Ipsea response to Warnock 2005 PDF

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IPSEA Independent Panel for Special Education Advice 6 Carlow Mews Woodbridge Suffolk IP12 1EA

Telephone: Fax:

01394 610023 01394 384711

www.ipsea.org.uk Registered Charity Company Limited by Guarantee

No 327691 No 2198066

Submission to the Education and Skills Select Committee

Inquiry into Special Education Needs

3 October 2005

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Contents Introduction 1. IPSEA’s approach 2. IPSEA’s role The system of statements for SEN Pupils 3. The statutory framework: assessment and Statements 4. LEA law breaking 5. Central Government collusion 6. The second Audit Commission Report 7. Removing Barriers to Inclusion – Government policy continues the attack on assessment and statements 8. The education of children with sen in mainstream schools 9. The role of the Department for Education and Skills 10. The role of parents 11. The operation of the Disability Discrimination Act 1995 as amended by SENDA 2001 12. Transforming the Special Educational and Disability Tribunal 13. Conclusion: An improved future role for central government

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Introduction This submission is made by the Independent Panel for Special Education Advice, a registered charity which provides advice and support for parents of children with special educational needs (sen). 1. IPSEA’s approach IPSEA’s general approach to the education of children with special educational needs is close to that set out in Chapter 1 of the 1978 Report of the Committee of Enquiry into the Education of Handicapped Children and Young People (‘The Warnock Report’) (1). Notwithstanding the dated terminology, the following quotes exemplify IPSEA’s understanding of the purpose and the importance of special educational provision. They also, in our opinion, describe the conceptual basis of the current law on special education. 1.1 “We hold that education has certain long-term goals … first, to enlarge a child’s knowledge, experience and imaginative understanding, and thus his/her awareness of moral values and capacity for enjoyment; and secondly, to enable him to enter the world after formal education is over as an active participant in society and a responsible contributor to it, capable of achieving as much independence as possible. The educational needs of every child are determined in relation to these goals. We are fully aware that for some children the first of these goals can only be achieved by minute, though for them highly significant, steps, while the second may never be achieved. But this does not entail that for these children the goals are different. The purpose of education for all children is the same; the goals are the same… (1.4) … 1.2 “… There is in our society a vast range of differently disabled people, many of whom would not have survived infancy in other periods of history. In the case of the most profoundly disabled one is bound to face the questions: Why educate such children at all? Are they not uneducable? How can one justify such effort and such expense for so small a result? Such questions must be faced and must be answered. Our answer is that education, as we conceive it, is a good, and a human good, to which all human beings are entitled. There exists, therefore, a clear obligation to educate the most severely disabled for no other reason than that they are human. No civilised society can be content just to look after these children; it must all the time seek ways of helping them, however slowly, towards the educational goals we have identified … (1.7) 1.3 “Moreover, there are some children with disabilities who, through education along the common lines we advocate, may be able to lead a life very little poorer in quality than that of the non-handicapped child, whereas without this kind of education they might face a life of dependence or even institutionalisation. Education in such cases makes the difference between a proper and enjoyable life and something less than we believe life should be. From the point of view of the other members of the family, too, the process of drawing a severely handicapped child into the education system may, through its very normality, help to maintain the effectiveness and cohesion of the family unit” (1.8)

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IPSEA’s role

IPSEA was established in 1983, to coincide with the implementation of the Education Act 1981, under which, for the first time, parents of children with special educational needs were given the right to challenge the decisions of Local Education Authorities (LEAs) on the special educational provision (including the type of school) required to meet their children’s needs. IPSEA currently assists 3000 parents and carers of children with SEN every year, including over 25% of those making applications to the Special Education and Disability Tribunal. We therefore have a great deal of historical evidence from actual cases as to what is happening to individual children with SEN throughout England and Wales. 2.1 The need for an organisation such as IPSEA was predicted in The Warnock Report: “… it has long been a function of voluntary organisations to bring pressure to bear on national and local government in two ways: first by seeking to ensure that authorities are fulfilling their existing responsibilities for those with disabilities and secondly by identifying the need for new forms of provision and mobilising public opinion to demand them. For example, as more children with disabilities and significant difficulties are educated in ordinary schools voluntary organisations may need to be increasingly vigilant to see that adequate special arrangements are made for them … We would expect voluntary organisations to exert pressure on behalf of individuals who cannot easily undertake the task of seeing that statutory duties are carried out …” (17.17/17.18)

5 3. The statutory framework: assessments and Statements The Actual System The Education Act 1981 established LEAs’ basic duties towards children with sen and these have remained unchanged despite subsequent amendments to the law (in 1993 and 2001). These duties are: (i) (ii)

(iii)

to assess children who have, or probably have, special educational needs which cannot be met by their school; when assessment confirms that a child’s special educational needs cannot be met by their school, to issue a ‘Statement of Special Educational Needs’ which describes those needs and ‘specifies’ the special educational provision necessary to meet them. to "arrange" the special educational provision specified in a Statement.

