oracle Report post Posted January 26, 2006 Ms Russell: If a local authority were able genuinely to meet the needs of all disabled pupils and pupils with SEN without special schools, that would be fine, but I think at the moment one might well find they were using special schools in other authorities. My personal view - and it is not a criticism of a view that anybody else holds - is that, at the moment, certainly, many parents are picking special schools because they are worried about the capacity and quality of mainstream to meet their children's needs. But I see ourselves as working towards a more inclusive education system, with co-location in specially resourced units, for example, with greater capacity in mainstream. I see in effect a challenge ahead for both mainstream and special schools to produce a better education system which maximises all pupils' abilities. Q322 Mr Wilson: In an ideal world, if mainstream schools were properly resourced, there would be no need for special schools. You are en route to saying that inclusion has not gone far enough. Ms Russell: In one sense, inclusion will maybe never go far enough, because there will always be new challenges and new groups of children, not necessarily disabled children, about whose exceptional needs one needs to think very carefully. I think we have a lot of work to do on the inclusion agenda. Q323 Mr Wilson: But your ideal is that over a period of time there should be no need within local authority areas for special schools per se, as long as mainstream schools are properly resourced for special needs students. Ms Russell: If we were to achieve that vision - which I hope that one day we might - then there would have to be very significant changes in the way in which we organise education services. But, even if there were no special schools, we would still need special services and specialist services. Some children will always need that provision, and some children may sometimes need provision or for part of their education in a separate place. I think we have to explore further how we deliver the best possible education for children with severe autistic spectrum disorders, for example, but I think the point Steve made was very important: we must ensure that disabled pupils have the real opportunity to interact with and be part of the wider society of children and any young people in their area. Inclusion is not merely attending a mainstream school and sitting in a corner; it is about being part of the life of that school. Equally, a special school should endeavour to the best of its efforts to be inclusive. Some people would say a special school never can be inclusive, but a special school can work towards enabling a pupil to acquire the skills and support which will enable him or her to go back into mainstream. It can enable partnerships with mainstream services. The real emphasis has to be on that long- term vision of citizenship, and therefore it is inclusion in everything, in all the life of the school. I think we do have quite a long journey to go, but I think we are moving along it - maybe not fast enough, but it is a pilgrim's progress. Q324 Mr Wilson: No-one would argue that changes would need to be made if we are going to reach an ideal of full inclusion in schools, but the question is should those changes be made? Should we be working towards those changes, or should we be investing more in special schools? That is the argument that is taking place now. I am trying to get your view on that movement and how quickly it should be made. Ms Russell: I do not think one can ever promote positive change in a human service by running down one sector whilst one endeavours to build up the other - by which I mean that if there are pupils in special schools now and in the future we have to be absolutely sure those schools are properly resourced, that the staff are properly trained and recruited, and it must mean some investment. I think in many public services there are transition arrangements. I am thinking of the closure of the long-stay hospitals which incarcerated many children with learning disabilities until the 1980s. It would not have been possible to get those children out unless there had been a parallel investment in the community-based, children-based services of the time, which prior to the Children Act 1989 had never thought about including disabled children. That, I think, is one of our challenges in promoting positive change, and also exploring, because some of the children in special schools have very complex needs, how we meet those needs. Even within a special school there are some children we have heard about who are not in school at all because their needs are judged too complex even for a specialist service for disabled children. Q325 Mrs Dorries: I would like to clarify one point you made. Do you absolutely not accept that there are groups of children, such as those on a high autistic continuum that you have mentioned, those with Asperger's, who absolutely would not be able to survive within a mainstream school, even with the specialist provision. Even with their funding Velcro'd to them, as we have heard recently, so that they had direct funding, even in those circumstances, just the type of building, the changing faces of the main children in the classroom, the noise, all those kinds of things, makes it impossible for them to survive within that environment and to be educated in that environment. Do you not accept at all that there are children who need to be in SEN provision special schools? Ms Russell: There will be some children who need specialist provision. When I talked about a pilgrim's progress I meant that we have a journey ahead of us and we must learn along the way about how best to educate children with the most complex needs. I think that at least for the foreseeable future some specialist provision is going to be essential. The point I wanted to underline, however, is that specialist and mainstream need to and are beginning to work more closely together, that more autistic spectrum disordered children are now being included in mainstream with the support of specialist unit support in schools. Q326 Mrs Dorries: We had evidence from Newham, who have a low number of statemented children. Most of the children with SEN needs are educated in mainstream, but they do have a large number of children who are being educated outside of Newham in other boroughs. It is not a case that it is not necessary or that it works; it is just: "Push the problem away from our borders and send them elsewhere". That is a borough that has gone further on the pilgrim's progress than you are suggesting: they have gone right the way down the road. That is a borough of total inclusion but the children are being educated outside of Newham. They do not show on the statistics, but there is still a need and the children go elsewhere. Ms Russell: Your point about Newham, which I know very well, complements my earlier point that at the moment there is no doubt that some children are being placed in special schools very appropriately and we have to explore whether in the future more of those children could be in mainstream. It is very important that we have to build a greater synergy between the specialist expertise and the mainstream, because I do not think we always know at the moment whether we can really include all children effectively and achieve the life outcomes that we want. It is a matter of working towards inclusion - which we must do - but it also goes back to my final point about valuing specialist expertise