What’s going on with SEN law?


Broken deadlines and spiralling complaints are not what the SEN reforms were meant to deliver, write Ed Duff and Laura Carr

It is nearly four years since the Children and Families Act took over from the Education Act 1996. During that time, the Department for Education (DfE) and numerous other agencies have suggested that the reforms, dubbed the most significant in a generation, require time to bed in.

It is worth recalling that the whole point of the SEN reforms within the Children and Families Act was to replace the system of statements of SEN which had been seen to be “combative”. The Lamb Inquiry into SEN provision at the time was concerned that the statement system required families to pit themselves “against” local authorities.

After four years, we had hoped that the reforms would have taken effect and the new system would be up and running.

Trying times for SEND Tribunal

One major issue that suggests that the reforms have not had the desired effect is that the Special Educational Needs and Disability Tribunal is experiencing its highest volume of appeals to date. The latest figures show that between 1 September 2016 and 31 August 2017, 4,725 appeals were lodged. This is a large increase of 1,013 appeals from the previous year – around a 30 per cent increase in appeals in just one year.

I am noticing, to a far greater extent than ever before, how overwhelmed the Tribunal has become. Practically, it is becoming increasingly difficult to pick up the telephone and speak with a clerk. In previous years, this was entirely possible. Now it is a rarity. This is no criticism of the Tribunal, it simply reflects the demand it is under.

Further, Tribunal orders following any requests to change timetable, or other directions, are taking longer to reach the parties and Tribunal timescales are being shortened, with the local authority response and evidence deadline sometimes scheduled to take place on the same day.

The Tribunal is struggling to find venues for the high levels of hearings which are required. Recently we have experienced Tribunals changing venues on the day before the hearing and even Tribunal hearings being cancelled due to the unavailability of a judge or the lack of a venue.

Leaving statements behind

Beyond Tribunal appeals, another common issue at the moment is the delay in converting from a statement to an education, health and care (EHC) plan. It is worth again remembering that the original expectation was that all statements should be either ceased, or converted to EHCPs, by 31 March 2018. This has not happened.

Data released on 24 May 2018 confirms that between January 2017 and January 2018, there were 71,320 children and young people transferred from statements to EHC plans. This is equivalent to 63.6 per cent of the children and young people with statements that were in place as at January 2017. This means that 36.4 per cent of statements were left between January and 1 April 2018. This is quite obviously a massive short-fall.

This has meant that both the Tribunal and the DfE have had to revise the statutory documentation. At short notice, the Tribunal has issued guidance on appealing the content of a statement of SEN that should not, in theory, exist. Further, the ability to “enforce” statements has been re-imagined, meaning that the special educational provision in a statement of SEN is now to be treated “as if” it were in an EHC plan. Notably, there is no clear enforceability in respect of the placement named in a statement of SEN.

There has also been a rush to complete the transfer from statements to EHC plans. Often, schools are asked to draft the EHC plan with very little, or no, updating professional advice or input. This is obviously unlawful and results in vague and almost unenforceable documents. It may be, at least partly, these poorly prepared documents that are forcing up the rate of appeals to SENDIST.

Ofsted’s criticisms

Recent Ofsted inspections of certain local authorities do provide some suggestions as to why so many appeals are being lodged with SENDIST. One local authority Ofsted report published in May 2018 concluded:

“Currently, children and young people who have SEN and/or disabilities are not provided with the quality of support and service to which they are legally entitled”.

“Too few education, health and care (EHC) plans have been issued within the statutory timeframes”.

“The quality of EHC plans is poor. Health and social care professionals are not actively involved in the assessment process and subsequent planning of support to meet children’s and young people’s needs. As a result, the child’s or young person’s health and social care needs are not being identified sufficiently well or met effectively”.

The impact of these findings can be found everyday right across the country. The parental view, as described by Ofsted in relation to one local authority, continues to be that:

“Parents and carers are overwhelmingly negative about their experiences and involvement with the local area. Many feel that they are not listened to by officers and frequently told inspectors that they had to ‘fight’ to get the right support for their child”.

“The local offer is not fit for purpose. The overwhelming majority of parents, children and young people who have SEN and/or disabilities, and professionals were either not aware of the local offer or had little success when they tried to use it”.

Sadly, the data and first hand reports of the impact of the Children and Families Act 2014 reforms is mostly negative.

Signs of hope

Whilst all of the above suggests significant difficulties, I remain optimistic. The DfE continues to invest in SEN support nationally. The Tribunal has started a national trial enabling parents to secure recommendations about the social care and health sections of an EHC plan, as well as orders requiring changes to the education sections. Further, whilst the system may not be perfect, parents, young people and families are clearly far more educated and informed about their rights. That may not be directly linked to the reforms, but it seems likely that news of the change of the system has prompted information sharing and education. That must, at least, be a positive.

Further information

Ed Duff is Senior Associate Solicitor, and Laura Carr a solicitor, in the Education Law Department at HCB Solicitors:

Ed Duff
Author: Ed Duff

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