Poor leadership and SEND law ignorance fails disabled children

Image of committee taking place and words: Poor leadership and SEND legal ignorance has failed disabled children

Anyone who has had to grapple with the SEND system to get their child’s needs acknowledged and met knows that the system is not currently working as it should. Not only have the SEND reforms introduced in 2014 not fixed the problems of the old system, a whole new set of problems has now emerged alongside. The influential House of Commons Education Select Committee could not have had this spelled out more clearly since it began taking evidence on SEND last year.

Watching the latest committee hearing in Parliament last week, and hearing witnesses – inspectors from Ofsted and the Care Quality Commission in the first hour, and lawyers and the Local Government Ombudsman in the second – tell MPs all the ways in which children with SEND are being failed, it’s easy to think, ‘Yes, we know all this’. And of course we know it – we live it. But now no-one can say that policy-makers don’t know it too. 

And what we – and now they – all know is that many councils don’t comply with the law on supporting children with SEND, children and parents are often not involved in decisions about what happens to them, and hurdles are put in their way by councils who prioritise their role as gatekeepers of resources above their legal obligation to support disabled children and their families. 

We know that resources are limited and budgets are stretched, but this isn’t the whole story: if there is the will and the necessary leadership in local areas, children’s experiences and outcomes can be transformed.

A disappointing failure to learn

MPs on the committee were keen to ask Ofsted and the Care Quality Commission (CQC) about the local area SEND inspection process and the fact that more local areas than ever are performing poorly. 

You might think that as the SEND reforms become more established, the number of local areas that are performing poorly enough to be required by inspectors to produce a ‘Written Statement of Action’ would be falling – but you would be wrong. Sixty per cent of inspections in 2018 resulted in a written statement of action, compared with 25 per cent in 2016.

Gill Jones from Ofsted acknowledged that this is ‘disappointing’, and observed that local areas don’t appear to be learning from previous inspections in other areas. She told MPs that some local areas seem to be waiting for Ofsted and CQC to go in ‘to help them make things better’.

The difference is leadership

Inspectors are absolutely clear that the best outcomes happen in areas where children and their families are fully heard and included in decision-making. (Special Needs Jungle got a mention at this point, for the way we provide parents with necessary information. A proud moment. See video) 

Inspectors emphasised that good outcomes for children don’t always correlate with resources, and that it is above all a question of leadership – specifically joint leadership across education, health and social care – and priorities. Gill Jones said that ‘it isn’t funding that makes the difference between areas that get a Written Statement of Action and areas that don’t’, and that some local authorities manage the constraints they are under better than others. 

From CQC, Professor Ursula Gallagher gave a robust defence of parents (that had this parent cheering) against the pervasive fear in some local areas that parents will present them with undeliverable wish-lists.

‘That doesn’t happen – parents are very realistic. The earlier they’re able to see that you are meeting their children’s needs, the less they need to get into the legal and adversarial processes to fight for [these] needs.’

Professor Ursula Gallagher, Deputy Chief Inspector for Primary Medical Services and Integrated Care, CQC

Inspectors told the committee that the system lacks flexibility – meaning that councils are too often restricting what is available to children to a few existing options, rather than looking at what individual children need and how best to meet these needs. Imogen Jolley, head of public law at Simpson Millar, also made this point during the second half of the session: the system is overly rigid and not designed to meet children’s individual needs. 

Ms Jolley also told the committee that parents report an increase in the use of ‘faceless panels’ by local authorities. These panels make critical decisions about the support that children and families get, but families don’t know who is on the panel and they don’t even get minutes of panel meetings. The relationships that parents have built up with SEN case officers, social workers and continuing care nurses are put aside, and panels who don’t know the child or family make the final decisions.

When children are removed from school

Committee members were keen to put Ofsted on the spot on the issue of off-rolling – the practice of removing children (many with SEND) from a school’s register – something that has become more prominent and is now attracting more political attention. The Labour MP Ian Mearns asked how schools can receive a ‘good’ or ‘outstanding’ rating from Ofsted if they are routinely off-rolling children with SEND. 

Ofsted were on the back foot on this, agreeing that ‘it isn’t right’, but saying that reports from parents about off-rolling can be difficult to corroborate when inspectors visit schools. Nonetheless, Gill Jones stated that the reason off-rolling is so prominent in Ofsted’s new education inspection framework is because of their concern about the prevalence of off-rolling of children with SEND.

Huge rise in appeals and complaints

The committee asked both sets of witnesses about the spiralling number of appeals to the SEND Tribunal, and the consistency with which these appeals are won by the families who bring them against councils who don’t have a legal leg to stand on.

A Conservative member of the committee, William Wragg, asked witnesses if there should still be ‘teething problems’ with the new system, or whether the reforms should all be embedded by now. 

The Local Government and Social Care Ombudsman (LGSCO), Michael King, was clear that the number of SEND complaints he receives, and the amount of fault he finds, have rocketed, increasing by 150% between 2014 and 2018. He told MPs that the new system isn’t settling down, and in some ways new problems are emerging.