and specialist provision, and building bridges - which brings us back almost to the jigsaw - between specialist and mainstream to maximise opportunities, and having a real look at and constantly re-evaluating along the way what is working in the best interests of children and pupils. Chairman: I am afraid we are out of time. It has been an absolutely fantastically good session for us, Phillippa Russell, Cathy Casserley and Steve Haines. We have learned a lot. Forgive us if we pushed you a little at the end. That is our job. Thank you very much for coming. I hope you will keep in touch with the Committee. If, on the way back to your day jobs, you think of something you should have said to the Committee and you wish you had, do be in communication with us. Thank you. Memoranda submitted by the Independent Panel for Special Education Advice, Children's Legal Centre, the Advisory Centre for Education and the Law Society Examination of Witnesses Witnesses: Mr John Wright, Chief Executive, Independent Panel for Special Education Advice, Ms Julia Thomas, Solicitor, Children's Legal Centre, Ms Chris Gravell, Policy Officer, Advisory Centre for Education, and Mr David Ruebain, Solicitor, Law Society, gave evidence. Q327 Chairman: Could I welcome our next set of witnesses, please, John Wright, Julia Thomas, David Ruebain and Chris Gravell. Thank you very much for spending the time with us. We want to talk particularly about some issues that have cropped up time and time again in this inquiry. Would you like to make an opening statement, or do you want to get straight into questions? Ms Thomas: Straight into questions. Q328 Chairman: Teasing away at this statement process, which is at the very heart of our considerations, on the one hand we have a process for statementing. We know that once you are statemented there is a statutory duty to provide what the statement suggests. We also know there is a complication that the local authority both is in charge of the statementing process and then the provision of whatever the statement suggests. We know in the background that Scotland seems to be going (as so often) in a different direction on this. How fit for purpose now is the statementing process? Mr Ruebain: Thank you, Chairman. My name is David Ruebain. I am Chair of the Law Society's Mental Health and Disability Committee and I am a solicitor in private practice. I have a specialist department in education and disability law, so this is really my area of work and it has been for 16 years. Incidentally, although it was a very long time ago, I did attend both special schools and mainstream schools myself when I was a child. I am a big fan of statements. I am a big fan of the current statutory regime, for a number of reasons. First of all, unusually, it provides for disabled children - who I often choose to call "marginalised groups" because, in this context, when we are thinking about disabled children or children with special educational needs, really the purpose of the law is to reflect the fact that for whatever reason they are being marginalised. So it is not so much about the nature of their impairments, their medical or quasi-medical conditions - although that is relevant, of course - but it is about how to overcome what would otherwise be an experience of exclusion. The statutory framework governing assessments and statements is unusual, in that, if it is properly carried out, it affords such children a direct right to receive the provision that they require. If it is properly done, that can be a transformative experience. It can, in effect, guarantee the children that they will be given what they need in order to do everything that everybody always agrees is an essential part of education: allow them to thrive, make the most of their school careers, become active citizens and so on. For those reasons, in summary form, I think that we should act very carefully before we decide that we want to get rid of that system. Q329 Chairman: David, you did very well in terms of introducing yourself as well as answering the question. Perhaps all of you could do that. Julia Thomas, is it fit for purpose? Ms Thomas: I am a solicitor specialising in education law at the Children's Legal Centre, which is a national charity dealing with children's rights. I have been working in this field for four years now. I also have a child with a disability who is on the autistic spectrum, so I have some experience personally as well of education within a mainstream school for a child with a disability. I think I would agree with David that the system, if it works correctly, is a good system. My concern is that in very many areas the system is not working very well at the moment. I think there are a number of reasons for that. I think parents receive insufficient information about the system, and, sadly, sometimes they receive incorrect information about the system. They may, for example, if they speak to special needs within the school, be told, "Oh, there's no way that your child will get a statement, there is no point in you asking for a statement" or they may not be told that they have the opportunity to request a statutory assessment. There are very many parents out there who could have asked for a statutory assessment but have never received the information to enable them to do so, and a lot of children who are missing out as a result. I think that is one problem. Q330 Chairman: Is that the reason, when you look at who receives a statement, that it is very often the more middle-class professional families, who are able to get through the hoops. Ms Thomas: I think that is quite right. One of the things we are trying to address within my particular organisation is how we can get access to parents from other groups, because at the moment we are dependent upon parents telephoning us for our advice and we need to be able to reach into groups where they would not normally choose to do that. That is quite a challenge for us. Certainly many of the parents who ring us, even those from middle-class backgrounds, are saying, "Well, we were not aware up until now that we could ask for a statutory assessment." Sometimes the children in question are 12, 13, 14 years old and they have gone all the way through the system without the parent knowing that there was that opportunity for them. Q331 Chairman: John Wright, what is the average wait for a statement, even if one goes for a statement? The common complaint one hears, certainly as a constituency Member of Parliament, is that it is a very long process. Mr Wright: It ought not to be because the process is dead-lined in law. I work for a charity called the Independent Panel for Special Education Advice. We are a parent-led charity. We advise about 4,500 parents of children with special educational needs a year. We target information about our advice services to low income families: generally about 50 per cent of our parents are from households with annual incomes of below ?25,000 a year. We try to break this problem you identified, in terms of a complex procedure being more accessible to middle-class families, but it is true that this is difficult for all parents. The difficulty arises, in our experience, not from problems with the legal framework or the assessment system or the statements; the problem arises from local authorities disregarding their duties in law. This is the main problem area - and often that is by stated policy. Q332 Chairman: Chris Gravell, is that not at the heart of the problem? There is a sense in which there is no bog standard child: every