Independent Panel for Special Education Advice (IPSEA)

Defending children's right to special education provision

Complaints against five LEAs

In the same week as the Government launched its SEN strategy (see IPSEA's comment) IPSEA complained about apparent breaches of law in five authorities. The problem, as the parents who contact IPSEA see it, is not of bureaucratic and cumbersome procedures, but lack of support for their children and avoidance of legal duties.

Hackney
Barnet
Islington (three complaints)

East Sussex
Essex

Formal complaint against London Borough of Hackney as a Local Education Authority under s496 and s497 EA1996

The enclosed letter, from 'The Learning Trust', acting as agent for the London Borough of Hackney, is evidence that the LEA is operating a blanket policy of refusing to assess children's special educational needs under s 323 EA 1996 in situations where schools fail to respond to the a request for information made by an LEA in accordance with paragraph 7:27 of the Code.

This is necessarily a blanket policy in that it is not a reason which relates to an individual child's needs, being triggered instead by the failure on the part of a school to reply to an LEA request for information.

We ask the Secretary of State to use his powers to order the LEA to cease this policy on the grounds that it is unreasonable in the terms of s497: a reasonable Authority would insist on a head teacher responding to a request for information and/or send an officer to the school to collect the information required. It is unreasonable to refuse an assessment on the grounds that a school has failed to send information on a child.

IPSEA also considers that by their lack of action the LEA is failing to fulfil their duty under s321 of EA1996 to 'identify' pupils for whom they are responsible who have special educational needs. We also, therefore, ask the Secretary of State to use his powers to order the LEA to cease this policy on the grounds that it represents a failure of their legal duty.

Formal complaint against London Borough of Barnet as a Local Education Authority under s496 and s497 EA1996.

'Special Educational Needs Inclusion Strategy'

IPSEA has had sight of the above document which was recently circulated for consultation by the London Borough of Barnet as an Education Authority. We have written to Barnet expressing our concerns, but have received neither acknowledgement nor reply.

I am writing now to express IPSEA's concern at what seems to be a proposed policy which is intended to:

discourage parents form requesting placements in schools maintained by neighbouring LEAs; and
change the placements of children with Statements who are currently attending neighbouring Authority schools with the sole purpose of bringing them into Barnet schools.

Schedule 27(3) of the EA 1996 sets out a parent's right to express a preference for the community, foundation or voluntary school at which they wish their child to be educated, when a Statement is first issued in a proposed form, if the proposed Statement is subsequently amended and when an Amendment Notice is issued. There is no restriction in the Schedule to schools maintained by the 'responsible' LEA (i.e. the LEA in whose area the parent is resident).

In addition, the Code of Practice makes direct reference to a parent's right to express a preference for a school in another Authority area (in paragraph 8:63).

Under Schedule 27(3) the LEA's duty to comply with a parent's stated preference for a maintained school arises regardless of whether the school is maintained by the responsible LEA itself or by another LEA. That is, the responsible LEA must comply with the parent's preference unless they can show that one or more than one of the three conditions cannot be fulfilled:

that the child's needs can be met,
that the education of other children would be prejudiced, or
that there would be an inefficient use of resources.

IPSEA believes that it would be unlawful for an LEA to deny a parent's preference for a place in another LEA's school on the grounds that they (the 'responsible' Authority) have a school of their own which can meet the child's needs; nor on the grounds that the Council have adopted a policy of placing children whenever possible in their own schools.

Barnet's draft policy statement ('Special Educational Needs Inclusion Strategy', page 31) states as an explicit aim:

'The Council is committed to support all Barnet schools and settings in developing inclusive education and to a reduction in the numbers educated in special schools particularly those educated outside Barnet.' (emphasis added).

While not disputing the LEA's power to decline to meet a parent's preference when one of the three conditions relieving them of that duty arises, we have been informed by parents living in Barnet that this policy is in fact already being pursued: i.e. staff of the Authority are advising parents against expressing a preference for a school in the neighbouring LEA because 'It is Barnet's policy to place children in its own schools.'

We believe that it is unreasonable in a statutory sense to be steering parents away from expressing a preference for a school in a neighbouring LEA in this way.

The consultation document proposes a target for bringing as many children as possible back into Barnet schools (Appendix B: Barnet Council -- Special Educational Needs Action Plan, '(x): Action: Identify cohort of pupils placed out borough for possible return to Barnet and attend 350 annual reviews in 2002/3.'