Mr King could not have spelled it out more starkly: he upholds 87% of the SEND investigations he carries out – ‘an unprecedented amount in our work’ – when the average proportion of complaints upheld across all areas of local government is 58 per cent. It’s clear that something is going very wrong with the system for supporting children with SEND. Parents are not complaining for no reason, and their complaints are nearly always upheld.

The committee has heard repeatedly that appeals and complaints are having to be used just to make the SEND system work for individual children – when in fact, as Mr King observed, the Ombudsman and the SEND Tribunal should be a last resort. He said that the emphasis has to be on ‘getting things right first time, upstream’. But as parents who interact with the system on a daily basis know, this just isn’t how many local areas operate.

System ‘balanced against parents every step of the way’

Robert Halfon MP, the chair of the committee, focused on the ‘huge personal and financial cost to families’ of appealing to the SEND Tribunal. He observed that the system ‘seems to be balanced  against parents every step of the way’. I think parents can be assured that our evidence has been heard. MPs seem to recognise the burden that an appeal to the Tribunal, or a complaint to the Ombudsman, places on families – and the point was also made that the families who take these routes are the tip of the iceberg of those who don’t know how or are not able to take this route. 

The committee heard that the vast majority of appeals are against local authorities’ refusal to carry out Education, Health and Care (EHC) needs assessments, and the majority of these do not make it to a final hearing because councils back down.

Alison Fiddy, the chief executive of legal support charity IPSEA, told MPs that parents do not win because they have expensive lawyers, but because local authorities make poor decisions and don’t have evidence to support the decisions they make. She added that the families that concern IPSEA the most are families whose request for an EHC assessment for their child is refused, and who then walk away without appealing.

Inadequacy of SEN Support in schools

One of the biggest weaknesses in the system is the widespread inadequacy of SEN Support – support that should be provided from within a school’s existing resources to children who need additional help. The lack of good SEN Support is driving requests for EHC assessment. Ms Fiddy emphasised that if SEN Support in schools was better, fewer parents would need to request EHC assessment as the only way of getting the help their children need.

Ombudsman Michael King told the committee that he would like the LGSCO to be given additional powers by Parliament to look at exactly what happens in schools in supporting children with SEND. He said that there are ‘huge gaps in public redress and parental rights to look at what goes on inside schools’.

“People can come to the Ombudsman, however there are significant barriers to what we can go in investigate in cases. That’s a huge frustration for us and for parents. You were talking about school exclusions in the last session —we are not allowed to look at what goes on inside a school in relation to exclusions or in relation to the special education provision. So people will come to us and ask us to investigate why their child is out of school, why the child doesn't have alternative education or why an EHCP hasn't been implemented. We can look at everything up to the school gate but we can’t look inside that.

Michael King Local Government and Social Care Ombudsman at the SEND Inquiry 24/4/19, 10:47am

Gatekeeping is strangling the SEND system

The SEND system is in crisis not because the law is wrong, but because it isn’t being followed – Ms Fiddy couldn’t have said this any more plainly. It isn’t being followed partly because local council officers don’t understand what their obligations are, and because they’ve put their role as ‘gatekeepers’ first and foremost.

The Ombudsman told the committee that councils routinely put ‘hurdles’ in the way of parents seeking support for their children. Regular readers will be all too familiar with these hurdles: things like stipulations that all requests must be in writing; that an EHC needs assessment won’t be undertaken unless £6,000 has been spent on a child on SEN Support; that a request for assessment won’t be considered unless it’s made by an educational psychologist. NONE of these are required by law, by the way

"The committee needs to get on and publish these conclusions before a general election is called – an ever-present risk in a parliament as politically precarious as this one."

All over the country, local councils are developing their own local policies and criteria for accessing support that simply don’t reflect what the law or the SEND Code of Practice says. According to Ms Fiddy, this then ‘becomes part of the everyday vocabulary of schools, which is then passed on to parents’. 

She described the problem as ‘a lack of ownership of [the] legislation among health and social care professionals’, and was clear that better training on the SEND legal framework is urgently needed for staff in local authorities and schools, as well as greater accountability throughout the system. Ms Fiddy also spoke about the training gap:

Ali Fiddy, IPSEA

An urgent moment for change

Parents have been saying all this for years. We’ve been shouting as loud as we can. It’s clear from the questions that committee members asked that they’ve heard what parents have told them. Now they’ve heard the same story from official regulators and specialist lawyers, will they act?

While select committees don’t have the power by themselves to change government policy and the way it is implemented, they can shine a powerful spotlight on what’s really happening out there. They can shame government departments into taking action in a way that even the most effective campaigners can’t. 

The education select committee’s conclusions on the state of the SEND system are eagerly awaited across the sector. The committee needs to get on and publish these conclusions before a general election is called – an ever-present risk in a parliament as politically precarious as this one. While Brexit dominates the landscape, there are still enough MPs who don’t spend their days in political plotting but in working out solutions to problems that affect all our lives. We’re relying on them to not let us down.

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Catriona Moore
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