Independent Panel for Special Education Advice (IPSEA)	Defending children's right to special education provision
Legal challenge to Estelle Morris over SEN Toolkit February 2002 Back to home page	On December 31st 2001, IPSEA lodged an application to the High Court for permission to judicially review the Secretary of State for Education and Skills, Estelle Morris. The action is a legal challenge to the non-statutory guidance contained in the DfES publication, SEN Toolkit, Section 7, 'Writing a Statement of Special Educational Needs'. IPSEA believes the guidance to be both erroneous in law and an attempt to circumvent the normal lawful statutory process by which, with Parliament's scrutiny, the Secretary of State gives statutory guidance (i.e. through the Code of Practice). The Toolkit, if unchallenged, will enable LEAs refusing to quantify provision in a child's statement to point to written advice from the Department for Education and Skills as justification. It will, in a real and practical sense, undermine the legal entitlement which the law intends a statement to provide and, indeed, nullify the whole purpose of statutory assessments and statements. IPSEA is being represented by David Ruebain, of Levenes Solicitors, and David Wolfe, of Matrix Chambers. David Ruebain believes the action to be necessary: " This is an important principle which needs to be determined if we are to avoid the likely prospect of a significant number of unlawful statements being produced."	IPSEA would very much welcome letters/messages of support on this issue from other voluntary organisations, either by email or post.
Background: the legal 'cornerstones' and parents' problems Back to top	The Education Act 1981 established the basic duties of LEAs towards children with special educational needs and these have remained unchanged despite subsequent amendments to the law (in 1993, 1996 and 2001). These duties are to identify children for whom they are responsible who have special educational needs; to assess children who have, or probably have, special educational needs; to make a Statement for children who have special educational needs which describes those needs and 'specifies' the special educational provision necessary to meet those needs; to maintain the Statement and 'arrange' the special educational provision specified in it. The majority of IPSEA's casework arises, as it has since 1989, from the fact that many LEAs fail in the performance of these duties; and that the underlying cause is not ignorance but avoidance of the law for budgetary reasons. In IPSEA's experience, vaguely written Statements are at the root of many of the situations which cause parents to seek advice. For example: The major, and most common problem facing parents whose children have vaguely worded Statements is that no particular level of provision is guaranteed. Many parents contact IPSEA for advice when their statemented child has his or her provision reduced. There is little, legally, we can advise them to do unless the provision in the Statement is specified and quantified. Without clear and unambiguous quantification (e.g. in terms of number of hours or sessions a week) children lack the legal entitlement to provision which the law intended them to have. Their parents are powerless to act. Phrases such as 'provision as appropriate'; 'help from an adult'; 'access to an appropriate level of support', 'regular speech therapy' leave children without a guarantee that they will receive any particular level of provision. Parents receiving vague Statements have no clear idea of how much help their child requires -- this is despite the resources which by then have been invested in the multi-professional statutory assessment. Parents receiving a proposed Statement are asked at that stage to express a preference for a type of school and for a particular school. When a Statement fails to make clear how much provision a child needs, parents can be forced to make this decision 'blind.' Once a school is named in Part 4, the staff lack clear information on how much help a child should receive unless this is quantified in the Statement. When a decision is made to place a child in a special school, information on the amount of addition provision in the way of speech and occupational therapy is crucial to enable the further decision to be taken as to what type of special school is the most appropriate. Indeed, many of the appeals made to the Special Educational Needs Tribunal, established by the1993 Act, represent attempts by parents to find out what exactly the Statement entitles their child to by way of provision, and to have it quantified and specified in the Statement so as to require that it is arranged, rather than being appeals against a particular level of provision quantified in the Statement.
