Placating ‘peasants’

by John Wright, who works for IPSEA and trains and supports the volunteers who staff the parent advice line. The article was written in a personal capacity

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In September 1999, the DfEE published their draft guidance for LEAs on resolving disputes with parents through conciliation. The deadline for responses is 12 November. John Wright believes parents and carers of children with special educational needs will treat this development with huge scepticism ...

• Introduction
• The five legal duties they disregard
• Conciliation as disaster
• Conciliation as positive

Introduction

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It is a hackneyed way to start an article, but in this case irresistibly apt: the New Oxford Dictionary of English defines and exemplifies conciliate as “stop (someone) being angry or discontented; placate; pacify (e.g.) concessions were made to conciliate the peasantry.”

But the ‘peasants’ in this particular scenario – parents and carers of children with special educational needs – are unlikely to be contented, placated or pacified, nor will they stop being angry, as a result of DfEE/LEA conciliation schemes. The stated aim is to “help resolve as many disputes as possible without recourse to the SEN Tribunal”. But is this any more realistic than the similar hope for Parent Partnership Schemes set up earlier in the nineties? Or will the numbers of appeals continue to rise, despite conciliation, as they have done, despite partnership?

Probably. Not because partnership and conciliation are in themselves unhelpful concepts, on the contrary, but because too many LEAs have lost the trust of too many parents as a result of their basic disregard for the legal entitlement of children with special educational needs.

The history of IPSEA’s development highlights the nature of the problem. In 1983, under the 1981 Education Act, parents were given the right to question professional reports on their children’s special educational needs and to challenge the decisions of LEAs on how those needs should be met. It was thought vital to establish in the voluntary sector a source of free second professional opinions for parents who disagreed with LEA professional opinions. Thus IPSEA was born – a small group of volunteer professionals, mainly educational psychologists, prepared to offer independent second opinions. Things were quiet, very quiet, for six years. Then, in 1989, IPSEA started offering, in addition to its little-used second opinion service, advice to parents and carers on LEA’s legal duties towards children with SEN. The result – an explosion in demand for help and support. Ten years ago we helped parents in their scores. This year we will have advised over 5,000 parents. There has been one constant, however: 95 per cent of the parents calling us for advice have had no problem accepting and agreeing with LEA professionals’ reports on their children’s needs. Hence, most have not sought help from our second opinion service. Their problem, ironically, lies in getting LEAs to accept their own professionals’ advice on children’s needs and the provision required to meet those needs. And, in getting LEAs follow the procedures prescribed in law.

Yet, alive and strong is the myth that the commonest cause of discord between parents and LEAs stems from parents’ misunderstanding, or even refusal to accept, the nature of their child’s special educational needs. Were this true, then IPSEA’s second opinion volunteers would have been run off their feet for the past 10 years. They haven’t been. Also, were it true, conciliation and partnership would perhaps, indeed, benefit children, by bringing their parents’ opinions closer to those of the LEA, and thus removing conflict. But IPSEA’s casework shows that most conflict between parents and LEAs springs not from parental misunderstanding or denial but from LEAs’ deliberate and knowing attempts to avoid their legal duties towards children with special educational needs.

To conciliate is defined as “stop (someone) being angry or discontented; placate; pacify (e.g.) concessions were made to conciliate the peasantry.”

The legal duties they disregard

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What are these duties which IPSEA’s casework records as being so commonly disregarded by LEAs? They are the five legal duties:

1. to assess when a child may have needs which cannot be met by the provision ordinarily available in the area's schools;
2. to seek expert opinion on provision needed;
3. to issue a statement when a child's needs call for provision not ordinarily available to the school;
4. to specify provision in the statement;
5. to arrange the provision in the statement.

1
To assess when a child's needs may call for provision which is not normally available in schools in the area

First, LEAs have a legal duty to undertake statutory assessment when an individual child has or probably has needs which call for different or additional provision to that which is normally available in schools in the area. Rather than examining individual children’s needs and what is actually available to them in their school, some LEAs will say: “Your child does not fall within the 2%” Or, “His needs are not complex or severe.” Or “We don’t assess children until they have been at school for at least a year.” Or, “We don’t assess children until they have passed through the three stages of the school-based stages” Or even, “We are not conducting any more assessment this financial year as the budget has run out.” The last, although as illegitimate a reason as the rest, at least has the virtue of a semblance of honesty.

