How might the reforms being made to these provisions affect legal rights and education?
I recently went, well, sort of incognito, to a session run by my south London council on reforms being made to special educational needs (SEN).
The headline aim of the reforms is to join up the education, health and social care needs of children in a single statement (now to be called an ‘Education, Health and Care Plan’), and to avoid the provision ‘cliff’ experienced by young adults by having a statement that takes them up to the age of 25.
The reforms promise ‘a clear focus on outcomes & a personalised approach to support’, and should ‘identify a pathway through … to paid employment and independent living’.
I was incognito because when it comes to issues around special needs and disability, I have a heavy overlap between a professional interest based on law and politics and, in the past seven years, a personal one – a daughter who has severe and complex disabilities.
In this way, I suppose I am part ‘mystery shopper’.
I’ve written about these reforms before, and the ways they might dilute what are currently fairly strong protections for the education provision for children with a range of disabilities.
Some of the things said by the two council officers presenting, I then put to a barrister specialising in this area – but more of that below.
The first thing worth relating is the other parents in the room – a pretty representative cross-section of people from the area (the way our children are is, after all, randomly determined).
Certain experiences united the parents, as became obvious from comments and questions.
Parents who were present struggled with information on how to access such services as existed. Many had faced a bit of a trial getting their child statemented (the statement unlocks, and then to a large degree protects, services a child needs at least in relation to education).
They reported a range of responses from council staff with whom they have contact – including ignorance, ineptness, and an attitude that made them feel guilty for what little support they were getting.
Some reported that they had been the subject of dramatic and seemingly arbitrary withdrawal of services and support. Everyone had seen services they needed cut.
Parents struggled to be polite, faced with the version of the world presented by officers, but they did manage to be – though two had tears through the effort.
Describing this is not intended to build up the parents as the more put-upon subjects in a Dickens novel (though many there would have been good and genuine candidates).
Instead, their experience is related to point up a challenge – the system they describe across education and social care is the one that is expected to seamlessly deliver all that flows from education, health and care plans (EHCs).
As such no one, as the saying goes, would want to start from here.
Anyway, sitting alongside the EHC plan are requirements for a ‘local offer’ – a slight mis-description that in fact means centralising information about what is available for all children with SEN and disabled children, not just those with plans, rather than any change in what is on offer.
Another key change is the introduction of ‘personal budgets’ – where families might be given money in the form of a ‘direct payment’ to buy a service of their choice that would help one of the ‘outcomes’ the plan identifies.
We were told that the EHC plan, like the SEN statement, is a ‘legal document’, and that it was therefore as strong as the statement it replaced. So, I asked, will the protections on health and social care elements will now be as strong as education currently is?
Yes, officers said – although the true answer is much more nuanced, for example only some social care services required by specific legislation specified in the plan will actually have to be provided (see further below).
They also highlighted that in resolving disputes, there was a ‘right to a mediation’. Anyone can mediate anything, I noted; was there an ultimate right to determination? Yes, they said, this would rest with the tribunal, as it does now.
The new system is better than that originally proposed in 2011 in key ways. But when it comes to the ‘rights’ that are the necessary backdrop to decent service provision, how do they measure up?
As I did in 2011, I took my questions to Stephen Broach, a barrister at Doughty Street Chambers who specialises in SEN and disability issues.
We started with education. It is ‘broadly true’, Broach says, that the protection afforded to the education element of the plan is as strong as before under a statement – an important concession by the government.
Beyond that, it becomes more difficult. On social care what must be included in the EHC and then must be provided is defined with reference to the section 2 of the charmingly titled Chronically Sick and Disabled Persons Act 1970. This is, in Broach’s words, ‘a poorly understood piece of legislation’, which therefore points towards disputes over its meaning in the context of the EHC.
Other social care provision, primarily that made under section 17 of the Children Act 1989 to children ‘in need’, has to be included in the plan but there is no duty to provide it.
Health, he points out, will only feature in the plan insofar as it relates to education. This is in fact the case at present, although under the new system at least those health services which actually make it into the plan must actually be provided.
The new legislation has strengthened requirements relating to ‘information provision’, Broach says, but the ‘local offer’, from a lawyer’s point of view, looks very like a directory of services.
The final major point with a legal aspect we discussed was personal budgets. These are not quite as presented by council officers – certainly personal budgets don’t have the effect of necessarily protecting what might support delivery of the ‘outcomes’ included in the plan.
Personal budgets are typically allocated by a ‘resource allocation scheme’ – a points-based system first developed in adult social care where points for different situations and levels of need carry different weight and translate to different amounts of money. The idea is that the total gives one a sense of one family’s needs compared to others. However, far too often (and despite Supreme Court case law to the contrary) the ‘indicative’ budget is set in stone as the actual budget offered to the family.
Council officers implied (the answer to a question was unclear) that a defined pot would be divided according to that relative need – if true, an approach that Broach says is very likely to be ‘unlawful’ given the absolute duty to meet the needs with provision set out in the EHC.
There are not, though, prices attached to each component part – instead an attempt is made to meet outcomes from what is made available. If the service costs more per unit than it would if bought as a block (of speech and language therapy provision, say), then it need not be handed across as a ‘personal budget’.
A ‘get out of jail free’ card, Broach says.
It all points, as he puts it, to an awful lot that could be challenged as bureaucracies with patchy effectiveness, like my local council, go to work on bringing the new system to life at a time of austere public finances.
Planned limits to judicial review will work to limit some challenges but it is likely that the High Court will need to consider several aspects of the system before all concerned understand how it is supposed to work.
Stepping to one side of a personal interest in all this, the new legislation and the shape of the system that comes with it feels like a missed opportunity.
On a personal level, attending a meeting with other parents, in a room with council officers who show significant gaps in their own knowledge of how things either should, or do, ‘work’, was profoundly depressing.
Not least, legislators haven’t really factored into their plans the low standard of service delivery that pervades at a point in time when government seeks to weaken the ability of fairly desperate people to use the law to secure what they need and have been promised.
Eduardo Reyes is Gazette features editor