SEN law, Past, Present & Future from top SEN lawyer, Douglas Silas

When I was about to apply for a statutory assessment in the hope of securing a statement for Son1, I consulted an SEN solicitor for an opinion about whether it was worth moving forward because it was perceived by school as a tricky case.

Douglas Silas, Principal of London-based, Douglas Silas Solicitors has helped thousands of families win their SEN cases and is highly regarded within the sector. He also has a hugely informative site at www.specialeducationalneeds.co.uk.

Douglas had carefully read my information and was very frank. He told me that he didn't think I needed a lawyer and was capable of putting my own case forward, as I had already done with Youngest, whose case was considerably easier to explain.

He was right - I was just lacking confidence and I deeply appreciated his honesty which saved me thousands of pounds. I did, indeed get that statement and funding for the school of my choice.

I didn't think Douglas would remember me six years on after one meeting, but he did and I am so pleased that he has written for Special Needs Jungle with a thorough overview of SEN, past, present and future. It's well worth reading to give you a good understanding of where we are and why we should be ready for the future.

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So What Now?

Let me start by firstly apologising in advance.  By the time you read this, things will have already changed.

There is always a difficulty when writing an article like this since, as I put pen to paper in early March 2014, we are still awaiting Royal Assent to be given to the new Children & Families Bill, Part 3 of which replaces Part 4 of the Education Act 1996 (as has itself been amended by subsequent legislation) which sets out a new SEN framework that should apply from September 2014.

SEN provision historically is often guilty of being determined by ideology and politics rather than practicalities. It is very easy to become entangled in things like ‘policies’, ‘funding’ and ‘rights’ when discussing SEN law. Although it may seem obvious, it is very easy sometimes to forget the child or young person at the heart of everything.

In order to consider the future, we first need to look at the past and present.

THE PAST

Although Education Law strictly goes back to 1944, the SEN framework, as we have come to know it, was not put on a proper footing until after the Warnock Report of 1978, which led to the Education Act 1983. This was itself later consolidated into the Education Act 1996.  There was also later amending legislation and caselaw including, most notably, a strengthening of the parental legal right to mainstream ‘inclusion’ and a revised SEN Code of Practice in 2001.

We have come to learn over the years that there are about 20% of pupils in our schools with SEN of one form or another, but only 2-3% of pupils have Statements; meaning that, effectively, 85-90% of pupils with SEN are educated in mainstream schools without Statements.

There has also been a right since 1993 for parents who are in dispute with their child’s Local Authority (LA) regarding their SEN, to appeal to the (now named) Special Educational Needs & Disability (SEND) Tribunal (still referred to sometimes as ‘SENDIST’) about things like:

• Refusals to carry out statutory assessment/reassessment;
• Refusals to issue a Statement after an assessment;
• Refusals to make/amend Statements regarding Part 2 (description of SEN), Part 3 (description of SEP [special educational provision]) or Part 4 (the school/type of school/other placement);
• Refusals to change the name of a school in a Statement (provided it is state-maintained);
• Refusals to change a Statement after an Annual Review (since September 2010); or
• Decisions to cease to maintain a Statement.

The SEND Tribunal (or how it was previously known) has routinely registered about 3,000-3,500 appeals each year for nearly two decades, but the SEND Tribunal pointed out in its last dedicated report (2009/10) that less than 1,000 appeals needed decisions made after a full hearing, as many were settled amicably, conceded or struck out. The vast majority vast majority (40%) were against refusals to assess, with only about 10% of appeals against Part 4 (school/other placement). Yet there were also nearly 30% against Parts 2, 3 and 4 but less than 1% against refusals to change the name of the school in a Statement.

The debate on Statements always overshadowed the issue of SEN, with emotions running high and there being mistrust between parents & LAs/schools, between schools & LAs and between LAs & organisations supporting parents.  This was because parents would feel that they had to ‘fight’ LAs/schools to get a Statement for their child (or to ‘police’ that Statement when they eventually get one); schools would say LAs were not supporting them (financially or otherwise); both LAs and schools would say parents had unrealistic expectations; parental organisations would say that LAs were too bureaucratic or ‘resource-led’; and LAs would say all the others didn’t appreciate their dilemma of having limited resources with extensive statutory duties to meet!

There were also difficulties for young people receiving educational provision Post-16. Although there were formal duties to draw up a ‘Transition Plan’ at a Year 9 Annual Review (to be reviewed during Years 10 and 11 to see how different agencies would work together including providers of Education, Health, Social Care, or Careers services), further difficulties were experienced because:

• LAs were issuing decisions to cease to maintain Statements when a child had completed Year 11;
• LAs were not agreeing to fund independent school placements (or suggesting unsuitable college placements);
• LAs were not agreeing to pay for third years of Post-16 courses (although the theory was that a young person could still receive a Statement until they were 19 provided that they were in a school); and
• Learning Disability Assessments (LDAs) which were used in place of Statements were not as specific or enforceable legally.