Section 323 of the Education Act 1996

2
To seek professional opinion on the provision required to meet the child's needs

Second, when undertaking an assessment, LEAs have a legal duty to seek professional opinion on not just a child’s needs but also on the provision required to meet those needs. Often LEA officers object strongly to being told by their professionals what provision a child needs, despite the fact that the 1994 Regulations insist on this opinion being obtained. They say “The job of the psychologist is to describe the needs. We’ll make our own minds up about the provision.” I know a psychologist who was harassed from her post for writing in her reports her views on the provision children’s needs call for. I know another who was sacked for informing parents that his reports on their children were written under the restriction of a rule that he must put his views on provision on a separate memo which would not be copied to parents. In some LEAs, professionals are given proforma reports on which to record their assessment advice. The forms have a heading for the child’s name, address, age, etc., and special educational needs. But not for the professional’s views on provision required.

Regulation 6(2)(c) of the Education (Special Educational Needs) Regulations 1994

3
To issue a Statement when the child’s needs cannot be met from the resources ordinarily available to the school

Third, LEAs have a legal duty to issue a Statement of Special Educational Needs when an assessment leads to the conclusion that the child’s needs cannot in fact be met from the resources ordinarily available to the school. But rather than examining those resources and the demands a child’s needs will make on them, certain LEAs will assert: “We won’t issue a Statement for your child because there are other children in the school who have more problems than him and who manage without Statements.” Or, “We have delegated the money for helping children with moderate learning difficulties to your school already, so we won’t issue a Statement.” Or, “Under the Government’s Green Paper we are instructed to cut back on the number of Statements we issue.” Or even “There would really be no point in us issuing a Statement, regardless of your child’s needs, because we’re over budget for special needs this year so the Statement would be useless to him.”

Section 324(1) of the Education Act 1996

4
To specify special educational provision in Part 3 of the Statement

See also Legal Note re LEAs’ duty to specify (on separate web page)

Fourth, LEAs have a legal duty when issuing a Statement, to “specify” the special educational provision to be made in Part 3. The Code of Practice and the High Court have made it clear that unless there is a need for flexibility in the amount of help a child should receive (for example, because the needs are unstable) provision should be quantified. That is, legally, quantification should be the norm. Yet instead of writing in the numbers of hours or sessions of extra help a child should receive, many LEAs write “Regular speech therapy” (but Christmas dinner is regular). Or, “up to five hours” (one hour? two hours?) Or, “Opportunities for support” Or, “Access to help as deemed appropriate.” Or, “We only quantify provision on Statements for primary age children; it is not administratively possible at the secondary stage.” Or even the inscrutable “Quantify provision on a Statement? Heavens no, that is not our way!”

Section 324(3)(b) of the Education Act 1996

5
To arrange special educational provision

Fifth, LEAs have a legal duty to ‘arrange’ the special educational provision specified in Part 3 of a Statement. This is a mandatory duty. It is as unavoidable for LEAs as is the duty to stop at a red traffic light for motorists. Yet certain LEAs flatly deny this, telling parents “Well, yes, your son has a Statement, but he can’t have his help just yet. We have waiting lists in education, you know, just like hospitals.” Or, “We can’t afford to fund all the provision on your son’s Statement, so we’ve written to the school asking them to cover half the cost.” Or, “We’re sorry your daughter’s special needs assistant has resigned. The budget won’t allow us to re-appoint a new assistant till next year, so until then, it is best if you see what help the school itself can offer her.” Or even “The Council have voted for a 5 per cent reduction in the special educational needs budget for next year and to be fair to everyone, we are reducing the provision for all children with Statements by 5 per cent.”

Section 324(5)(a)(i) of the Education Act 1996

Conciliation – as disaster

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Clearly, conciliation schemes will face an uphill struggle in LEAs which are habitually breaking the law. Indeed, it would be disastrous for children if conciliation were to work in these areas and parents were ‘pacified’ into accepting the denial of their child’s legal right to special educational provision. For, in addition to extent of the law-breaking itself, the disturbing aspect of this situation is that children are wholly reliant on their parents to make LEAs obey the law. That is to say, there is no “police officer” to enforce the law on special education, other than individual parents, in respect of their individual children.

This often dumbfounds parents. They say: “If we break the law, we get arrested and fined or sent to prison. Yet when THEY break the law, they get away with it. No-one arrests them, charges them, punishes them. They get away with it, everytime.”

