Briefing on the SEN Initiative

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IPSEA, the Independent Panel for Special Education Advice, is a national charity which since 1983 has been giving advice and support to parents of children with special educational needs. As well as its national helpline, IPSEA has a Free Representation Service for parents wishing to appeal to the Special Educational Needs Tribunal. IPSEA answers 2,000 calls each year from parents and has so far (May 1997) advised over 200 parents with appeals to the SEN Tribunal.

The following was written to brief the Secretary of State, which explains why it ends with requests for direct action from him.

The SEN Initiative:
prejudicing children's legal rights

Contents

1. Introduction
2. The law on special education
3. The account of the law contained in The SEN Initiative
4. The report's recommendations
   1. When statements should be made ...
   2. Removing statements ...
   3. That LEAs should choose what to spend on a child ...
5. The intention to disseminate the report and its recommendations
6. Why IPSEA believes action is required by the Secretary of State for Education and Employment

"IPSEA's opinion is that the recommendations contained in the The SEN Initiative will prejudice the legal right of children to receive the special educational provision their special educational needs call for. "

1 Introduction

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There are currently 217,000 children in England and Wales who are the subjects of Statements of Special Educational Needs maintained by Local Education Authorities (LEAs). This figure represents approximately 2 per cent of the total school population.

Each individual child who is the subject of a Statement has a legal entitlement to receive the special educational provision his or her needs call for. This entitlement is without qualification and, as a consequence, imposes constraints on an LEA's control over their special educational needs budget.

The SEN Initiative, a research project and report undertaken and produced by Coopers and Lybrand for the Society of Education Officers, is an exercise in advising LEAs on how to achieve greater control over their special educational needs budgets. It does not discuss the specific effects of this control on the legal entitlement which children have to receive appropriate and adequate special educational provision. Nor does it approach budgeting issues from the perspective of 'the efficient use of resources', i.e. weighing the value of provision for disabled children against the cost for LEAs (contrary to the written reply to a Parliamentary Question tabled prior to the May general Election)

IPSEA's opinion is that the recommendations contained in the The SEN Initiative will prejudice the legal right of children to receive the special educational provision their special educational needs call for. Our case work leads us to believe that large numbers of disabled children are not receiving the provision to which they are legally entitled and that The SEN Initiative is already having a worsening effect.

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"Each individual child who is the subject of a Statement has a legal entitlement to receive the special educational provision his or her needs call for. This entitlement is without qualification and, as a consequence, imposes constraints on an LEA's control over their special educational needs budget. "

2 The law on special education

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Children with special educational needs are defined in law as having special educational needs by virtue of their having learning difficulties and/or disabilities which call for educational provision in addition to that normally made for children of their age in schools. (Section 312 Education Act 1996)

Following the judgment in R-v-Hereford and Worcester County Council ex parte Lashford, the law (then the Education Act 1981) defines two categories of children with special educational needs.

The first is the group of children with special educational needs whose needs can be and are met from the resources available to their mainstream school. With regard to the duty in law to meet the needs of these children, it is placed on the school governors, who must use their best endeavours to secure that appropriate provision is made for children with special educational needs. (S317 Education Act 1996)

The second category of children are those whose special educational needs cannot be met by provision from the resources available to their school. Their right to special educational provision is secured via a series of duties which the legislation places on LEAs:

1. The duty to assess any child who has or probably has special educational needs which require the LEA, rather than their school or some other body, to determine the special educational provision required to meet those needs. (S321 Education Act 1996)
2. As part of that assessment, the duty to obtain written advice from professionals, including an educational psychologist, a medical officer and a headteacher, on a child's needs and the appropriate provision to meet them. (Regulation 6(2) of The Education (Special Educational Needs) Regulations 1994)
3. If, following assessment, it is necessary for an LEA to determine a child's special educational needs, the duty to issue a Statement of Special Educational Needs which must list all of the special educational needs identified and specify the special educational provision required to meet them. (S324(1) Education Act 1996)
4. Once a Statement is issued, and for as long as it is in force, the duty to arrange the special educational provision specified in the Statement of Special Educational Needs. (S324(5) Education Act 1996)

Two specific features of this legislation are important to understanding why we believe the recommendations contained in the The SEN Initiative prejudice the legal right of children with special educational needs to receive the special educational provision their needs calls for.

