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  • Writer's pictureSEN Legal

ISEND Bulletin – using your children to plug their funding gap.

I am sure many of you have seen the “SEND Bulletin: December 2018” released by ISEND at East Sussex County Council (Inclusion Special Educational Needs and Disabilities) and actively sent to heads of schools. For anyone lucky enough not to have read it yet, you can view it here:

I have been forwarded this document by a number of people – headteachers, teachers, therapists, all who share the same concerns about what they are being asked to do (i.e. not to request EHCP’s and to recommend cessation of EHCP’s at the earliest opportunity, to name but a few). Their biggest concern however, and the one that led to me writing this post, is ‘where are the needs of each individual child being taken into consideration?’

I had debated whether or not to write this post, mainly because it has the potential to be inflammatory. I do not hate Local Authorities. I am aware that Local Authorities have budgetary constraints and are stuck with a system that does not have enough money to meet demand - they have an incredibly difficult job. That said, I have never come across a Local Authority so brazen in referring to children with special educational needs (SEN) simply as a way to ‘cut costs’ for local schools.

I actually find this Bulletin quite difficult to read. Not in the sense that it is hard-going but that the wording used/ the graphs/diagrams focus on the expense of these vulnerable children, with absolutely no consideration for them as individuals. ISEND describe themselves as ‘the pathway for schools and education providers to request support for children and young people with additional and/or special educational needs and disabilities’ – so how have they got it so wrong?

Aside from the Bulletin, if you look at many parts of the website are unlawful. For example, to “request an EHC Needs Assessment you should complete the relevant form and submit it, along with additional evidence, via the ISEND front door” – that is unlawful. This may be a Local Authority policy, but it is NOT a legal requirement (s.36 CFA 2014.)

I champion parental rights in this incredibly difficult area of law to make the system easier for them to navigate. What we cannot have are Local Authorities who publish incorrect information leading parents away from their legal entitlement and into Local Authority policy making instead.

The Bulletin appears to result from an “unprecedented increase in demand for specialist school provision for pupils not entering or moving from mainstream schools and the increase in students leaving school at 16 and maintaining an EHCP.” To this I say ‘Hallelujah!” For many years, my firm have been travelling the country offering countless hours of pro-bono work to spread awareness to parents of children with SEN as to what their legal rights are. This “unprecedented increase” is encouraging as it implies that the message is finally getting out there, and parents are enforcing their legal rights to secure the provision their child needs. Contrary to my ‘hallelujah’ however, ISEND’s approach is to advise schools as to what they can do to “avoid this challenge in future.” While that might be understandable in light of financial constraints-not in the manner in which they have chosen to do so.

It only takes until the fourth paragraph for the Bulletin to focus on financial cost irrespective of the child’s needs. The assertion that “more pupils with SEND need to be placed in their local school” and that the private sector offer “a poorer quality” of provision, are unsubstantiated.

It is encouraging that while more EHCP’s are being issued in East Sussex, there are less children going into mainstream schools - highlighting that parents are choosing a setting based on their child’s individual needs. Contrary to ISEND’s view – not every child’s needs can be met in mainstream provision. Despite the scaremongering in this document, there is no legal requirement for any parent to place their child in a mainstream setting that cannot meet their individual need, just because it is their local school. This is something Local Authorities don’t actively inform parents.

ISEND claim, that when schools apply for an EHCP or for a pupil to move to a special/independent school “the focus is usually on the needs of the individual school” which makes me concerned as to how much of this area of law they understand at all. The focus when applying for an EHCP or for a pupil to move placements is always the individual needs of the child, as the law prescribes.

ISEND also seem confused as to why from 127 children moving from mainstream to special school, only 8 returned from specialist provision. If your child requires specialist provision because their SEN needs cannot be met in a mainstream school, it would be rare for the child to return at a later stage - because their needs cannot be met at mainstream. Now I may sound like a broken record here, or like I’m pointing out the obvious but when a child goes from mainstream to special school, their needs do not suddenly ‘disappear’ so they can return to mainstream as this Bulletin seems to suggest.

