The government’s legal day of reckoning looms, as families challenge over SEND failures

Image of SEND cuts banner and words: The government's legal day of reckoning looms, as families challenge over SEND failures

While most of the country’s politicians are fixated on Brexit and BoJo, vulnerable children have been left to bump along the bottom of the agenda. But not tomorrow.

Tomorrow, all eyes will be on the High Court in London as a group of families with disabled children from North Yorkshire, Birmingham, and East Sussex haul the government before a judge. They'll be facing down the Department for Education at the High Court in London, arguing that the Secretary of State for Education, Damian Hinds, and the Chancellor of the Exchequer, Phillip Hammond, are failing to discharge their legal duties relating to the amount of funding allocated to SEND provision in England.

The Autism Show

Special Needs Jungle fully supports their action. I’m honoured to have been asked to speak at the pre-hearing rally on Wednesday. The only fly in my ointment may be the logistical problems of getting my chronically ill carcass to the steps of the High Court for 7:30am. But regardless, SEND Action campaigner, Gillian Doherty whose group are supporting the parents, will definitely be there, along with other speakers, so if you can get there, do go and lend your voice to make a noise! 

Gillian says: “The message to Philip Hammond, to Damian Hinds and to our next Prime Minister couldn’t be clearer: they must take urgent action to provide the support disabled children need and to which they have a legal right. This is the 21st century, in one of the richest countries in the world. Our children are being failed by a system in a tailspin. It’s appalling that parents have had to take their own government to court to try to resolve this crisis.”

What’s the basis for their Judicial Review?

We covered the initial news last September  when they crowdfunded the cash needed for lawyers to kick off the Judicial Review. In case you’ve somehow missed it, families are being battered by the proverbial “perfect storm”. 

There’s been a sharp rise in demand for SEND provision, in large part because the reforms raised the legal age limit from 16 to 25 (as long as the young person wasn't in higher education - because no one in a university could have SEND, right? ) However, the funding did not increase accordingly, almost like they didn’t expect any young person to want to take the offer up. The £700 million the DfE has pumped into the reforms has mainly been for trials, implementation, and then more implementation, and that’s largely been misspent

On top of this, the ferocious thunderstorm of austerity cuts to schools funding, services and to disabled people in general, have smashed the hopes of families against the rocks, while the politicians in their ivory lighthouses were gazing out on a completely different, Brexit-shaped horizon.

The distracted boyfriend meme with the government distracted from the send girlfriend by the attractive brexit girl passer by
It's so... distracting

The campaign’s case is a strong one. The letter sets out the legal grounds on which they’re taking the action:

  1. s149 of the Equality Act 2010 (known as the “Public Sector Equality Duty” or “PSED”). This requires public bodies (including the government) to have due regard to the need to need to eliminate discrimination and advance equality of opportunity for groups with ‘protected characteristics’, which includes disabled children.
  2. Section 7 of the Children and Young Persons Act 2008 . This imposes a substantive duty on the Secretary of State to ‘promote the well-being of children in England’.
  3. Rationality. Public bodies (including the Government) are required to take decisions in a rational manner. We contend that:
    1. The Government acted irrationally by failing to increase funding when increasing the upper age limit for SEND entitlements from 18-25; and
    2. The Government has failed to make sufficient enquiries to ensure that it is properly informed about the relevant issues when making funding decisions.
  4. Article 14 of the European Convention on Human Rights. This requires public bodies, including the Government, to act and make decisions in a non-discriminatory way. We contend that the Government has failed to treat disabled children sufficiently differently to other children to recognise their different needs, which is disproportionate and unjustified.
  5. International conventions. We will also rely on international conventions, including the Convention on the Rights of Persons with Disabilities (“CRPD”), and the Convention on the Rights of the Child, which protect the rights of disabled children.

This case could be a huge turning point. However, as local Judicial Reviews in Bristol, Surrey and Hackey have scored 1-2 to the respective LAs, it’s not a sure thing, however much we want it to be. We shall say a huge good luck to the legal team!

Of course, we’re also waiting on the SEND Inquiry report from the Commons Education Committee. I just want to say can you please hurry up and get it out before the government collapses under the weight of its own lies and back-stabbing.

SEND young people awaiting provision 

Meanwhile, the National Education Union is claiming that more than 8,500 young people with SEND are ‘awaiting provision’ for a school place. They’ve looked at the same EHCP figures, released in May that Matt wrote about. The NEU says the figures show "8,587 children and young people with SEND are currently classed as ‘awaiting provision’ for a school place, and have no access to any type of educational provision at all."

We might signal a note of caution with these figures, however, as some of the numbers for young people who are “NEET”, that is, not in education, employment or training, are recorded this year for the first time, so it’s perhaps not comparing like with like. Our statistics guru, Matt Keer has looked at the figures and says,

“In 2017, the 4,060 figure cited probably included some young people with EHCPs who were NEET. But possibly not, depending on how diligent the LA census-takers were - the LA weren't explicitly asked to collect on NEET in 2017 or 2018, whereas they were in 2019. Even so, the bottom line is that nearly five years after the SEND reforms, there are still thousands of children and young people with SEND who don't have an education or training placement. For these children & young people, at the moment in time when this annual census happens, their EHCP is nothing more than a piece of paper with an empty promise. And the numbers in post-16 are especially worrying, given that's who the SEND reforms were supposed to improve help for. So the situation as a whole is pretty appalling. But it's really hard to tell whether the numbers are increasing or not.”

Matt Keer, Special Needs Jungle columnist

Like Matt says, it doesn't really matter what the actual numbers say, the fact that thousands are without provision is an absolute scandal.

These young people were promised an end to the “cliff-edge” after compulsory schooling finished. But even now, five years after the SEND reforms, too many are still wondering what a supported internship or an EHCP-backed apprenticeship might be like.

And as ever-more complex children reach the age where they will need Post 16-provision, councils have not done enough to establish suitable placements. They’re now faced with paying for expensive private specialist colleges, which means more parents having to make the trip to the SEND Tribunal to secure provision.

The reforms promised a holistic education system that encompassed health and social care from birth to 25. This has, for the vast majority of families, failed to materialise. Indeed, for many, many families, the reforms have taken a slightly smelly system and made it into a stinking pile of horseshit.

Funding isn't the whole story, but it's the star player

I have seen some great practice from dedicated teachers in difficult circumstances. I have seen some local authority staffers doing their best to make the vision of the reforms a reality. I know some amazing practitioners (they write for SNJ too) who live by the ethos of the reforms.

But they, as well as parents, will tell you that they are fighting against not only a lack of resources, but other gaslighting professionals (if you can call them professionals) within the system who have taken no interest in “doing things differently” and who seem to think the Children and Families Act doesn't apply to them.

These are the types who still think parents are trying to get more for their kids than they "should have", and if the funding floodgates opened tomorrow, I don't think their attitudes would change one little bit. The best thing for the system is for these people to go and work in a different industry.

There is going to be a refresh of the SEND Code of Practice later this year/next year. Originally it was supposed to be “less prescriptive” to allow the 'talents' of a tide of SENCos and teachers to shine through. (I’ll pause while you recover from the laughing fit). I would politely suggest that the new version pins down the law in a tightly worded, no room to wriggle, easy to understand and emphatic document. Each chapter should end with the words in 48pt bold: “Just obey the law” 

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Tania Tirraoro

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