Government Reviews Special Educational Needs and Disability Reforms

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AuthorEd Duff

Over the last few days the Department for Education has released three very substantial documents which all relate to a review of the special educational needs and disability reforms.

The first document is entitled "Review of Arrangements for Disagreement Resolution (SEND) Research Report". The second is the Government's response to the research. The third is entitled "Experiences of Education, Health and Care Plans - A Survey of Parents and Young People".

These three reports between them extend to nearly 600 pages and have been released in very close proximity to one another.

In this piece we will do our best to condense the extremely lengthy reports and draw out the most relevant information.

Review of Arrangements for Disagreement Resolution (SEND) - Research Report

This report running to a mere 331 pages spread across 8 chapters is a research report which has been undertaken by the Centre for Educational Development, Appraisal and Research (CEDAR).

The purpose of this research was to assess how well parents and young people were able to seek redress when they disagreed with any decisions reached by the Local Authority. Specifically there were 6 objectives:

Examining the process of EHC needs assessments.
Examining whether early dispute resolution services are helping to reduce the number of appeals to the Special Educational Needs and Disability Tribunal.
Consider how successful mediation is in resolving disputes.
Examine whether health and social care complaints are working.
Consider the effect of the pilot to extend the powers of the Special Educational Needs and Disability Tribunal to consider social care and health disputes.
To assess the cost savings of early dispute resolution avoiding the need for Special Educational Needs and Disability Tribunal appeals.

In terms of the process the research agency used in obtaining the information, there is very revealing data. Three surveys were sent out to 152 Local Authorities. Of those, only 109 responded to at least one survey. Of particular concern only 42 (28%) responded to all three surveys. Further, two online surveys were sent to all Local Authority lead officers responsible for EHC needs assessments. A derisory 60, of the 152 Local Authority officers responded to the first survey and only 62 to the second.

In terms of parent involvement in the research, 79 parents were interviewed. By way of a comparison, we attended at a parent forum event last week and spoke with in excess of 100 parents. That was a one off event. It is difficult to understand the limited involvement in this survey.

The main purported findings of the research are as follows:

Local Authority practices regarding disagreement resolution vary widely.
Person centred EHC needs assessment and plan development were successful in fostering agreement.
Wide variation existed in the quality and practice in undertaking EHC needs assessments.
Time taken to resolve disputes has a significant impact on the family involved.
Early disagreement resolution was best for families and children.
Mediation reduced the likelihood of disagreements escalating to Tribunal.
Mediation is a cost effective route.
The information, advice and support services vary in quality and quantity.
Disagreement resolution services are generally not understood or used.
The majority of appealable decisions taken by Local Authorities nationally are not appealed.
There are existing continued concerns regarding how Local Authorities handle complaints about special educational needs and disabilities.
The pilot run by the Special Educational Needs and Disability Tribunal did not produce enough information to warrant a peer finding.

However, almost everyone involved felt that it made sense for the Tribunal to be able to make the suggestions for changes to both social care and health content of an education healthcare plan.

The report notes that the survey related to 40,952 decisions which could have been subject to an appeal to the Special Educational Needs and Disability Tribunal. Of those decisions, those that related to a refusal to make an EHC needs assessment, only 7% of affected parents or young people appealed, of those decisions which related to a refusal to make an Education Health and Care Plan (EHCP) only 12% appealed and of those decisions relating to the content of an EHCP, only 6% appealed.

It is notable that the survey does not seem to consider why this may be. It may well be that the prospect of having to challenge a Local Authority, make a complaint or engage in dispute resolution appears too daunting for many families, particularly young people with special educational needs and disabilities. Relying purely on the numbers of appeals compared to number of potential appeals is unlikely to tell us much.

The report goes on to set out that mediation was associated with a 14 percentage point reduction in the likelihood of disagreements progressing to a Special Educational Needs and Disability Tribunal appeal. Across the survey sample just over 3,000 families raised dispute with a decision made by a Local Authority. 58% of those did not pursue mediation, whereas 42% did. Of those who took up mediation, 22% went on to appeal. Of those who did not take up mediation, 36% went on to appeal.

