Government risks premature SEN legislation
'Pathfinder Schemes will become law regardless of the outcome of the trials – which raises real concerns, given the potential problems with the Schemes.'
Comment for the TAC Bulletin by John Wright
This May the Government announced that their Children and Families Bill would improve the system for assessing and providing for children's special educational needs and extend Local Authorities' duties to cover young people up to the age of 25. Although this will be welcomed by parents whose children have suffered from delays in assessment in the past, and by parents of older students with sen/disabilities, caution is more appropriate than jubilation at this early stage: the wording of the new legislation will need to be carefully scrutinised to ensure that speeding-up assessments and extending the protection of sen law to twenty-five year olds (which will inevitably place an increased burden on LAs' budgets) will not be 'paid for' by a weakening of children's entitlement to special educational provision across the whole of the age range.
There is, in addition, a problem with timing. The Government is to produce a Bill this summer which will legislate for changes which have only just started being trialled in the Pathfinder Schemes. If the criterion for success of these Schemes is improved outcomes for children with sen this will clearly be impossible to gauge in the time-scale the Government have adopted. In short, the Pathfinder Schemes will become law regardless of the outcome of the trials; which raises real concerns, given the potential problems with the Schemes.
This article seeks to alert those who work with children with special educational needs and/or their parents to possible pitfalls in the three main Pathfinder Schemes being trialled.
1 A new assessment process to replace the statutory SEN assessment
The DfE describe this Pathfinder Scheme as: "Bringing together the support on which children and their families rely across education, health and social care ... We will test how to improve a multi-agency approach to assessment and planning. Currently, local authorities often take decisions based on correspondence with other agencies, and we would like to see a less bureaucratic and less adversarial approach where agencies come together to agree their support with parents, and the responsibilities of different agencies are clear."
The risks in a 'less bureaucratic' approach (though less 'formal' would be a more neutral description) where professionals and parents meet together with the aim of reaching agreement, are:
(i) That this may diminish the discretion which professionals have under the current system to put in writing, for LAs and parents, their unvarnished opinions on children's needs and the provision required to meet them. It could amount to a threat to a professional's integrity to require them to agree with colleagues what provision a child requires. It may also undermine the principle of the multi-professional approach which underpins the current approach by requiring LAs to seek separate advices and themselves make the balancing judgment when opinions differ.
(ii) The less formal approach may deny parents professional opinions in written form, which they can obtain advice on (including second professional opinions) and on which the success of a subsequent appeal to SENDT may depend.
(iii) Less confident parents, facing professionals and the LA Officer, may well feel compelled to accept as appropriate provision for their child which falls short of meeting their needs. There is clearly a risk to the children of less confident parents when the assessment process becomes 'less formal'.
(iv) LAs have no procedures set out in law governing the new experimental assessment process: there are no time limits, duties to consult all relevant agencies, or duties to share reports with parents. There is no duty to finalise the process by deciding to statement or not, or to offer a 'Plan' (see below) or not. There is no legal remedy if the LA delays or fails to come to any decision. There is no appeal right against any result.
For these reasons, it is important that parents realise that their LA cannot divest themselves of their current legal duty to assess a child by virtue of having a 'pathfinder' assessment scheme in place and that parents can still request statutory assessment.
Parents who chose to cooperate with the new assessment experiment would be wise to ask for professionals' opinions in writing before the informal meeting takes place in order that they can consider their response to the opinions and, if need be, seek advice on them in advance of a meeting.
2 A single 'Education, Health and Care Plan' to replace Statements of SEN
The DfE have stated that:
"The new 'Education, Health and Care Plan' will provide the same statutory protection to parents as the statement of SEN and will include a commitment from all parties to provide their services, with local assessment and plan."
