As of January 2021, in an English school population of 8.9 million pupils there were more than 1 million children who qualified for Special Educational Needs and Disabilities (SEND) support. That means 1 in 6 needs regular in-school SEND support to learn, grow and develop their potential. The heart-breaking reality is that only very few of those have formal (legal) support and most SEND children are failed by the education system that was created to support them.
Many of these SEND children will be legally entitled to an Education, Health and Care Plan (EHCP), which identifies the additional needs a pupil may have and outlines how these should be addressed in school. However, most are shut out from this crucial support system, due to (in the words of the House of Commons Education Committee) the ‘bureaucratic’ nightmare and lengthy legal process that usually comes along with it. It is an access to justice issue, which has been glossed over for far too long.
The issues at the heart of the EHCP system are confusion and expense. Information and guidance about the process is fragmented. Misguidedly billed as ‘self-serve’, the EHCP process is run with non-standardised documents and processes across more than 400 local authorities, with little or no transparency. Parents looking for support are faced with dispersed and conflicting resources.
If parents manage to navigate the process, an EHCP will be produced by the local authority and will often be sent to them with a stressful two-week window to 'agree it'. If the EHCP does not adequately cater for their child’s requirements, the parents will need to go through a lengthy, gruelling and expensive tribunal to enact change. More precious time is then wasted in the child’s crucial development years, something especially galling given that there is a 95% chance of parents’ success in these appeals. This success rate is a statement of the process’ needlessness, and that it is a system that only works against itself and wastes time and resources for all involved.
The onus to rectify mistakes made in EHCPs is placed on those with the least power in the process. During these tribunals, unlike any other contractual negotiations, there are no safeguards against what is all too often an unequal bargaining position. For example, there is a distinct lack of legal aid for these tribunals (which should be a concern in and of itself). Parents who cannot afford legal representation are then forced to go to tribunal themselves against experienced lawyers. This clearly creates an unequal bargaining situation.
In wider professional disputes, such as employee and employer negotiations, safeguards are in place around uneven weightings. The strength of the employer is taken into account throughout any negotiations around the format of employment contracts or termination of employment (when separate representation for the employee is paid for by the employer). Plus, in an employment situation there are set rules on the length of time and the information that needs to be provided, and clear penalties for companies who do not follow the rules and support their employees. Nothing like this happens or exists in SEND tribunals. David is pitched against Goliath, and even if David wins (and in this case parents win over 95% of the time) they still lose. Money is lost as costs are not awarded, as are time and resources, and of course the precious educational time for their child. So then why must such an ordeal must be faced to get to the other side?
What is interesting is that the law itself is not perfect, but it is not awful. Predominately, the issue is the implementation of the law and the system itself. It is just not set up to effectively manage the process and the caseload. If we had better information, better automation, better systems, precedents, interactive workflows, and data, not only could we give parents the tools to navigate the system for their child and their area, but we could also enable local authorities, SEND lawyers and advisors to operate more efficiently and to overall provide a better service.
What is clear, is that there’s no money in the system. This means that local authorities are struggling to provide support and resources, but also the SEND community too, including SEND lawyers who have limited resources or data to support them. In the corporate legal world, we have seen systemic innovation and automation. It has been incredible to experience the changes within the last two decades. Now it is time to use those tools, learnings and knowledge to help those who need help – SEND families and community.
Janvi Patel is a co-founder of Support SEND Kids
Support SEND Kids supports the educational needs of SEND families. If you would like to find out more, or donate your time and expertise, please visit supportsendkids.org