Children with special educational needs (SEN) have a right in law to receive the ‘additional or different’ educational provision their needs call for, but there’s no ‘policeman’ to ensure that Local Authorities fulfill their legal duties. Instead, children with SEN rely on their parents and relevant professionals knowing the law and being able to fight for their rights. Misleading parents about the details of their children’s rights, then, is a serious matter: it directly reduces the chances of children receiving the help they are entitled to. Recent culprits include the BBC and England’s Children’s Commissioner.
The BBC’s six part drama ‘The A Word’ (Spring 2016) was extensively plugged, and many of the parents of the one and a half million children with SEN in our schools will have watched the scene in episode 4 where the parents of Joe, a boy with a severe form of Autistic Spectrum Disorder (ASD), who has just started school, discuss his provision with the Head Teacher...
Father: What we want for Joe, it was called a Statement when I was at school and now it’s an EHC Plan, isn’t it? You know, to get him extra help in the classroom.
Mother: Yeah, but not like, you know, in-your-face-help that all the kids notice.
Head: We have lots of children who need extra help so they really are used to it …
Mother: Well, I’ll be able to see that for myself in about ten minutes. I’m on the parents’ Reading Rota. Two times a week. If I’m going to commit to this school then believe me, I’m going to commit.
Head: I know it’s a pain but the Local Authority insists that there are stages the school has to go through first before issuing an Education, Health and Care Plan.
Mother: Yes, but the reports you have in front of you are all you need. We’ve got a customised speech therapy plan. It’s all in there. These are the top people that we’ve consulted.
Father: I think what Alison is trying to say is that they are very thorough reports. Pediatrician, Clinical Psychologist, Speech and Language Therapist. Don’t ask me to spell any of them.
Head: You have the diagnosis but until we can show that we have tried to meet Joe’s needs within the existing school budget the Council won’t offer any extra.
Father: I just don’t want Joe to fail before he gets the help he needs. I’m telling you, he will fail. It happened to me. It’s not nice. It’s not nice at all.
Head: We have to play the game and we need your support.
Mother: Yes, well, it’s a funny thing. I swore I wouldn’t be one of those parents who’s a pain in the arse but, you know, Joe’s been at school half a term and I have decided to be that parent.
When I worked for the parents’ SEN advice charity IPSEA I heard about encounters just like this on a daily basis, where parents had been told that LAs (Local Authorities) do not have to provide the resources required to meet a child’s needs until it has been proven that the school’s own resources are not up to the job. Or, as Joe’s Dad put it, until a child is ‘failing’.
Also, it is common for parents to be told that independent professional reports on their child’s needs are a waste of money because they only contain ‘diagnoses’ or, more commonly, that an LA will not consider them, preferring instead the reports from their own professionals.
So in one way, ‘The A Word’ nailed it: the school scene was ‘life-like’ and would have been recognised by countless parents of children with SEN (which, in addition to children with ASD includes children with sensory difficulties, physical disabilities, severe learning disabilities including Down’s syndrome, specific learning difficulties including Dyslexia, speech and language difficulties, and behavioral, emotional and social difficulties).
But the problem was that the Head Teacher misrepresented the process, set-out in the Children and Families Act 2014, by which Local Authorities must assess and provide for children with SEN in England. Although this is recent legislation, the specific duties discussed below are restated in the CFA 2014 and have, in fact, been around for over a quarter of a century.
These duties are neither novel nor unknown to LAs.
First, LAs have a strict legal duty to consider a request for a ‘statutory assessment’ of a child’s special educational needs (i.e. an assessment following the form prescribed in law) from either a parent or a Head Teacher. If an LA refuses, a parent can appeal to the First-tier Tribunal (Special Educational Needs and Disability) (the Tribunal) with the power to overturn the decision and order the LA to do the assessment. Cases turn on their individual facts, so, for example, if Joe’s school had no-one with any knowledge or experience of supporting a child with ASD who was available to work with Joe, and/or if he needed speech therapy but the school had no-one on the staff able to provide it, then this would constitute very strong evidence that Joe’s needs could not be met from the school’s own resources. The Tribunal would not accept t an LA’s argument that a child hadn’t failed for long enough to be entitled to a statutory assessment.