It is interesting to note that the outcomes of mediations have not been assessed by this research paper. It is unclear to what extent Local Authorities agreed with the dispute that families had raised and it is also not clear how many of those disputes were settled to the family's satisfaction as a result of engaging in the mediation process.

In our experience, one major difficulty with the mediation process is that Local Authorities are either refusing to engage in mediation or are sending a representative to the mediation session who is unable to make a binding decision on behalf of the Local Authority. Both are unlawful. There is no reference to either of these very significant issues in the research paper. We have spoken to dozens of parents who have faced both of these difficulties across a number of different Local Authorities.

In terms of the pilot enabling the Special Educational Needs and Disability Tribunal to make recommendations about the health and social care aspects of an education and healthcare plan, the research concludes that there was insufficient evidence. During the pilot, 11 Tribunal decisions were made about requests for recommendations involving health and social care. However, the Tribunal was asked to make decisions regarding health and social care in 39 cases. As such, the Tribunal refused to make any recommendation in respect of health and social care in 39 cases where it was asked to do so. That surely raises the question as to why the Tribunal refused to make any recommendations and whether the panels felt adequately trained or experienced to be able to make such recommendations.

Government Response to the Research Report regarding Review of Arrangements for Disagreement Resolution

This response by the Government was published on 29 March 2017. The foreword of the response serves to reiterate the same rationale for the special educational needs and disability reforms that have now been issued by the Department for in excess of 4 years. The foreword continues to tow the party line which is that broadly the reforms are working and are effective, but that it takes time for real change to be seen but that families and young people are now being put at the centre of the process.

Much is made within the Government review of the finding that most families do not challenge decisions made by the Local Authorities. It seems that the Department for Education has simply accepted that this is for positive reasons. There has, to our knowledge, not been a detailed assessment of why families do not wish to pursue an appeal. There are a number of potential reasons which are obvious which can include the following:

Financial cost.
Emotional cost.
Lack of time.
Lack of experience.
Lack of information afforded by the Local Authority.
The apparent complexity of challenging a Local Authority.
The fact that challenging a Local Authority can be extremely daunting for parents and particularly young people.

In our experience many families accept that a Local Authority will understand its statutory obligations. In most instances, if a Local Authority communicates a decision a family or young person is likely to accept that decision. It does not mean that they agree with the decision. It is simply that the Local Authority is a professional public body that many people will have faith in. Accordingly, accepting that a low percentage of appeals means parents and young people are happy with the system is too simplistic an analysis.

The Government's response states "we are still in the transition period from the previous SEND system to the new SEND system". Whilst this is true, this reason has been presented far too often in our opinion. Before the reforms even took legal effect, several Local Authorities ran pilot projects in order to try and smooth the transition from Statement of Special Educational Needs to the new system of EHCPs. Equally, the new legislation has been in effect for nearly 3 years. We wonder at what point the Department for Education is going to stop relying on the notion that we are in 'transitionary' phase. The rationale of "teething problems" must surely be reaching the end of its life expectancy.

In respect of Independent Advice and Support Services (IASS), the Government response provides a summary that "CEDAR found that when IASS works well, it helps inform and support parents..." Importantly, however, the Government's response does not seem to deal with key finding that there is a wide difference in the quality and quantity of provision of support through IASS services.

In respect of mediation, the Government's response confirms that every Local Authority must commission an independent mediation service and that the decision as towards whether or not to explore mediation lies with parents and young people who wish to resolve a disagreement.

The Government response notes that mediation generates an overall cost saving of around £500 per case which, when aggregated, amounts to around £600,000 over 12,000 cases considered in the review. Clearly, this is a very significant potential saving of public funding.

The Government's further response is that the Department is keen for all parties to have confidence in mediation and that there is general support and "light touch" process of stands as an accreditation.

As it was not raised within the original research, the Government has not dealt with the points that we highlighted above. That is in particular that Local Authorities are either refusing to engage in mediation or are sending a representative who is unable to bind the Local Authority. Both of these significantly reduce the efficacy of any mediation service.