child has special educational needs at one level; every parent knows their child much better than anyone else, on average; but there is a tendency to have this local authority view that every local authority could be bankrupted if all the statementing took place and all the full implications of the resource had to be delivered. Is this not a recipe for bankruptcy for most local authorities, if they were to take it to its logical conclusion? Ms Gravell: I am the policy officer for the Advisory Centre for Education, which is an independent national charity advising parents throughout England and Wales, mainly through telephone advice lines but also via our website and via books we publish. Q333 Chairman: Were you originally set up by the famous educationalist Brian Jackson? Ms Gravell: That is right. Q334 Chairman: Who came from Huddersfield. Ms Gravell: That is right. Q335 Chairman: I just felt I had to get that plug in. Ms Gravell: Yes, he had a huge concern about the success of working- class children in the education system, which is relevant nowadays. The argument that this is going to open the floodgates may be true, but I do not think there is enough evidence out there of how many children do actually deserve statementing as opposed to being judged to be within arbitrary targets or thresholds by local authorities. I do not think local authorities themselves know what would happen if they freely advertised what could potentially benefit the children they are looking after. There is an advantage about statements - which I want to stress, because we are an organisation for parents. The legislative framework was miles ahead when it was passed, by giving parents standing for children, acting for their children, the right to initiate, the right to participate in the process and the right to challenge the outcome and go to an independent tribunal if they disagreed with the decisions. There are problems with looking, for instance, at alternative frameworks, if they do not carry out those functions for parents. We really need strong rights for parents acting on behalf of their children and to get the entitlement their children need. Could I comment on the point that it is a system for middle-class parents? Q336 Chairman: Yes. Ms Gravell: Obviously any complicated system is going to advantage people who keep documentation and are literate. But there are ways that the Government deals with that in other areas, where they try to make systems accessible to parents. I think that is a problem for the system and for government. It is not a reason to say this system is a discriminatory one. There are ways for dealing with discrimination. Chairman: It is our job to articulate what we have picked up in previous evidence, but I take your point. Does anyone else want to go in on that first round? Douglas, you have your first question in the Committee. Q337 Mr Carswell: Picking up, Julia, on some of the points you have made, would you have any sympathy with the view that the statementing process as it stands is fundamentally flawed, in that it allows the so-called experts, the LEA experts, to be too vague and non-specific about the provision for the child. In my experience, for example, Essex Local Education Authority has tended to drag its heels, wriggling out of the provision and the legal entitlement. They are experts; it is their full-time job. Not only does this discriminate against vulnerable families who perhaps lack the access to information and the ability to take on the experts, but do you have sympathy with the view that we perhaps need to replace this current system with a far more specific means of assessing people's needs, possibly even quantifying the financial entitlement to which that child is entitled? Ms Thomas: I think it is a very important point that you are making. Certainly we see huge numbers of statements, and many of them which have been accepted by parents are extremely vague. As was raised by your previous set of witnesses, there is a problem in this whole area of enforceability. I think it is particularly true in relation to statements, because, although there is a legal duty on the authority to provide what is set out in part 3 of the statement, in reality, if they fail to do so, it is extremely difficult to do anything about it. To my mind, one of the big problems is that the special needs tribunal does not have any jurisdiction in relation to enforcing statement provision - which I do find difficult to understand, given that they have a similar jurisdiction on their disability side. The other problem is that if you are going to enforce a statement, you have to look at judicial review. There is no way you will succeed in a judicial review if the statement is not very specific about the provision. It is very unusual for the statement to be so specific that it is enforceable. I think it is a very good point that local authorities - not just Essex - do tend to make those statements deliberately as vague as possible and much of my time is made up with parents and LEAs negotiating to try to get those statements into proper order. I would say it is not a question necessarily of changing the statement; but I think it may be necessary to tighten up the local authorities' duties in terms of how they express their support in the statement, particularly in part 3, and also looking into how there might be an enforcement mechanism should they fail to put that support in place. Q338 Chairman: Do you agree with that, David Ruebain? Mr Ruebain: I think Mr Carswell's point, if I understood him correctly, was to replace the existing system with one where we allocated a sum of money. Q339 Mr Carswell: Ultimately, if that is the way we need to go in order to make sure that the children get their entitlement specified. Mr Ruebain: I would not agree with that, if I may say so. The problem at the moment is not with what the law says - because the law does require a higher degree of particularity in the statement. The problem is that many local authorities do not comply with the law. Were we to change the law to say that local authorities would have to allocate an amount of money rather than to particularise provision, then that would weaken rights for children, because it might be that that money may happen to purchase the support that they need, but, equally, it may not. The only way that you can guarantee that a child who needs additional different provision will get it, is to set out what that additional and different provision is. That is precisely what the law requirement is at the moment. My own view is that the law as it stands at the moment does not need a radical overhaul. If I were to press for any particular change, it would be to press for greater policing arrangements of local authorities. Q340 Chairman: John Wright, you have indicated that you want to come back on a point. Mr Wright: On this point, when SENDA 2001 was going through Parliament, we made representations to the Secretary of State and the DfES for an amendment which would slightly expand the existing duty in law to specify the special education provision required; to expand it so that the law read "to specify the kind and quantitative amount of special education provision required". In effect, this would have taken something that is clearly in the Code of Practice - of which local authorities are aware but disregard - and put it into the primary legislation. The Government did not favour that - in fact, at that point they did not favour having it in the Code of Practice, so there were great problems caused by