The LGA report – the battle between Local Authorities and SEND families

BACKGROUND

It has long been accepted that children and young people (“CYP”) with Special Educational Needs and Disability (“SEND”) and their families require additional support to enable the CYP to access education and fulfil their potential.  In his Green Paper of 2011 “Support and Aspiration: a new approach to special educational needs and disability”[1], the then Secretary of State for Education, Michael Gove, recognised that change was needed to:

• Give children the best chance to succeed by spotting any problems early.
• Extending early education and child care.
• Bringing together the services they need into a single assessment and a single plan covering education, health and care.
• Making the system less stressful for families and less costly to run by promoting mediation before appeals.
• Giving parents more information about the services and expertise available locally.
• More support in navigating their way through the assessment process.

Following this Consultation process, the recommendations were published on 15 May 2012 in “Support and Aspiration: a new approach to special educational needs and disability – progress and next steps”.[2]

RECOMMENDATIONS FOR REFORM

The recommendations for major reform which were amalgamated into the Children and Families Act 2014[3] included:

• the statutory framework for identifying children and young people with Special Educational Needs (SEN),
• assessing their needs and making provision for them.
• Statement of Special Educational Needs were replaced by Education, Health and Care Plans designed to enable a holistic approach towards children and young people with SEND.
• Statutory duties were placed on Local Authorities to:
  • keep the local provision for children and young people with SEN and disabilities under review,
  • to cooperate with their partners to plan and commission provision for those children and young people and publish clear information on services they expect to be available; identify and assess the needs of children and young people with SEN who require support beyond that which is normally available within the statutory timetable.

CURRENT LAW ON SEND

The table below sets out the timetable, set out in the SEND Regulations 2014[4] of the Local Authority from the time the child’s parents or school requests an assessment of the CYP’s Educational Health and Care Needs (EHCNAs) up to and including the date by which the CYP’s Education, Health and Care Plan (EHCP) must be issued.

Week	Action required
0	Request made to LA for EHCNA
6	LA decides whether to carry out EHCNA;
	If the LA refuses to carry out EHCNA, this triggers parents’ right to appeal to SEND Tribunal
16	If LA agrees to carry out EHCNA, must be carried out within 16 weeks of request
20	If LA decides to issue EHCP, must do so within 20 weeks of request
	LA sends draft EHCP to parents
	If LA refuses to issue EHCP, this triggers parents’ right to appeal to SEND Tribunal
23 (during term time)	Parents have 15 school days to comment on content of EHCP
31	LA issue final EHCP within 8 weeks from receiving parents’ comments
	If the parents disagree the contents of the EHCP, this triggers parents’ right to appeal to SEND Tribunal

 

It should be noted that this is not a suggested timetable, it is a timetable set by Parliament and must therefore be complied with.

If the Local Authority does not comply with the timetable, they are breaching the law and there is recourse to appeal to the SEND Tribunal or, in some circumstances, an application to the High Court for Judicial Review.

The table above sets out the circumstances in which the parents may appeal to the SEND Tribunal, namely:

• LA refuses to carry out EHCNA
• LA refuses to issue EHCP
• Contents of EHCP provided by LA are disputed.

The Local Authority must also carry out an Annual Review of the EHCP – obviously, annually!

RESEARCH INTO ARRANGEMENTS FOR AVOIDING DISAGREEMENTS AND RESOLVING DISPUTES IN THE SEND SYSTEM

The Local Government Association commissioned Isos Partnership[5] to “undertake research into approaches to avoiding disagreements and disputes.  This included, but was not limited to, the trends in Tribunal appeals, but also the wider trends in disagreements and disputes in the SEND system, the factors giving rise to these trends, and what is needed at a national policy level to address those challenges”.

The report entitled “Agreeing to Disagree?” sets out the 4 ways in which disputes are handled in the SEND system as follows:

• Informal discussions
• Formal complaints procedures
• Appeal to the Tribunal
• Judicial Review

The report then goes on to describe trends in disputes in the SEND system[6].  In summary these are:

• There has been an increase in the number and rate of Appeals to the Tribunal
• The data discloses little about the YP involved in appeals, save their primary need and age; but indicates that the largest proportion of appeals relate to YP with autism.
• Increasingly, Tribunal appeals concern the contents of EHCPs rather than the other triggers referred to above
• Fewer appeals are being withdrawn – thereby more cases are being decided at Tribunal
• 96% of decisions in disputes are being made in favour of families

None of these findings come as a surprise to me as an Education Law practitioner.

Chapter 3 of the report purports to set out (1) the key factors in avoiding disputes; and (2) the key challenges to avoiding disputes.  As one would anticipate, the key factors in avoiding disputes include, for example, effective communication between case workers and families; consistent offers of support and strong in mainstream education; involvement of SENDIASS (Special Educational Needs and Disabilities Information Advice and Support Services” in offering support, information and advice to families.

It is the second part of this section which has sparked controversy[7], in particular, the following suggestions:

• Increased advocacy and the encouragement to appeal caused by a significant growth in advocacy organisations offering to support families with appeals [as well as legal representation]
• Most of the LAs engaged described that Tribunal appeals were more likely to come from more affluent families and less likely to come from families from more deprived backgrounds [albeit they acknowledged that it is difficult to corroborate these reported trends with national data]
• Increased proportion of Appeals relating to the content of EHCPs were more difficult to resolve through mediation [albeit they noted that this failure can be a product of lack of prior dialogue between professionals and families during the EHCNA process]
• There is lack of clarity about what constitutes and “efficient use of resources” which is a legal test applied to naming a school in section I of an EHCP
• There are often two sets of professionals from the same discipline providing an opinion on the needs of the child (section B) and provision required to meet those needs (section F).

