GREEN PAPER

Department for Education - A Consultation

The Green Paper raises the following concerns:

1. Dyslexia, High Functioning Autistic Spectrum Disorders, Downs Syndrome and Low Incidence Disabilities such as Visual Impairment and Hearing Impairment.

   The Green Paper appears to focus on children and young persons with high level multiple disabilities. It is far from clear what Statutory protection (if any) is going to be available for Dyslexia, High Functioning Autistic Spectrum Disorders, Downs Syndrome and low incidence disabilities such as Visual Impairment and Hearing Impairment. They seem to have got somewhat lost and we are not clear whether there will be an Education Health and Care Plan for these groups. This is very concerning.

   Further, Para 1.28 is also somewhat concerning as an analysis of the present situation. This paragraph refers to “Local Authorities, with their role as champions for vulnerable children and families”. This is a controversial statement, which is directly contrary to the experience of very many parents and families. Many parents and families would disagree quite strongly with the suggestion that Local Authorities have been the champions for vulnerable children and their families.

2. The Proposed Education, Health and Care Plan

   It is not clear whether the obligation to be specific detailed and quantified is to be maintained. Otherwise, these documents will be legally unenforceable which is clearly to the detriment to parents and their children. This would be a retrograde step.

   It is not clear whether it is intended to give the SEND Tribunal jurisdiction over Health and Social Services, with legally binding Orders against Health and Social Services. If the Tribunal did have jurisdiction over Health and Social Services, this would be an immensely helpful reform. At the moment the only effective means of challenge to Social Services and Health, are complaints procedures and Judicial Review. The latter is expensive and would otherwise be a continuing burden on the Legal Aid budget. Extending the jurisdiction of SENDIST would be an immense saving to the public purse and make life easier for parents.

   There appears to be an absence of any monitoring proposal and it would appear, that the much needed amendment to the legislation enabling parents to appeal to the SEND Tribunal, if following an Annual Review their provision is not changed may be lost. This has been an incredibly useful reform, really freeing up the system. There seems to be no mechanism, for parents who are unhappy with the provision they are receiving in their Education, Health and Care Plan, to challenge the level of provision if they feel that it has not worked. The Lamb Reform was enormously beneficial, it was an obvious reform, needed for many years and belatedly implemented. This reform takes a great deal of pressure out of the system, and this should not be lost.

   It is also unclear how the Education, Health and Care Plan will interact with the current Social Services Framework Document, (which, in effect, is delegated legislation) which deals with how a Core Assessment and Care Plan should be undertaken. Social care for children and the Framework Document was developed for those abused. The practical effect has been to discriminate against those with a disability, particularly those with sever Autistic Spectrum Disorders who have average and above average ability.

   One of the current major concerns about Social Services provision for disabilities is that the Framework Document largely addresses the needs of dysfunctional families whose children have been abused. Whilst this group are undoubtedly enormously important, their needs are not identical to those of children with disabilities. This is an issue which is not addressed by the Green Paper.

   No doubt due to the focus on abused children, Social Workers tend to know very little about disability, even in children's disability teams. As a consequence, all behaviours and situations tend to be largely interpreted through normal developmental models, not the developmental models normal for that disability.

   It is enormously frustrating, for families of children with disabilities to find themselves talking to Social Workers, who are responsible for the allocation of resources, who have absolutely no understanding whatsoever of what is actually going on, and what can probably be anticipated/expected with the result, that behaviours commonly exhibited for example by children on the autistic spectrum, are wholly misinterpreted, and incorrectly attributed. This is an issue which causes enormous frustration and this issue is simply not addressed by the Green Paper.

   Finally, the proposals are dependent on Health Reforms which are currently suspended.

3. Personal budgets

   The option of a personal budget is interesting, however not all families will be able to manage them. Caring for a child with profound and multiple special educational and health needs is a challenging task, and managing PAYE and National Insurance on top when trying to give 24 hour care to a child is an unrealistic expectation. This has always been the problem with direct payments, plus the requirement, to account for every penny spent. The problem is the administration on top of everything else, unless the personal budget includes clerical assistance.

4. Key Workers

   Key workers trained to advise families and help them navigate the range of help available across Health, Education and Social Care sounds in principle an excellent idea. The difficulty here is that the Green Paper appears to be based on the notion that Parent Partnership Officers have been a resounding success. They are not, and whilst there are some able and highly effective Parent Partnership Officers, the most able and effect ones, never seem to last long in the post.

   The lack of confidence in Parent Partnership stems in part from their direct employment by Local Authority's. They are perceived as partisan, particularly when there is no understanding, the Local Authority policies, are not the same thing as what the law actually requires. The same is likely to apply to Key Workers. This is where the voluntary sector ought to be involved, in providing good quality independent advice, and also be funded for this purpose.

5. IEP's & Annual Reviews

   The proposals concerning IEP's Para 5.22 page 98, under the heading Reducing Bureaucratic Burden on Professionals, are misconceived and contradict Paragraph 6 of the Executive Summary (which appears on page 5) states that one of the principles is “to give parents confidence by giving them more control over the support their family receives, we will introduce more transparency in the provision of services”. However the proposal to abolish IEP's achieves exactly the opposite of giving parents control and transparency. It removes transparency and leaves parents in the dark as to what is going on.

