A young lawyer specialising in special educational needs, who himself has SpLD, has warned the parties in the upcoming election urgent action is needed to fix the disarray in the current state of English Special Educational Needs and Disability provision.
Zach Esdaile, a partner at Bowers Solicitors, says recent government research reports in no way reflect the reality for families. Zach himself struggled with dyslexia and dyspraxia, but says he was lucky to get the right help to enable him to qualify as a solicitor. He had a Statement of SEN and went on to study law, training with a leading charity, representing families of disabled children trying to get support. He believes his own difficulties have given him a unique insight.
Zach originally wrote his concerns in a letter to Ed Timpson, Minister of State for Vulnerable Children and Families who has overseen the SEND reforms. However, since Theresa May called a snap election last week, he wants his letter to serve as a call to the UK's political parties not to think SEND reform is over. He is highlighting that recent research with limited parameters, does not show the real situation that families with disabled children are facing.
We, at SNJ, agree: it's time, fellow parents and young adults with SEND, to make our voices heard to make this a key election issue. Please read Zach's letter and leave your comments below [on this post, NOT just on Facebook, please, so they stay with the post and you can forward it to your local candidates].
Dear Election candidates...a word about SEND
I write to you not only as a lawyer who practises in the area of special educational needs and disabilities, but also as someone who has specific learning difficulties themselves. In my student years, I was diagnosed with dyspraxia and dyslexia. I was one of the few that was lucky enough to obtain support through a statement of special educational needs. It was because of this support, put in place by my mainstream maintained school, that I was able to go on to practice law. I want to ensure the same opportunities are available to other children to similarly achieve their academic potential.
I have felt compelled to write to you because the picture that you presented in your report in no way reflects the reality of the struggle still faced by families with children with special educational needs. The current state of the system does not reflect your vision for children with SEND such as you describe in this report as, “their aspirations are as high as any other young persons, that they achieve well at school and college, and lead fulfilling happy lives”.
Being Disabled in Britain - A journey less equal
I draw your attention to the report produced by the Equality and Human Rights Commission entitled “Being Disabled in Britain – a journey less equal”. In relation to education and attainment for children and young people, it found that the number of pupils diagnosed with special educational needs has reduced from 1,301,445 in 2015 to 1,228,785 in 2016. Of grave concern, in 2014-2015 the overall proportion of children with special needs in England who achieved at five A*-C GCSEs including English and Mathematics, was at 20%, whereas this was 64.2% for non-disabled children. The report rightly commented that not much progress has been seen in this area as this large gap has only got 1.8 percentage points smaller since 2009-10.
*Tania, SNJ Founder's note on this: In case you're thinking, well what can you expect if they've got learning difficulties, More House School, a specialist SpLD school, has results of A*-C of 69% with a 90% GCSE/BTEC overall pass rate. This shows what children like these can achieve, like Zach, with the right support.*
Zach: As a result of the gap in achievement between disabled and non-disabled pupils, a UK Report by the Joseph Rowntree Foundation recommended that policy makers focus on special educations needs and disability as a priority. Evidence shows children with special educational needs are more likely than those without to experience poverty, have an unfulfilling education, and go on to be poor as adults.
Chillingly, the report quotes a survey of 585 members of the association of teachers and lecturers which found that education staff believed that children and young people with special educational needs and disabilities are not getting the support they need. A massive majority, some 83% of respondents, did not believe the current system enables all children with special educational needs and disabilities to be supported appropriately.
The Report also reviewed the situation in relation to exclusions from schools. The exclusion rate in England in 2014-2015 pupils with identified special educational needs accounted for just over half of all permanent exclusions and fixed period exclusions. Pupils with special educational needs support had the highest permanent exclusion rate and were over 7 times more likely to receive a permanent exclusion than pupils that did not have special educational needs.
It is with regret, that in consideration of the report, that you are not achieving your objective of ensuring an even playing field in terms of outcomes for those under a special need or disability and their peers.
The New Special Needs System
You say in your foreword, that the new system enables more confrontations to be resolved at an early stage. The research from CEDAR, contained on Page 22 of your report, provides an entirely different picture. It suggests that the appeals to the First Tier Tribunal were in their vast majority decided in favour of the family (88% in 2015-2016). The mere fact that such a significant number of appeals were successful must show that the local authority’s decision making in those cases were flawed right up to the tribunal hearing.