The report suggests that amendments are required, for example, to key parts of the SEN statutory framework, particularly surrounding when to carry out an EHCNA; clarification about what mainstream schools should be expected to deliver in terms of SEN support; the tension between resources available for SEND provision and demand.

DISCUSSION

I don’t disagree that there has been an increase in the number of Appeals to the Tribunal; in my experience, however, this is due to the failure by the Local Authorities to agree to carry out an EHCNA without sufficient reason, fail to make sufficiently specified or quantified provision in the EHCP to meet the CYP’s needs or fail to issue an EHCP in a timely manner.

As a Team, we have experience of cases where:

• families have been refused EHCNAs where a CYP clearly has SEN
• a Local Authority failed to update the EHCP of a child with severely complex needs for nearly 2 years
• EHCPs are so lacking in detail about the amount (both in terms of frequency and time) of therapy a child needs as to be worthless
• Local Authorities failing to issue final EHCPs until they are threatened with Judicial Review.

I also don’t disagree that the largest proportion of appeals may relate to a YP with autism – but I would argue this directly correlates to an increase in diagnoses of autism.^[8]

With regard to the fact that more cases are being decided at Tribunal, the fact that the report also acknowledges that 96% of decisions in disputes are made in favour of families speaks for itself that the families have no option but to proceed with the Appeal.

I also acknowledge, having heard from staff in special schools, that positive Tribunal outcomes for families particularly where they wish for a special school to be named in section I of the EHCP, puts special schools over the Published Admission Numbers sometimes by a not insignificant number which, in turn, puts extra pressure on schools.

It is right that there are many organisations offering support to SEND families – IPSEA and SEN SOS being the primary two – it is clear that the world of SEN is a minefield and with the potential, and reality, of Local Authorities failing to meet their statutory duties, families who are already under a great deal of pressure need somewhere to turn for help.

It has been suggested that Tribunal appeals come from more affluent families – this is not my experience.  Families that I have seen use their lifetime’s savings or borrow money to seek legal support for their SEND Appeal.  Quite frankly, I would prefer that families didn’t have to incur legal costs in pursuit of that to which their child is legally entitled but often Local Authorities have to be brought to account and those unfamiliar with the law find it difficult to navigate the system alone.

In contrast, some families have been able to successfully Appeal to the Tribunal without legal representation.  Each family is different and the support they require can vary.  Sometimes we advise clients on a hybrid basis whereby they do the bulk of the work themselves but ask for help on an ad hoc basis.

In terms of mediation, as a Team we have varied experiences.  In one of my cases, the Local Authority committed to a number of actions in mediation, the vast majority of which were breached and thereby necessitated an Appeal to the Tribunal anyway.  The mediation in this case therefore, ironically, increased costs and time.

We would agree that often two experts from the same discipline will assess a CYP with SEN and provide reports with very different content and recommendations – this is out of necessity because, in our experience, recommendations from Local Authority experts are vague and unhelpful.  Privately commissioned reports are able to properly inform the content of EHCPs.

Another difficulty with EHCPs is the interplay between different Local Authority purses – for example, whether the provision has to be funded by the Children and Disabilities Team or the Clinical Commissioning Groups (CCGs), this can also cause issues within the process and is another headache for parents.

Often we find that Local Authorities are reactive, they work to their own timetable.  Indeed, recent case law demonstrated that Local Authorities had been working to a non-specific timetable in issuing EHCPs following Annual Reviews; the High Court has now confirmed that this liberal interpretation of the statutory timetable is wrong – the Plan must be issued within 12 weeks of the Annual Review.^[9]

Local Authorities have a legal duty to provide all children aged 5-16 in their area with education^[10] and are also responsible for all CYP (0-25) in their area with SEN.  With the current situation in the Ukraine, the UK is rallying support for Ukrainians for houses^[11] but with this also comes a responsibility to provide them with education.  As correctly identified by Ali Fiddy, the CEO of IPSEA, children who are refugees and asylum seekers who settle in England will have the same access to education and SEND support[12].  How will they navigate the system?

Whilst it is acknowledged that there are restraints on resources, and there are no easy answers, there is no escaping the fact that there are laws in place to provide the requisite education, including additional support for CYP with SEND, and families have the right to fight for what is best for their child or young person to help them reach their potential, whether that be achieving a PhD at Oxbridge or learning to communicate via Makaton.

The Department for Education (DfE) is due to publish the SEND Review very shortly.  It will be interesting to see what comes from that!

 

[1] Support and aspiration: A new approach to special educational needs and disability (educationengland.org.uk)

[2] Support-aspiration-progress-and-next-steps.pdf (lgiu.org) this provides a summary of the Report; at the time of writing, the link to the Report is currently unavailable

[3] Children and Families Act 2014 – Explanatory Notes (legislation.gov.uk)

[4] The Special Educational Needs and Disability Regulations 2014 (legislation.gov.uk)

[5] 220222_LGA_SEND+disputes_report_FINAL.pdf (squarespace.com)

[6] I would refer to the previous caveat given that this blog is not intended to deal with the report in full, and cannot be a substitute for reading the fully report, rather its purpose is to highlight certain relevant points to which readers’ attention may wish to be drawn.

[7] ‘Affluent families’ to blame for rise in special needs hearings | News | Law Gazette

[8] Autism rates increase – Press Office – Newcastle University (ncl.ac.uk)

[9] R (L) v Devon CC [2022] EWHC 493 (Admin)

[10] Section 19 Education Act 1996

[11] Homes for Ukraine – Homes for Ukraine – Local Sponsorship Scheme for Ukraine (campaign.gov.uk)

[12] Support for Ukrainian children with SEND arriving in England | (IPSEA) Independent Provider of Special Education Advice

 

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