The new Code of Practice Back to top	In July 2000, the draft of the proposed new Code of Practice was released for consultation. It omitted the guidance on the duty to specify provision by 'normally' quantifying it. During the twelve months which followed the draft's publication, IPSEA campaigned against this omission. Together with 15 other concerned organisations, under the umbrella 'Action on Entitlement', we produced and circulated to all MPs and around 40 members of the House of Lords the briefing: New Code of Special Education: alarm call to MPs. The July 2001 debate in the Commons showed that MPs were, almost universally, very well aware of the significance of the 'quantification' issue, and very unhappy with the guidance on this in the new Code. Two days later the Code was due to be debated by the Lords. There were three motions tabled calling for the Government to take it back and amend the guidance on quantification. Unexpectedly, the Code was withdrawn and a revised version, unveiled in October and approved by both Houses, repeated in essence the guidance from the 1994 Code of Practice: "Provision should normally by quantified (e.g. in terms of hours of provision, staffing arrangements) although there will be cases where some flexibility should be retained in order to meet the changing special educational needs of the child concerned." (paragraph 8:37 of the amended draft of the new Code). This version of the Code, together with the new law and regulations, came into effect from 1 January 2002.
The SEN Toolkit Back to top	The SEN Toolkit had been referred to in a number of publications/announcements, but it was first spotted by an IPSEA volunteer on the DfES website on 16 November 2001. Chapter 7 gives practical guidance on how to write statements. It is clear from the wording of paragraph 30 that the Toolkit was written in the light of the final, amended, version of the Code, but it is also clear that its guidance goes far beyond the Code (and existing case law) in suggesting to LEAs when they might be justified in refusing to quantify special educational provision: 'LEAs are required to be specific about provision. Provision should normally be quantified, for example in terms of hours and frequency of support, but there are times where some flexibility needs to be retained either to meet the changing needs of the child or to allow for appropriate and alternative responses from within the school to reflect particular class or school arrangements.' (our emphasis). This is so general as to undermine completely both the requirement in law that provision be specified and the guidance in the Code that normally it be quantified. Paragraph 38 suggests that quantification may not be required when children are placed in special schools: 'LEAs will always need to specify provision but they will need to consider whether there are times when it would be inappropriate to provide further detail or quantify provision when a child is placed in a special school ...' (our emphasis). If provision for children in special schools is not quantified in their Statement, it is left up to the staff of the school to decide what a child will receive (which is at odds with case law); but, also, it means that the provision can be reduced without the child or the parent having recourse to appeal to the Tribunal. Special schools are as vulnerable to the effects of expenditure cuts as are mainstream schools and, particularly with regard to therapies being provided, the need for the guarantee which a quantified statement provides is every bit as crucial for children in special schools as it is for those in mainstream schools. Paragraph 39 suggests that schools can take over the LEA's role as 'determiner' of needs and provision and that this can serve as a reason why a Statement might fail to quantify provision: 'Schools and LEAs will need to make decisions about the interventions and provision appropriate to each pupil on an individual basis. This can sometimes only be done by a careful assessment of the pupil's difficulties in the school and classroom context. It may therefore sometimes be inappropriate to quantify in advance the action that might be taken in terms of how much individual tuition a pupil might need, or how many hours of in-class support may be necessary, or what size of teaching group may be most appropriate.' (emphasis as in Toolkit). This is not only at odds with case law, but directly challenges the function of the statutory assessment, which is to do precisely what the Toolkit is proposing now should be done after assessment and the issuing of a Statement. IPSEA has chosen to challenge the Secretary of State on the content of the Tool-kit directly, through the courts, believing: that further time spent meeting with Ministers and Department officials to explain our view on the dangers posed is wasted time. After two years of opposition to their new Code arising specifically from the issue of 'quantification', they know full well what the dangers are. that the major charities and voluntary organisations working in the special needs field, and the majority of organisations representing professionals working in the field would support this action and see it as vital.
Notes Back to top	John Wright of IPSEA can be contacted on 01394 380518. Sally Capper of IPSEA can be contacted on 0208 682 4001. IPSEA would very much welcome letters/messages of support on this issue from other voluntary organisations, either by email or post. Letters to the Secretary of State and to Baroness Ashton at the House of Lords may help persuade the Government to withdraw the Toolkit without need to go to the High Court. IPSEA would be grateful for copies of any letters sent on this issue by other organisations. if we fail in our legal challenge, such letters would help us appeal against the refusal. Also, IPSEA risks losing money if the case goes to court and we fail. For that reason we would be grateful if other organisations would discuss the possibility of putting a sum aside to help underwrite the costs, should we lose. We are happy for other organisations to download and reproduce this text for distribution in any form they choose. We will use our home page to keep you up to date with these developments.

