to the SEN Tribunal.
At the Tribunal, the judgment stated, "We have no hesitation in concluding that it is necessary in this case for the LEA to determine Kelly's special educational needs."

The proposal that criteria might determine who is assessed fundamentally strikes at the principle underlying special education law ie that the needs of the individual child should be considered. As we have seen in Kelly's case, and in many others, the result is wasted educational opportunity, great distress to families and children, delay and ultimately the stress and expense of Tribunal appeal.

(f) Who or what is forcing LEAs to issue statements unnecessarily?

There is an implication in the Green Paper that the situation with regard to the issuing of statements for children is, in some way, out of LEA control and that the 'statement problem' is that 'parents and schools seek statutory assessment' (Green Paper, Chapter 3, paragraph 13) unnecessarily or even illegitimately.

This is not the case. Children are issued with statements at LEAs' discretion, following assessments which are also undertaken at LEAs' discretion. When a school refers a child for assessment the LEA is under no obligation to respond unless they believe that the child has special educational needs which cannot be met from the school's own resources.

If a parent asks for an assessment the LEA must respond, but, again, is under no obligation to assess or issue a statement if they believe that the child does not have special educational needs or that their needs can be met from provision available to the school.

Much criticism has been levelled at the SEN Tribunal by LEAs over the last two years, so it may seem to outsiders that it is the Tribunal which is forcing LEAs to issue statements. However, the statistics do not bear this out. For example, the SENT's Annual Report for 1995/6 shows that there were only 75 instances of the Tribunal ordering LEAs to issue statements, set against the 16,027 statements which LEAs issued over this year, according to the statistics given in the Green Paper. 15,952 statements (99.5 per cent) issued in this year were, therefore, issued because LEAs exercised their discretion to do so, presumably in response to clear evidence that these children had needs which could not be met by the provision available to their schools.

We have heard it said that many schools do not spend the money allocated to them for special educational needs on the children for whom the money is intended. Instead, they press for statutory assessment, so that in effect LEAs are being asked to pay twice for the same children. No doubt schools and governing bodies will have their own comments to make on whether they are in fact misusing their delegated funding. We know of no formal research or public discussion on this issue. It may be that there should be ringfencing of such delegated funds to protect the interests of the children on whom the money should be spent. However, we do not accept that it can be in childrens' interests simply to address what is essentially an administrative and managerial problem by removing the strength of a statement from large numbers of vulnerable pupils.

What changes should be made to the contents of, or monitoring or review arrangement for, statements of SEN?

(a) Contents of statements

Under current law, a child whose needs cannot be met by the resources available to their school has their right to special educational provision secured by means of a statement of special educational needs. The statement should list all the child's needs and should specify the educational provision required to meet them. (s324(1) EA1996)

In our view, when LEAs fulfil their duties under the law, statements are effective guarantees of provision. The real problem is LEA failure to detail provision as the law intends.

Children with special educational needs who are included in mainstream schools have a particular need for statements written in a way that is consistent with the law. IPSEA's experience is that particularly for children with a number of needs, such as those with Downs Syndrome or cerebral palsy, the detail of the statement is the key to a successful mainstream placement. Where provision has not been specified, or where it is dependent on 'discretion' ' or 'goodwill' then breakdown of the placement becomes more likely, particularly for secondary age children. Conversely, in our experience, a detailed statement which sets out all the child's needs in the way the law intends, matching each one with the necessary provision, can turn an initially reluctant school in to the child's most active advocate.

