The Department for Education and the Local Offer: Part Two

On 2 October, we provided an update on our attempt to obtain clear information from the Department for Education (DfE) about the implementation of the Local Offer.

The DfE's response, which you can read here, confirmed that 99% of LAs had now published a Local Offer or, perhaps, something which the DfE referred to as 'an initial Local Offer'.

We queried this figure. Did this mean that 99% of LAs had now published statutorily compliant Local Offers, e.g. had the Local Offers been published as a result of statutory consultation, or had LAs just been told to stick something (anything) on their websites?

We also queried the term 'initial Local Offer'. The term is, of course, entirely meaningless legally. The law recognises only one type of Local Offer: the Local Offer set out in the Children and Families Act,  its Regulations and the Code of Practice.

This week we received this further email response.

Dear Dr Sayers, 

Thank you for your email dated 25 September 2014 about the local offer. 

I am sorry not to have replied sooner.  As you rightly point out, there is not a separate legal definition of an “Initial local offer".  I can explain why I used the term in my earlier reply.  Under the statutory requirements in the Children and Families Act, local authorities are required, from September 2014, to consult children and young people with special educational needs or disabilities and the parents of disabled children and those with SEN in developing the local offer and publish it on a website. The implementation date is the same for both aspects of the requirements: the duty to consult and the duty to publish information, but you would expect publication to follow consultation.  Since a key feature of the local offer is that it should be developed, reviewed and kept up to date and local authorities have been required to publish different information about support for children and young people who are disabled or have SEN for some time, we encouraged them to publish information in a local offer in September and work with families to develop and update it.   Our initial check of local offers - and the basis of my '99% figure' - was a check to see that there was a local offer website up and running.  Of course, local authorities will be developing those local offers over time. 

I am happy for you to publish my responses to your queries - and there is no need to redact my name.  (I also agree that using the generic email address can seem rather impersonal - however, it has the advantage of ensuring that the correspondence is properly logged on the Department's systems.)

Your correspondence has been allocated reference number 2014/0063754. If you need to respond to us, please visit: www.education.gov.uk/contactus, and quote your reference number.
Yours sincerely,

Stephen Kingdom
Childcare, Special Educational Needs and Children’s Strategy

We are grateful for this response. However, it seems clear to us that all the DfE has done is made sure LAs have something on their websites and  that it is simply hoping that compliance with the law may 'develop over time'. An approach which parents will be all too familiar with and which is unacceptable.

Then, today, we have noted a flurry of tweets from the DfE making wholly unevidenced claims about the reforms such as:

"'Parents are delighted, equipment is cheaper and their personal budgets are really successful' - LA Pathfinder #SEND"

We think a bit more Departmental time spent on protecting children's rights and a bit less on pumping out obvious spin is needed. There will be no long-lasting change to this dated 'SEN model' while the legally rights of children and young people can be so easily pushed to one side and given a lower priority than the needs of the authorities charged with their implementation.

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".

Parental engagement with the DfE on law-breaking and the Local Offer

On 3 September, we wrote to Mr Timpson about what looked like catastrophic non-compliance with the law relating to the Local Offer.

You can read our post and letter here. 

You may remember that the Minister had previously claimed that 95% of LAs were ready for the introduction of the Children and Families Act and that he had made the following promise: "for authorities who are further behind the curve, I’ve made it my business personally to follow up on their progress".

Our letter asked the Minister to confirm what action his department intended to take to ensure full compliance with the law and whether he could confirm that the Department for Education (DfE) was are prepared to receive information directly from parents regarding problems with the implementation of the Local Offer in their area.

On 24 September, we received a response. We should say at the outset we immediately asked by email and twitter whether the DfE had any objection to the publication of this response but that we have received no reply. We have decided to publish it so that parents can share this important information.

Deputy Director Mr Kingdom wrote:

"Dear Ms Sayers, 

Thank you for your letter of 3 September addressed to Edward Timpson. I have been asked to respond as I am the Deputy Director in the 0-25 Special Educational Needs and Disability Unit.

I was pleased to see the Educational Rights Alliance taking part in the Special Needs Jungle twitter chat last week. As you’ll have seen, some of that discussion covered similar ground to your letter. I am hoping that Special Needs Jungle will publish a follow-up blog from me expanding further on some of those issues.

With regard to the specific points in your letter on the Local Offer it is, of course, a key component of the SEND reforms. Under the statutory requirements in the Children and Families Act, local authorities are required, from 1 September 2014, to consult children and young people with special educational needs or disabilities and the parents of disabled children and those with SEN in developing the Local Offer and to publish it on a website. Local authorities have been required to publish different information about support for children and young people who are disabled or have SEN for some time. That is why we have encouraged local authorities to publish an initial Local Offer in September and work with families to develop and update it.

We are monitoring the implementation of all the special educational needs and disability reforms, including the Local Offer, and providing a package of support to local authorities. Our latest information shows that 99% of local authorities have now published a Local Offer and we are actively pursuing the remainder. Over the coming months, we will look carefully at the continued progress of local authorities in developing their Local Offers and provide further support where appropriate.

If parents have concerns about the Local Offer drawn up by their own local authority, their first point of call should be to discuss their concerns with the local authority.  However, if that does not resolve the issue, then we are, of course, prepared to receive information from them.

Your correspondence has been allocated reference number 2014/0059226. If you need to respond to us, please visit: www.education.gov.uk/contactus, and quote your reference number.

