The SEND system is fractured, if not broken. Three new reports prove it.

SEND reports are like buses. Nothing for ages, then one, two and now three come along at once, this latest from the Local Government and Social Care Ombudsman (LGO). None of them are good news.

A while ago, we covered the case of a parent who had taken her council to the Local Government Ombudsman to complain about awful treatment at the hands of her local authority. She isn’t the only parent to have gone through the LGO. The ombudsman has issued a review of the first 100 complaints from parents regarding special educational provison into Education, Health and Care plans (EHCPs)

It said families of children with SEND are sometimes facing a “disproportionate burden” to ensure they get the support they need.

“When councils get things wrong it places a disproportionate burden on families already struggling with caring and support: some families have to go well beyond the call of duty to confirm the type of support their children should receive.

 “The system is not failing universally. But for those people who come to us, we are finding significant problems – sometimes suffering long delays in getting the right support and children ultimately failing to reach their potential.” Michael King, Local Government and Social Care Ombudsman.

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What is the LGO?

Local Government and Social Care Ombudsman investigates unresolved complaints about local public services providers. It’s free and impartial. The LGO has no legal power to force councils to follow recommendations, but they almost always do. They can ask a service provider apologise, pay a financial settlement and/or improve its procedures.

Not the first LGO report about SEND reforms

The LGO issued a previous report in March 2014, SEN, preparing for the future” that we covered here. That report aimed to highlight some of the problems that have occurred under the current arrangement so that, “By learning the lessons of the past I hope that future mistakes can be avoided"

At the time it also said,

"A common phrase we hear from families when resolving a dispute about SEN is that it feels like a constant battle. It should not be this way. When things go wrong it is vital that councils act quickly to avoid children being disadvantaged."

That report from 2014 may as well have been bolted on to the end of this one as the issues have not changed, nor have its recommendations in that report been followed. Recommendations such as keeping to timescales, amending statements/EHCPs quickly after annual reviews, where indicated, and recognising the need for timely planning and provision for all phased and other transfers to new schools. The only action LAs may have taken is to use that report as toilet paper, which probably made it much more useful to them than actually reading it.

Scoot forward in time three years and you have to ask yourself if there is any point to this new LGO report, other than for SEND advocates throwing up our hands in horror at something we already knew but that no one seems to be actually enforcing in any real way?

The Local Government Association (LGA) which represents local councils, came back with its own version of "fake news",

"The number of investigations undertaken in this report is relatively small when compared to the thousands of Education, Health and Care Plans developed by councils to support children and young people with SEND. The report rightly highlights that despite these complaints, two thirds of parents have said they are happy with the support they are being provided by their councils."

Then it just called for more money from government in excess of the March 2018 deadline and opined that, “it is important that everyone, councils, colleges and government departments, work together effectively.”

Look how well we're doing (eyes closed, fingers in ears) and if we aren't, it isn't our fault anyway... What absolute, utter bollocks! I mean 'scuse my French and all that, but sometimes no polite terms are adequate.

The low number of complaints is far from the fact that thousands of families are waving their well-written EHCPs with joy in their hearts. It’s because it takes so bloody long to get an EHCP, then to go through the appeals system and the council’s own complaints system (around nine months for that alone) then to get to the LGO. And that’s if a parent knows about this source of redress and has the energy to continue to pursue it. The vast majority do not. In fact, A number of the complaints were rejected because parents hadn’t been through all the hoops such as the council’s own complaints system first.

In fact, I believe this is the tip of the iceberg.  Too many parents are settling for poor plans because the system is more complicated than ever and parents do not understand it (and indeed, why SHOULD they be SEND experts?). I believe if every EHCP was independently quality assured we would see that the vast majority are badly written or poorly implemented. The outcome: children are losing out and parents are more stressed now than they were under the old system. The LGO says the system is "not failing universally" but I now honestly believe it is fractured, if not broken.

“We have now completed more than 100 investigations about EHC plans and upheld 79% of them. This proportion is exceptionally high, and far in excess of our average uphold rate of 53% for all investigations last year.” LGO report 2017

I confess, my own sons’ EHCPs left a lot to be desired but after 11 months, I was too exhausted to continue, knowing they were already half-way through sixth-form. I also knew their Learning Support, their tutors and myself were largely working effectively to support their needs. Now they’ve gone to uni where EHCPs are not legal, but I still don’t have an updated EHCP for either of them, almost a year after their annual review meetings. There was no delay in getting letters to cease provision to me though, I note.

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What's wrong, and recommendations: Delay:

The report said, less than 59% of new EHC plans were issued within the 20 week limit last year. In a few cases  that came before the LGO, families have waited over a year for their plan to be issued. But we know from what parents tell us that many, many families are waiting that long.