Take, for example, the case of Kavita, aged 10, who lives in a London Borough. She has cerebral palsy, spastic quadriplegia with athetoid movements and mild epilepsy controlled by medication. She communicates through eye pointing. There is considerable evidence that her cognitive skills are age appropriate and her parents wished her to attend a local primary school. The LEA refused and they appealed to the SEN Tribunal.
At the hearing the LEA agreed to name the school the parents preferred. A detailed statement was drafted at the hearing with the agreement of both parties. A copy of it is attached. In due course, Kavita became a pupil at the school.
The result has been an unqualified success story. Kavita is doing well, she has been accepted by her peers and by school staff and pupils. the success of the placement is largely due to the detailed statement which made completely clear what Kavita was to have and who was to provide it. Her parents are convinced that without that detailed statement, the placement would never have had a chance of success.
Again, the case of Joanne Barker shows how a detailed statement allowed a mainstream placement to be achieved. Joanne has Downs Syndrome and lives in Buckinghamshire, very close to the Bedfordshire border. She attended mainstream lower school in Bedfordshire and her parents wanted her to go on with her friends to the nearby middle school, which her brother already attended. Buckinghamshire LEA refused to specify in her statement the hours of classroom assistant time and special teaching help she needed. The Bedfordshire school felt unable to accept her without the written guarantee of the resources she would need.
Joanne's parents appealed to the SEN Tribunal who required Buckinghamshire to specify and quantify the help Joanne needed in her statement and to name the Bedfordshire middle school as the one that she should attend.

(b) Children in special schools - less detailed statements?

The key to a statement functioning as a guarantee that a child receives the special education educational provision his or her needs call for is Part 3 of the statement being 'specified' and 'quantified' as currently required by the law and the Code of Practice (paragraph 4:28).

Children with statements who are placed in 'specialised environments' (meaning, presumably, special schools and units) are as much at risk of changes in provision resulting from cuts in resources as children in mainstream schools and, therefore, their need for the 'protection' of a statements is every bit as great. This is particularly relevant to the case of children placed in special schools and units on account of their learning difficulties, but who also require speech therapy, occupational therapy or physiotherapy. These services are seldom integral to special school/unit provision but are brought in via the device of the statement, for individual children, as and when needed.

Many children in special schools are in particular need of detailed statement because of the complex nature of their difficulties.

Without a detailed statement setting out his provision, Philip Grist from East Sussex could not attend school at all. Philip is 9. He has severe learning difficulties and attends a resourced unit attached to a mainstream school He is terminally ill with a hereditary condition from which his older brother recently died. The medication he must take has created intractable seizures - at one point he was fitting up to 400 times a day. Following major surgery these seizures have been reduced but still occur with great frequency.
While his statement was being prepared, there was overwhelming professional support for the view that Philip should have individual full time support to enable him to access the curriculum and to ensure his safety. However, his LEA, East Sussex, refused to specify on his statement the individual classroom support that he should have. They left it to the school to provide support for him 'from their own resources'. The school was unable to make individual full-time provision for Philip.
His father appealed to the SEN Tribunal. But Philip was out of school for several months pending the hearing, since without specified support, it was not safe for him to be at school. Two days before the hearing the LEA agreed to specify the provision he needed and to put on the statement that he should have full-time one to one provision.
Full-time support is now specified on the statement but of late Philip has been too ill to go to school.

(c) Ceasing to maintain statements

At present the law states that an LEA can only cease to maintain a statement if it is no longer 'necessary' to maintain it (Schedule 27 EA1996) and that a statement is necessary when a child's needs cannot be met from the provision available to their school.

Chapter 3 paragraph 22 of the Green Paper suggests that in future statements might be discontinued 'on the achievement of specified outcomes'. However, the fact that a child had achieved 'specified outcomes' may shed no light at all on the question of whether or not the school was able in the future to arrange from its own resources the provision which had resulted in the child's progress.

Again, unless the Government intends to remove the basic legal duty of LEAs to assess and statement children when their school cannot make the provision required to meet their needs, this would, again, seem to be a proposal which would increase the risk of LEAs acting illegally and increase the number of Tribunal appeals.

Of course, there are times when the attainment of certain objectives may justifiably be regarded by LEAs as evidence that a child no longer has a learning difficulty or disability which calls for special educational provision (either from the LEA's or the school's resources). The current arrangements in law for Statement Reviews require that this issue is examined on an annual basis (The Education (Special Educational Needs) Regulations 1994, Regulation 15(4) (a) & (b)). And, where there are genuine grounds for interpreting 'the achievement of specified outcomes' as evidence that a statement is 'unnecessary' (i.e. that the child no longer has special educational needs, or that these can be met by provision available to the school itself), LEAs are already able to cease to maintain a statement.