Yours sincerely,

Stephen Kingdom

Deputy Director

Childcare, Special Educational Needs and Children’s Strategy"

There are several points to note arising from this. 

Firstly, the DfE uses the term "initial Local Offer" as if it has some meaning and significance separate from the Local Offer required by the Children and Families Act - a 'Local Offer Lite' perhaps?

Secondly, the claim is that 99% of LAs have now published a Local Offer. The evidence to support this claim is not referenced and there is no information confirming that what has been published actually complies with the law. Is the DfE concerned that a legally compliant Local Offer is published or just that LAs get 'something' (anything) published?

Thirdly, it is good to know that LAs are getting a package of 'support' but this doesn't explain why the Government has railroaded these reforms through when there is clear evidence LAs were not ready or why supporting LAs seems always to take priority over enforcing children's rights. 

Finally, the DfE has confirmed that, if you cannot get any joy out of discussing the Local Offer with your LA, you can contact the DfE. 

With these concerns in mind, we responded immediately via the 'contact us' box at the DfE (with our duly allocated reference number) as follows:

Dear Mr Kingdom,

Thank you very much for your response.

We are not sure the law recognises the term 'initial Local Offer' so perhaps you could explain what the DfE believes it to mean and whether it is to be distinguished from the Local Offer required by law. Following on from that, in relation to your figure of 99% compliance, is that compliance with publishing what you describe as 'initial Local Offer' or are you asserting that 99% of LAs have now completed the statutorily required consultation and have a produced a Local Offer which is compliant both with the Act and its Regulations? In either case, could you confirm how you have ascertained this?

We would be grateful if you would also confirm that you are happy for us to publish your response. We are, of course, happy to redact your name if you would prefer.

We will send this email to your generic email address as suggested but we have replied  to this address also as a generic email address seemed a potentially unreliable way of communicating on an issue of such acute importance to parents.

Regards,

Debbie Sayers

We shall let you know if we receive a response but we wonder whether a Government which was serious about ensuring compliance with the law to protect children's rights would boot the issue into the long grass in this way without any genuine attempt at engagement.

Dear Ofsted, don't let SEN fly 'below the radar'

On 25 September, Her Majesty’s Chief Inspector (HMCI), Sir Michael Wilshaw, raised concerns about 'low-level disruptive behaviour' in schools in a report entitled 'Below the radar: low-level disruption in the country’s classrooms'. You can read that report here.

We were extremely concerned at the tone of the report and its failure to mention the need to support and include disabled pupils and those identified as having special educational needs. So, we drafted the following letter:

We write to express our serious concern about Ofsted's recently published report, 'Below the radar: low-level disruption in the country’s classrooms' .

The report makes no mention of disabled pupils or those identified as having special educational needs, yet much of the 'low-level disruptive behaviour' listed reads like a checklist for some of the behaviours exhibited by such pupils, especially those who lack effective support. For example, Ofsted's report lists; "talking and chatting", "disturbing other children", "calling out", "not getting on with work", "fidgeting or fiddling with equipment", "not having the correct equipment", "purposely making noise to gain attention", "answering back or questioning instructions" and "swinging on chairs". The failure to note the link between these seemingly 'non-normal' behaviours and SEND is a startling omission which could undermine efforts at inclusive practice and encourage schools, parents and children, to view pupils with different needs as being inconsistent with a productive learning environment.

This would be a hugely regressive step which could encourage unlawful and discriminatory practices. It is notable that Ofsted's report makes no reference to the Equality Act 2010, although the law requires that reasonable adjustments be made to ensure that disabled pupils are not placed at a detrimental disadvantage because of their disabilities. There is clear evidence that a failure to adjust the educational environment may significantly affect pupils with SEND such as autism. Behaviour which is linked to a child's disabilities should never result in a situation where a child is punished and treated less favourably because of that disability. Further, the Equality Act also requires schools to pay due regard to the need to eliminate disability discrimination in all their policies and practices: this includes behaviour policies. Ofsted entirely overlooks the clear, statutory requirement to ensure that blanket policies do not directly/indirectly discriminate against disabled pupils.

Ensuring that all pupils are effectively included and not discriminated against is of vital importance to the development of an inclusive society. Ofsted has itself previously noted that "pupils currently identified as having special educational needs are disproportionately from disadvantaged backgrounds, are much more likely to be absent or excluded from school, and achieve less well than their peers, both in terms of their attainment at any given age and in terms of their progress over time". [1] It also found in the same report that "despite extensive statutory guidance", the consistency of the identification of special educational needs varied widely and that "children and young people with similar needs were not being treated equitably and appropriately".

Ofsted clearly intends this report to be scrutinised and followed carefully by schools so the failure to acknowledge the rights of disabled pupils in such a context may impact adversely on the inclusion and understanding of pupils with SEND, particularly in schools which lack the training and understanding to ensure disabled children are supported.

We need a society which values difference. We, therefore, urge you to consider issuing clear guidance to schools on the link between SEND and behaviour and the importance of ensuring that disabled pupils' rights to education are met in accordance with the law.

[1] Ofsted, ' The special educational needs and disability review: A statement is not enough', September 2010

We put the letter on avaaz.org and tweeted. Over 150 signatures have been collected in less than a week from parents, teachers, lawyers, academics, activists and other concerned individuals.

You can read the final letter with the attached signatures here. It has now been sent to Sir Michael Wilshaw and we will let you know what response we receive.

Thanks to everyone who stood together to raise this issue.