“In some cases councils seem to be unaware 
it is their duty to gather evidence. We have investigated complaints where this role has been wrongly delegated to the school or family.” LGO report 2017

TT: And that's a direct quote. I mean… what? Seriously? This is simply farcical. If it wasn't written down in black and white in the report, it would be unbelievable.

LGO Recommendation: Plan ahead for transfers – the 20 week timescale is challenging but these families are already known to councils. Early discussion with families ahead of issuing the transfer notice can identify cases where signi cant changes in support are likely to be needed, or new assessments required to inform the EHC plan

LGO Recommendation: The quality of EHC plans depends on
the quality of advice obtained to inform them. Give professionals clear instructions about the advice required and that recommendations must be quanti ed and speci ed. Consider providing speci c forms or guidance for professionals

LGO Recommendation: Have a strategic plan for how the remaining transfers and new EHC requests will be managed giving priority to urgent cases and key transfer dates.

My own recommendations: 

  1. I would also like to see Ofsted SEND inspectors ‘spot check’ random (anonymised) EHCPs from each LA to see whether they are actually fit for purpose.
  2. Most parents are not SEND advocates, prepared to go the whole distance to get a solid EHCP. Even if they knew what a well-provisioned plan looked like and what they were actually entitled to, that is. Many parents are just happy they have a piece of paper with EHCP on the top. I think LAs should stop clinging to the knowledge that a lack of parental understanding means they can get away with dishing up half-baked plans that are most likely not quantified or specified.  ‘Doing the right thing’ means doing the right thing for the child, not for the LA.
  3. I think the timescale of 20 weeks should be looked at again. Yes, it's great that it was cut from 26 weeks under the old system, but it is not working. The process now has three more factors if you include health, social care and personal budgets. I think parents would prefer the 26 week deadline if it meant that a more thorough assessment and plan was the result. While there needs to be a deadline, it should be based on evidence and the evidence is that 20 weeks is too short. 

What's wrong, and recommendations: Recording social care:

The report said, "The EHC assessment must include a consideration of care needs. Where a child
 or young person already receives social care support, this should be straightforward because the needs and provision will be set out in the care plan. Where the person is not previously known to social care services, the council has to identify whether they have social care needs. In some cases it may be necessary to proceed to a formal assessment. Any new social care assessment should be combined with the EHC assessment".

Ha! This is news to me and probably most other parents who dared to ask for a social care assessment. It's much more likely to be if your child is 'not known to social services', it ain't gonna happen bud.

Recommendations:

The report noted confusion about how social care should be recorded in an EHC plan. Helpfully, it tells you how it should be done:

  • provision made under section 2 of the Chronically Sick and Disabled Persons Act 1970 needs to go in the section referred to as H1 of the EHC plan. This must specify all the services assessed as being needed for a disabled child or young person under the age of 18.
  • provision under the Children Act 1989 or the Care Act 2014 needs to go in the section referred to as H2 of the EHC plan. This includes any other social care provision reasonably required by the child or young person’s learning dif culties or disabilities which result in SEN.

Recommendation: Ensure social care needs are properly considered in every EHC assessment or transfer. Not every child or young person will need an in-depth assessment, but councils must be able to demonstrate how they have considered social care needs

Recommendation: Have a proper mechanism in place with NHS / CCG partners to address delays or problems receiving professional advice. Oversight by senior of cers can free up SEN of cer time chasing overdue advice, reduce delays and identify where there are pressures on services or a shortage of specialist advice

What's wrong, and recommendations: Is it a transfer, an annual review, or both?

Another major issue was LAs intending to use the annual review meeting as the transfer meeting, but failing to issue the notice so a further meeting has to be held in order to comply with the rules

LAs were said to ask the school to hold the annual review and using this as the transfer meeting, even though no relevant local authority officer attends. Or arranging the meeting too late to meet key transfer deadlines or to teet the timescale for issuing an EHC plan. Or realising at the end of the EHC process no meeting has been held and pressuring parents to hold it at short notice (in one case 24 hours) or by telephone so the council meets its statutory deadlines for issuing the EHC plan. Or failing to consider whether an annual review format with a range of professionals attending is the best one to allow the child or young person to participate fully in the assessment and planning process.

The idea is that as children approach one of the government mandated timeframes, which are usually a key stage transfer, councils should identify them well in advance and allow enough time for a new EHCP to be drawn up AND for parents to appeal the contents of a plan or placement before the start of the academic year, to enable a smooth transition.

How hard can that be, would you think? Very, very hard, it seems. And because they fail at the forward planning, then everything else fails. Not only are ARs not being used as transfer meetings, LAs are not thinking ahead to allow for gathering updated evidence or for finding a suitable school.