It is also a concern as to why it is thought of so negatively that “if you live in East Sussex and have SEN you are less likely to attend your local school with your peers.” Do ISEND not recognise that children can have peers at other specialist settings? Or that if a child is placed in a setting that is not meeting their needs, they are likely not to have a peer group at all?

I am going to suggest the answer to my question above is ‘no’ based on the blatancy of the paragraph which states that East Sussex intends to move “100 pupils out of special schools into mainstream and 50 pupils out of independent schools” to “bring the spend on the High Needs Block within the budget the DfE provides.” Irrespective of whether the individual child could survive in that environment.

ISEND is set on “keeping pupils out of unnecessary INMS placements” – I for one, would love to know what ISEND consider ‘unnecessary,’ something too much for the purse-strings perhaps?

The Bulletin concludes by setting out three key things schools can do to ‘help’:

1) Support the Local Authority and local schools by defending tribunals.

Head Teachers, Deputy Heads, SENCO’s – whoever it is who is being called to represent a particular school at a Special Educational Needs and Disability (SEND) Tribunal cannot lie, or give incorrect information to the panel. Thus, if schools are refusing to “support the Local Authority’s proposed placement” the likelihood is because they have already considered the individual child’s needs (the actual test) and decided that their needs are too great for them to support a placement, rather than just agree to obtain funding (ISEND’s position).

Further scaremongering is evident in the assertion that the loss of four cases cost local schools “£0.5m for the duration of those pupil’s school careers.” For a document heavily centred around financial planning, I would be interested to note how East Sussex have forecast the loss for the duration of a pupil’s ‘school career’ when EHC Plans are subject to annual review?

2) Agree to take pupils, when you are asked to.

If the topic were not so serious, I would go so far as to say this section would be laughable (and I do not say that often!). Is “please be assured, we only ask schools to admit pupils with a mainstream EHCP when professionals have assessed that their need can be met in their local school” supposed to be encouraging to local schools? I know from practice this isn’t correct.

Often EHC Needs Assessments are rushed through and across England and Wales your child is lucky to be seen by an Educational Psychologist and a Paediatrician at best, yet how many Section I’s recommend ‘mainstream’ provision? Nearly all.

I say it’s laughable because if a school cannot meet a child’s needs, they have to be honest about that fact. The alternative? Risk lying at Tribunal and being humiliated on the day, or have parents bring judicial review proceedings against Local Authorities as a result.

Is this really what this Bulletin is encouraging?

3) Don’t request an EHCP ‘to help transition’ and consider more frequently the opportunity to cease plans.

This section angers me. It is a complete disregard for legal entitlement in the area of SEN and a sheer disregard for the individual needs of the child. Any schools who have read this Bulletin should wholly disregard it. East Sussex are essentially trying to implement a ‘blanket ban’ across EHC Needs Assessment requests while actively seeking to cease EHCP’s for children/young people who need them. Making such a decision without the consideration of the individual child’s needs is wholly unlawful. Any parent would be wisely informed to challenge such.

In summary, the language used throughout this Bulletin is so strong that it is close to blackmail, and for what? To protect the high needs budget going into Local Schools – regardless of the irreversible damage that may be caused to vulnerable children along the way.

If ISEND/East Sussex are happy to send this Bulletin which is legally flawed, to heads of schools, what hope do parents have in navigating this already complex system?

Imploring schools not to request EHCP’s, to recommend cessation of EHCPs at the earliest opportunity and to take every child they’re asked to (regardless of whether or not they can meet need) is wholly unlawful. It is misguided and dangerous. Dangerous to children with SEN who have just as much right to a valid education as everybody else.

ISEND – 'Championing change for Children' – It’s time for further education or a new strapline.

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