However, elevating 'the achievement (or otherwise) of specified outcomes' over 'necessity' as the criteria for continuing or ceasing to maintain a statement can only lead, again, to illegality and an increase in Tribunal appeals.

We should like to see amendment of the Education Act 1996 to protect a child's provision, when an LEA decides to cease to maintain a child's statement, until the Tribunal has considered an appeal against that decision. Tribunal statistics show that in cases related to decisions on ceasing to maintain the statement, parental appeals are upheld in almost 80 per cent of cases. At the moment many children are disadvantaged when their provision disappears, only to be reinstated after the Tribunal decision. At that time, classroom support, for example, may have been lost and the provision totally disrupted.

(d) Time limits

With regard to the time taken for assessment, the latest statistic available is that based on the research undertaken by Coopers and Lybrand on behalf of the Society of Education Officers and the DfEE (under the previous administration) published last year under the title of The SEN Initiative:

'The average time taken to complete the statutory process across authorities was 33 weeks ' (Annex F, page 42)

This figure (which converts to 7/8 months) although in excess of the legal deadline of 6 months, is hardly so excessive as to suggest that the current statutory arrangements with regard to the timing and issuing of statements require amendment. The DfEE has existing powers to take action against LEAs who delay beyond acceptable limits.

It is useful to refer here to the conclusions of the Audit Commission, when, in 1991/2 they looked at the causes of delay in assessment and the issuing of statements. In paragraph 29 of their Report they state:

'The procedures outlined in the 1981 Act and its attendant Regulations do not inherently cause significant delays ... the main delay arises in the administration of the process by the LEA' (Getting in on the Act , Audit Commission/HMI, 1992)

In evidence to a Parliamentary Committee, the Chairman of the Audit Commission subsequently reported that delay was a way of controlling the budget.

Given that the statutory process has been presented in the media as being inherently complex and bedevilled by 'red tape', it is worth considering its components:

  1. observation and/or examination of a child by professionals from specified disciplines (psychology, education, medicine and social services)
  2. the production of written reports (Advice) to inform the LEA of the professional opinions formed in (a)
  3. the production by the LEA of a statement, when necessary, distilling the professional advice on the child's needs and the provision these needs require.

Which of these elements might be dispensed with?

(e) What is 'unclear' about the distinction between 'educational' and 'non- educational' needs?

Chapter 3 paragraph 20 of the Green Paper states:

"A statement must set out both a child's educational and non-educational needs and the provision to be made in each case. The distinction between the two is often unclear ... We favour dropping this distinction."

In relation to speech therapy, the distinction at present is quite clear, having been clarified by the 1989 Lancashire judgment, in the process of arriving at which the courts took into account contemporary psychological and linguistic expertise.

Is the Government now saying that professional expertise has shifted its ground and now holds that there is no meaningful distinction between an educational and a medical need for speech therapy?

Or is the Government saying that subsequent case law has over-ruled the Lancashire judgment, producing a situation in which the distinction need no longer be made?

Certainly, in IPSEA's experience, some LEAs strive to deny the possibility of speech therapy being an educational need solely in order to avoid placing it under Part 3 of a statement and thereby accepting responsibility for arranging, and if necessary, paying for that provision.

Far from being unable to make a distinction, many LEAs find it very easy to conclude that therapies are 'medical' and to be placed under Part 6 of a statement and outside their duty to 'arrange.' Does the Government propose to remove the distinction between educational provision and non-educational provision:

(a) in the direction of including all therapy provision under the heading 'educational', thus strengthening the child's right to such provision ?;

or

(b) in the direction of including all therapy provision under the heading 'non- educational', thus removing completely the child's right to such provision ?

In IPSEA's experience, speech therapy for most children is a certainly an educational need. The provision of such therapy should remain a statutory duty.

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Chapter 4 Increasing Inclusion

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What priority measures should we take to include more pupils with special educational needs within mainstream schools?

Legislation has recognised since 1981 that wherever possible children with special educational needs should be educated in mainstream schools. The proposals in the Green Paper to strengthen the law so that the 1981 Act's aspiration is more readily achieved in practice are a valuable step forward for our education system and society as a whole.

