Lewisham leaflet misleads parents, risks SEN provision

IPSEA has made a formal complaint to the Secretary of State for Education and Skills against the London Borough of Lewisham over a leaflet for parents which, in IPSEA's opinion, is dangerously inaccurate and misleading in its account of children's rights to special educational provision.

The leaflet announces to parents: "Statements (are) no longer necessary", when in fact if a child's needs cannot be met from a school's own budget, a Local Authority assessment and statement is the only way a child is guaranteed to get the special help they need.

The leaflet omits to tell parents:

that the Authority have to take the amount of provision available at a school when deciding whether or not an assessment is needed.
that Local Authorities have a strict legal duty to arrange the special help specified on a statement - which is why they are so important as a safety-net for children with special needs.

Roger Inman, Chief Executive of IPSEA, said:

"We have asked the Secretary of State to order the withdrawal of this leaflet. It is bound to discourage parents from using their rights to ask for assessments of their children, which in turn undermines children's tights to sufficient and appropriate provision. A new leaflet is needed, one which corrects the legal errors of the first leaflet and which makes it clear how the law protects children with special educational needs. By coincidence we made this complaint on the same day that the Government responded to a critical Select Committee report on special education provision by claiming that individual children's needs are at the heart of their concerns. If these concerns cover the children of Lewisham, then hopefully Lewisham parents will see a very prompt response to IPSEA's complaint."

The complaint

The Secretary of State for Education and Skills
DfES
Sanctuary Buildings
Great Smith Street
London SW1P 3BT

July 6 2006

Dear Secretary of State,

Formal complaint against London Borough of Lewisham as a Local Education Authority under s497 Education Act 1996

I am writing to make a formal complaint against LB Lewisham under s497 EA1996 on ground that the Authority are failing to fulfil their duty under The Special Educational Needs (Provision of Information by Local Education Authorities(England) Regulations 2001, Regulation 2 (d) to provide accurate information on 'organising the making and maintaining of statements in their area including any local protocols for doing so'.

The complaint relates to the contents of a leaflet published by the Authority specifically aimed at parents, "Supporting children with special educational needs", which has been brought to our attention by parents of children with special educational needs who are resident in the Borough (copy enclosed).

The duty to provide information on the making and maintaining of statements in their area.

We believe that the Authority's duty to provide information on special educational needs arrangements under the 'Provision of information' Regulations 2001 has been breached as a result of the following omissions and inaccuracies in their leaflet: "Supporting Children with special educational needs".

