The SEND reforms: a case of the Emperor's new clothes?

Over the last month or so, we have seen so many conferences, so many speeches, and so many lunches. There has been much high-fiving and back-slapping about our brave new SEN landscape. So many consultants have been advising, marketing and promoting. The SEN industry is certainly alive and well.

Yet, in the land of the Emperor's New Clothes (the Children and Families Act) all is not contentment and joy. Those who point out the nakedness of the monarch are castigated for not 'playing fair' or maybe for 'not getting stuck in' or even worse for 'not making the best of things'. It's as if somehow, by not playing along with the whole charade, they are being ungrateful or they are letting some unknown (and unjoined) 'SEN team' down.

The Educational Rights Alliance does not speak for all parents. We do not represent the 'SEND community'. Indeed, we believe no such singular 'community' exists. We make no claims about being on any 'SEND team'. We have, however, committed ourselves to developing grassroots action where we can and to raising issues concerning transparency, accountability and equality (and it really is startling how threatening large, extremely well-funded organisations find simple questions). We certainly have no wish to join the noblemen who (to continue the Emperor's New Clothes analogy) "pretended to lift and hold the King's mantle high because they didn't dare admit they had nothing to hold".

Below are just a few of the ways in which we think it is very clear that the 'King' is in fact 'in the altogether'.

'Independent Supporters'

For example, we have had an unecessarily protracted battle to obtain basic information about 'Independent Supporters' - once-christened 'Parent Champions' by the Government (but remember no actual parents were included in the making of this initiative). Read our post here for example. 

It is now certain, according to a recent FAQ published by the Council for Disabled Children (CDC), that these 'Champions' are nothing of the sort. In response to a question we had raised about what Independent Supporters would do if they noted unlawful practice by LAs, the CDC says:

"The role of an Independent Supporter is to help parents and young people gather the information required to formulate a draft EHC plan. Advice on local authority practices that goes beyond this time limited task of an Independent Supporter would be best referred over to the Information Advice and Support Service, who are best equipped and trained to resolve any concerns of this nature."

So, there you have it. 'Independent Supporters' would not tell parents to go and seek independent legal advice or even tell them that the LA cannot do what they claim they can, they are simply advised to keep silent and suggest a parent sees IASS (formerly the Parent Partnership Service (PPS)). This is an 'arms-length' service funded by LAs which is not run by legally qualified staff. It has a highly variable record for consistency and willingness to take issue with LA practices. How is this acting in the best interests of families with disabled children? With a 'Champion' like that, who needs enemies? We believe the whole intervention may work primarily for the benefit of LAs: an extra 'pair of hands' to clear the bureacratic nightmare that is this new legislation. 

Similarly, as part of the 'Independent Supporters' (IS) saga, given the CDC's and Government's acknowledgement of potentially significant variation between the delivery of the services locally, we wrote to every single publicly funded IS provider on 9 September with this letter. The list of providers is found here. We believe that the information requested is of importance to parents and that good governance dictates that someone should have a clear idea of the disparity to services nationally.

Sadly, although there are at least FORTY-SIX individual oranisations listed by the CDC as providing publicly-funded IS services, after a month, we have had acknowledgements from only FIVE and no substantive responses to the questions raised. The organisations who have at least responded are:

• Grapevine Coventry
• Mencap
• The Edge Consulting (who have offered to discuss this with us)
• Amaze Brighton
• VCAT

This is hugely disappointing. If these bodies were public bodies, they would be bound by the Freedom of Information Act and they would have to respond. We believe that this information should be readily available as the public is paying for these services. The information should also be capable of comparison by being available centrally. Otherwise, how can we prevent yet more 'postcode gaps' appearing in the variable geometry of our SEN system? 

Local Offer

The Local Offer was another intiative which drew significant praise, not least from the CDC itself (see their letter here).

The Local Offer is created by the Act and its rather messy accompanying Regulations. The legal obligations it creates and places on local authorities are very clear. Yet, post 1 September, it was obvious that many LAs simply had not created a Local Offer let alone consulted on one. See our letter to Mr Timpson here.

There appears to be much sympathy for the unreadiness of LAs which has not been fairly balanced by outrage at the denial of rights to children and young people. Those who plead for LAs to have time and 'support' to produce basic 'initial offers' (whatever they are - see our post here) were silent when we were demanding a moratorium on the legislative procees to ensure it was implemented effectively and to children and young people's benefit. This Act was very clearly railroaded through Parliament, yet the lack of criticial analysis of the consequences of this from those with the weight and power to do so has been shameful.

