Walsall failing to ensure disabled children get the help they need

IPSEA accuses Walsall MBC, through its private contractor Serco plc (operating as Education Walsall), of avoiding its duty to specify in quantified terms speech and language therapy in its statements of special educational needs, for children who have such difficulties specified in Part 2 of statements as educational needs. This policy avoids the duty to arrange and fund that provision if necessary when the usual NHS provision is unavailable. IPSEA has made the following complaint to the Secretary of State:

The Rt. Hon. Alan Johnson MP
Secretary of State for Education and Skills
Department of Education and Skills
Sanctuary Buildings
Great Smith Street
LONDON

13 July 2006

Dear Rt. Hon. Alan Johnson,

I am writing to you on behalf of IPSEA to make a formal complaint under Section 497 of the Education Act 1996 against Walsall local authority (LA) on the grounds that they follow a practice, amounting to an unlawful blanket policy, never to specify speech and language (S&L) provision in Part 3 (Special Educational Provision) of its statements of special educational needs (SEN) even when S&L difficulties are specified in Part 2 (Special Educational Needs) of a statement and even when appropriate professional advice indicating a level and type of S&L provision is available.

I am enclosing copies of recent correspondence between myself and the responsible officer of Walsall LA, together with a letter sent to a parent refusing a request to move specification of S&L provision from Part 6 to Part 3 of her childÕs statement. I am also enclosing a copy of the statement issued to that parent for her child, and copies of a recent order made by the Special Educational Needs and Disability Tribunal (SENDIST) relating to an appeal against the decision not to specify speech and language therapy (SLT) provision in Part 3, but instead to place reference to SLT provision (without quantification) in Part 6 (Non-Educational Provision) and that found in the parentÕs favour and commented critically upon the LA policy not to do so.

The enclosed paperwork makes my case for complaint, as the LA accept that they follow a practice never to make specific reference relating to type and quantity of S&L provision in Part 3 but, instead, to refer in detail only to S&L advisory provision in Part 6. As a matter of practice they also fail to provide quantification of level and type of S&L provision even in Part 6, which is legally unenforceable in any case.

This blanket policy is directly in contravention of the ruling made in: R Ðv- Secretary of State for Education ex parte E [1992] 1 FLR 377, CA that each special educational need specified in Part 2 must be met by provision specified in Part 3. It is also in in clear violation of Paragraph 8:49 of the SEN Code of Practice 2001. This paragraph relies on established case law, and the key phrase that the LA is violating is:

'... However, since communication is so fundamental in learning and progression, addressing speech and language impairment should normally be recorded as educational provision unless there are exceptional reasons for not doing so.'

Walsall LA's case, in substance, appears to be that the approach taken by itself is one of 'normal practice' and that such practice is, therefore, not a blanket policy. It is not made clear, however, as to the difference between a normal practice that is invariably followed, and a blanket policy, even though it is stated in its final paragraph that there is a 'vast difference' between the two. More important, however, than terminology is the fact that Walsall LA admit that they do not follow the requirements of 8:49 of the CoP. A case is made relating to other paragraphs of the CoP with regard to the spectrum relating to educational need or non-educational need, but this is irrelevant as the LA accept that they ignore 8:49 even when speech and language needs are specified as educational in Part 2.

Walsall LA state that it is clearly aware of Section 322 of the Education Act 1996 and the duty placed upon it to arrange and provide S&L even when the usual agencies of provision are unable or unwilling to provide it pursuant to S324 Education Act 1996. Its actions, in never specifying provision of S&L in Part 3 of its statements, however, effectively sidestep the carrying out of that duty. It is one matter to recognise a duty, but it is another to ensure that it is carried out.

In general, the LA seems to be stating that, because it has a good local NHS School SLT Service, and a detailed, successful, service agreement with them (which is not being put in question within this complaint) that the legal duty as set out in the 1996 Education Act, confirmed and elaborated upon within case law, and as summarised in 8:49 of the CoP, can be dispensed with. The fact that it is confident that whatever is required to meet the identified needs of the speech and language impaired children with statements in Walsall schools, will be met, whether or not the speech and language provision is specified in Part 3, is not sufficient grounds, in my view, to remove Walsall's legal duty to normally specify S&L provision in Part 3 of a statement in all but exceptional circumstances.

In addition to the legal grounds for objection to Walsall's policy, it can also be criticised for the following key practical reasons, which demonstrate the purpose and importance of the legal framework for the distribution of provision between Parts 3 and 6:

When a proposed statement is drawn up in draft form no assumption should be made concerning the school the child will attend. The decision on placement must come at the very end of the statementing process, and what is contained in Parts 2 and 3 must not be determined by speculation as to the placement specified in Part 4 of the finalised statement. It may be, therefore, that the child is finally placed in a school outside of Walsall LA's area and the area covered by the local primary care trust's (NHS) SLT school service provision. It may be that the SLT service in the area covering the child's school cannot or will not provide the provision agreed by Walsall and its local provider.
Similar to the above, if the family move house after the statement is in force, and a new NHS provider cannot or will not provide the level and type of S&L provision agreed by the Walsall NHS SLT service, the parents will have no enforcement powers to ensure that the new LA will arrange to continue the former level and type of S&L provision.
If a designated Speech and Language Therapist, provided by the local NHS service for a statemented Walsall child, falls ill, or is on leave for a prolonged period for some other reason, and the NHS service is unable to provide an immediate replacement, the parents will have no power to require Walsall LA to arrange, and provide from its own resources, that provision. Similarly, if for financial reasons, the local NHS SLT service has to limit the sufficiency of provision required to meet a childÕs S&L needs, parents will be unable to require Walsall to take over any shortfall of professionally advised provision.
And finally, if parents disagree with the level and type of S&L provision advised by the local NHS SLT service, and obtains an independent 2nd opinion which advises a higher level or quality of S&L provision, the policy not to specify S&L provision in Part 3 would allow the LA to sidestep it duty to resolve differences of professional opinion in terms of necessary provision, due to its practice/policy of never specifying such provision in Part 3 of a statement.

I note that the officer states that she has evidence of other LAs in its region adopting the same practice to that of Walsall in not implementing 8:49 of the CoP. If you find that Walsall LA has been acting unlawfully in respect of S&L provision, specified within statements of SEN, it would seem of great importance for you, as the Secretary of State ultimately responsible for seeing that LAs abide by the law, to order the officer concerned to submit her evidence so that these other LAs may be advised to comply with the law without any delay. Alternatively a circular letter to all LAs in the region would be helpful in ensuring compliance with the law generally.

IPSEA therefore requests that the Secretary of State directs Walsall LA to:

Discontinue its practice of routinely putting Speech and Language Therapy Provision in Part 6 and not in specific detail in Part 3 of its statements;
Confirms that it has provided appropriate, revised guidance to those responsible for participating in the assessment and statementing of Walsall children, including changes to all its relevant policy and guidance documentation.

Thank you for your assistance.

Yours sincerely

Brendan King
On behalf of IPSEA