that. But what made me nervous about your question was that you started off by saying, "So is this law ineffective or do we need to change this law"? Desperately we must hang on to this law. This law guarantees an entitlement to children. Try to change the law overall and you will be lobbied mercilessly by those people who want to remove the entitlement and they will do it under a variety of charades but get something less bureaucratic, get something quicker. The enemy here, in terms of the enemy of children's rights, want to remove the entitlement - and that absolutely has to be hung onto. The answer then is not to overhaul the law but to look at this precise problem and amend the law to cover it; that is, to strengthen the law. Q341 Chairman: Going slightly off at a tangent, if I may, you said that some LEAs do not comply with the law. Does Essex comply with the law in your opinion? Mr Wright: Not always. Ms Thomas: I am in Essex, and I would say: no, most of the time not. Q342 Mr Carswell: I have only been an MP for eight months, but I am inclined to agree. Mr Wright: It is also our experience from our casework. Ms Gravell: I would like to add that there is a policing mechanism available now which should be used. When Ofsted inspects local education authorities, it looks at their statutory duties with regard to SEN. It has a regular section within the LEA inspection reports devoted to that. Rarely do they identify content of statements and this very important duty as something which they inspect. They usually talk about adherence to time limits. If an LEA like Essex adheres to time limits but produces a rubbish statement, they are said by Ofsted possibly to be meeting their statutory obligations, whereas actually they have evaded the most important one they have to an individual child. I think we could urge Ofsted and other inspection agencies to look at that duty more carefully for content as well as process. Q343 Jeff Ennis: I would like to ask our witnesses, given that the rest of the UK legislatures, including Ireland, are moving away from the statementing process, why should we persevere? Why are they moving away from it and we are wanting to stick with it? Mr Ruebain: I know that Scotland has changed its framework. I do not know that Northern Ireland has. Mr Wright: Northern Ireland has not. Q344 Jeff Ennis: Northern Ireland is part of the English legislature. Mr Wright: No, it is not. It is a separate law but it is very, very similar. It is based on statements. Q345 Jeff Ennis: Okay. Mr Ruebain: I have to say I do not know exactly why Scotland decided. Q346 Jeff Ennis: Wales are going down that route as well. Mr Ruebain: The law that we are talking about today covers Wales as well. Jeff Ennis: I understand Wales are looking to move away from it as well. Chairman: Let us not have a discussion about this. The one we know about is Scotland. Let us stick with Scotland. Q347 Jeff Ennis: And Ireland, Chairman. Mr Ruebain: I do not know why they have done it, but my guess is this - and I suppose it is a half-educated guess. One of the first things I said is that special educational needs law is unusual in the way it provides for marginalised groups. If you look at parallel legislation, for example, community care law, services for disabled adults and others who need additional different provision, a key aspect of that legal framework is that whether or not a person has a need depends in part on the resources available to the local authority. Conceptually, it is a somewhat bizarre idea. It seems to me you either have a need or you do not have a need. But certainly in community care law you can have a need if the local authority can afford it, but, suddenly, if they cannot afford it, you no longer have that need. That is different in special educational needs law. I recognise that that makes it more onerous on public bodies because it means, unusually, they have to find the money for a marginalised person if they decide they need it. It is different from health law; it is different from community care law; it is almost unique in special educational needs law. My guess is that maybe public authorities simply do not like that. It means that they have to guarantee provision, whereas they do not have to in other sectors, and maybe the pressure has been brought to bear on Government or on the Scottish legislature to say, "Can't we relax this a little bit? Can't we have slightly more flexibility?" My own view, for the reasons you have heard, and those of my colleagues here as well, it seems to me, are against that. But I suspect that that is the reason: because of effective lobbying. Q348 Jeff Ennis: Going back to Baroness Warnock, she said in her report last year, "Far too much of the expenditure on special needs was taken up with the bureaucracy of assessments." Mr Ruebain: I do not want to hog this but I do want to say something about Baroness Warnock, if I may, because I listened very carefully to the last set of witnesses. My great concern about what Baroness Warnock wrote in the paper that she published in April last year, and also because I have read some of the transcripts of her evidence to you when she spoke to you, is not that she takes a view with which I happen to disagree - because of course she is entirely to that view: she is far more experienced and important than I am in this work - but that she premises her opinions on a series of factual positions which are plainly wrong. My concern is that she has premised a lot of what she has said and the information she has given you is premised on information which is simply not true. I am sure it is inadvertent, but it is wrong. Q349 Chairman: Which information. Mr Ruebain: For example, in her paper she says that 20 per cent of children in schools have statements, to support her view that it is a wholly bureaucratic situation. That is not true. It is two per cent. Somehow she has multiplied the figure by ten. She also said, I think to illustrate her point that schools are under great and unwarranted pressure to meet the needs of disabled children, that if the head teacher were to exclude a disabled child, he or she would face criminal sanctions. There are no criminal sanctions. Criminal law has no part to play in this area of law. I do not want to occupy all your time - I have a long list which Mr Wright and I will put in a paper which we will publish shortly, hopefully - but my concern, although she is obviously entitled to her opinion, is that a lot of what she says is premised on no research or simply it is wrong. I do not know how else to put it, but it is just wrong. Q350 Chairman: You will give us the information you have not given us orally today. Mr Ruebain: I am happy to send it to you, yes. Q351 Jeff Ennis: So you would dispute, David, the fact. There is not too much money being spent on the bureaucracy of the assessment process rather than on the provision. Ms Gravell: I was part of a campaign umbrella group during the 2001- 02 campaign over the Code of Practice. During that time, the organisation wrote to the DfES and asked for a figure for how much was spent on the bureaucracy of statementing (that is, the administration rather than the valuable bits which actually address the needs of the child). We got a response that in their estimate it was four per cent of the total SEN budget. I do not think that is a lot. Statementing usually happens only rarely in a child's life - it can sometimes be only once - and it is like a capital investment. You are making one big effort to identify that child's difficulties and