The first is that the Local Education Authorities' duties under the Education Act 1996 described under (1) to (4) above are duties towards individual children. Legal action against LEAs who are in breach of any one of these duties can only be taken in the name of individual children.

The second is that none of the duties described under (1) to (4) above is qualified by reference either to the cost or to the immediate availability of the provision an individual child may or does require.

Local Government legislation places a general duty on Local Authorities not to be profligate in their spending of public money. Further, case law has affirmed that LEAs' duties to 'arrange' the special educational provision specified in a Statement of Special Educational Needs does not oblige them to pay for it themselves: they are at liberty to seek to persuade another body (e.g. a Health Authority or school) to provide and pay for the special educational provision. However, if such an agreement cannot be reached, or if it breaks down, the duty to arrange the provision by providing and/or paying for it directly, falls on the LEA. (See R-v-Oxfordshire County Council ex parte Pittick 1995)

Equally, an LEA which is arranging special educational provision by providing and paying for it directly themselves are at liberty to seek to do this in as inexpensive a manner as possible, provided that the the provision specified in the Statement is actually made. Case law has established that the duty to arrange provision extends to the provision required to meet a child's needs, but not to the best possible provision available. (See R-v-Surrey County Council Education Committee ex parte H 1983)

The three discrete situations in which the Education Act 1996 requires an LEA to consider the 'efficient use of resources' are:

• when considering their duty to place a child with special educational needs in a school which is not a special school (Section 316 Education Act 1996);
• when considering their duty to comply with a parental preference for a school when a Statement is first issued (paragraph 3 Schedule 27 Education Act 1996); and,
• when considering their duty to comply with a parental request for a change of the school named on an existing Statement (paragraph 8 Schedule 27 Education Act 1996).

The duties described under (1) to (4) above -- that is, the duty to assess a child, to obtain professional advice on the child's needs and the provision required to meet them, to issue a Statement and to arrange the special educational provision specified in a Statement -- are not qualified by reference to the efficient use of resources or to resources per se.

Two recent High Court judgments have made explicit LEAs' ultimate duty to arrange the special educational provision required to meet a child's special educational needs as specified in Part 3 of a Statement of Special Educational Needs.

In R v Hillingdon London Borough Council, ex parte Governing Body of Queensmead School, 10 December 1996 the judgment confirmed that if an LEA's formula for devising funding for a child with special educational needs did not produce sufficient resources to meet the child's needs than the LEA would have to make up the balance and could not require a school to do so. (The Times, 9 January 1997)

In R v L B Harrow ex parte M, 8 October 1996, the judgment confirmed the right of LEAs to request other bodies (e.g. a Health Authority) to make the special educational provision a child required, but if that was not forthcoming, there was no 'let-out' for the authority -- they must themselves arrange the special educational provision the child required. In the words of Mr Justice Turner, '... this duty is owed personally to the child and the duty is not by this section delegable.'

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"The duty to assess a child, to obtain professional advice on the child's needs and the provision required to meet them, to issue a Statement and to arrange the special educational provision specified in a Statement -- are not qualified by reference to the efficient use of resources."

3 The account of the law contained in The SEN Initiative

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The SEN Initiative Volume One describes the law as giving LEAs wide discretion in defining which group or groups of children have special educational needs requiring Statements.

Paragraphs 307 to 312 offer an outline of 'the legal position', asserting that:

'the law allows LEAs considerable discretion'

as to the interpretation of the meaning of the definitions of special educational needs and special educational provision; and advising that:

'It is only when the LEA has exercised its own discretion in these areas that the legislation bites. LEAs are then bound to certain courses of action (e.g. time limits for assessments; making the educational provision shown in the statement). However, these courses of action are applied to those children defined by the standards the LEA itself has set.'

Under the heading 'Actions for each LEA', following paragraph 20 of the report, is the advice:

'The LEA can and should make its own decision on the definition of SEN which suits its own particular circumstances. It should also decide the level of SEN it considers should be protected by a statement -- and therefore additional resources. To do this each LEA should identify broad categories of SEN ... for each category, decide the percentage of pupils it wishes to target for extra resources...'

Paragraph 344 makes explicit that the report expects LEAs to make their decision on the size of the group in the light of the resources they wish to devote to meeting special educational needs:

'Once the LEA has determined which cohort -- and the size of the cohort -- of pupils with SEN it considers to need extra resources, it can then decide what extra resources to devote to this group. (Realistically, it will have an eye on this when determining the size and nature of the cohort)'

The definition section of the law states that a child has special educational needs if he has a learning difficulty which calls for special educational provision to be made for him. (S312 Education Act 1996)

Learning difficulty is defined as either:

(a) a significantly greater difficulty in learning than the majority of children of his age, or
(b) a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area.