Section 19

Another cause for rejoicing, at varying levels, has been the introduction of s 19 of the Children and Families Act, specifically s 19(d). This says that in exercising its functions, a local authority must have regard to the following matters in particular:

"the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes."

Let us be very clear. This is not a duty of substance but one of procedure. This section does not mean a child is legally entitled to the best possible educational outcomes but that, procedurally, when making decisions the LA must 'have regard' to this goal. What LA is going to say that it hasn't, or fail to record that it hasn't, considered what the 'best possible educational' outcome would be?

The 'regard' duty has been compared to the duty on public bodies under the Equality Act 2010 (the Public Sector Equality Duty (PSED)) to pay 'due regard' to certain goals  (e.g.eliminating discrimination) in all their actions and functions. The fact that this is a procedural duty and not a substantive one (i.e. it does not require a particular outcome) is confirmed in the lead case on the Act which gave rise to the  so-called 'Brown Principles'. The court clearly stated here (at para 81):

"it is important to appreciate........that the imposition of a duty to have "due regard" to the various identified "needs" does not impose a duty to achieve results. It is a duty to have "due regard" to the "need" to achieve the identified goals. This is a vital distinction".

The PSED has been very important in challenging the practice of public bodies who would otherwise not even think about the duties under the Equality Act as it compels them to record their consideration of equality related issues when undertaking their decision-making. Yet, in the SEN process, LAs are already required to consider the individual needs of the child and the appropriate provision to meet those needs. The SEN process is also already dominated by written procedures: assessments obtained, views sought, evidence considered. Even if the whole process largely seems like a charade, from a legal perspective, the procedure already exists for LAs to argue that they are taking account of what the 'best educational outcomes' are for this individual child when making a decision. Under s 19, you can't challenge that in court just because you feel it is untrue. You can only mount a challange when you can show, procedurally, that it hasn't happened. Even then, if you win, the court will simply send the case back to the LA for them to rubber-stamp their initial decision using the right language.

So we must be very honest with parents. On an individual case level, only in cases where glaringly unsuitable decisions are made, with no evidence that anyone thought of the outcomes for the child, will this provide any opportunity for legal challenge and even then challenge is likely to be by way of appeal before the Tribunal rather than judicial review before the courts. This is because the availability of appeal to the SEN Tribunal means that judicial review is often not considered appropriate (if it is thought of at all by solicitors) in cases concerning the quality of provision. Judicial review is a remedy of last resort (all other options must have been tried). If you can appeal to the Tribunal about the inadequacy of provision you have not exhausted all other options.  If a judicial review is available (perhaps because the Tribunal route is ineffective), it is more than likely that a judicial review could have been taken on existing legal grounds irrespective of the existence of s 19(d).

Post the Children and Families Act, the duty on LAs is still to ensure that the child has the provision 'appropriate' to their needs. This is at least a substantive one. So what does a procedural duty to have 'regard' to the 'best possible educational outcomes' add to this? LAs will simply say that they have taken this into account in providing what they believe to be the most appropriate provision. Only in glaring cases of irrationality (the sort of case which would allow challenge on basic public law principles anyway) would this be challenged by judicial review. In reality, such issues are most likely to end up before the Tribunal again who may well feel this procedural duty adds very little to the substantive issues they are being asked to decide. It can only be hoped that it at least makes LAs more transparent in their decision-making when they make and record their decisions.

Of course, if we are wrong on the law on this, we would be happy to be put right with clear examples of what it is felt that s.19 adds to the law as it stands. We think there is certainly a need for further discussion on this. But we also think that caution should be exercised before making claims about the nature and impact of this particular reform.

Conclusion

So taking up from where we started, what has the rejoicing been about? Yes, it is early days but we owe it to our children and young people to remain rooted in reality when we consider what is happening. 

We inhabit a country where swingeing cuts are being made to public services, where teachers are being blamed for everything that goes wrong, where an oversight body (Ofsted) does not even mention SEND when producing a report on behaviour (see our post here) and where equality is never mentioned as a goal of SEN reform.

The reform process has not seriously attempted to reach out and engage with parents, carers, children and young people in any systematic and egalitarian way. It is no slight on Parent Carer Forums (PCFs) to say not all parents are part of them, want to be part of them or are even aware of their existence. Genuine engagement has to go beyond this and down to grassroots level. It has to engage those who are battling with multiple disadvantages, those whose views are generally not sought out or considered. There is a need to look at the problem from the bottom up. This means fewer highly-paid consultants, quangos, and charity consortia and more grassroots advocacy and community activism.

Until this happens, with our limited resources, we shall continue to shout loudly:

 "But he isn't wearing anything at all".