the provisions to meet those difficulties. After that, you have some renewal processes of reviews, possibly amending the statement, but you do not necessarily go through that full thing again. The chief expense in statementing is on getting the experts to have a look at the child. I think one of the problems that we have identified in the current situation is the drop in the statutory assessment bit of the process. It is all very well to say we will get rid of statements because they are bureaucratic, but if you do not have that big, multi-agency, full-team look at the child, the school does not necessarily ever get a chance of properly addressing the child's needs, because they have not identified what the difficulties are properly and they have not identified how to address those difficulties. Q352 Chairman: On a point of order, John, unless the lady who gave you that slip of paper is with you as an advisor, it is not allowed for members of the public to pass information. I would remind members of the public that that is not acceptable. I am sorry. Please do not let us have that again. Mr Wright: On this issue of bureaucracy and the assessment process being over-bureaucratic, the point we have tried to make in our written submission is that it is simply difficult to see how assessment could be more stripped down than it already is. What would you dispense with? The professional's assessment of children, the local authorities reading the reports and summarising them in a statement or pressing the button that prints the statement out of the computer and then the stage where parents are allowed to meet and talk about it? This seems to everyone who works in this field to be pretty minimalistic really. Where is the fat here that you would dispense with in terms of individual children? Q353 Chairman: You are emphatically all of that view, are you? Ms Thomas: Could I make an additional point? I do think that money is wasted but I think money is wasted very often because local authorities make foolish decisions about cases that come into the process. If I could give you an example of such a case: I have to spend a whole day tomorrow involved in an appeal to the tribunal where it is accepted by the local authority that the parents' preferred choice of school is suitable for the child and is no more expensive than the school they have named in the statement, but, nevertheless, they are insisting upon contesting the appeal. We are going to spend a whole day, at considerable cost to the public purse - and, might I say, to the charitable purse that is paying for me - in order to resolve an issue which could have been resolved quite simply through a meeting. That certainly is a waste of money, but it is not as a result of the bureaucracy of the statementing process, it is about how local authorities are reaching decisions to fight cases. Q354 Stephen Williams: A witness made the point last week in an evidence session about the bureaucracy of statementing that if a child has a statement given by one local authority, let us say Bristol, but then they move to Gloucestershire, they have to go through the process all over again. Ms Thomas: That is not true. Mr Wright: That is not true. Chairman: They are all shaking their heads at that, Stephen. Q355 Stephen Williams: That is why I was asking, because I do remember a witness saying that last week and it surprised me. I thought that was an interesting point and I wanted to hear your opinions, but you are all saying that is not the case. Mr Ruebain: The short answer is that it could be that the new authority would decide to do a reassessment, but they do not have to. The regulations provide for them to step into the shoes of the old authority, so they take responsibility for it. They can look at it and decide that it is perfectly adequate and they will just carry on maintaining it. They do not have to do anything. They do not have to start the ball rolling again. Q356 Stephen Williams: Might it have been the case that the child with the statement turns up in a new authority and the new authority is effectively not wanting to put the resources behind the statement and therefore they go through the process again? Mr Ruebain: Possibly, Ms Thomas: It may be so. Q357 Stephen Williams: Perhaps we could check the transcript again to see what came across. Mr Ruebain: In relation to that, could I say that there is a problem in relation to looked-after children who have moved from one authority to another, because very often that does not get supported. Q358 Mr Chaytor: You are obviously in support of statementing, regardless of certain reservations about the limitations of the local authorities' implementation. But what is the alternative? Those who argue against statementing, as a point of principle, what are they saying should replace it? Mr Wright: I have not heard an alternative. I believe when Baroness Warnock was asked this at the Committee she said she did not have any ideas because she was not an expert. I have not heard an alternative to statementing as a way of guaranteeing that children receive the provision that their needs call for, in the same way as I have not heard an alternative scheme for assessment that is less detailed or less bureaucratic. This is a question you must put to the critics of the current legal framework: What is your alternative? Q359 Mr Wilson: I have just dug out the notes of the session we had with Baroness Warnock and one of the things she was saying about the statementing process is that she felt it was totally inequitable. She compared the example of two children, one of whom went through the statementing process and ended up in a school and one of whom did not even get to the statementing process because the local authority withheld financial resource or whatever. So two children with the same special needs ended up in totally different circumstances. Mr Wright: The law provides for - and it is one of the values of it - an assessment of an individual child's special educational needs and the extent to which those needs can be met from the provision available to them in their ordinary school. An assessment is a bipolar decision; it is not just based on the needs. Whether a child needed a statement or not would depend on the resources, the expertise that happened to be in that ordinary school. So it is quite fair and possible for two children with exactly the same needs to be receiving exactly the same provision but one of them without a statement and the other one with a statement. There is nothing inconsistent about that. Q360 Mr Wilson: Do you not think a system that has such vast differences in outcomes for children with the same problem ----- Mr Wright: It should not. Q361 Mr Wilson: Exactly, it should not. Mr Wright: This system should not ---- Q362 Chairman: Through the chair, please. Mr Wright: I am sorry. Q363 Chairman: It is very difficult, because our team stretches right down the table and you are very close and it gets to a personal conversation. We have to make sure that does not happen. You have a rest for a moment, John, and let me call David Ruebain. You have made an attack on the facts of what Warnock said, so would you like to come in. Mr Ruebain: She was obviously referring to a particular situation with which she was familiar and I am not, but, if the current statutory framework is properly applied, it is designed, quite properly, to deliver the provision a particular child may need having regard to his or her local circumstances. Let's say if you took two children with Down syndrome, by way of