Under the first paragraph ('Changing arrangements') the current arrangements for meeting children's sen are described as follows: "At the moment, once a child has been assessed by the local authority as having special needs, they are usually given a statement. The statement describes the child's needs and all the special help that he or she should receive. In most cases the school is also helped with some extra funding to support the child." This brief account fails to mention:
- the fact that the majority of children with sen have their needs met by their school but when a child's needs cannot be met by their school the Local Authority has a legal duty to undertake an assessment of the child's needs. It is vital in children's interests that this 'safety-net' function of statements is explained to parents. And,
- the fact that once a statement is produced a child has a legally enforceable right to the provision which is specified in the Statement. Again, it is vital that parents understand that the purpose of the current legal framework is specifically to provide the guarantee (and protection) of the law for those children whose special needs cannot be met by the provision ordinarily available to them in their schools.
Against the background of this partial account of the position "at the moment", the leaflet proceeds in its second paragraph to explain how "The system is about to change … Lewisham Council has now increased the level of finance it gives each year to schools so that they can give extra help earlier to most pupils with special needs." This is misleading for two reasons:
- " Increasing the amount of money delegated to schools may lead to more children having their needs met adequately by their schools and, therefore, may lead to a reduction in the numbers of children for whom the Authority has a duty to perform the 'safety-net' function of undertaking assessments and producing statements. But this is a contentious claim, depending on whether or not the extra funds delegated to schools are calculated on the basis of actual children's needs, and, depending on whether the funding is 'ring-fenced' to ensure that it is in fact spent on meeting children's special educational needs.
- " It is inaccurate and misleading to state 'the system is about to change' when the system is enshrined in law (the Education Act 1996) and when there has been no change to that law. The Authority continues to have a duty to assess children under s323 EA1996 when this is 'necessary' and the statutory guidance on what circumstances create the necessity (set out in the Code of Practice on Special Education Needs, paragraph 7:34) emphasises the issue of a school not being able, on its own, to meet a particular child's needs.
The reason given for the 'change', in the second paragraph, is "… because schools are in the best position to assess whether pupils may need special help to meet their particular needs." This explanation is misleading for two reasons:
- Schools are certainly not in the best position to assess children whose needs cannot be met from their own resources. Although a school's input to an assessment of a child in this situation would be important, schools are not able to involve in assessment the wide range of professionals (including therapists and educational psychologists) which the Authority is able to involve.
- There is an implication that the statutory duty to assess children whose needs can not be met by their school has been delegated by the Authority to individual schools. This is not the case in Lewisham or in any other Authority area, for it would require a change of law.
Given the fact that there has been no change with regard to the Authority's duty to assess children and produce statements when these are needed, it is wholly inaccurate and dangerously misleading to use as a subhead (to the third paragraph in the leaflet) the strap: "Statements no longer necessary". Although the text that follows modifies the headline by explaining: "Most children with special needs, therefore, will no longer need a statement …" many parents will be struck by and respond to (and perhaps read no further than) the headline itself. It is printed in bold in the central position on the double-page of the leaflet.
The text in the third paragraph lists categories and degrees of special educational needs which will call for a statement, as follows: '… those with severe, complex and enduring special educational needs will continue to receive a statement.' These restrictive criteria have no basis in law; in addition, the nature of a child's needs is only one factor which the LA must take into account when deciding if an assessment and statement is 'necessary'. The issue of whether or not the child's needs can be met by the provision available to them through their school must also - and always - be taken into account. Thus, a child could have special educational needs which were neither 'severe, complex nor enduring', but which nevertheless could not be met by their school (perhaps because of resource problems or a lack of experience or training), in which case the Authority would have a duty under in s323 Education Act 1996 to consider statutory assessment. The same criticism can be levelled at the statement in the fifth paragraph of the leaflet: "Your child's needs will not need to be assessed by the local authority unless his or her needs are at a high level.' The concept of there being 'level' of need warranting assessment does not derive from the law; nor, again, is it lawful for the decision on assessment to be made without regard to whether or not the school can meet a child's needs from its own resources.

The misleading effect of the inaccurate information in the leaflet

IPSEA has been contacted by several parents in Lewisham for advice on whether the law on special education has been changed and whether it is worth while any longer parents in Lewisham asking for a statutory assessment, even if they believe their child's needs are not met by their schools. The effect of the leaflet, in our view, is to discourage parents from using their rights to ask for assessment, which ultimately risks denying children with sen the entitlement to sufficient and appropriate provision which a statement brings.

We ask the Secretary of State for Education and Skills to use his powers under s497 EA1996 to order LB Lewisham to withdraw the leaflet and in any further information they may produce describing 'organising the making and maintaining of statements in their area including any local protocols for doing so' include:

a clear explanation of the Authority's duties to undertake assessment and produce statements for children whose sen are not being met by their schools;
a clear explanation of the 'protective', safety-net function of statements of special educational needs;
(iii) the following direct quote from paragraph 7:34 of the Code of Practice (or a faithful paraphrase or summary):
"In deciding whether to make a statutory assessment, the critical question is whether there is convincing evidence that, despite the school, with the help of external specialists, taking relevant and purposive 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."

The leaflet 'Supporting children with special educational needs', in IPSEA's view, is far from supportive; in fact, it is damaging to children's rights to appropriate special educational provision. We ask the Secretary of State for Education and Skills to respond urgently to this complaint.

Yours faithfully,

Roger Inman, Chief Executive, IPSEA