As with links in a chain, when implemented properly these duties connect and deliver to a child with sen a legal entitlement to receive the provision which their needs call for. 3.1 The process of assessment and ‘statementing’ of children with special educational needs has been attacked as being over bureaucratic: “the process for assessing pupils and issuing statements is lengthy and expensive” (Excellence for all children, DfES 1997) “statutory assessment is a costly, bureaucratic and unresponsive process” (Audit Commission 2002) “far too much of the expenditure on special needs was taken up with the bureaucracy of assessments” (Special educational needs: a new look, Mary Warnock 2005). IPSEA receives many calls from parents who have been dissuaded from seeking statutory assessment by being told by LEA staff that it is wasteful, bureaucratic and that it achieves nothing for children. We would make two points in response to such criticisms. 3.1.1 First, statutory assessment and the issuing of Statements is a procedure which calculates then allocates the additional financial resources (from the public purse) needed by an individual child with sen. For the sake of accountability, this can only be done by a procedure which involves some bureaucracy. 3.1.2 Second, the process of assessment and the production of a Statement is already as minimal as can be envisaged without being ineffective. None of its critics have yet suggested an alternative, quicker or reduced process. We ask the Committee to consider which of these stages or elements they think could safely be removed from the overall process: (i) (ii) (iii)

a request for assessment in writing to the LEA by either a parent or a head teacher; a reply in writing by the LEA; if assessment is agreed, the start of a ten week period of collecting professional reports on a child’s needs and the provision required to meet them from an educationalist (usually the child’s teacher), an educational psychologist, a medical officer, a representative of the Social Services

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(iv) (v) (vi)

Department and the child’s parent.(In practice, teachers and psychologists often already have a good knowledge of the child and a considerable body of evidence which can usually be submitted to the assessment team in its original format. Where a child has no medical condition, the Medical Officer’s advice simply records this fact. Where a child is not known to the SSD, their advice simply notes that fact); the LEA sends parents a copy of the Statement in a proposed form; parents have a right to send in written representations or to ask for a meeting to discuss the Statement; having considered parents’ comments, the LEA finalises the Statement.

3.2 The reality is that over the 22 years of ‘assessment and statementing’ the critics have been the service providers (and those arguing their cause). Parents of children with special educational needs and the organisations which support them have never considered the assessment and statementing procedure to be overly bureaucratic. On the contrary, assessment and statementing is recognised by parents as a valuable protection for children with special educational needs when the needs cannot be met by their school. A clearly written statement, which quantifies the provision a child should receive, is enforceable and for that reason is generally honoured by an LEA. Under 5% of the parents contacting IPSEA for support complain of statemented provision not being arranged and it is generally an easy situation for them to put right: legal assistance in the child’s name allows a parent to make a credible threat of Judicial Review which invariably results in an LEA taking immediate action to correct the position (i.e. fulfil their duty to “arrange” the special educational provision on the statement). In 22 years of the legislation no case has reached the High Court as a result of an LEA resisting a challenge to put in place the provision specified on a child’s statement. Further more, as we will argue in paragraph 8.5 below, a well-written statement is an absolute requirement if inclusion is to be successful. Vaguely written statements are a deterrent to parents expressing a preference for a place in a mainstream school. 3.3 IPSEA casework has consistently shown than Parents are made to feel they are being greedy, over-anxious or unreasonable for requesting assessment for their child, and both LEAs and the Department for Education have been guilty of implying that the issuing of statements is a purely parent driven phenomenon, owing nothing to the actual needs of individual children in our schools. Yet parents cannot demand assessment of their child or demand a statement of special educational needs. The legal duty to conduct a statutory assessment only arises when an LEA considers that a child has or probably has special educational needs which cannot be met by the resources available to their own school. An LEA will only issue a Statement if an assessment confirms that a child’s needs cannot be met by their school alone. Although refusal to assess and refusal to issue a statement can be appealed against by parents, tribunals do not order assessments or statements unless – again - there is convincing evidence that the child has needs which are not being met by their school. If a tribunal were to make an order in the absence of convincing evidence (e.g. just because a parent was over-anxious about their child’s needs) the LEA could and would appeal against the order to the High Court, which in turn would look at the legal issues raised by the tribunal’s judgement (not the level of parental anxiety).

7 3.4 IPSEA would also draw the committee’s attention to two court judgements which provide key underlying principles to be applied in assessment and statementing, namely: • •

what constitutes educational need and provision as opposed to non-educational need and provision; and the amount of discretion which the law allows LEAs in deciding how much they should spend on meeting children’s special educational needs.