example, and one of them happened to be in a particular local school which was heavily resourced with certain levels of support and the other child was in a different school in a different area which had a different matrix of arrangements. It is quite correct that they should have different statements; it is quite correct that in fact one of the might even not need a statement if it so happens that all of his or her needs could be delivered through the local resources. There is nothing improper about having two children with the same disabilities but one has a different statement from another, because of the quite correct position that they are designed to address the gap between their needs and provision. Could I pick up one other point that was raised as well? Q364 Chairman: Yes. Mr Ruebain: I know the US has a similar framework to ours. Their legislation is called IDEA - and I forget what the acronym is for - which is aimed overarchingly to consider each particular child's needs and draw up a plan for them. I would not pretend to be an expert on the international position but I understand that there are other parallel arrangements which do what we do. Q365 Mr Wilson: I think we are coming to a consensus that the current system is not working, but your answer seems to be that if you enforce the rules properly which are already there the system will work. Ms Thomas: If there is a means of enforcing them - an effective means of enforcing them. Q366 Mr Wilson: Do any of you have an answer to that particular question that you have posed? What are the effective means of enforcing the current legislation that already exists? Mr Ruebain: We have all made suggestions on this. You could compile a list. The Secretary of State has enforcement powers. The Secretary of State is too reluctant, in our view, to use these crisply, publicly, in a way that sends a message to all local authorities. The Secretary of State would deal in a secretive way with one complaint relating to one child, usually persuade that LEA to amend its ways behind the scenes, so no-one hears about this, but nevertheless there is an enforcement power there. We have argued for a number of years that the special educational needs tribunal should be able to address more than just an individual child's problem; for example, when a parent appeals and as part of the documentation there is evidence that an authority is pursuing an unlawful policy never to quantify provision in statements. This happens. This comes before tribunals. At the moment all they can do is make an order that corrects that one child's statement, leaving the authority absolutely free to continue with the policy. We argue that the tribunal should have broader powers, in order to be able to make an order that would correct behaviour across the board within an authority when an individual case gives them the evidence that was needed. These are two areas. Other people will have other ideas. But enforcement is not a technical problem; it is a lack of political will. Mr Wilson: That answers the question I was going to ask: Why do you think the Secretary of State is so reluctant to enforce these powers? You think it is a lack of political will - or do you think there are financial reasons? Q367 Chairman: Does anybody else want to come in on this? Ms Gravell: I would like to go back to your original question, when you said that the whole system is not working, and also to refer to the total inequity that Baroness Warnock was talking about. I do not think we can say that. We can certainly point to the fact that on our advice lines SEN is disproportionately a huge topic, but then it is something that really bothers parents of children who are having difficulties. We can also point to the fact that a minority of disciplines in SEN, challengable decisions made by local education authorities, are challenged and taken to the tribunal. I think we all know of authorities which never turn up on advice lines or as big causes of problems for parents. I think you can look at good practice. There is good practice in individual schools and individual authorities, so it is not the case that we have a total breakdown, and we can actually learn from that good practice and look at what is going wrong in the authorities that are turning up over and over again on advice lines. It is not just a matter of seeking new measures. There are things that people have the potential to do now - like Ofsted coming in, looking at individual schools, looking at authorities and so on - to make sure that the current system is working better. Chairman: We would be grateful, as a Committee, if you could give any steer on which authorities are better and which are worse, because we are planning visits. It does not have to be on the record, but if you could tell us where to look we would be grateful. Q368 Mr Wilson: I would like to pose to whoever wants to answer it, the same question I posed to Baroness Warnock back in October. I think it is ?70-?90 million that we are currently spending on the statementing process, do you think we are getting good value for money from that process? Mr Ruebain: I find it impossible think in these sorts of macro terms: What is the right number of million or hundreds of millions of pounds to spend on it? If you look at the NHS, I do not know what the figure is on the provision of human resources, for example, but presumably it is tens of millions of pounds, so the question is: Is it a good use of money? On the face of it, if you say, "Give me ?10 million," I would have a whale of a time, but it would be completely ludicrous for me to say that is the wrong amount of money. I do know, however, that in her paper there is no evidence to suggest that it is an over-bureaucratic arrangement. Unfortunately, Baroness Warnock makes a series of assertions about the effectiveness of provision on no evidence at all. It does not say on the basis upon which she has decided that ?70-?90 million is too much. I do not say that there is not room for making things more efficient - I am sure there are - but I have no way of saying why that figure is way too much and what is the way that we are going to deliver targeted provision for marginalised children without having a level of bureaucracy, as you would for any kind of public arrangement. Q369 Chairman: John, you are looking excited about that question, do you want to come in on it? Mr Wright: The question seems to leap a stage, in a way. We have a legal framework which was consciously designed and adopted across party. I think Margaret Thatcher set up the Warnock Committee; James Callaghan's Labour Government drafted the Bill; then Margaret Thatcher as Prime Minister enacted the Bill as the 1981 Act. If you look through all of the debates, there was never an argument, never a whisper of disagreement with the fundamental principle behind this law, that children with learning disabilities should receive/must receive/will by law receive the provision that their needs call for. That is a principled statement, it is a correct statement, but of course it is a democratic society and, if someone wants to change the law in order to remove that right from disabled children, that right to the educational provision that their needs call for, then this is the right place for that sort of law to be changed. But that is essentially at the bottom of this. There is no way this could be cheaper than meeting the needs of children who do not have learning disabilities or special educational needs; it is simply something which our society has been committed