Independent Panel for Special Education Advice (IPSEA)

Defending children's right to special education provision

Legal challenge to Estelle Morris over SEN Toolkit

February 2002

On December 31st 2001, IPSEA lodged an application to the High Court for permission to judicially review the Secretary of State for Education and Skills, Estelle Morris.

The action is a legal challenge to the non-statutory guidance contained in the DfES publication, SEN Toolkit, Section 7, 'Writing a Statement of Special Educational Needs'. IPSEA believes the guidance to be both erroneous in law and an attempt to circumvent the normal lawful statutory process by which, with Parliament's scrutiny, the Secretary of State gives statutory guidance (i.e. through the Code of Practice).

The Toolkit, if unchallenged, will enable LEAs refusing to quantify provision in a child's statement to point to written advice from the Department for Education and Skills as justification. It will, in a real and practical sense, undermine the legal entitlement which the law intends a statement to provide and, indeed, nullify the whole purpose of statutory assessments and statements.

IPSEA is being represented by David Ruebain, of Levenes Solicitors, and David Wolfe, of Matrix Chambers. David Ruebain believes the action to be necessary:

" This is an important principle which needs to be determined if we are to avoid the likely prospect of a significant number of unlawful statements being produced."

IPSEA would very much welcome letters/messages of support on this issue from other voluntary organisations, either by email or post.

Background: the legal 'cornerstones' and parents' problems

The Education Act 1981 established the basic duties of LEAs towards children with special educational needs and these have remained unchanged despite subsequent amendments to the law (in 1993, 1996 and 2001). These duties are

to identify children for whom they are responsible who have special educational needs;
to assess children who have, or probably have, special educational needs;
to make a Statement for children who have special educational needs which describes those needs and 'specifies' the special educational provision necessary to meet those needs;
to maintain the Statement and 'arrange' the special educational provision specified in it.

The majority of IPSEA's casework arises, as it has since 1989, from the fact that many LEAs fail in the performance of these duties; and that the underlying cause is not ignorance but avoidance of the law for budgetary reasons.

In IPSEA's experience, vaguely written Statements are at the root of many of the situations which cause parents to seek advice. For example:

The major, and most common problem facing parents whose children have vaguely worded Statements is that no particular level of provision is guaranteed. Many parents contact IPSEA for advice when their statemented child has his or her provision reduced. There is little, legally, we can advise them to do unless the provision in the Statement is specified and quantified. Without clear and unambiguous quantification (e.g. in terms of number of hours or sessions a week) children lack the legal entitlement to provision which the law intended them to have. Their parents are powerless to act. Phrases such as 'provision as appropriate'; 'help from an adult'; 'access to an appropriate level of support', 'regular speech therapy' leave children without a guarantee that they will receive any particular level of provision.
Parents receiving vague Statements have no clear idea of how much help their child requires -- this is despite the resources which by then have been invested in the multi-professional statutory assessment.
Parents receiving a proposed Statement are asked at that stage to express a preference for a type of school and for a particular school. When a Statement fails to make clear how much provision a child needs, parents can be forced to make this decision 'blind.'
Once a school is named in Part 4, the staff lack clear information on how much help a child should receive unless this is quantified in the Statement.
When a decision is made to place a child in a special school, information on the amount of addition provision in the way of speech and occupational therapy is crucial to enable the further decision to be taken as to what type of special school is the most appropriate. Indeed, many of the appeals made to the Special Educational Needs Tribunal, established by the1993 Act, represent attempts by parents to find out what exactly the Statement entitles their child to by way of provision, and to have it quantified and specified in the Statement so as to require that it is arranged, rather than being appeals against a particular level of provision quantified in the Statement.

The new Code of Practice

In July 2000, the draft of the proposed new Code of Practice was released for consultation. It omitted the guidance on the duty to specify provision by 'normally' quantifying it.

During the twelve months which followed the draft's publication, IPSEA campaigned against this omission.

