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LAs: SEND failings are everyone’s fault but ours and it’s too easy to get an EHCP

with comment from Matt Keer and Ali Fiddy

Reports about SEND come and go. Some barely make a mark, some confirm what families already know. But today, the Local Government Association has published SEND "research" that hits a whole new level of gaslighting. The press release for this stunning lack of self-awareness is headlined: SEND review needs to tackle huge rise in tribunal hearings.

It finds, “Landmark reforms designed to improve the lives of children with special educational needs and disabilities (SEND) have failed to prevent a huge rise in legal disputes and tribunal hearings over the support they receive” They didn’t need to spend money on this. They could have just read SNJ.

And I wonder whose fault this rise in disputes is? Could it be, perchance, the very same local authorities the LGA represents? I mean, when you lose 96% of trips to the SEND Tribunal, shouldn’t it make you pause to assess what’s going wrong with your strategy?

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What’s going wrong is this: A tsunami of lawlessness by LAs gets routinely stopped in its tracks by SEND Tribunal judges. Still, a large proportion of unlawful decisions go unnoticed because parents are not lawyers, can’t afford one, don't know, can't access free sources of help (such as local SEND IAS, IPSEA, SOSSEN), or don’t have the energy to seek support. But the small percentage that attempt to hold back the waves of illegality and head to the Tribunal usually prevail.

But wait… The LGA says the research found that “the main factor behind the rise in the number and rate of appeals was not councils failing to meet their legal duties under the Act…” WTF? It's EXACTLY the main factor. 

No, the LGA report says instead it’s, “symptomatic of fundamental imbalances in the SEND system”. Do you mean the imbalance in the classic David and Goliath scenario, where the big bully, who usually scares off opponents, then gets his head stoved in by the plucky hero who stands up to him (on repeat up and down the land). Imagine if every parent whose child is wrongly refused an EHC Needs Assessment or an EHCP did the same. The LGA would have an apoplexy.

The research

The LGA looked at six local areas, conducting “in-depth evidence gathering" with leaders of SEND, health and care services, and SEND IASS. It looked at Tribunal appeal rates, proportions of young people with EHCPs, levels of deprivation, ethnic diversity (but not really) and geography. It also spoke to a range of national government and parent-focused organisations, including IPSEA (more of whom later).

The “new” figures the LGA claims to have analysed are in fact, not new and we have covered them here before in the Tribunal stats, the SEND stats and the EHCP stats. So I’m not going to waste any time on that because we’ve reported it before. You can read everything in Matt's posts, complete with my infographics here:

The report raises concerns about a growth in unregulated organisations “encouraging and advising families to appeal.” Hmm, do you mean, encouraging families to use the law and exercise their child’s rights? Instead of just accepting what they’re told by their local authority? I think the 9 in 10 cases in which parents prevail at Tribunal shows that they were right to appeal, don't you? How DARE the LGA suggest parents just accept the lies they are fed so the LA can have an easier time, while watching their children’s futures get flushed down the plug-hole.  The only thing here we can agree on is that SEND advisory services that charge money, and who are not lawyers, need to be have some kind of regulation—-but for families’ protection, not the LA’s convenience.  

It's those affluent, sharp-elbowed middle-classes again, guv!

Most councils reported that tribunal appeals are more likely to come from more affluent families, and less likely from those from more deprived backgrounds, highlighting a potential lack of equity of access to dispute resolution.” 

Agreeing to disagree? Research into arrangements for avoiding disagreements and resolving disputes in the SEND system in England’ LGA

The report mentions “affluent” families on four separate occasions. How dare the LGA try to continue the pernicious narrative of the “sharp-elbowed middle classes”. I don’t like to swear much on SNJ but if I did, this post would be one long list of the choicest words I could think of. 

While “most councils” may have "reported" that, it also acknowledges that there is no data or evidence available about whether or not this is actually true. But even if it is, this is because many families who are under serious financial pressure don’t have the time or energy to fight – but that doesn’t mean they care less or that they wouldn’t fight if they did have the resources. Rather, they need to have access to someone like the previous Independent Supporter to help them through the minefield.