   The termly IEP and the parent going into school to discuss the attainment of targets, provides the parent with much needed information as to progress. If targets are not attained and repeated, parents know because the IEP is termly, that the provision is not working. Further, the Green Paper makes no mention of Annual Reviews. Depriving parents of their “windows of opportunity” to find out information from the school, on a regular basis, achieves exactly the opposite of giving parents more control. It closes down the flow of information. This is not a parent centred suggestion. The comment that “we know that many schools have developed many new approaches to planning, reviewing and tracking progress of all pupils that have enabled them to achieve what IEP's aimed to do without many of the associated buearacratic burdens. These approaches have included new ways of tracking pupil progress, involving pupils setting their own targets, engaging regularly and effectively with parents, and using individual profiles and provision mapping.” is unimpressive. These new ways, have an adverse effect on transparency in so far as parents are concerned, because they are unable to effectively monitor progress. Parents with children with Special Educational Needs do not find provision mapping which looks interested but conveys nothing in terms of meaning, at all helpful and engaging “regularly and effectively” with parents as a substitute is vague and unenforceable. A concrete termly IEP meeting is, at least, a guaranteed termly opportunity to find out what is going on.

   There is no indication of how the Education, Health and Care Plan is to be monitored. Whilst the Green Paper refers to the need to increase the number of Educational Psychologists, and address their training, if the Educational Psychologists have no role in assessment, or monitoring, then it is difficult to see why Local Authorities would require Educational Psychology Services / Departments at all.

   If the aim is to increase transparency, then plain English is to be encouraged. All standard scores in reports and communications should be accompanied by an age equivalent, because this is comprehensible to parents. Further, where P Levels and National Curriculum Levels are referred to there should be an explanation of what these mean, and how they are calculated (i.e. the parents should know whether this is a scientifically validated measure or something which derives from perception). Where tests are used there should be an explanation of what practically happens in the test.

   Rather than reducing the role of IEP's, it would be preferable, in order to give parents greater transparency, and to require the inclusion of SMART targets i.e. targets which are specific, measurable, achievable and realistic with an agreed date for completion to be set, monitored and re-set through the Individual Education Plan. In addition the IEP should include:-

   1. Details of the criteria the school will be using for measuring and evaluating the pupil's achievements.
   2. Details and methods and approaches the school will be using to ensure that the child achieves his / her targets including an outline of the resources to be used to support him / her and what form that support will take and how often he / she will be supported.

   The way to drive targets up is by giving parents control by providing useful information.

6. What information should schools be required to provide to parents on SEN.

   Parents would find it useful to receive communications in plain English which is readily comprehensible. All scores, whether provided by schools, Educational Psychologists or NHS Trust professionals should be provided with an age equivalent score, because parents can understand this.

   Parents should also be provided with a guide to the measures of attainment so for example they could understand what P scales mean and how other measures work. An explanation of the various teacher, spelling and literacy tests, how the tests work, when they were first published and exactly what the test comprises of so that the performance measures can be clearly understood, otherwise, parents are confused by incomprehensible jargon. For example “The School also uses a B-squared assessment system to monitor progress in conjunction with the National Curriculum level descriptors”.

   Where tests are used there should be an explanation of what happens in the test.

7. Statutory Assessment

   The proposal is to reduce the time a Statutory Assessment takes. This is welcome, but the timescales are still too long. For example Para 137, comments that “A young person with SEN may not be receiving the right support for 6 months or more ... ... ... this can increase to over a year once any appeals of the first tier Tribunal (SEN and Disability) are taken into account.” The timescales for Statutory Assessment proposed (20 weeks) are still too long, and with the proposal to introduce compulsory mediation, the whole process is likely to lengthen not shorten where there is a dispute. This is not reducing the stress of a family this is increasing it particularly given the experience of mediation to date.

   The proposal to reduce the time limit for the Statutory Assessment process from 26 weeks to 20 weeks is inadequate. What that means is reducing the current Statutory timescale from 6 months to 4 months. Reducing the process to only 4 months, reflects a culture of low expectation of turnaround on the part of administration and bureaucracy. A few lessons need to be learnt here from the criminal justice system. In particular, the custody time limits. This requires, police and prosecution, to produce a full, Trial Ready file, which includes, of necessity full statements from all witnesses, which will include members of the public as well as officers, police interviews and any forensic or other evidence within the following time scales:

   • From first appearance in custody (i.e. the first appearance before the court charging a person with the offence) to the start of the trial of a summary only offence - 56 days.
   • From first appearance in custody to the start of summary trial of an either way offence - 56 days.

   If the police are able to gather evidence within this time frame, from a variety of people some within and some outside the police force, there is no reason why Local Authorities cannot accomplish in a similar time scale, unless we are to accept that the rights of disabled children to adequate provision, are somehow less urgent than the needs of offenders. Provision delayed is, in reality, provision denied.