However, increasing inclusion while at the same time removing the rights which guarantee that pupils in mainstream schools receive the provision their needs require may be entirely self-defeating, by risking:

  1. children failing to progress, compelling their parents to seek special school places as the only way they perceive their child receiving special educational provision;
  2. children without special needs having their education disrupted by the presence of children with special needs being placed in classes with them without appropriate support, causing parents to react against inclusion;
  3. schools and teachers, even assuming an initial commitment, resenting the stress of being expected to provide for children with special needs in the absence of adequate resourcing and projecting this resentment on to the children themselves, leading to a dramatic rise in numbers of children being rejected by schools (i.e. excluded);

For the Government's aims with regard to inclusion to be realised, they should be seeking to strengthen the entitlement conferred by a statement on child in a mainstream setting, rather than seeking to remove or reduce it.

Discretion or the goodwill of schools will not persuade parents that their child's needs can be met. At the adjournment debate in the House of Commons on December 5, Barry Gardiner MP told the following story:

'About four years ago, the Cambridgeshire LEA had an agreement with schools encouraging them not to put children through the process of statementing and not to statement those with special needs because of the stigma that might be attached to that and the lengthy process of statementing. Instead it promised to ensure that the necessary resources to meet the needs of those children would still be supplied to schools but according to a less formal arrangement. I do not want to make a party political point, but control of the LEA changed hands and as a result the funds available within the education budget were reallocated. Resources previously made available for children with special needs attending local schools were taken away unless the children were statemented. Everyone in the county responded by reminding the LEA that there had been an agreement, but it was hard to try to claw back the money because, as has already been said, the sums available for SEN have to compete with other demands on the overall education budget of an LEA. That money was desperately needed by those pupils.'

He concluded,

'Yes, let us do away with unnecessary bureaucracy and procedures, but let us never lose sight of the fact that statementing offers a legal safeguard for the most needy children in our schools.' (Hansard, December 5, Col.623)

This story neatly encapsulates what can happen when children are reliant on discretion of LEAs. For inclusion to be achieved in the way the government proposes, then legal guarantees must be in place.

IPSEA's experience of advising parents also causes to us to have concerns about the idea of 'designated' schools. In our experience, parents on the whole do not seek an inclusive place on ideological grounds alone, but rather because they wish their child to stay within their own local community and to have the benefit of being with local friends or siblings who can support the child, prevent bullying and generally help the placement to succeed. None of these situations can occur when the child is placed in a non-local school. Further, we feel there are some dangers that 'designated' schools might eventually be seen simply as large special schools. We also believe there is some danger, particularly if resourcing is inadequate, that other parents would seek to remove their children from such schools.

We would hope that inclusion in the local neighbourhood school, as a matter of course, might be possible for primary age children. At secondary age, we see the idea of a 'designated' school as a first step towards local inclusion.

What should the proposed Code of Practice on admissions say about the admission of pupils with SEN?

There should be a clear statement in the Code of Practice that physical disability or learning difficulty should not be used as a reason for not admitting a child to a school.

How can we help special schools to develop their role, working more closely with mainstream schools to meet the needs of pupils with SEN?

No special education legislation has ever included financial incentives to LEAs who wish to develop inclusive provision for children with special educational needs. With a series of bridging loans from central government, repayable out of future savings, LEAs could begin to rationalise their resources and develop more flexible patterns of provision within their area. Existing models of good inclusive practice should be actively disseminated. For example, Dr. Stephanie Lorenz' research in Leeds has shown that where an LEA is committed to mainstream provision for children with special educational needs, it can be done successfully. (see Lorenz, S. (1995) 'The placement of pupils with Downs Syndrome', BJSE, 22(1), pp. 16 --20.)

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Chapter 5 Planning SEN provision

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What should be the core functions of regional planning arrangements for SEN, and how should such arrangements be set up?

Existing data on need no longer reflects the present position, as we have discussed earlier in this submission. The notion of the '2 per cent', in particular , needs to be examined again. One important function for groups of LEAs, reporting directly to central government, would be to determine current and likely future needs.