And this is an accurate assessment of the situation. Parents can appeal to the Special Educational Needs Tribunal against the outcome of an LEA decision and possibly get it reversed. But the Tribunal can not punish the LEA for having arrived at their decision illegally. Nor do anything to stop the LEA continuing to act illegally in its dealing with other children and parents who come after. OFSTED criticises LEAs in general terms, but seems blissfully unaware of the difference between bad practice and law-breaking (see OFSTED’s recent report on Buckinghamshire). Even the Audit Commission has difficulty in grasping the fact that the time limits on LEAs conducting assessment are mandatory, prescribed in law, believing them instead to be simply part of the Code of Practice’s ‘strong advice’ (see their recent survey of Local Authority services for disabled people). And as for the DfEE … despite the clear power to enforce LEA compliance with the law on special education, it backs off as fast under New Labour as it did under the Conservatives. But, even if the Department did decide to be firm with LEAs, it still requires action by an individual parent to start the process.

So, in the end, the individual parent/carer is the only “police officer” on the scene, and it is basically down to her or him to make an LEA obey the law and deliver a child’s legal entitlement to special educational provision.

IPSEA believes this is profoundly and unarguably wrong. It is a system which blatantly discriminates against children whose parents are less able to understand the law, less confident for whatever reason at challenging their LEA through the formal processes of complaint and appeal.

The presence in the voluntary sector of ‘parent support’ charities such as IPSEA does not remove the wrong or the discrimination. For the ability to seek out and make use of voluntary sector support systems is not evenly spread over different sections of society. Those parents who are less able to fight for their children’s legal entitlement on their own are likely to be also those who are less likely to know about and be able to seek out the voluntary sector support organisations.

IPSEA also believes that there is something profoundly wrong with society’s relying on charities and voluntarism for law enforcement in civil law situations: “Law enforcement should not depend on charities. Nor should children with special educational needs have to rely on either their parents/carers or on charities in a democratic society when parliament has created a law which gives children clear legal rights to receive the provision their needs call for.” (IPSEA policy paper on Compliance, June 1999.)

“If we break the law, we get arrested and fined or sent to prison. Yet when THEY break the law, they get away with it.”

The parent is the only “police officer” on the scene, and it is down to her or him to make an LEA obey the law and deliver a child’s legal entitlement

Conciliation – as a positive development

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The Government draft paper will at least help raise these issues for discussion by both parents and professionals. Can it do more? Perhaps, for despite the doubts expressed so far, I believe that one of the proposed ‘models’ for conciliation contains the germ of an idea which, with adaptations, may possibly impact on the real problem. This is the proposal to establish a panel of trained conciliators …

“… affiliated to a recognised conciliation or conciliation body … The conciliators would operate as a neutral third party and would facilitate and encourage dialogue between the disputing parties. LEAs could then buy in as required …”

The proposal is flawed, as are all the proposals in the DfEE draft, by the lack of independence of schemes from the LEA itself. For any conciliation scheme to work it must be genuinely and totally independent. The conciliators must also be trained in special education law (it’s only about 12 pages long!). And they should also be empowered to require the LEA to comply with whatever legal requirements were revealed as being disregarded through the process of and at the time of the conciliation.

Perhaps the most appropriate existing body for legally trained conciliators to be affiliated to is the Special Educational Needs Tribunal. There would be a natural overlap of concern, that is, achieving a speedy resolution to disagreements, in children’s best interests. Tribunal Regulations could be amended so that LEAs were only allowed to defend appeals when their Statements were written in accordance with the law (advice containing opinion on provision, a provision in Part 3 for every need in Part 2, quantification unless evidence showed the need for flexibility, etc). In short, unless LEAs provided the parent and the Tribunal with Statements and advice drafted in accordance with the law they would be disqualified from defending an appeal.

With this expanded role, the Tribunal itself would play a major part in reducing the number of parental appeals it received. For, once the illegal practices on the part of LEAs were curbed, what would remain as a source of conflict would be the minor phenomenon of parental disagreement with professional opinion on the nature of a child’s needs and the professional view on the provision required to meet them. Resolution to these problems may well be possible though conciliation, with the Tribunal appeal as an ultimate back-up when this failed. IPSEA could revert to playing its original role, perhaps in support of conciliation efforts, by providing second professional opinions on children needs and the provision required to meet them. And, most important of all, children would have their needs met by virtue of legislation alone, rather than having to relying on the ability and skill of their parents or carers to enforce it.

For any conciliation scheme to work it must be genuinely and totally independent. The conciliators must also be trained in special education law. And they should also be empowered to require the LEA to comply with legal requirements.