   We would also point out that in relation to the involvement of Social Services; this actually reflects an increase in current timescales, because a Core Assessment from start to finish by Social Services is currently supposed to take only 35 days i.e. just over a month. Increasing the time scale to from just over one month, to four months, is a wholly retrograde step. We take the view, that it would be more appropriate, for the other agencies, Education and Health to get their act together and produce reports within 35 days.

8. Academies

   We note the proposals in relation to academies. We are enormously concerned Academy's are not public bodies, and do not have to respond to Freedom of Information requests from parents. The current response from the DFE is that Academy's are required to publish certain information; but nevertheless, it is not the same, as being able to require answers to specific questions, to which parents would like answered, under the Freedom of Information Act. For example, a parent might wish to ask “what has been the focus of whole school training over the last 3 years?”, not an unreasonable question if a parent is considering sending their child to an Academy. Sadly, Academy's can, and do, refuse to provide information, and currently there is no redress because the Freedom of Information Act only applies to public bodies. Academies should be required to answer Freedom of Information requests in exactly the same way as maintained schools are required to answer them. This would add to transparency.

9. Compulsory Mediation

   The Green Paper proposes compulsory mediation, whilst at the same time acknowledging that mediation to date has not worked. What is missing is an analysis of exactly why it hasn't worked to date, and why it is unlikely to work in the future if made compulsory. Any analysis would reveal that compulsory mediation will prove a failure and simply add to an extension of the overall timescales involved and parental frustration.

   For compulsory mediation to work, firstly, both sides have to wish to mediate, or to put it more succinctly: “you can take a horse to water, but you can't make it drink”.

   Local Authorities frequently do not wish to mediate, and if parent requests mediation, the current practice is, for an officer of the Local Authority to attend who has no decision making powers at all. The matter must be referred upwards to Panel etc. If the mediation extends into a second day, then another completely different officer who knows nothing about the first day of the mediation is usually sent.

   Mediators knowledge of legal basics such as how legislation, case law and policy work, (i.e. basic administrative law) is often sadly lacking. For example, the fact that Local Authority policies cannot override Case Law and Legislation is not always appreciated. The only way in which mediation could work is if there are legally qualified mediators, with a set of procedural rules including that of compulsion. This would be expensive and have the effect of duplicating the First Tier Tribunal.

   When mediation was first introduced, it was seen as a solution and parents had very high hopes. What is basically happening here is we are reinventing the wheel and learning nothing from history.

10. Removal of parental rights

    At the moment, the legal position is that the Local Authority is not entitled as a matter of law to say to a parent, we know that our provision cannot meet the child's needs but that is all we are minded to pay and that is all you are going to get. The passage in paragraph 2.64 states:

    “We would like to ensure that a Tribunal continues to give both priority to ensuring that children's SEN needs are met and full weight to the efficient use of resources when considering the best way to meet their needs”

    raises the concern that the Department for Education intends to remove the right of parents to have their child's needs adequately met.

11. A national banded funding frame work

    Banded funding is also a concern. Some Local Authorities currently refer to banded funding in their statements, rather than concrete and specific provision, which the law currently requires. Such wording is a legal disaster for parents and should not be encouraged, because without specivity, Statement of Special Educational needs, and in turn the proposed Health, Education and Care Plans will be legally unenforceable.

    What tends to happen in practice where Local Authorities use bandings is that there is tendency to focus on particular bandings for particular types of educational needs, rather than the actual provision which is needed for the child's learning difficulty of the individual child under consideration. Focus is on the formula, not the child.

    Bandings are also often set at an unrealistic level and are not fully revised for inflation. Further, inflation differs depending on the service which is being purchased. Parents of children with banded statements currently find that year on year their provision has a tendency to diminish. Introducing banding nationally is likely to create a national problem out of a problem which only occurs in certain locations at the moment.

12. Involvement of the voluntary and community sector in co-ordinating assessment and input

    This raises practical concerns. The issue here is enforceability. Statutory agencies can at least be Judicially Reviewed, using Legal Aid if they fail to deliver. If they do not do their job, something can be done about it directly by the child's family. Unfortunately, Judicial Review is only available against Local Authorities. If the voluntary and community sector does not perform because it hasn't got the money, then there is nothing the parents are going to be able to do about it. Far from taking control, this is disempowering parents.

13. The Expertise of Maintained Special Schools (the effect of inclusion) Question 11 - page 46

    The Green Paper fails to acknowledge the effects of inclusion on the ground. Inclusion has led to falling pupil rolls in special schools, leading to their closure and amalgamation. The effect of the closures and amalgamations is that maintained special schools are not quite as specialist as they were. They now have an enormous range of learning difficulties which has led to a depletion of specialist skills.

    Too often, maintained special schools can currently be described as “jack of all trades, master of none”. The independent sector retains specialisation in different learning difficulties, the reservoir of specialist skills continues to exist in the independent sector, which has not been subject to closure and forced amalgamations in the same way.