Looking at (a) above, it is clear that when exercising their duties under the Education Act 1996 an LEA must first decide whether or not a child has a significantly greater difficulty in learning than the majority of children of his age and that this decision must involve in some way a measuring of the ability/disability/performance/lack of performance of an individual child against the ability/disability/performance/lack of performance of the majority of other children of the same age.

In contrast, The SEN Initiative's account of the law as resource-led, with decisions about levels of funding determining how many children will be deemed to have special educational needs, is a misrepresentation of its intent and detail. The law requires LEAs to identify children with special educational needs, to assess those who have or probably have special educational needs, then to issue statements for those whose needs are confirmed. The report's misrepresentations are only made logically possible within the context of the report itself by virtue of the fact that its authors have bypassed those legal duties placed on LEAs with regard to the identification, assessment and statementing of children with special educational needs, and have focused solely on the definition section in the law.

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"The SEN Initiative's account of the law as resource-led, with decisions about levels of funding determining how many children will be deemed to have special educational needs, is a misrepresentation of its intent and detail."

4 The report's recommendations

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The view of the law presented in the report, which is wrong for the reasons set out above, is used as justification for a number of specific recommendations which, if followed, would lead LEAs into actions which IPSEA believes would prejudice or risk prejudicing the right of children with special education needs to receive the provision necessary to meet their needs. Three examples of such recommendations are set out below.

(i) When statements should be made ...

The report recommends that LEAs set their own rules for when statements of special educational need should be made.

On page 20 the report advises:

'The LEA can and should make its own decision on the definition of SEN (Special Educational Needs) which suits its own particular circumstances. It should also decide the level of SEN it considers should be protected by a statement -- and therefore additional resources.

To do this each LEA should

• identify broad categories of SEN -- probably using those in the Code of Practice
• for each category, decide the percentage of pupils it wishes to target for extra resources -- say 1 per cent, 2 per cent or 3 per cent.....'

If those acting for an LEA followed this advice they would risk a breach of their duty under S324(1) of the Education Act 1996. This requires an LEA:

'to make and maintain a statement of special educational needs if, in the light of an assessment under S323, it is necessary for the local education authority to determine the special educational provision which any learning difficulty the child may have calls for.'

Children for whom it was necessary that the LEA determined their special educational provision because their school could not deal with their needs from within the resources available to them, but whose case took the LEA above the percentage target set (i.e. the 1 per cent, 2 per cent or 3 per cent, depending on the nature of the child's needs and how these were 'categorised' by the LEA) would have their rights prejudiced.

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(ii) Removing statements ...

The report recommends that after an LEA has defined the size of the group of children which it wishes to view as having special educational needs which call for statements, it should remove statements from children who fall outside the group.

Under the heading 'Implementing the new view of SEN', paragraph 342 recommends :

'So it would be possible to consider each child currently with a statement at the annual review and to remove the statement in cases where the child would not, under the new criteria, receive a statement. A 'note in lieu' could then be issued by the LEA to ensure that the school maintained the same support as previously for the length of time it is needed'

LEAs following this advice would prejudice or risk prejudicing the right of children to receive the provision which their needs call for. They would also risk acting contrary to the statute in the following areas.

First, The Education (Special Educational Needs) Regulations 1994 require LEAs to obtain professional advice on children's needs and, specifically, on the progress they are making towards achieving the objectives set out in their Statements and whether a statement continues to be appropriate (Regulation 15 (4)(a) & (f) )

Second, paragraph 11(1) of Schedule 27 Education Act 1996, states: 'A local education authority may cease to maintain a statement only if it is no longer necessary.'

An LEA which disregarded professional advice that a Statement was still 'necessary' and ceased to maintain it in order simply to reduce the overall size of the Statemented cohort would be acting ultra vires.

Further, the report risks prejudicing children's right to special educational provision in stating that by issuing 'notes in lieu' in place of statements LEAs can 'ensure that the school maintained the same support as previously.' This is not the case and is dangerously misleading. The 'note in lieu' is a device designed by the Code of Practice and has no legal status, as indeed the Code itself stresses. It does not bind anyone, school or LEA, to make the provision specified in it.