What changes are needed to the existing arrangements for the placement of children with SEN in independent schools?

We are concerned that the proposal to end current consent arrangements would undermine the development of rational and coherent local provision. We are also concerned that, for hard to place children, the ending of the consent arrangements would make them vulnerable to placement simply in places that would be prepared to take them, not necessarily those that could meet their needs. We would expect to see the continuation of statutory safeguards protecting the interests of such pupils. We accept that on occasion delay can be caused while LEAs seek enabling consent, but overall we do not believe the time is right for safeguards of this kind to be removed.

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Chapter 6 Developing skills

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What changes are needed in the role and training of educational psychologists?

We are concerned that educational psychologists should be free to express their professional opinions on a child's needs and the provision necessary to meet those needs, without pressure from their employers to trim their reports in line with available resources. It is only when they are free to do this that parents will have confidence in their recommendations. The recent negligence judgment (Phelps v. London Borough of Hillingdon, 1997) will have a major impact on the work of psychologists, whether or not they are involved in statutory work. Liability will extend to any professional directly involved in assessing children. An understanding of the implications of this judgment should be incorporated into all EP training and a Circular issued elaborating its implications for all those professionally engaged with children with special educational needs, both at school and at LEA level.

We would welcome earlier involvement of psychologists, but not at the expense of their work in multi-professional assessments of the most needy children.

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Chapter 7 Working Together

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What arrangements would help the speedy dissemination of useful information about good practice in SEN?

SENCOs need to time in which to keep up to date with new developments and to convey these to colleagues. Guaranteed non-contact time for SENCOs would enable them to discharge their role more effectively.

How should funding for speech and language therapy and analogous services be provided in future?

The provision of speech and language therapy continues to be an area where LEAs refuse to acknowledge their responsibilities. Although the position in relation to speech therapy has been clear since 1989, IPSEA regularly advises parents when

  • an LEA refuses to itemise the need for speech and language therapy under Part 2 of a statement, despite clear professional advice that the child's needs for therapy are educational rather than medical. In this, LEAs disregard the criteria set out in R vs Lancashire County Council ex parte CM 1989;
  • an LEA refuses to specify speech therapy as an educational provision in Part 3 of the statement, despite having identified the need for therapy as a special educational need by listing it under Part 2 of the statement. In this, they are disregarding the judgment in the case of R vs Secretary of State for Education and Science ex parte E 1992 and the Educational (Special Educational Needs) Regulations 1994.

Submissions to the Select Committee in 1996 revealed that, despite the Lancashire judgment, in a number of LEAs speech and language therapy is , as a matter of policy, regarded as non-educational provision.

Much of the problem seems to arise from the fact that although LEAs have the statutory responsibility for speech and language therapy provision, they do not have direct responsibility for the funding. A shift of financial control to LEAs, on the Scottish model, may well resolve this problem.

However, the provision of speech and language therapy should remain a statutory duty, preserving the entitlement of the child to receive it, whatever funding pattern is adopted.

How can we help more young people with SEN make a successful transition to further of higher education, training and employment?

In our comments on ceasing to maintain statements (see page 14) we have already pointed out how young people can be disadvantaged and their education disrupted when an LEA ceases to maintain their statement. This situation can be particularly damaging for young people at age 16. We should like to see amendment of existing legislation to protect a young person's provision, when an LEA decides to cease to maintain the statement, until the Tribunal has considered any parental appeal against that decision. Again, amendment of existing Regulations to bring forward the decision-making process and allow time for appeal would ensure that no young person was without appropriate provision at the start of the school year.

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Chapter 8 Principles into practice: emotional and behavioural difficulties

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What should the DfEE do to support teachers, in mainstream and special schools, working with children with emotional and behavioural difficulties?

In IPSEA's experience, children with emotional and behavioural difficulties are particularly disadvantaged where LEAs operate 'criteria' for assessment. Some LEAs simply use learning difficulties as indicators of need for assessment, ignoring advice in the Code of Practice and failing to take into account the needs of such children until they have been finally excluded from school. Consequently some children are out of school for a considerable period while the assessment is carried out or, in some cases, where the LEA has refused assessment and the parent has had to appeal to the Tribunal.