Secondly, it is not the case that professionals’ reports would only contain a diagnoses of needs – unless a professional literally did not know what provision was required to meet a child’s needs (extremely rare) but in which case this would be stated openly. If a parent submits an independent report to back-up their request for assessment then an LA would have to consider it. If the request was rejected and the parents appealed to the Tribunal an LA would not get away with arguing that they dismissed the report because it was paid for by the parents and they preferred to be guided by their own professionals’ reports’.
When a statutory assessment shows that a child’s needs cannot be met without additional provision then the LA has a legal duty to produce an Education, Health and Care Plan and to arrange the provision set out in the plan. If an LA refused to issue an EHC Plan without good grounds, and a parent appealed, a Tribunal would order the LA to do so.
I watched the remaining episodes of ‘The A Word’, waiting for a scene in which Joe’s parents got advice on his rights which corrected the misleading information conveyed by the Head Teacher. It never came, which raises the issue of the responsibilities of the BBC, the producer and the script writer. Apparently The National Autistic Society was consulted in the preparation of the series, but did they get the chance to check the final script? Or did the producer/writer judge that the flow of the drama required the school interview not to get bogged down in legal niceties? I have no way of knowing, but I can suggest an alternative take on the scene which, rather than misleading parents, would have informed and empowered them - and avoided the risks to their children …
Father: What we want for Joe, it was called a Statement when I was at school and now it’s an Education, Health and Care Plan, isn’t it? You know, to get him extra help in the classroom.
Head: I know it’s a pain but the Local Authority insists that there are stages the school has to go through first before issuing an EHC Plan.
Mother: I know there is an assessment stage that the LA has to go through first, so I guess what we are asking is that we kick things off by asking the LA for an assessment. I understand that either you can do that, as Joe’s Head Teacher, or that we can do it as his parents. Will you do it or would you prefer us to do it?
Head: It might be better if you make the formal request.
Mother: How long will we have to wait for an answer?
Head: Six weeks.
Mother: What if they say no?
Head: If they refuse you can appeal to the Tribunal.
Father: We’ve got several very thorough reports. From a Pediatrician, Clinical Psychologist, Speech and Language Therapist. Should we send them to the LA with our request for assessment?
Head: Well, you could but they’ll probably only have the diagnosis and until we can show that we have tried to meet Joe’s needs within the existing school budget the Council won’t offer Joe any extra help.
Father: No, that’s not the case. If you have a look you’ll see all the reports set out clearly what the different professionals’ opinions are on the kind of help Joe needs. Perhaps you could go through them and let us – and the LA – know whether the support they say Joe needs can be provided from the school’s own resources? If not, would you write to the LA in support of our request for assessment? That would be very helpful.
Head: Well, leave the reports with me. But we have to play the game and we need your support.
Mother: If by ‘play the game’ you mean go through the process of assessment as this is set out in law, then of course both you and the LA will have our full support.
Father: But if you mean that we have to wait and watch while Joe fails before he gets the help he needs, then no, with respect, that’s not a game we are prepared to play.
Mother: Yes, well, it’s a funny thing. I swore I wouldn’t be one of those parents who’s a pain in the arse but if that’s how it will be perceived simply because I’m going to be insisting on Joe’s rights to appropriate education as a child with ASD, then so be it …
The Children’s Commissioner
It made a much smaller splash than ‘The A Word’ in terms of publicity, but The Children’s Commissioner’s May 2016 survey ‘Access to Child and Adolescent Mental Health Services (CAMHS)’ was as seriously misleading by omitting to identify and investigate LA referrals of children to CAMHS, which probably constituted 41% of all the referrals reported on.
Anne Longfield, Children’s Commissioner for England, explained the reason for the survey as follows: ‘Children and young people consistently tell me that they need better mental health support but the information we have received paints a picture of provision that is patchy, difficult to access and unresponsive.’ And the survey findings confirmed her concerns:
- 28% of referrals for children’s mental health support are turned away.
- 14% of children with life-threatening mental health conditions are being turned away from treatment.
- Children and young people are on mental health waiting lists for up to 200 days.
- 35% of trusts restrict access to children who miss appointments.