We fully support the idea that mediation can help in many cases. If there is genuine involvement by the Local Authority, and their representatives attend, listen and are capable of changing the decision of the Local Authority, then clearly mediation is a valuable process. Unfortunately, however, in our experience and that of many of our clients, this is simply not happening. Until this fundamental flaw and failure to comply by Local Authorities is recognised, mediation is unlikely to ever produce the cost savings or an effective alternative to an appeal to the Special Educational Needs and Disability Tribunal.

In respect of complaints procedures CEDAR found a variety of practices in dealing with complaints. This clearly indicates that some Local Authorities give proper consideration to complaints whereas others give little more than lip service to them. We are sure many readers of this blog will be familiar with the latter approach. The Government central response to this element of the review is that the Government is looking to create a more modernised complaints process. Plainly, therefore, there is a general recognition that the current complaints process to Local Authorities is flawed and that calls into question the point of this review in respect of Local Authority complaints procedures at all.

It is interesting to note that the Government's response makes only passing reference to Ofsted. The Government has not dealt with the elephant in the room which is the ever increasing number of very critical Ofsted assessments of Local Authority special educational needs teams. It would seem to have made sense for the Government's response to have at least addressed this, however, this is an opportunity that has been sadly missed.

In respect of appeals to the Special Educational Needs and Disability Tribunal, much of the response deals with the financial cost to families of having to appeal. The Government's response indicates that there is no requirement for families or young people to take legal advice and the Tribunals attach no additional weight to evidence when it is presented by lawyers.

What this Government's response fails to recognise is that many families only seek legal representation at an appeal to the Special Educational Needs and Disability Tribunal because their Local Authority has already done so. It seems starkly naïve of the Department for Education to suggest that it would be a straightforward process for any family or young person to present their own appeal in the face of opposition from a Local Authority officer, experts and professional advocates such as solicitors or barristers acting for the Local Authority.

The response does rightly set out that the Special Educational Needs and Disability Tribunal tries to be as informal as possible. In our experience it does, however, the Tribunal has to deal with legal tests and has to manage an appeal in a way which is effective and lawful. It is a legal arena.

One of the most significant elements of the Government's response is confirmation that the Department for Education intends to introduce a 2 year national trial, starting early 2018, to expand the power of the Special Educational Needs and Disability Tribunal to make non-binding recommendations in respect of the health and social care elements of EHCPs. We welcome these plans entirely as it has always seemed bizarre to have a statutory document which is only appealable in respect of education. The current arrangements mean that less than a third of the education and healthcare plan actually has an effective appeal route.

Experiences of Education, Health and Care Plans - A Survey of Parents and Young People

This research report was issued in March 2017.

Before we had sight of the report, there had been much criticism of this review on all social media. That is because it seems to give a very blinkered version of the current situation.

Obviously, we have to recognise that parents and families that contact us will only do so if they are facing disagreement with their Local Authority. However, given the huge numbers of families that we speak to at events that we host free of charge, the number of parents that call our advice line for initial help, again free of charge, and the number of people that read our blogs for advice and guidance, we cannot share the conclusions that the process is going well.

Further, in our experience, the process of EHC needs assessments and preparations of EHCPs are facing exactly the same problems as existed under the old regime of Statements of Special Educational Needs. Very little has changed as a result of the special educational needs and disability reforms.

This survey and report is based on a much wider sample than we have seen before. That is encouraging. The report notes that a total of 13,643 responses were received between 25 July and 28 November 2016. However, we are concerned to note the survey itself, under heading of "limitations of the survey" sets out "the survey covers the views and opinions of parents and young people - the data collected therefore reflects their perceptions of what took place rather than facts". We find this to be a rather strong phraseology suggesting that perceptions from parents and young people are distinctly different to the facts.
We wonder how helpful such phraseology is bearing in mind this reform was brought about to try and make parents and young people "feel" more involved in the process.

In respect of overall experience of the process, the survey suggests an overall positive feeling. Around two thirds of responses indicated that they were satisfied with the overall process of getting an education and healthcare plan. Just under two thirds agreed that the help and support described in the plan will achieve the outcomes and around two fifths felt that the process was a positive experience.