There were even concerns expressed as far back as 2002, when the Audit Commission said that 69% of SEN resources were focused on the 2-3% of pupils with Statements. Many people felt it was a ‘postcode lottery’ and, although LA/school policies were key factors, parents would sometimes feel that they only got the necessary SEP or got their preferred school for their child by bringing an appeal to the Tribunal. The ‘Statementing’ and appeal process was often criticised as driving parents and LAs apart and not together.

There was wide criticism of the SEN framework between 2006 and 2010, including 5 different Inquiries on SEN/Disability issues. Even as early as 2006, the Education & Schools Committee were saying that the SEN system was ‘not fit for purpose’.  One of the final nails in the coffin for the current SEN system was the Ofsted report in September 2010 entitled ‘A Statement Is Not Enough’.

Something had to change.

After a change of Government in May 2010 and a ‘Call for Views’ at the end of 2010, in March 2011 the new Coalition Government published an SEN Green Paper promising ‘the biggest reforms to SEN in 30 years’. In it they said they would avoid:

• Parents having to ‘battle’ to get the necessary support for their child;
• Statements not joining up Education, Health and Care;
• Children having unnecessary multiple assessments;
• Too much paperwork, bureaucracy and delay;
• A confusing/adversarial process;
• The perceived conflict of interest for LAs (who both assess and deliver provision);
• The over-identification of children with SEN; and
• The low expectations afforded to them.

The Coalition Government therefore proposed to now:

• Include parents/children/young people more in the assessment process;
• Replace Statements with single Education, Health & Care (EHC) assessments/plans;
• Make EHC assessments/plans run from birth to 25 (rather than from 2-19 as is the case for Statements);
• Replace the existing two school based systems (School Action & School Action Plus) with one simpler school based category (which would also help teachers raise attainment for children with SEN)
• Give parents a greater choice of school (including a power to set up Special ‘Free’ schools); and
• Introduce a parent’s right to have more control of funding for support.

 THE PRESENT

Fast forward to three years later (March 2014) by which time we have gone back and forth on the SEN Green Paper and the subsequent Children & Families Bill it led to, a new Draft SEN Code of Practice and Draft Regulations. There has been scrutiny of the Bill by the Education Select Committee at the end of 2012 and many amendments to the Bill made during the parliamentary process, particularly by the House of Lords.

At this stage, as far as we know, the following is likely to happen:

• Although there were still only legal duties on Education at first, Health provision is now included as being legally enforceable in EHC plans but, at this stage, Care is only to be kept ‘under review’ by the relevant LA (N.B. a child/young person though can only be considered for an EHC assessment/plan if it is considered they have 'educational needs - if they just have 'health' or 'care' needs they are not entitled to one, so it is still and educationally-based system);
• LAs must now ensure SEP is integrated with Health/Care provision (i.e. as long as it promotes the wellbeing of the child/young person with SEN or improves the quality of the SEP being delivered) but this is only a strategic planning duty so does not translate into individual rights for a child/young person;
• LAs now have legal duties to cooperate with their local partners in the area, including a duty of ‘Joint Commissioning’ where necessary (to ensure proper provision is secured); and
• LAs must make a ‘Local Offer’ to everyone in their area setting out appropriate provision that is available for children/young people with SEN (but this is not legally enforceable).

‘But what about schools?’ I hear you say, and in particular, Special schools?

At this stage, it seems, similar to how it has been up until now, a child without a EHC plan must still be educated in a maintained school (provided there is no cost to the LA) and LAs must name a parentally preferred maintained school (whether that be Mainstream or Special) in an EHC plan unless it is:

• Incompatible with the wishes of the parent/young person; and
• Incompatible with the provision of efficient education for others

LAs must also name a parentally preferred school in an EHC plan unless:

• The school is unsuitable to the age, ability, aptitude of the child or any special educational needs he/she may have; or
• It is incompatible with the ‘efficient education’ of others or the ‘efficient use of resources’.

But now parents also have the right to express a preference for a school that must be legally complied with (subject to some exceptions) not only to maintained Mainstream or Special schools but also now Academies, Free schools, Sixth Form or Further Education colleges (but not Universities/Higher Education establishments, Independent or Non-maintained Special schools (or other specialist providers) as well as some other Education/Health service providers.

SEN funding also legally changed in April 2013 in an attempt to make the system fairer and less confusing for everyone – i.e. parents/schools/LAs (although it would take me another article to try and explain how this is).

So, at least theoretically, it seems as though (subject to any further amendments), the Children & Families Bill (or ‘Act’ as it will eventually be known) could make things easier/better for children/young people with SEN and their families but practically this may come at a cost as some other things seem harder/worse.

For example, although an ‘indicative’ Draft SEN Code of Practice was issued in March 2013, it was not actually consulted upon (after being changed) until the last quarter of 2013. It was by then much weightier (174 pages) than the current Code of Practice it would replace (which brings into question its ease of use). But it also replaces other statutory guidance, like the 'Inclusive Schooling Guidance’ and guidance on Learning Disabilities Assessments (which replace Statements Post -16 if the young person is not in school) so, almost paradoxically, at the same time it is also a lot shorter than it could be.