As Catriona quoted in her post-SEND review webinar article, The Minister for SEND, Will Quince MP, noted he worries about children whose parents aren’t in a position to fight for the support they need. So do we, and this is the very reason I started SNJ almost 14 years ago. I hope that we have largely been successful in educating parents about their rights so they can take up the gauntlet themselves, and then support other parents after (or often during) their own battle (is it our fault, LGA? I do hope so). We know that since 2014, a far broader range of parents, from all levels of affluence, are doing just this. Many only have access to a smartphone on pay-as-you-go basis but they still get stuck in and more power to them! 

More children with complex needs get medical help if they have an EHCP (apparently this is bad)

“Furthermore, health and social care leaders argued that one unintended consequence of the extended powers of the Tribunal to issue judgements about health and care provision was that it created a tension between making provision that was medically-urgent and legally-urgent. They explained that this potentially gave young people with EHCPs a faster route of access to health and social care provision than other young people who had less complex SEN (and did not require an EHCP) but more complex health or care needs.” 

Agreeing to disagree? Research into arrangements for avoiding disagreements and resolving disputes in the SEND system in England’ 

I’m not sure what to make of this comment. It's utter nonsense. Surely those children who have a greater need will require different, more specialist (and harder to access) tertiary health services than children without complex needs require. They're not fighting over the same appointments. Just STFU, okay?

Less mediation

It also points to the “decreasing use of mediation” reflecting “the trend of increasing proportions of appeals relating to the contents of EHCPs, specifically Section I. [placement]…They noted, however, that challenges resolving disputes through mediation can be a product of a lack of prior dialogue between professionals and families during the EHCNA process.”

Actually, the “trend” is that of local authorities writing unlawful and incomplete EHC plans and specifying unsuitable mainstream provision by default. And when it says “lack of prior dialogue” the other trend is of LAs refusing to participate in mediation and mediators not having specialised knowledge of SEND– bet the LAs didn’t mention that in your research, did they?

“The LA leaders we engaged through this research described that the legal tests for deciding on when to undertake an EHCNA were framed in such a way that it was difficult to defend a decision to refuse to carry out an assessment, if this was challenged legally. (We note, however, that the proportion of requests for EHCNAs refused ranges from 0% to 51% across the country.) Some LAs described how they had taken an approach of agreeing to carry out EHCNAs and then seeking to take a more considered approach about whether to issue EHCPs or not. LAs that had followed this approach considered that it had been flawed. They had found that, having carried out an EHCNA, this had often raised expectations of additional support. “

Translated this means: We think the legal criteria to apply for an EHC Needs Assessment is too low. Some LAs try to comply with their legal duties to see if the child's needs do require an EHCP. Many LAs find that children do, in fact need one, and they could kick themselves for doing it because parents then think their child should get some support. There, fixed it for you. 

A legal viewpoint

One of the organisations interviewed for this report was IPSEA, the fantastic SEND legal charity. Its CEO, Ali Fiddy, was interviewed by researchers last autumn. She told us she very clearly explained to the researchers that the SEND Tribunal does nothing more than apply the law, and appealing to the Tribunal is often the only way that parents can make sure that their children receive the special educational provision and wider support to which the law entitles them.

Having now seen the report, Ms Fiddy commented:

“This report completely misses the point that parents wouldn’t succeed at Tribunal unless the evidence supported their case. The Tribunal doesn’t uphold parents’ appeals because they engage persuasive advocates or because the judge gives in to demanding families – decisions are made on the basis of law and evidence.
“There are only two ways, as I see it, that the rate at which local authorities lose SEND appeals will fall. One is if local authorities comply with the legal framework and make lawful decisions. The other is if thresholds for assessment and support are made higher. It will be an absolute disgrace if the SEND Review aligns with the LGA’s preference, as this will result in children and young people with SEND being penalised while local authorities are rewarded for failing.”

Ali Fiddy, IPSEA

What else does it say?

LGA chair of its Children and Young People Board, Anntoinette Bramble, said: “Parents rightly expect and aspire to see that their child has the best possible education and receives the best possible support, and councils do everything they can to achieve this, within the budgets made available by the Government.”