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(iii) That LEAs should choose what to spend on a child ...

Paragraph 349 states:

'In theory this decision is constrained because, once a child has a statement, her/his needs as identified by the LEA must be met. However, in practice, as our benchmarking exercise shows, there is a wide disparity in what individual LEAs spend on children with apparently similar needs. This means that an LEA can decide where to position itself on a spectrum in relation to expenditure on these pupils.'

If those acting within an LEA follow this advice for a child whose needs are currently being assessed they risk the LEA acting in breach of S324(3) of the Education Act 1996 in that if an LEA limits itself by expenditure it will be constrained from specifying the special educational provision to be made for the purpose of meeting that child's special educational needs.

If they follow this advice for a child who already has a statement they risk the LEA acting in breach of S324(5) in that if an LEA limits itself by expenditure it may fail to arrange that the special educational provision specified in the statement is made for the child.

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"If those acting for an LEA followed this advice they would risk a breach of their duty under statute."

5 The intention to disseminate the report and its recommendations

It is clear from the report itself that its primary purpose is to disseminate its recommendations to those who make decisions re special educational provision in Local Education Authorities. Thus,

• paragraph 107(b): 'The aims of the study ... (b) to develop innovative solutions for any difficulties which current practice does not address adequately.'
• Paragraph 108: 'Our intention has been to provide a report that is of use and interest to a wide range of LEAs.'
• Paragraph 115: 'The report is intended to stimulate discussion and debate within LEAs as well as provide advice on good practice.'

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"The Report's primary purpose is to disseminate its recommendations to those who make decisions re special educational provision in Local Education Authorities."

6 Why IPSEA believes action is required by the Secretary of State for Education and Employment

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Although the law on special education grants parents rights of appeal against LEA decisions with regard to their children's special needs and the educational provision required to meet them, it was never intended that the function of such rights would be to defend children's entitlement to appropriate provision. The law itself was meant to provide this guarantee, evidenced by the legislators at the time referring to 'the protection of a statement.'

The consequences of LEAs following the major recommendation of The SEN Initiative will be that only the children of those parents aware of and confident enough to exercise their appeal rights will receive their entitlement. Furthermore, the Special Educational Needs Tribunal was intended to adjudicate in situations where there was a difference in parental and LEA perception of the nature of a child's needs and/or of the special educational provision required to meet them. The effect of The SEN Initiative on the workings of the SENT Tribunal (in addition to the likelihood of causing major overload) will be to compelled it to perform a policing role -- but only on behalf of those parents who have appealed.

IPSEA believes that the 'policing role' is more properly that of the Secretary of State and that in the interests of all children (but particularly those whose parents are not able to or would not have the confidence to, appeal to the Tribunal) he should use his powers in education law to confront the threat posed by The SEN Initiative.

Specifically, we call on the Secretary of State to:

1. issue a Circular letter to all Chief Executives in Local Education Authorities, alerting them to the risks both to children with special educational needs and themselves of following certain of the recommendations contained in The SEN Initiative. LEAs should be warned that the fact that Department officials approved the final draft of the report under the previous administration and that the Department 'welcomed' the Initiative according to the reply to Parliamentary Question 21117, should not be interpreted as meaning that the recommendations in the report constitute Department guidance nor necessarily have the approval of the new Secretary of State. It would be helpful if a circular letter could draw attention to the Hillingdon and Harrow judgments and stress the duty which LEAs owe to individual children with special educational needs.
2. Disassociate his Department from further work planned by the Society of Education Officers under the Initiative and withhold donating further public money to this enterprise (which to date has enjoyed the receipt of 310,000 pounds of the Department's funds).
3. As soon as he is able, discuss with the President of the SEN Tribunal the implications of the recommendations in The SEN Initiative for the workload of the Tribunal. IPSEA believes that there will be a dramatic rise in the number of parent appeals if the Initiative's recommendations are adopted, specifically when LEAs refuse to assess, refuse to issue Statements following assessments, refuse to specify sufficient provision and cease to maintain Statements. The additional work created by the Initiative is likely to have with major implications for the resources required by the Tribunal in order for it to continue to function in an efficient and timely manner.

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"IPSEA believes that the 'policing role' is ... properly that of the Secretary of State and that in the interests of all children ... he should use his powers in education law to confront the threat posed by The SEN Initiative."