Whilst, on first reading, it looked helpful, on closer inspection, it was found that there were many omissions from the current Code and it used very confusing wording. A number of other concerns were also expressed. In particular, the fact that LAs could now place children in Special schools/Academies indefinitely without needing to conduct an EHC assessment or making an EHC plan (as long as the LA reviews the placement termly).

Whilst the Draft Code confirmed many things that we already knew, such as that the threshold for triggering an assessment stays the same, a shift of focus on SEN was now explicitly envisaged.  The whole emphasis was now on educating children with SEN wherever possible without the need for an EHC assessment/plan, thereby making it the clear responsibility of every teacher for every pupil, whether or not they had SEN (including for the identifying and supporting of those pupils), which would require a higher quality of teaching.  It was also suggested that there would be a more ‘streamlined’ process for support/assessment.

Worryingly for many parents, there were also explicit statements that behavioural difficulties did not necessarily mean a child had SEN and there was now a clear distinction drawn between having medical needs/disability and SEN. Many people looked at these things cynically as just a political attempt to reduce the number of children considered to have SEN; but the main question was whether it could work in practice, given reduced timescales for LAs to conduct assessments/make EHC plans.

More worrying was the fact that there appeared to be no standard format as to how EHC plans should look (unlike Statements which have a standard format set out by law). This could even lead to the possibility that there could 148 different formats with each LA deciding how their EHC plan should look.

Whilst having high aspirations for children/young people is always a good thing, there was also concern expressed that, as there was no presumption that an EHC plan would continue until a young person reaches 25, but only if the ‘outcomes’ for them on their EHC plan were still to be achieved, some LAs might then be reluctant to put high achieving outcomes on EHC plans as otherwise they would have to fund the support in it until the young person was 25. This was again seen cynically.

 The Draft Code was almost universally ‘rubbished’ by parental organisations with one (IPSEA) even using the Education Select Committee’s wording back in 2006 in relation to the current SEN framework saying that it was ‘not fit for purpose’.

THE FUTURE

I do not have a crystal ball to be able to look into the future and see what will happen in September 2014, so please forgive me, as I will just need to hazard my best guess at this stage.

With just six months to go, I am not sure if there is going to be time realistically to re-write and re-consult on a new Draft Code of Practice. I am concerned that the current version does not give the basic principles or the proper guidance that it should to schools/LAs. Its language and structure also seems inaccessible to parents and young people with SEN, who are now supposed to be more involved in the whole SEN process.  I am also worried that there is no clear, detailed and unambiguous framework for EHC plans and no national set of standards. I fear that this could again lead to another ‘postcode lottery’.

I am additionally concerned that obtaining evidence has not yet been completed, with there being 20 ‘Pathfinder’ pilot projects established over 31 LAs/Health Authorities already but who will only be reporting back their complete findings in September 2014 at the same time as the new law is implemented!  That doesn’t sound good does it when you put it like that? In fact, some of these were only set up as late as September 2012 so the new system will not have been tried or tested enough. We may therefore not be ready for wholesale change. It doesn’t take a genius to work that one out, does it?

Probably the most pressing concern that I currently have is that there does not seem to be any clarity yet of the legal definition for ‘mental capacity’ in the Bill, the Draft Code or the Draft Regulations. We may find ourselves in the controversial position that, when a young person does turn 16, their parents’ legal right to engage with or challenge the LA may automatically transfer to them. This could result in parents being barred from continuing to act as advocates for their child.  I truly hope that this does not happen.

There has always been an inherent tension in the law concerning SEN as parents, understandably, want the ‘best’ for their child whereas LAs only have to provide an ‘adequate’ education.  Parents often say that LAs are short-sighted as less provision now may be less cost now but more cost to the State in the future, whereas more provision now may be more cost now but less cost to the State in the future. There are many things about the new law that I believe will help parents, particularly in hopefully making it easier to get children with EHC plans into their preferred special school.  However, I am concerned that it will now also become much harder for parents (and others) to get EHC assessments/plans in the first place.

Finally, I am concerned about where all the funding for everything is going to come from, given that there has been such as squeeze on everyone’s finances for the past few years.

Let me conclude; I have found myself pointing out to people in recent months that, although we have had our current SEN framework for 30 years now, I feel that it was only by about year 15-20 that we started to get the proper hang of it. Understandably, we do not find want to find ourselves in the same position again with a new SEN framework.

One question keeps popping into my head:

“Will EHC plans just be Statements by another name but now until 25?” 

by Douglas Silas © March 2014

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Tania Tirraoro

Founder, Co-Director at Special Needs Jungle

Founder of Special Needs Jungle. (She/Her) Parent of two young adults with autism. New grandma. Tania, who is autistic, is a leading SEND advisor, working with the Special Education Consortium, Ofsted, and Whole School SEND. She is also an Advisory Board member of the Royal Holloway, University of London Centre of Gene and Cell Therapy and an Editorial Board member of Springer Nature Gene Therapy journal.
Tania is an experienced broadcast and print journalist & author. She also runs a PR, web & social media consultancy, SocialOro Media.
Tania is a rare disease & chronic pain patient advocate with Ehlers Danlos syndrome.

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