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  • Writer's pictureSEN Legal

SEND First Report of Session 2019, the verdict is in...

Whilst every MP in the country is seemingly busy debating Brexit and not doing much else, it appears that a select committee of MP’s have been doing something of use and have produced an insightful report into the failings of the current SEND system - House of Commons Education Committee, Special Educational Needs and Disabilities, First report of Session 2019-20.

What actually is this report?

The report itself is an inquiry into the SEND system following the 2014 reforms led by 11 MP’s, consisting of Conservative, Labour and SNP MP’s. The report looks at what the current state of play for the SEND system is and specifically at the 2014 reforms (Statements to EHCP’s), i.e. have they been successful? Have they achieved their purpose? The report is unequivocal in its conclusion that the SEND system is currently failing, and the reforms have not worked.

The report concludes at paragraph 232:

“...the weight of the evidence, gathered through our inquiry and by others in their own work, review and experiences, is clear. The system is not working – yet… Families are in crisis , local authorities are under pressure, schools are struggling. And they cannot wait for the outcome of another review: they have waited patiently for long enough. The Government must act decisively and soon. It must implement our recommendations with immediate effect and move swiftly to address the many other problems that we identify in our report. A generation of children depends on it.”

The findings of the committee’s report will sound all too familiar to you as parents trying to navigate your way through the maze that is the SEND system and the constant fight for adequate provision for your children. This is highlighted by the committee at Paragraph 80 and the evidence of various parents and children’s own accounts within the report. A whole paper could be dedicated on what the report says, but for the purposes of this newsletter the focus will be on a few very select practical points (a link is attached for you to be able to read the full report if you wish to do so).

Misinformation & Unlawful policies:

“We were told of examples of poor, misleading and unlawful advice being given to schools and parents. We heard that in some cases staff in schools and local authorities do not know the law, give misleading or unlawful advice, and in some cases, publish erroneous information on their website…..The Local Government and Social Care Ombudsman told us that some local authorities were gate-keeping and able to do this because of a lack of specific guidance in the Code of Practice, particularly around the local authority duty to carry out a need’s assessment. He said that local authorities were putting hurdles and systems in place that were not based on the legislation.”

Gate-keeping from the Local Authority is something we have seen time and time again. Local Authorities across the board have put in place imaginative and unlawful policies to prevent carrying out EHC Needs Assessment of children and young people, which are contrary to the legislation. Section 36(8) of the Children and Families Act 2014 provides the legal test the Local Authority must follow when making decisions on request for EHC Needs Assessment, not their own unlawful policies.

If the Local Authority have done similar to you, you have a right of Appeal against this decision to the SEND Tribunal.

Lack of provision:

“The lack of therapists is causing problems for local authorities in their assessment and review processes, schools for their ability to provide support for teachers and pupils, for the therapists themselves, and ultimately the children and young people who need their support. They are unable to spend appropriate time with children and young people, provide the expert advice that is related for needs assessments and for pupils who receive lower level support, and attend annual reviews. In some cases, they are unable to provide the specified interventions because there is insufficient staff.”

There is a considerable lack of specialist provision being offered to children and young people by Local Authorities. There is of course a complete lack of funding provided for this provision. However, parents need to be aware, once special educational provision is specified within an EHC Plan, the Local Authority have to provide it. Section 42(2) of the Children and Families Act 2014 is clear on this point. There is no “if we can afford it” clause within the legislation. Therefore, if your Local Authority is not providing the provision within your child’s EHC Plan you can challenge this. The easiest way to do so is through a ‘Pre-Action Protocol Letter’. For more information about what a Pre-Action Protocol Letter is and whether you need to send one out, please do contact us for further information.

Shortfall in Funding:

“The significant shortfall in funding is a serious contributory factor to the failure on the part of schools and local authorities to meet the needs of children and young people with SEND. However, unless there is a systemic cultural shift on all parties involved, additional funding will make little difference to the outcomes and experiences of children and young people with SEND.“

Whilst budgets can be announced over night, cultural shifts in a system already 5 years old will take time and it would be foolish to think an accurate time frame can be placed on this. Therefore, to expect this system to change any time soon is wishful thinking and unfortunately the position is likely to remain the same. The Government needs to provide a response to this report, at a time when we are entering into a further general election and the focus on Brexit remains, it could be some time before a response is provided, or the report is even considered by the Government.

What you can and should do in the interim, is know your legal rights and how you can successfully challenge the failures of the system you find yourselves in. Whilst the Government will need to respond to the report, children and young people’s right to provision remains the same, as do the Local Authorities legal duties.

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