to and on which there has been cross-party commitment since the late seventies. I see no argument or evidence that we can dispense with this particular protective legal right for children - this safety net, as it were. There is no evidence at all that it would be safe to dispense with this on the basis that there is sufficient goodwill and ability existing amongst LEAs in schools now to meet children's needs without the legal framework. In a sense, there is not. Ms Gravell: What does that figure cover? I do not think it is the process of statementing. In 2004, 26,000 children received new statements. What is the average cost of that? Not more than ?6,000 per child. You were quoted a figure by the DfES, were you not? If not, it is available from the DfES, I know. But that does not add up. I think again we are getting confused about what is the bureaucracy we are talking about that is costing us, rather than the provision for the child which has to be made anyway, which will have to be made under an ideal system in the utopia we are moving towards. Q370 Chairman: Very few of you have said what some of us picked up on visits to schools in our own constituencies to talk about this issue: sometimes heads and teachers say very often it is the teachers who have a better knowledge of the educational needs of a pupil and some of them resent the fact that the statementing process brings in these experts from outside. Is there something about the quality of the experts who are brought in, the educational psychologists or whoever they are? Is that an area you have looked at? It does seem to be patchy, again depending on which local authority you are in. What is the quality of the people who do the assessment and what is the uniformity or the checks that that is a satisfactory process? How good is that stage? And, of course, with Rob's question, how expensive is it? Would anyone like to come in on that? Ms Thomas: In addition to my professional role, I am also a governor in a foundation secondary school, so I have quite a lot of contact with how the school operates in terms of SEN. I have talked to our SENCO regularly about the schools' attitude to SEN. I have to say, it has not been my experience that teachers resent the statutory assessment process. I find that many SENCOs I talk to are very happy when the statutory assessment process starts. Many of them have been saying to the authority for a long time that they want one and, in fact, they welcome the experts coming in and they welcome the input they receive from those experts in assisting them to meet the needs of the child. I cannot say it has been my experience that there is that resentment by and large. Q371 Chairman: Our experts are all right? Ms Thomas: If you deal with the county educational psycologist, for example, their problem is they have huge numbers of children for whom they are responsible and very limited time. They are not going to have huge amounts of time to spend with any individual child. In my experience in Essex, most of the time the educational psychologist might spend 15 to 20 minutes with a child if they are visiting at the request of the school, if they are doing an assessment for a statutory assessment they might spend an hour. You would compare that with a private educational psychologist who we might instruct on occasion, who might spend a whole day with the child. The quality of advice that is going to come through the county educational psycologist inevitably, however good they are, is going to be limited. Q372 Mr Wilson: What schools do resent is that the statementing process takes an awful long time, six seven months, and the schools have to invest a substantial amount of budget in that which they do not get refunded - yes, they do - from local authorities. This has been a common theme with a number of schools that I have visited. Ms Thomas: I do not disagree that that may be true, but I think there are equally large numbers of schools who would like pupils to be statemented. The local authorities are not statementing them and the schools have to find, from their own resources, huge amounts of additional money to support those children within school because the local authority will not do a statutory assessment. Mr Wright: That is the cost. The cost is that the school will do its best, of course, to meet the child's needs in a situation where they are not resourced to because of the time the LEA may take for doing the assessment. The assessment process should not absolutely be a drain on the schools' resources, because all they are asked to do is to submit an educational report. In any case, that will normally draw together information already available on file. I would go so far as to say in most cases this should be cost neutral. Q373 Mr Carswell: We talked about some of the flaws in the current statementing process and the current system. Do you think some of these weaknesses fall particularly heavily on those with more moderate special needs because by nature on the spectrum it allows more wiggle room for the LEAs to evade what would otherwise be their statutory obligations? Do you think it is particularly with those with more moderate special needs that some of the failings in the current system apply? Ms Thomas: I would say with the more moderate special needs they largely do not get into the statementing process anyway because schools will try to deal with them with school action or school action plus and may well say to any parent who queries it, "I do not think you are going to get a statement". Q374 Mr Carswell: It fails them completely. Ms Thomas: I would say many, many children with moderate difficulties do not get into the statementing process at all. Certainly, if you take the case of high functioning autism, which is my personal experience with my child, that was not picked up or supported through the statementing process. Q375 Chairman: I think we may have to have you back again because we are running out of time. Ms Gravell: We have got a special concern about the children who do not get statemented, the children who are on the school base stages, because of the reduction in statementing in a lot of authorities and the increased delegation of funding to schools. You need to have a really robust system for these pupils so their progress is properly monitored and their needs are identified properly. I think we gave an example of a child who was assumed to have a literacy difficulty which was being addressed through phonics. He was discovered, when his parent got a private assessment, to have an auditory processing difficulty. He could not understand the phonics, it was like being shouted at in a foreign language and he needed an entirely visual route. That is a problem. If the multi-agency assessment, which is part of the statements, is going up and away from a lot of these children, and you get more children who would have had that look at them in the previous funding regime, you need an identification of need and a proper identification of strategies to meet those needs and thereafter you have to have proper tracking of whether those strategies are working. Ofsted pointed out in its 2004 Report that schools are not very good at doing that nor are local education authorities where statements are concerned. One of the problems is the anti-bureaucracy campaign is targeted at what is called individual education plans which are the things that are meant to monitor the pupils on the school base stages. You are supposed to have your targets and your strategies in place and then at timely