There has been a flurry of news around the approach of central and local government around children with special educational needs and their Education Health and Care plans. What we don’t have is the Department for Education’s Send Review, announced in 2019 but yet to be published.

Eduardo-Reyes-2019

Eduardo Reyes

What we do have is a report from the Local Government Association (LGA) which it commissioned a private consultancy, Isos Partnership, to research and write for it, which covers disputes involving councils and the families of children with special educational needs.

It’s a big topic for councils, who lose 96% of cases they defend to the SEND Tribunal. Almost a third of cases relate to a local authority’s failure to assess a child. Over half are disputes on the content of an individual’s education, health and care plan (EHCP).

In summary the report, ‘Agreeing to disagree?’, makes two arguments which alarm charities, campaigners and lawyers who act for families and their children.

First up, Isos blames the increase in SEND Tribunal cases on an ‘unbalanced’ statutory framework. Second, it blames ‘affluent’ families who use lawyers at the tribunal and before.

‘Most of the LAs that we engaged described that Tribunal appeals were more likely to come from more affluent families and less likely to come from families from more deprived backgrounds,’ the Isos report says.

Of course, local authorities can be very fond of being represented themselves. The journalist-led disability website Special Needs Jungle (SNJ), has established that local authorities spend upwards of £40m a year in legal fees contesting such cases.

The Isos report argues the case to ‘revisit the statutory framework’. What is the real meaning of that? Well, in what seems to be a clear reference to the pressure on council budgets, it says a reform should ‘balance the needs of the individual young person with the need to provide for all in a local area’.

Language like this translates as a weakening of the legal force contained in parts of the Education Health and Care plans that set out what a child’s provision should be.

As a result, IPSEA, a charity that provides free legal advice to children and families with special educational needs, contributed evidence to the Isos research, has rejected the Isos findings.

In a statement the charity said: ‘We told them very clearly that the SEND Tribunal does nothing more than apply the law, and appealing to the Tribunal is often the only way that parents can make sure their children receive the special educational provision and wider support to which the law entitles them.’

The report misses the point, its chief executive, solicitor Alison Fiddy, says: ‘The Tribunal doesn’t uphold parents’ appeals because they engage persuasive advocates or because the judge gives in to emanding families – decisions are made on the basis of law and evidence.’

There are only two ways, Fiddy said, that the rate at which local authorities lose SEND appeals will fall: ‘One is if local authorities comply with the legal framework and make lawful decisions. The other is if thresholds for assessment and support are made higher.’

That last point brings us to the SEND Review. Is this what the review will argue for? That is what IPSEA fears. ‘It will be an absolute disgrace if the Government’s SEND Review aligns with the LGA’s preference,’ Fiddy said, ‘as this will result in children and young people with SEND being penalised while local authorities are rewarded for failing.’

SNJ said the Isos report ‘hits a whole new level of gaslighting’ that claims local authorities’ SEND failings are ‘anyone’s fault but ours’.

DfE says: ‘We will publish the review as soon as it is practicable to do so’. But is the department already acting on what the review will say? We can’t know, but in another development, on 8 February the Department for Education handed a £1.5m contract to another private consultancy, Impower.

The contract with Impower is to ‘to deliver better value in SEND’. That sounds bland enough, but DfE has not responded to Gazette questions about the specific purpose of the contract. Impower’s website promises ‘better outcomes that cost less’, and says it has worked to ‘reset parents’ and professionals’ expectations around support’.

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