This situation is one where LEAs are attempting to impose an arbitrary cap on numbers of statements. There is a dearth of evidence about what the level of need actually is - relevant data would be very helpful.

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Appendix 2
Funding and the SEN framework

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What needs to be done for the new LMS arrangements to support effectively the responsibilities of both schools and LEAs for SEN provision at stages 1-3 of the Code?

We believe there may be a case for ringfencing money delegated to schools for SEN provision. Clearly there needs to be close monitoring to ensure that money for SEN reaches those pupils for whom it is intended.

The negligence judgment (Phelps v London Borough of Hillingdon, 1997) has significant implications for schools, if , in the event of the numbers of statements being reduced, they are to take on responsibility for large numbers of children who, currently, are statemented.

In such a situation, there would need to be a clear and immediate commitment to transferring resources to schools in order that childrens' special needs can continue to be met. It is likely that schools could inherit responsibility without the financial capacity to fulfil it. Parents of children with special educational needs, lacking a formal avenue of appeal, will find themselves forced to use the law of negligence to put pressure on schools to meet their childrens' needs. Clearly such a situation would be a disaster for parent-teacher relationships as well as for the children concerned.

It is therefore essential that, before there is any attempt to reduce the numbers of children with statements, a clear commitment is made to improve provision for children with special needs in mainstream schools.

For pupils with statements, while schools may agree to make part of the provision for the child, it should be made clear to schools and parents that ultimately statutory responsibility for the whole statement lies with the LEA. Further, whatever funding practices are adopted by LEAs, it should be made clear that in law it is individual need, not LEA policies, which should determine the provision that is made for a particular child.

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Kavita's statement

A detailed statement provided a secure base for Kavita's inclusion into a mainstream primary school. This is the order of the SEN Tribunal requiring the LEA to amend Kavita's statement.

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Order

The authority to amend the statement as follows:

  1. In Part 2 (i) under the heading "Cognitive skills"
    1. delete the words "She is working within/towards level 1 of the National curriculum in all areas"; and
    2. insert the words: "Evidence is emerging, through her use of information technology, of age-appropriate cognitive skills in observed areas, for example spelling and whole word recognition. "
  2. In Part 2 (ii),
    1. delete the words: "Consistently paying attention and concentrating"; and
    2. delete the words: "Consistently co-operating with adult directed activities".
  3. In Part 3 B (i) under the heading "This provision is to be made by the Local Education Authority ":
    1. delete all of the words and replace them with the following;
      "Placement for Kavita in a mainstream school which can accommodate a pupil with cerebral palsy, spastic quadriplegic with athetoid movements and mild epilepsy which is controlled by medication;
      Full time I to I welfare support;
      I to 1 teaching for 5 hours per week (0.2 teacher);
      2 sessions per week, each of 45 minutes, with a speech and language therapist;
      access to advice from a physiotherapist;
      access to advice from an occupational therapist;
      appropriate technology to be developed in conjunction with ACE Centre (Aids to Communication in Education) at Ormerod School, Waynflete Road, Headington, Oxford;
      initial advice on, and oversight of, the establishment of Kavita's programmes, technology and access to the curriculum to be provided by an appropriately qualified person;
      physical adaptation of the school premises to provide suitable toilet and changing facilities for Kavita;
      additional support to be available as necessary on occasions when Kavita is accompanying other pupils on educational visits etc. outside school."
  4. In Part 3 B (ii) under the heading "This provision is to be made by the Goveming Body of the school from within its own resources":
    1. delete all of the words from "Access to technical aids...." to "... augmentative forms of communication inclusive; and
    2. delete all of the words from "Access to speech and language therapy..." to "....occupational therapy as needed" inclusive.
  5. In Part 3 C (a) delete the words "at annual review" and replace them with "initially after 6 months and thereafter annually."
  6. In Part 4 under the heading "Appropriate school or other arrangements" delete the words "Grove Park School, subject to review" and replace them with the words: "Wembley Manor Junior School, East Lane, Wembley".

Dated: 5th February 1997

Signed

John Reddish
Chairman

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