You CANNOT wait until a draft plan is issued to start thinking about schools. Parents are given just 15 days from draft to final plan and if they haven’t already got a shortlist, this gives insufficient time for visits and deciding if a school can provide support. And then, of course when you pick a school, the LA is quite possibly going to have different ideas on grounds of cost, dragging out the process further. While an LA must not name a school in a draft plan, case officers should be talking to parents about the schools they might want to look at a long time before then.

Even worse, the LGO has seen councils issuing FINAL EHC plans with NO school or college named or with just the type of provision named.

The report shows the same thing is happening with Personal Budgets – when they’re mentioned at all. By the time they’re raised, it’s so far down the line that it can be hard to see where it can fit in. A personal budget should be raised at the very first meeting as having provision through a PB could even alter their choice of school.

“We found council officers sometimes don’t have the necessary financial information to be able
to properly consider parental preferences or requests for personal budgets. In particular, social care and transport costs are frequently not factored in when comparing the costs of placements. Sometimes this means councils are refusing the parent’s preferred placement even when it is no more expensive in real terms, and should have been agreed." LGO report 2017

LGO Recommendation: Councils should ensure they look at out of area and independent options and consider putting in place interim therapy and alternative education – children should not be left without education.

LGO Recommendation: Discuss possible education placements and their relative costs (including social care and transport) early, so families can make informed choices and have the opportunity to suggest alternatives

LGO recommendation: Consult possible education settings early and concurrently, not sequentially, to avoid unnecessary delay in reaching a decision

Use of panels in decision making

The dreaded ‘panel’ is something every parent hates. A group of professionals from the LA, usually including an educational psychologist, make the decision as to whether your child can have an assessment or a plan or the right school. Parents find them opaque and and unfair, especially when a decision is made about your child by a bunch of people who have never met them and who may have little interest in parental views. Sometimes decisions are made on incomplete evidence as administrative blunders mean that crucial information has gone ‘missing’.

LGO recommendation: The report says councils must ensure the use of panels is person-centred, fair and transparent, with timely decisions and giving reasons for an adverse decision, and recording reasons in writing. (TT: Which is the opposite of what happened in cases brought before the LGO and, I believe, in hundreds of other cases.)

LGO Recommendation: Work closely with families throughout the EHC process and let them know if the council’s views about needs or placement diverge from those of the family. There should be no shocks or surprises when the draft or nal EHC plan arrives

LGO Recommendation: Ensure all those involved in SEN, including managers and panel members are properly trained in the law. Lack of training often leads to unnecessary mistakes, complaints, appeals and duplication of work

LGO Recommendation: Where complaints about EHC plans cover the actions of the council and health, it
 is good practice for councils and their partners to provide a co-ordinated response to the complaint, where that is feasible and in accordance with the wishes of the complainant

Councillors beware...

Finally, it has word of warning for councillors to make sure they know how their officers are dealing with SEND provision and if the practice and strategy is one that is legally compliant, also ensuring that children and families are suitable involved in decision-making.

I would say if you’re a councillor, please wear your human hat when doing this. Make sure your LA is obeying the law and that officers, especially case officers, have all the training they need and they are, crucially, putting it into practice every day they come to work.

Find out for yourself how happy parents are. Speak to your parent carer forum and to pther parent support groups yourself. Don’t rely on what you’re told by your SEND department. And, if you find out it’s a cae of poor funding or training, then do something about it.

Remember, parents are voters too...

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Tania Tirraoro
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Tania Tirraoro

Founder, CEO at Special Needs Jungle
Founder of Special Needs Jungle. Parent of two sons with Asperger Syndrome.
Journalist & author of two novels and a guide to SEN statementing. PR & social media expert. Rare Disease & chronic pain patient advocate.
Tania Tirraoro
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  • Planet Autism

    Perhaps if someone analysed the wording of the laws that would explain why. No doubt they are full of wording that says a policy of x, y, z should be in place but fall short of specifying explicitly who should access things under what circumstances and no repercussions for failing to comply either.

  • Planet Autism

    Perhaps if someone analysed the wording of the laws that would explain why. No doubt they are full of wording that says a policy of x, y, z should be in place but fall short of specifying explicitly who should access things under what circumstances and no repercussions for failing to comply either.

  • Planet Autism

    Perhaps if someone analysed the wording of the laws that would explain why. No doubt they are full of wording that says a policy of x, y, z should be in place but fall short of specifying explicitly who should access things under what circumstances and no repercussions for failing to comply either.

  • Planet Autism

    Perhaps if someone analysed the wording of the laws that would explain why. No doubt they are full of wording that says a policy of x, y, z should be in place but fall short of specifying explicitly who should access things under what circumstances and no repercussions for failing to comply either.

  • Planet Autism

    Perhaps if someone analysed the wording of the laws that would explain why. No doubt they are full of wording that says a policy of x, y, z should be in place but fall short of specifying explicitly who should access things under what circumstances and no repercussions for failing to comply either.