We do wonder, however, to what extent the children, young people and families who responded to the survey are aware of the obligations on the Local Authorities. Whilst a family or young person may be happy with how their particular special educational needs caseworker handled their matter, that is not necessarily to say there has been a complete compliance with Local Authority statutory obligations. For example, the contents of an EHCP should be specific and quantified in respect of the provision that a young person is expected to receive. Unless a parent, family or young person knows of that statutory obligation, they may receive a plan which lacks the level of required specificity but still feel happy with it. Further, the survey notes that over 25% of respondents to the survey did not know that the process of completing an education and healthcare plan should take no more than 20 weeks. As such, those respondents are unlikely to have felt dissatisfied with the time taken to prepare the EHCP, because they were unaware of the relevant deadline.

Until there is a detailed assessment of whether Local Authorities are, objectively, satisfying their statutory duties survey reviews of this nature may have limited efficacy.

It is interesting to note that the finding of the survey indicates that the likelihood of securing an EHCP following the first request decreased as the age of the child or young person increases. We have always advised that early intervention by schools, Local Authorities and families is necessary. This only serves to reinforce that.

In terms of compliance with the statutory timeframe, only 59% of new plans in 2015 were provided within 20 weeks. There are certain statutory reasons for extending the process beyond 20 weeks, however, we struggle to believe that they apply in 41% of cases. There seems to be little in terms of investigation of why such a significant number of EHCPs are not being prepared within the statutory timescale.

In respect of the content of an EHCP, 62% of the survey responses rated it as easy or very easy whereas only 17% indicated it was very difficult or difficult. Again, we do wonder how useful this data actually is. If a parent or young person simply agrees with what the Local Authority says then plainly that is an easy process. However, if that agreement is borne from a lack of knowledge of what the Local Authority should actually be doing then plainly it is misleading information. Equally, if those 17% of people that found it difficult were very conversant in the statutory obligations on Local Authorities, and were only disagreeing because the Local Authority had failed to comply, that is very revealing. Therefore, the lack of detailed assessment by this research into why there had been disagreement, or agreement, is very relevant.

In respect of the impact of EHCPs, the report suggests that nearly three quarters of survey responses agreed that EHCPs have resulted in the child or young person getting the help and support they need. Two thirds agreed that it improved experience of education and three fifths of those agreed that health or wellbeing had improved.

The rest of this research document is extremely lengthy and goes into further detail in terms of the survey responses and the general perception of how the current reforms are working.

Taken at face value, the research seems to suggest that there is a general feeling that the services being offered are working, that EHCPs are supporting young people effectively and that services support children and young people across the three areas.

If this is the genuine result of the special educational needs and disability reforms, then it is certainly to be welcomed warmly. As noted above, our involvement as education law solicitors is likely to come only when a child, young person or family has a difficulty with their Local Authority. Having said that, our experience of the special educational needs reforms has not been particularly positive. Many families still feel that Local Authorities are not engaging with them, are not providing them with clear information, are still failing to comply fully with their statutory obligations and the same difficulties that existed in relation to statements for special educational needs still exist in relation to EHCPs.

Without wanting to recite the Department for Education's line on this matter, it may be that it is still relatively early days. There does need to be a significant cultural change in order to realise any benefit of these reforms. To achieve this, there needs to be a full and frank acknowledgement by Local Authorities of their statutory duties. We continue to see policies which are plainly unlawful. In particular, Local Authorities operating policies that they do not specify or quantify the support in an education and healthcare plan, or threshold criteria for needs assessments.

Taken at face value, Local Authority policies may appear to be reasonable. It may well be that it is these policies that are misleading some families to consider that they are getting a clear service from the Local Authority. Ultimately, it is only with a detailed understanding of the special educational needs legislation that we can judge whether or not Local Authorities are properly implementing the reforms.

If you are experiencing difficulties in relation to special educational needs or otherwise in securing additional support for your child or young person from your Local Authority, then please do not hesitate to contact our specialist education law solicitor team on 02920 291704.