3.5 In London Borough of Bromley and Special Educational Needs Tribunal and Others, QBD and CA (1999) ELR 260 considered what is ‘educational’ as opposed to ‘non-educational’ needs and provision. At the time of the judgment the child, S, was 12 years old. He had quadriplegic cerebral palsy and impaired vision. He was unable to walk, sit up or stand and was totally reliant on adults for all his mobility needs apart from head movements. He was unable to wash, dress, toilet or feed himself. He was able to understand only a small number of words in contexts which were familiar to him and was considered to be functioning overall below the level of a one year old. The Tribunal had ordered that S’s needs for occupational therapy, physiotherapy and speech therapy were educational needs and that the provision to meet them, therefore, was special educational provision for S. The LEA appealed against the Tribunal decision to the High Court. 3.6 The judgment took as its starting point the definition of ‘education’ in the Shorter Oxford English Dictionary, which is: “the process of nourishing or rearing; the process of bringing-up; the systematic instruction, schooling or training given to the young … in preparation for the work of life.” The court considered evidence from an educational psychologist, which had been placed before the Tribunal, “…that the purpose of education for S was to maximise his control over his own environment and that education for S involved a series of over-learning the basic functions of his day: eating, drinking, toileting, dressing, etc and co-operating about them.” The LEA had argued before the Tribunal that S’s needs as described above were not educational and that the provision to meet them could not be educational provision and this argument was the basis of their appeal to the High Court. The importance of the case for the LEA was that they would have a strict legal duty to ‘arrange’ the special educational provision in S’s Statement, but would not have the same duty as regards the non-educational provision. The parents argued that education for S would not be to teach him Modern Languages or Physics but “to teach him so that he may be prepared for the very limited work of his life”. 3.7 Dismissing the LEA’s appeal, the High Court ruled: “If, as is undoubtedly clear, S needs to learn eating and drinking skills then, as it seems to me, to assist him in learning those skills will be an educational provision for him.” The High Court’s interpretation of the law in this case provides firm legal underpinning for the principles set out in the Warnock Report and quoted above in paragraph 1.1. 3.8 R v East Sussex County Council ex parte T (1998) ELR 251 considered what the term ‘suitable education’ meant in relation to an LEA’s duty in law to provide for a child, T, who ME and was not able to attend school. The case reached the House of Lords and the ruling eventually was that to be ‘suitable’ educational provision

8 must be suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have. The ruling laid down clear guidelines on the difference between and LEA’s statutory duties and discretionary duties: “There is nothing in the Act to suggest that resource considerations are relevant to the question of what is ‘suitable education.’ On their face those words connote a standard to be determined purely by educational considerations … There is nothing to indicate that the resources available are relevant … The argument is not one of insufficient resources to discharge the duty but of a preference for using the money for other purposes. To permit a local authority to avoid performing a statutory duty on the grounds that it prefers to spend the money in other ways is to downgrade a statutory duty to a discretionary power … Parliament has chosen to impose a statutory duty as opposed to a power, requiring the local authority to do certain things. In my judgement the courts should be slow to downgrade such duties into what are, in effect, mere discretions over which the court would have very little real control. If Parliament wishes to reduce public expenditure on meeting the needs of sick children then it is up Parliament so to provide. It is not for the courts to adjust the order of priorities as between statutory duties and statutory discretions.” 3.9 The Select Committee will receive many submissions from service providers arguing that the law makes an unreasonable demand on their resources, which is why we wanted to bring this judgement to your notice. The legal duties which LEAs have towards children with special educational needs are statutory duties, not discretionary duties. We hope that the Committee will report on the extent to which LEAs themselves are seeking to downgrade their statutory duties towards children with sen to discretionary duties (see section 4 below) and that the Committee will recommend that the Government should take firm action to prevent this. 3.10 Even if the financial arguments used to justify denying children their legal rights to appropriate special educational provision are taken on their own merits (disregarding the law), they do not work if any proper view is taken of all the potential costs to society. Meeting children’s special needs adequately though their education increases the chances of them leading independent lives as full members of society when they become adults. By extension, it decreases the likelihood of the need for costly social support systems during adult life. It can also reduce other social costs: e.g. the majority of young men in our prisons have learning difficulties which have not been adequately addressed by the education system.

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The System as portrayed by the “Second Warnock Report” 3.11 Mary Warnock’s 2005 attack on statements needs to be commented on because she is accorded the status of special educational needs guru by politicians and the media, and this risks her recent contribution to the debate being accorded a significance which it does not merit. 3.11.1 Despite the respect still generally accorded to the original ‘Warnock Report’, on the evidence of her 2005 pamphlet Mary Warnock would seem, now, to know little of how the special educational needs system operates e.g. •

the pamphlet asserts that 20% of children have Statements of Special Educational Needs, when actual figure is between 2% to 3%. The context of the error makes it clear that it is the author’s, not the typesetter’s: “… our original guess of how many children would receive statements was wildly off the mark. We thought the figure would be around 2%. The actual figure was around 20%”.

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the pamphlet asserts that parents are dissatisfied with the Special Educational Needs Tribunal and offers as an explanation “ Local Authority officials who could hardly be regarded as disinterested, chaired the tribunals (Special Educational Needs Tribunals).” From the evidence of IPSEA casework, this is wrong. In the main, parents are satisfied with the operation of the Tribunal. The whole purpose was for it to be independent, and, in fact, Chairs are qualified solicitors (not LEA officials), and are appointed by the Lord Chancellor.

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the pamphlet asserts “every school now (has) to appoint someone as a Special Educational Needs Coordinator (or SENCO), whose responsibility (is) to ensure that all the procedures of assessment and statementing (are) properly followed....