Further, 72% of tribunal cases in 2015-2016 were either conceded by the local authority or withdrawn by the parent or young person. If the new system, as you suggest, was assisting in resolving these disputes at an early stage, why did such a large proportion of cases only obtain a concession from a local authority at a much later stage?
CEDAR points out that many parents and young people found the periods spent preparing for a hearing the most difficult, with some finding the hearings themselves daunting and stressful. Issues were raised about the length of time found waiting for a hearing, the difficulties of putting together a legally watertight case and the costs to parents, in particular, reports and legal representations. Critically, and entirely contrary to your suggestion that this new process has enabled disputes to be resolved in a more collaborative manner, the review reported that following an appeal, most parents said their child’s educational situation had improved.
Within your report, you seem to suggest that the parent's right to have their cases adjudicated by a tribunal panel, that is a panel with a legal representative and at least one or two panel members with expertise in special educational needs, will be removed. Under the guise of “removing unnecessary restrictions and how cases are determined” you suggest that some tasks, we presume judgments, can be passed to judges from tribunal registers. This, you say, would enable judges to focus on matters where their legal expertise is needed.
I ask you to give an absolute reassurance that families with children of special needs will have access to a tribunal panel to make determinations in relation to their child. In no circumstances, should parents’ rights to oral hearings, determined by a tribunal judge with experience of special educational needs law along with panel members who have experience in special educational needs be watered down. I must emphasise again the findings of CEDAR, 88% of parental hearings are properly determined by a tribunal. In 2015-2016, the decision made by the local authority is either changed or quashed.
What is clear is that the tribunal process is the ultimate safeguard and no provision should be put which places a bar on parents’ ability to access this provision. Parents must have access to tribunal panels.
Representation and obtaining evidence for the purposes of the Tribunal Process
Within your government response, you do not address parental concerns in relation to the costs of independent reports. As an advocate, I can tell you, that the tribunal, although it does its very best to be a parental-friendly jurisdiction, has to make decisions which accord with the evidence presented. It follows, that if parents cannot obtain independent expert reports to reveal and uncover the true nature of their child’s difficulties and the provision they require, it is extremely unlikely that they are going to be successful in a tribunal process.
Local authorities, for their part, do not always act in an adversarial manner. In some cases, they do not have the resources to obtain particular speech and language and occupational therapy reports and neither do the parents. This means that there is a level of children's needs that never get addressed by meaningful provision. When parents, local authorities and tribunals panels do not have the evidence before it they will never be able to make decisions that enable a young person to achieve their academic potential. These children will forever be lost in the system.
You go on to describe within your response, that legal representation is not necessary and does not provide a greater chance of success for a parent. Nowhere in your response do you recognise the huge burden that is placed upon parents entering a tribunal system.
Firstly, the weight of expectation that lies on their shoulders is enormous. The tribunal does not merely address decisions about people’s financial wealth or issues of property; parents engage the tribunal process to try to safeguard the needs and the welfare of their child. To expect parents to go through this process without legal representation is with the greatest respect cruel. There are many complicated issues which may need to be determined which parents and young people require assistance with; this includes but is not limited to:-
- Preparing a case, setting out clearly within grounds of appeal in a working document what provision and what needs their child has, what provision their child requires and what placement they should attend;
- In cases relating to a placement, making complex arguments in relation to costs and also suitability;
- In cases involving young people over 16 who may lack capacity, being able to explain their situation to a tribunal and being able to make decisions in their best interests;
- In cases where there is an argument in relation to education and healthcare provision, being able to advance a legal argument as to whether provision should be considered as educational for the purposes of the Children and Families Act 2014;
- When there is a dispute between expert evidence, being able to understand where the difference lies and being able to evaluate expert reports.
Parents without Tribunal representation are disadvantaged
The tribunal clearly has expertise to assist the parties and can act inquisitorially, to try to ensure that it has made the right decision. However, it is reliant on the parties and the parent to be able to provide evidence and submissions to support their position. If a tribunal does not have evidence to support a case, it cannot rule in favour of a party.
It follows therefore, that a parent who is not legally represented can potentially be at a significant disadvantage when coming up against a local authority that can instruct any witness, expert or legal representative at will. There are no restrictions on the local authority, either financial or moral, in relation to who they can instruct.