intervals you look at how far you have gone. If you have not met those strategies, or you have met them and you need some more, you have a review and you put new ones in place or you vary the amount of support and go up a level. If you do not have that kind of tracked process, you have lost the ability to respond properly to that child's difficulties. Q376 Mrs Dorries: To move on to a slightly different subject, John, you are from IPSEA. In terms of authorities, they have a statutory obligation to statement children and yet many authorities act as though it is a discretionary right, and they quite often withhold the information from parents that it is a statutory obligation. That is obviously evidenced by the number of SEN tribunals we have. Do you, from your organisation, have any particular examples of any authorities which particularly abuse this, who are known or infamous for not letting parents know that they have that right in law and are treating it as though it is discretionary? Mr Wright: I do not have information to hand which I can read out now, I can certainly provide it. On our website we list and document those authorities that we make formal complaints against to the Secretary of State for threats of judicial review. They are authorities which are - I would slightly reword it, but they are roughly what you describe there - pretending that they do not have a statutory duty. They are misinforming parents about the nature of their duties in law. Q377 Mrs Dorries: There must be one or two you can name now off the record. Mr Wright: Obviously we database our casework, so if I just mention two names. This is slightly strange, perhaps. Over the last seven years we have had more calls from parents with difficulties in Essex than any other local authority. This is what I always find interesting, the second in the list is Hertfordshire but, also, over these seven years we have had twice as many calls from parents in Essex than Hertfordshire, so Essex is way out in the front and has been for a long time. Q378 Chairman: Something is happening in Essex. Mr Wright: You are going to ask me why. Q379 Mrs Dorries: Has not somebody from Essex in a key position just gone to the DfES to be the special needs adviser? Ms Thomas: That is quite possible, yes. Chairman: You are asking the wrong people. Q380 Mrs Dorries: You do agree that is an issue. Do you think the SENDA Act 2001 has made life worse or better for children with Special Educational Needs? Ms Thomas: There were two completely separate bits in that Act, were there not, there was the bit which opened up the possibility of disability discrimination claims for children in schools, and that is an absolute gain which has been needed for a lot of years. There is no way anyone can say that has not made life better. With regard to SENDA in terms of the SEN law, it was a lot of small changes to bits of the legislation. Yes, I think all of those were positive changes. However, the difficulty in your question is if this is a law on a piece of paper, is it being enforced? Is it a good Act in terms of improving the situation? Mr Ruebain: Broadly I agree. I wonder if there is something specific you have in mind, Mrs Dorries, but I think SENDA was a great triumph for disabled children. Q381 Mrs Dorries: My second question is about SEN tribunals and the cost and disparity between access to SEN tribunals. Because authorities are not honouring their statutory obligation to statement many parents have to go to the point of a tribunal, which is at a huge expense. Do you have any particular experience of parents who have had to go to huge expense? Also, is it the case that when parents do get there and they do fight their case, they are almost always successful? Ms Thomas: No. I think the tribunal needs to be looked at. We have made a point in our submission about looked after children. We have a huge concern about looked after children because at the moment the only people who can make an appeal to the tribunal on behalf of a looked after child are the social workers who are employed by the same authority that the appeal is being made against. This is a huge problem. Ironically, because of the Every Child Matters agenda, local authorities are now merging their social services and education functions into one department. In fact, that is now going to get worse because it is not even one department against another department, but it is the same department. These looked after children are being left and I have a concrete example of this. I have a child and a statutory reassess was requested by a social worker on my advice. I then had to put in a complaint to the local government ombudsman against the authority in question. She then was told not to have any more contact with me. When the county where he was living refused to do the assessment, she did not appeal and she did not even tell me that they had refused. Consequently, he completely lost his right of appeal and had no access to the tribunal. That is a very serious issue. It must be addressed because the most vulnerable children - and there are very many looked after children with special needs - are losing that right completely, so that is major. Q382 Mr Chaytor: Can one of our witnesses clarify the distinction between the processes that apply to academies, in terms of the naming of schools with statements, and those that apply to all of the schools? Mr Ruebain: It is a live issue at the moment, and I think we ar Quote Share this post Link to post Share on other sites
UltraMum Report post Posted January 27, 2006 Mr Wright: Obviously we database our casework, so if I just mention two names. This is slightly strange, perhaps. Over the last seven years we have had more calls from parents with difficulties in Essex than any other local authority. This is what I always find interesting, the second in the list is Hertfordshire but, also, over these seven years we have had twice as many calls from parents in Essex than Hertfordshire, so Essex is way out in the front and has been for a long time. Q378 Chairman: Something is happening in Essex. Mr Wright: You are going to ask me why. Q379 Mrs Dorries: Has not somebody from Essex in a key position just gone to the DfES to be the special needs adviser? Ms Thomas: That is quite possible, yes. That's worrying I feel like I want to go up to London and shake some of their heads together ... how do we get a say on these things? ... Quote Share this post Link to post Share on other sites
oracle Report post Posted January 27, 2006 I feel like I want to go up to London and shake some of their heads together ... how do we get a say on these things? ... Well we have had a say - that is Autism-in-Mind - because we provided written evidence to this committee. However I have now asked several time if we can be considered to give Oral Evidence. So far we have heard nothing. The bulk of the evidence has so far been given by group based in and around London - I would be happier if groups from all around the UK were being asked to give evidence. Don't get me wrong I know that groups like IPSEA and the DRC are supposed to represent the whole of the UK ( IPSEA certainly do) but it would be nice if just for once someone from outside of London could be given an opportunity to speak. It would also be nice if someone apart from NAS were given the opportunity to have a say. NAS have to be very politically correct and I think what is needed now is someone to tell it like it really is and be damned for doing so Carole Quote Share this post Link to post Share on other sites
