Failing to look after the “looked after” Loopholes in the SEN system

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Current education law ignores the rights of those most in need of its protection

The term “looked after children” refers to those children who are subject to care orders or accommodated by local authorities under the Children Act (s.17/s.20, 1989) at the request, or with the agreement, of their parents. By definition, they are some of the most vulnerable children in society. Despite this, their rights in education law are often not protected.

The majority of rights in education law are bestowed on parents, rather than the children themselves. The definition of a parent for the purposes of education law is an anomaly. In general, the definition of a parent in law involves a consideration of who holds parental responsibility. However, the Education Act (s.576, 1996) defines a “parent” as a biological parent and any person who is not a parent of the child concerned, but who has parental responsibility for him/her or who has care of him/her. This means that foster carers, and extended family, or any other person caring for a child on an informal basis, constitute parents in the context of education law without any need to hold parental responsibility for the relevant child.

The right to appeal to the First-tier Tribunal (Special Educational Needs and Disability), formerly the SENDIST, is a parental right, as defined by Education Act (s.576,1996). On the face of it, the fact that appeal rights rest with parents appears satisfactory, as appeals in relation to looked after children can be pursued by their carers. However, the system fails to protect children looked after in a residential setting, such as a children’s home, where there is no obvious “parent”. The individual who may come closest to being the child’s parent is a key worker, but he or she will also be the key worker for a number of other children and may have no special relationship with the child concerned. Such an individual may also consider exercising a right of appeal on behalf of a child to be beyond their role. So, who can exercise the right of appeal for such a child?

In theory, their biological parent could appeal. However, many looked after children are estranged from their biological parents and, even if they are not, a biological parent is likely to be reluctant to mount any kind of challenge against the body looking after their child or may simply have no interest in doing so. Another option is that the child’s social worker could pursue an appeal. In the experience of the Children’s Legal Centre (CLC) this rarely happens even where the need to appeal is patently obvious to all concerned. Social workers are naturally averse to challenging the decision of another department within the local authority which has decided, for example, that a child does not require a statutory assessment or a specialist school placement. As a result, looked after children with SEN in residential settings are placed at a substantial disadvantage and are far less likely to have their needs met.

Those who are looked after by local authority foster carers are also disproportionately affected by the fact that rights to appeal to the First-tier Tribunal (Special Educational Needs and Disability) rest with parents. The CLC’s experience is that, like social workers, foster carers are often reluctant to appeal decisions of the body which employs them. The solution is to give children a right of appeal in their own right.

In April, the Department for Children, Schools and Families (DCSF) published a Consultation on Giving Children and Young People a Right to Appeal.(1) This consultation was issued in response to the concluding observations made by the UN Committee on the Rights of the Child on 20th October 2008, which criticised the Government’s implementation of Article 12 UN Convention on the Rights of the Child in the context of education.(2)

The proposal contained in the consultation document is that children of a certain age should have their own separate right to appeal to the First-tier Tribunal (Special Educational Needs and Disability). The consultation is seeking views on how feasible this is and what kind of support system would need to be in place to facilitate it. The expectation is that most appeals would still be made by parents and carers, with children only exercising their individual right to appeal if their parent or carer is unable or unwilling to do so.

The DCSF is proposing that child appellants would have to be at least eleven years of age. Placing a restriction on the age at which children can appeal is undesirable, as children’s level of maturity and understanding will vary according to the individual child and the nature of that child’s SEN. Further, for children making the transition to secondary school, local authorities are required to amend their statement of SEN by 15th February in the year they are due to transfer. This allows parents and carers sufficient time to appeal the named school if they are in dispute with the local authority about its suitability. Conveying a right of appeal to children only aged eleven and over will mean that children wishing to challenge transition statements in which their secondary school has been named will potentially be unable to do so. The risk is that these children will end up being placed in schools which are entirely unsuitable for them, as they may not turn eleven in time to lodge an appeal and have the appeal heard before they transfer to their new school. Unless there is substantial evidence that a placement is unsuitable for a child, the Tribunal is likely to seek to maintain the status quo and dismiss the child’s appeal.

The Government’s proposals will only work if an independent body is established to represent child appellants at Tribunal hearings or, in the alternative, if the Legal Services Commission is required to extend public funding to cover representation at the Tribunal in situations where children are appealing independently. At present, no public funding is available for solicitors to represent clients before the First-tier Tribunal (Special Educational Needs and Disability). The Government cannot expect children to represent themselves before a Tribunal, which, although intended to be informal, is nevertheless a daunting environment.

There are, of course, children who are not looked after whose parents may not wish to appeal decisions relating to their child’s SEN. An extension of the right of appeal to children would also protect the interests of this group.

It is vital that this issue is addressed and the Government’s apparent commitment to reform is welcome. However, if the proposals move forward, the new system will need to be carefully thought out. It is crucial that all steps are taken to ensure that looked after children with SEN are not placed at a disadvantage simply by virtue of being in the care of the local authority.

Further information
Free legal advice on issues of education law is available from the Children’s Legal Centre: www.childrenslegalcentre.com

FOOTNOTES
1. The full consultation paper can be accessed at www.dcsf.gov.uk/consultations The closing date for responses is 28th July 2009.

2. Article 12 requires States Parties to ensure that children who are capable of forming their own views have the right to express those views freely in all matters affecting them, with their views being given due weight in accordance with their age and maturity. Article 12 also requires States Parties to ensure that children are provided with the opportunity to be heard in any judicial and administrative proceedings affecting them, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

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