Parents of limited financial means, are only provided with very restricted legal support. There is no provision, for example, for representation at tribunal hearings, the success of which will invariably determine the success of the case.
However, the situation is even worse for those who fall between the gaps between legal aid and private support. There are thousands of people who do not qualify for legal aid, but who can neither afford to obtain independent reports to prove their child’s needs nor obtain legal support. In such circumstances, they are already litigating with one hand behind their back. There are a number of charities who assist and do outstanding work including IPSEA, SOSSEN, and the National Autistic Society (if the family knows about them). However, as these groups advised the government previously, volunteer support (though trained in the law) cannot be as comprehensive as the support provided by a solicitor or a paid legal advocate. Your report in no way addresses this “inequality of arms” and it cannot be claimed that there is, in any way, an even playing field between families and LAs. This is a distorted version of reality.
The tribunal, for its part, works extremely hard to try to provide an appropriate forum to address these complex cases. However, my experience, and that of other advocates is that the tribunal is stretched to breaking point. The pressures that are placed upon the system are simply enormous. This is in no way reflected in your report.
The artificial separation between Educational, Social Care and Health Care Provision.
Finally, I have to address your comments in relation to the education, health and care plan providing a more “holistic approach”. One of the most significant difficulties of the new plan, is that it provides an un-cashable cheque in relation to social care provision. The law is clear; local authorities do not have to provide the social care provision set out within an education, health and care plan. It merely has to 'have regard' to it. There are no reasonable mechanisms provided by the CFA to provide social care or health care within the plan. The only mechanism to obtain social care for a child is to ask for an assessment under the Children’s Act 1989. The concern is obvious. The plan pretends to be something that it is not; a document which codifies all of the child’s needs.
In relation to healthcare, the situation is slightly better with a statutory duty codified within the CFA. It states that all health provision set out in the plan must be provided by the relevant healthcare authority. It leaves parents with one simple question: what mechanisms are available to ensure that healthcare provision is placed within the plan?
If there is no mechanism to enforce healthcare to be placed within the plan, or a body to adjudicate a child's required provision between a health authority and a family when there are disagreements, then there is no point having a legal duty to provide healthcare provision. To put it simply, it is a statutory duty which is not worth the paper that it is written on.
This artificial separation between special educational provision, healthcare provision and social care provision is antiquated and nonsensical. It has indeed caused great confusion. There is no clear dividing line (see Bromley judgment). The task is left to local authorities and tribunals stepping into their shoes to try to disentangle what is educational provision and what is social care and health care provision.
It is respectfully submitted that a child cannot be 'compartmentalised' into requiring education, health and social care provision. Whilst local authority and tribunals do try to differentiate between these three domains, it is, in my view, a nonsensical distinction. The only person who suffers is the child or young person who, if their needs are defined as being health or social care, will have less right to that provision.
It is now time for the next government, whoever that may be, to acknowledge social care and healthcare provision on an even playing field with educational provision and express this in statute and give tribunals total jurisdiction over this social care and healthcare provision elements of the plan.
I acknowledge that you have started a pilot where tribunals could make recommendations in relation to health and social care in a number of cases. While this may well be a step forward, what benefit is there to the family if the tribunal recommends health and social care provision when there is no 'force' to place it within the EHCP or, in the case of social care, there is no absolute duty to provide the social care provision at all?
As to next steps when the new government takes office, I would ask the implementation of the following:
- To respond to the contents of this letter;
- For the new Minister concerned to meet face to face with parents of children with special educational needs who have gone through the tribunal process and also the conversion to the education, health and care plan with a statement of special educational needs.
- It is, in my respectful view, critical that you not only have the report of CEDAR, but that you are also able to hear from people in the flesh who have still had to fight to obtain the right to educational provision for their child.
- Poor advice for Post-16: Why Katie & Harvey Price’s long hunt for a suitable college is far from unique - March 2, 2021
- Free back-to-school legal WEBINAR! What to do if your child’s SEND education rights are denied when schools fully-reopen - February 25, 2021
- SNJ’s 10-point “Grab & Go” version of the DfE’s Back-to-School Guidance for SEND learners - February 23, 2021