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We have the SEN law and guidance we need, it just isn’t being implemented, writes Erin Smart

An inquiry into SEN and disability is currently being conducted by the Education Committee in Parliament. From written evidence supplied by local authorities, schools and colleges, professionals, parents/carers and others, a number of key issues have already been identified. These include: the quality of education, health and care (EHC) plans; the lack of resources and funding; the extension of the age range for SEN provision; and a lack of joined-up support and working.

Problems with EHC plans

The quality of EHC plans is variable across the country and many are still unspecific and unquantified and are not informed by suitable professionals. Local authorities are experiencing high turnover of staff, so there are limited staff with sufficient expertise to ensure EHC plans are being drafted appropriately. The evidence received as part of an EHC needs assessment is often not fit for purpose and the lack of educational psychologists available means that some EHC plans are drafted without this vital information. Poor drafting is leading to underestimation of pupils needs in EHC plans which then also impacts on the funding received by the school to support these pupils. 

Funding and resources

A lack of resources is causing concern across all stakeholders and evidence has been submitted in respect of the difficulties in matching the increase in requests for EHC plans and the difficulty of abiding by the statutory deadlines in this process. The extension of the age range up to 25 years has allowed for a wider range of children to request an EHC plan; however, there continues to be a lack of clarity in respect of how these young people will be supported.

There is insufficient funding to meet the requirements of the new legislation and schools are finding it increasingly difficult to deliver the required support without adequate funding from the local authorities that are, in turn, struggling with increasingly limited budgets. There are fewer therapists and other professionals available to complete EHC needs assessments and there are further issues with the lack of information provided to parents by the local authority. There are also concerns about the worryingly common practise of unlawful policies drafted by some local authorities.

Working practices

There is not enough joined up working across education, health and social care and there is a lack of accountability. This includes academy schools that are not governed by the local authority, leading to a lack of oversight. 

The law and statutory guidance are clear and, if implemented, would be suitable to meet the needs of pupils with SEN and disabilities. However, this would require improved resources, including funding and professionals, and a better understanding, by all involved, of the legislation and the legal framework. There also needs to be a reconsideration of support for those aged 19 to 25 so that there is clarity in provision as pupils reach adulthood.

The SEND Tribunal

Given the issues identified above, it is unsurprising that appeals registered with the SEN and Disability Tribunal have rocketed from 3,144 in 2014-2015 to 5,679 in 2017-2018. When looking at the appeals that were heard in those years, the increase is even greater, from 788 to 2,298.

To try to tackle this increase, new procedural changes have been implemented, including listing refusal to assess cases as paper hearings, although parties may still request an oral hearing.

Case management reviews are also taking place after the final evidence deadline to consider whether the case is ready for hearing. In the event that it is not, the hearing is vacated and directions are made by the tribunal.

Any requests made five days before the hearing will not be dealt with until the hearing day. This means that, where last minute agreement is reached, all parties will still have to attend on the hearing day to explain the last minutes change. 

Another recent development in the Tribunal which has not been welcomed by all is the practice of standing cases down for lack of judicial time. This could be where there is no judge, no panel members and/or no venue. Hearings are then prioritised and a telephone case management hearing is held to discuss and further the matter where possible. The issue with this is that decisions are then delayed, sometimes meaning children have to remain in unsuitable school placements for longer than necessary, and parents and professionals have to find alternative dates for a new hearing.

The national recommendations trial is ongoing and 522 of these cases were registered between April 2018 and January 2019. The majority (289) were requests for recommendations in respect of health and social care, 105 were for health only and 110 for social care only. The timetable for these cases remains the same but benefits from specific directions issued at registration and a telephone case management hearing at week 10 to clarify outstanding issues. 

The requests being made through the national trial in respect of social care recommendations are for the local authority to carry out a social care assessment, to specify needs or provision in this area, and requests for personal budgets or direct payments. For health recommendations, these relate to identifying needs and provision, CAMHS or CBT specification and continuing care funding. 

The hearings under the national trial have three-person panels with a judge, specialist SEN and disabilities member and specialist health/social care member. The hearings usually take a day for the oral evidence and then a further day for the panel to deliberate. 

It is hoped that further information will follow this national trial and allow for more improvements in the SEND tribunal jurisdiction and its ability to resolve issues. 

About the author

Erin Smart is a solicitor working in education law at Irwin Mitchell LLP and specialising in advising parents of children with SEN.

 irwinmitchell.com

 @ErinSolicitor 

 @IMPublicLaw 

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