We believe that it may also be unreasonable in a statutory sense to target children currently placed in out borough maintained schools by deploying officers of the Authority to attend each Annual Review meeting for a child placed out county, clearly for the express purpose of pressing for a change of placement, regardless of parental preference and possibly also regardless of the child's best interests.

IPSEA asks the Secretary of State to use his powers under s496 and s497 EA 1996 to order the LEA to withdraw their proposal to introduce this policy on the grounds that it would be both unlawful and unreasonable.

Formal complaint against London Borough of Islington as a Local Education Authority under s496 and s497 EA1996.

IPSEA has been approached for advice by a number of parents whose children have Statements of Special Educational Needs issued and maintained by LB Islington and we have selected three Statements from those we have seen, all issued in 2003, as the basis of this complaint. Extracts from Parts 3 and 6 of the Statements are referred to and attached as evidence.

Complaint 1:

We believe that the LB of Islington is operating a blanket , unlawful policy of not 'specifying' special educational provision in the Statements they issue. In doing so, they are failing to fulfil their duties

under s324(3)(b) EA1996 (the duty to 'specify' special educational provision in a Statement);
under s313(2) EA 1996 (the duty to 'have regard to' the Code of Practice, which in paragraph 8:37 interprets the duty to 'specify' as meaning that normally provision should be 'quantified ... in terms of hours of provision.');
in the light of the judgment in L vs Clarke and Somerset County Council 1998 (' ... in very many cases it will not be possible to fulfil the requirement to specify special educational provision considered appropriate to meet the child's needs, including specification of staffing arrangements and curriculum, unless hours per week are set out.');
in the light of the judgment in The Queen (on the application of IPSEA Ltd) vs the Secretary of State for Education and Skills 2002 ('the statement clearly has to spell out the provision appropriate to meet the particular needs of, and objectives identified for, the individual child ... any flexibility built into the system must be there to meet the needs of the child and not the needs of the system ... vague statements, which do not specify provision appropriate to the identified special needs of the child, will not comply with the law.')

The extracts attached as evidence are from Statements which make no reference to the children's' special educational needs being 'changing', in the term of paragraph 8:37 of the Code. The Statements were written for pupils in a range of settings: mainstream, special school and a unit attached to a mainstream school.

This complaint is made under s 497 EA 1996 on the grounds that the LEA is failing to fulfil their duty under education law.

Complaint 2:

We believe that the LB of Islington is operating a blanket, unlawful policy of delegating the responsibility for 'determining' the special educational provision which a child's learning difficulties call for, when Statements are issued, to staff in individual schools. In doing so they are failing to fulfil their duties:

under s 324(1) EA 1996 ('to determine the special educational provision which any learning difficulty he has calls for');
in the light of the judgment in R vs Secretary of State for Education and Science ex parte E 1992 ('The LEA is obliged to determine the special educational provision that should be made for the child in respect of each and every educational need identified in the Statement');

The extracts from statements attached illustrate LB Islington's policy of delegating the responsibility for determining special educational provision to staff in schools. Any blanket policy to delegate responsibility for this duty would be unlawful. The High Court has specifically judged it to be unlawful to delegate the duty to schools and unit staff in C vs Special Educational Needs Tribunal and London Borough of Greenwich 1999.

This complaint is made under s 497 EA 1996 on the grounds that the LEA is failing to fulfil their duty under education law.

Complaint 3:

We believe that the LB of Islington is operating a blanket policy of repeating the detail of special educational provision set out under Part 3 of Statements in Part 6 (as non-educational provision) without explaining why specific provisions are regarded by them as both special educational provisions and non-educational provisions.

The extracts attached contain these examples or unexplained repetition:

In Part 3: 'a class-based programme .... devised and monitored by the speech and language therapist ... ' And, in Part 6: '... advice and support from the Speech and Language Therapy Service of Islington Primary Care Trust.'

In Part 3: 'An individual programme of activities, supported and monitored by the clinic based speech and language therapist in liaison with the Language and Communication Team to develop speech, language and communication skills ...' And, in Part 6: ' ... advice and support from the clinic based Speech and Language Therapist to be provided by the Islington Primary Care Trust ...'

In Part 3: ' ... language programmes, devised and supervised by a speech and language therapist ...' And, in Part 6: ' ... advice and intervention from a Speech and Language Therapist to be provided by the Camden and Islington Community Health Trust.'

In each Statement, the specifications of provision in Part 6 quoted above is followed by the qualification: 'as advised by the Speech and Language Therapist in their Advice.'