In order to 'provide the same statutory protection' the EHCP must impose on LAs
(i) the duty to set out all of the assessed needs of a child as in the Statement's Part 2;
(ii) the duty to set out objectives to meet each of the needs in the Statement's Part 3(a);
(iii) the duty to specify provision as in the current Part 3(b) to meet each of the special educational needs in the current Part 2 and each of the objectives in the current Part 3(a);
(iv) the duty to 'arrange' the special educational provision specified in the current Part 3(b);
(v) the duty to specify in Part 6 any non-educational provision which the authority propose to make available or which they are satisfied will be made available by a health authority, a social services authority or some other body;
(vi) the duty on governors of a maintained school named in Part 4 to admit the child;
(vii) the duties to Review and amend a Plan as with Statements LAs maintain;
(viii) the duty to maintain the Plan as long as it remains necessary.
If all these duties are adhered to by LAs piloting the EHCP then children will be protected just as they are now by a Statement. However, there are already reports of parents being told by LA Officers that the 'system' is changing this year and not to expect their children to be assessed or to receive statement.
It is important to remember that the law has not changed: the Pathfinder LAs are still bound by their duties to identify, assess and statement those children whose special educational needs require the LAs to determine and arrange their provision.
In addition, the Government have made it clear that the duty to 'arrange' provision will not apply to Health or Social Services agencies in relation to the Heath and Social Services provision detailed in an EHCP, so children will be no better off with regard to their legal entitlement to these provisions than they are at present.
They may even be worse off as at present LAs have a legal duty to list non-educational provision which they are 'satisfied' will be provided by another agency or which they will provide themselves (see V, above). Under the EHCP the Government seem to be removing the LA's role as 'fall-back' provider and simply expecting the other agencies to provide non-educational services without actually placing them under a legal duty to do so.
3 Direct payments to parents for Part 3 provision
The DfE explanation here is:
"Personal budgets for parents of children with Statements of SEN so they can choose which services best suit the needs of their children."
Direct payments are meant to be an extension of personal budgets, familiar to many parents of disabled children who use them to pay for respite and other care. Direct payments will require a parent's agreement (and continued agreement). There has to be preliminary negotiation with regard to amount and kind of provision to be purchased and the extent to which it can cover the provision set out in Part 3 of a Statement. Parents will receive a written 'offer' from an LA. Money cannot be used to 'buy' or subsidise a placement in a school, but can meet the costs of provision made at a school (and when intended for this purpose an LA has to consult the school concerned before agreeing the payment). A parent can withdraw their consent at any point and an LA can claw back payments if they have been misspent.
The Direct Payment Order is at: http://www.legislation.gov.uk/uksi/2012/206/contents/made
Even when direct payment is agreed, an LA retains its strict legal duty to 'arrange ' the provision in Part 3 of a Statement and retains other duties outside the payment such as home-school transport if that is not covered by the direct payment agreement.
Although this scheme may be welcomed by some parents (e.g. those home educating, who at present receive no support from LAs, or those seeking independent school placements, where the direct payment may be used to supplement the fees they are paying) it could well be against children's best interests when their parents opt for direct payments in response to problems with their child's provision such as:
- A vague statement leading to unsatisfactory provision
- LA failure to arrange the provision specified on a Statement or in an EHCP
- A discriminatory use of exclusion by a head teacher
- Discriminatory bullying by other pupils, or staff, which the head and the governors are failing to respond to
- Anxiety causing school-refusal and leading to an inappropriate use of School Attendance Orders as a sanction by an LA
- When legitimate complaints about their child's provision receive the response from LA Officers and/or head teachers: 'If you don't like it, get a personal budget and see if you can do any better.'
It will be vital to ensure that Direct Payment Schemes are not used as bribes to get parents to remove children from school against their children's best education interests.
John Wright is a legal support worker for the national charity IPSEA (Independent Parental Special Education Advice). The article expresses his personal views, although IPSEA is anxious to receive feedback on the operation of all of the Pathfinder Schemes (0800 018 4016).
This link will take you to the DfE site with the list of LAs running Pathfinder Schemes:
http://media.education.gov.uk/assets/files/pdf/f/final%20list%20of%20pathfinders%20and%20options.pdf
This is the email address to contact IPSEA about how the schemes are working: This email address is being protected from spambots. You need JavaScript enabled to view it.