Yes, of course funding is a massive part of the issue. However, I would suggest that no matter how much money the Government gave to LAs for SEND, a large proportion of it would be poorly spent, maybe not even on SEND, and it wouldn’t change the overriding culture of “golden ticket” thinking that still pervades council offices in England. 

About that "golden ticket"...

No one, but no one, “aspires” for their child to need a special school. No one loads up their Goliath-slaying sling-shot to battle for an EHCP as a way to get a "top" school place. No one’s that much of a masochist. The simple fact is that more children are in need of SEND support because thanks to amazing medical advances, more children are surviving previously un-survivable pre-term births, birth complications, serious genetic conditions, and severe childhood illness, all of which may have lasting effects. More children are suffering from health conditions, including from environmental toxins and pollution, and from deprivation (thanks Tory austerity). More children are suffering mental health conditions from the socially and behaviourally unforgiving education system and the increasingly intolerant world we live in. More children have been left behind by COVID, or had emerging needs missed, thanks to the indescribably poor job “Sir” Gavin did during his tenure as Education Secretary.

More children are being diagnosed with learning difficulties and neurodivergent conditions that would previously have gone ignored with the young person written-off to a future without qualifications or any route to further or higher education, or a decent job. And as society changes, more children do not fit the existing narrow (and narrowing) model of mainstream education. The current Behaviour and Exclusions consulation, and recent Attendance consultation look certain to make these worse unless they undergo serious rewrites to include the thread of SEND running all the way through.

Did I read every word of the report? No, life is too short to waste on crap like this and I hope the SEND Review team will see through this blatant and desperate attempt to make them feel sorry for the law-breaking LAs instead of the children whose lives those same LAs are ruining.

So, I’ve had my rant. Over to Matt, who wrote his contribution totally separate from me, and yet reaches the same conclusion...


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Matt Keer's view of the LGA report

The report, in places, is an embarrassment.  The authors seem completely unaware that some of the data that they have drawn on (like appeal rates) is fundamentally unreliable. The qualitative research relies heavily on what system leaders in just six LAs have told them - and those anecdotes are largely what the LGA are leaning on when they present this report. 

When it's relaying what system leaders have to say, the report is simply laundering unverified anecdote and letting the LGA present it as authoritative. In places, the report is like listening to Fred West complaining about his uneven patio, or Caligula wondering why the floor of the Roman Senate is covered in horse shit. You know why, lads.

The report spends pages critically exploring the motivations, behaviours, and decision-making of parents and schools. All the tired tropes are there. But the report spends virtually no time at all exploring the motivations, behaviours, and decision-making of local authorities. We know why, lads.

But ultimately, this report isn't written for people like us. It's written to influence the Department for Education's SEND Review. So if the SEND Review team are reading this, then...

The report lays out clearly who local government thinks is at fault. Middle-class families are at fault. Unscrupulous, unnamed advocates are at fault. Schools - particularly mainstream schools - are at fault. The legal system is at fault. You, the Department for Education, are at fault. Everyone is at fault, it seems, except local authorities. Although the data in this report that's actually reliable paints a very, very different picture. 

Whatever you, the SEND Review team come up with - however you plan to change the system - when you implement things, you'll come up against this problem. You cannot succeed with system change when a key stakeholder thinks that it doesn't need to change its own ways - that everyone else needs to change around them, because everyone else is doing things wrong. 

Parents of kids with SEND know what change means. Bringing up a kid with special educational needs or disabilities forces us to re-think everything you thought we knew, and it forces us to change how you go about things, because Plan A doesn't usually work. You end up having to change, whether you like it or not. And the vast majority of us do this, and do it well - because if we don't, our kids stand no chance.

We know what hard, necessary, and worthwhile change means. What it takes. How hard you have to reach into the core of your being to make it happen. Read this report, and ask yourself whether local authorities have even a fraction of that desire, ambition, and capability to change themselves for the better. Because on the basis of this, they absolutely do not. And unless you make them change - unless you get to grips with this bloated, self-satisfied, jaw-dropping institutional arrogance - you, the SEND Review team, will fail.

If you want to read the report for yourself, you can find it here

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