Together with 15 other concerned organisations, under the umbrella 'Action on Entitlement', we produced and circulated to all MPs and around 40 members of the House of Lords the briefing: New Code of Special Education: alarm call to MPs. The July 2001 debate in the Commons showed that MPs were, almost universally, very well aware of the significance of the 'quantification' issue, and very unhappy with the guidance on this in the new Code. Two days later the Code was due to be debated by the Lords. There were three motions tabled calling for the Government to take it back and amend the guidance on quantification. Unexpectedly, the Code was withdrawn and a revised version, unveiled in October and approved by both Houses, repeated in essence the guidance from the 1994 Code of Practice:

"Provision should normally by quantified (e.g. in terms of hours of provision, staffing arrangements) although there will be cases where some flexibility should be retained in order to meet the changing special educational needs of the child concerned." (paragraph 8:37 of the amended draft of the new Code).

This version of the Code, together with the new law and regulations, came into effect from 1 January 2002.

The SEN Toolkit

The SEN Toolkit had been referred to in a number of publications/announcements, but it was first spotted by an IPSEA volunteer on the DfES website on 16 November 2001. Chapter 7 gives practical guidance on how to write statements. It is clear from the wording of paragraph 30 that the Toolkit was written in the light of the final, amended, version of the Code, but it is also clear that its guidance goes far beyond the Code (and existing case law) in suggesting to LEAs when they might be justified in refusing to quantify special educational provision:

'LEAs are required to be specific about provision. Provision should normally be quantified, for example in terms of hours and frequency of support, but there are times where some flexibility needs to be retained either to meet the changing needs of the child or to allow for appropriate and alternative responses from within the school to reflect particular class or school arrangements.' (our emphasis).

This is so general as to undermine completely both the requirement in law that provision be specified and the guidance in the Code that normally it be quantified.

Paragraph 38 suggests that quantification may not be required when children are placed in special schools:

'LEAs will always need to specify provision but they will need to consider whether there are times when it would be inappropriate to provide further detail or quantify provision when a child is placed in a special school ...' (our emphasis).

If provision for children in special schools is not quantified in their Statement, it is left up to the staff of the school to decide what a child will receive (which is at odds with case law); but, also, it means that the provision can be reduced without the child or the parent having recourse to appeal to the Tribunal. Special schools are as vulnerable to the effects of expenditure cuts as are mainstream schools and, particularly with regard to therapies being provided, the need for the guarantee which a quantified statement provides is every bit as crucial for children in special schools as it is for those in mainstream schools.

Paragraph 39 suggests that schools can take over the LEA's role as 'determiner' of needs and provision and that this can serve as a reason why a Statement might fail to quantify provision:

'Schools and LEAs will need to make decisions about the interventions and provision appropriate to each pupil on an individual basis. This can sometimes only be done by a careful assessment of the pupil's difficulties in the school and classroom context. It may therefore sometimes be inappropriate to quantify in advance the action that might be taken in terms of how much individual tuition a pupil might need, or how many hours of in-class support may be necessary, or what size of teaching group may be most appropriate.' (emphasis as in Toolkit).

This is not only at odds with case law, but directly challenges the function of the statutory assessment, which is to do precisely what the Toolkit is proposing now should be done after assessment and the issuing of a Statement.

IPSEA has chosen to challenge the Secretary of State on the content of the Tool-kit directly, through the courts, believing:

that further time spent meeting with Ministers and Department officials to explain our view on the dangers posed is wasted time. After two years of opposition to their new Code arising specifically from the issue of 'quantification', they know full well what the dangers are.
that the major charities and voluntary organisations working in the special needs field, and the majority of organisations representing professionals working in the field would support this action and see it as vital.

Notes

John Wright of IPSEA can be contacted on 01394 380518.
Sally Capper of IPSEA can be contacted on 0208 682 4001.
IPSEA would very much welcome letters/messages of support on this issue from other voluntary organisations, either by email or post.
Letters to the Secretary of State and to Baroness Ashton at the House of Lords may help persuade the Government to withdraw the Toolkit without need to go to the High Court. IPSEA would be grateful for copies of any letters sent on this issue by other organisations. if we fail in our legal challenge, such letters would help us appeal against the refusal. Also, IPSEA risks losing money if the case goes to court and we fail. For that reason we would be grateful if other organisations would discuss the possibility of putting a sum aside to help underwrite the costs, should we lose.
We are happy for other organisations to download and reproduce this text for distribution in any form they choose.
We will use our home page to keep you up to date with these developments.