We believe that this policy has the effect (whether intended or not) of misleading all who read the Statements (parents and school staff in particular) as to where the legal duty lies with regard to 'determining' the provision and 'arranging' the provision to be made.

IPSEA has heard from parents who have questioned the fact that their child's speech and language programme was not being provided who have had the wording in Part 6 of the Statement cited to them as proof that this provision is not the responsibility of the LEA, being 'non-educational'; this, despite the fact that the provision is also set out under part 3, making its 'arrangement' quite clearly the ultimate responsibility of the LEA.

IPSEA has also heard from parents who have been cited Part 6 of their child's Statement as evidence that the decision as to how much provision a child should receive is the responsibility of the Speech and Language Therapist who provided advice for an assessment.

We believe that the extracts attached show that LB Islington is acting 'unreasonably' in the terms of s496 EA 1996 in misleading parents and teachers as to where the legal responsibility lies for arranging provision which is set out under part 3 of a Statement; and, misleading parents and teachers as to who has the duty to determine special educational provision when a Statement also lists it as non-educational provision.

This complaint is made under s496 and s497 EA 1996 on the grounds that the LEA is acting unreasonably and unlawfully by operating a blanket policy under which which they duplicate without explanation certain provisions under Parts 3 and 6 and, under Part 6, delegate responsibility for determining provision to individual providers of assessment advice.

IPSEA calls upon the Secretary of State to use his powers of investigation to inspect all Statements produced by LB Islington and issue an order which prevents them from acting unlawfully or unreasonably in the future.

Formal complaint against East Sussex County Council as a Local Education Authority under s497 EA1996.

I enclose a letter from an Officer of East Sussex County Council which clearly states:

'... it is not the LEA's policy to make specific reference to the number of hours or qualifications which teaching assistants have as this situations is variable.' (sic)

IPSEA believes that this letter makes clear that East Sussex County Council are failing to fulfil their duties:

under s324(3)(b) EA1996 (the duty to 'specify' special educational provision in a Statement);
under s313(2) EA 1996 (the duty to 'have regard to' the Code of Practice, which in paragraph 8:37 interprets the duty to 'specify' as meaning that normally provision should be 'quantified ... in terms of hours of provision.');
in the light of the judgment in L vs Clarke and Somerset County Council 1998 (' ... in very many cases it will not be possible to fulfil the requirement to specify special educational provision considered appropriate to meet the child's needs, including specification of staffing arrangements and curriculum, unless hours per week are set out.');
in the light of the judgment in The Queen (on the application of IPSEA Ltd) vs the Secretary of State for Education and Skills 2002 ('the statement clearly has to spell out the provision appropriate to meet the particular needs of, and objectives identified for, the individual child ... any flexibility built into the system must be there to meet the needs of the child and not the needs of the system ... vague statements, which do not specify provision appropriate to the identified special needs of the child, will not comply with the law.');

As the Secretary of State will be aware, the above judgment was copied to all LEAs by his Department, with an explanatory letter which made clear that blanket policies never to quantify provision were unlawful. The Secretary of State will note that the letter from East Sussex was written some five months after his Departments guidance was circulated.

IPSEA asks the Secretary of State to use his powers under s497 EA 1996 to order the LEA to cease this policy on the grounds that it represents a failure of their legal duty.

Formal complaint against Essex County Council as a Local Education Authority under s497 and s496 EA1996

The enclosed copy of a letter from an Officer of Essex County Council Education Authority is evidence that the Authority is, or is intending to be unless checked, in breach of their legal duty under Schedule 27, (2)(1): 'before making a statement, a local education authority shall serve on the parent of the child concerned a copy of the proposed statement.'

Schedule 27(2)(1) EA1996 provides for parents to have sight of, and to be able to make representations on, any aspect of their child's Statement before it is finalised. Essex's letter proposes otherwise in paragraph 5. IPSEA calls on the Secretary of State to regard this letter as a formal complaint under s497 EA1996 against the LEA on the basis of their failure to fulfil a clear legal duty.

The reasoning behind Schedule 27(2)(1) is that parents and LEAs should be able to discuss differences of opinion over the content of a Statement at the proposed stage. Eliminating this opportunity from the procedures increases the likelihood of parents appealing to SENDIST and is, in IPSEA's view, unreasonable in a statutory sense. Therefore, this letter is also a formal complaint under s496 EA1996.

We are particularly anxious that Secretary of State investigates whether or not this development is a result of a policy having been adopted by Essex with regard to the wording of proposed Statements.