Because a child’s mental health problems inevitably, in most cases, impact on their schooling, mental health problems generally, also, constitute special educational needs as these are defined in law. This certainly seemed to be the case for each of the young people featured in the report’s three case studies:
‘From about the age of twelve, George … became increasingly worried and anxious when he was awake but also had lots of trouble sleeping. He started falling asleep at school and his attendance dropped off …
Richard waited a long time to be referred to CAMHS and was diagnosed with ADHD …
Melanie … remembers a first appointment with CAMHS aged ten or eleven years followed by a gap of a couple of years. She continued to struggle with anxiety and attendance at school and so was re-referred to CAMHS by her social worker.’
In the ‘Reasons for referral’ table on page 11 of the CC report the following conditions are identified: Obsessive Compulsive Disorder, Anxiety/Phobic/Panic Disorders, Attention Deficit and Hyperactive Disorder, Autistic Spectrum Disorders, Tourette’s syndrome, School refusal where mental health disorder plays a significant role, Conduct difficulties, Severe or complex relationship difficulties.’ These are all conditions which typically give rise to SEN, as the
Government’s ‘Special Educational Needs and Disability Code of Practice’ makes clear (CoP 2015, para 6.32).
But here is the problem in terms of the CC’s report misleading parents: whereas there are no legal deadlines for responding when a CAMHS receives a referral from the sources recorded in the report (GPs, social workers, school nurses, health visitors, community pediatricians, self-referrals), when a child is referred by an LA the process prescribed in SEN law is likely to be triggered, including the duty to keep to strict legal deadlines. For example:
- if an LA was to refer a child to CAMHS for an opinion at the stage when a parent has requested a statutory assessment, because the LA is under a legal obligation to make its decision within 6 weeks, CAMHS would be expected to respond well within this period.
- if an LA was to refer a child for a CAMHS opinion as part of a statutory assessment, because the LA must complete an assessment within 18 weeks of receiving the initial parental request, again, CAMHS would be pushed to provide their report well before this deadline.
- And if, following statutory assessment, an LA produces an EHC Plan which specifies CAHMS’ provision (either as special educational provision or as health care provision) then in law that provision must be made (CFA 2014 s42(2)&(3)) as from the date the EHC Plan is finalised.
There are exceptional circumstances which excuse an LA breaching a legal deadline but these do not include a child being turned away by CAMHS, or a child being placed on a waiting list by CAMHS, or a child missing a previous appointment with CAMHS.
Clearly, any investigation of the causes for young people experiencing CAHMS support as ‘patchy, difficult to access and unresponsive,’ needed, specifically, to explore the fate of LA referrals (the 41% of referrals recorded as ‘Other’). Yet there is no mention of LA referrals in the report. Puzzled and concerned by this omission I emailed the Children’s Commissioner with the following query:
‘(Your) report does not identify any children as having been referred to CAMHS by Local Authorities. Was it the case that –
None of the CAMHS in their returns to your survey identified any children as having been referred to them by Local Authorities?
In (writing-up) your report you chose to include referrals made by Local Authorities in the general category: ‘Other’ …?’
And got the answer:
‘In our request we asked who had referred the child to CAMHS and had pre-set categories of professionals. We did not ask about local authorities specifically.’
To recap: the CC survey revealed that of the children with mental health issues referred to CAMHS, 28% are turned away, including 14% with life-threatening mental health conditions; some are placed on waiting lists for help for up to 200 days; and 35% of trusts restrict access to children who miss appointments. But because the CC failed to ask CAMHS to identify their LA referrals we do not know how many of these children may have had a legal right to the assessment and/or provision they were being denied.
If it was lax of the CC to fail to ask about LA referrals, it was downright negligent of them, when 41% of sources of referral were reported as ‘other’, not to investigate further.
I would hope that the BBC and the Children’s Commissioner would want to put matters right. Perhaps the BBC could commission a documentary which examines the current operation of SEN Law, in particular uncovering the ways in which LAs may be failing to fulfill their legal duties towards children with special educational needs? And perhaps the Children’s Commissioner could conduct a follow-up survey, this time focusing on the LA referrals in order to uncover what exactly is happening to these children and whether their rights under SEN law are being denied – and publish their findings as an addendum to their original report?
John Wright worked as a teacher, then for IPSEA - https://www.ipsea.org.uk/