Saturday, 30 November 2013

The Children and Families Bill and Merton Mencap Kids First: show us the evidence

©Sam Tiegen
Experience of the SEN system is a call to action for many parents. I know of some who have relentlessly pursued information about the opaque processes of SEN decision-making to try and establish a modicum of the accountability and transparency we have the right to demand of our public bodies. For example, when North Yorkshire started using legal representation a couple of years ago, they came up with all manner of reasoning to justify the move. A parent queried their reasoning with the Ministry of Justice who denied them all. See here. The same parent was also able to obtain an insight into the cost/benefit analysis behind such decisions.

Yesterday, a parent sent me a link to this phenomenal piece of work by Merton Mencap's Kids First Parent Forum. It is a survey on Tribunal outcomesAt last, I thought, a piece of evidence based research about the SEN system. But then I also thought (again): why on earth did it take a relatively small parents' group to undertake this task? 

The DfE doesn't seem to be too concerned about gathering objective evidence about the operation of the SEN system. The reforms in the Children and Families Bill do not have a solid evidence base and Pathfinder pilots don't seem to be the subject of any rigorous empirical research. Indeed, the DfE must be aware that some Pathfinder LAs are not piloting SEN Direct Payments or even letting parents apply for them, in clear contravention of the law. They are also implementing EHCPs which have no legal basis at present and so are unenforceable. Additionally, projects like 'SENDirect' have sprung up out of nowhere as 'brokerages' for a proposed market in SEN provision, seemingly without any evidence base or consultation. How are these 'brokerages' supposed to operate and who will they benefit? Answers on a postcard please.

But, it also made me wonder: why aren't all the big, heavy hitting charities with their campaign, policy and research teams and Government grants producing research like this? Shouldn't they be spear-heading the fight for evidence based policy and law-making against the rhetoric too readily spouted by those driving through these changes? Shouldn't they be making this stand against the Children and Families Bill? Shouldn't they be challenging the potential impact of these reforms? The parents of disabled children are subject to enough stresses and challenges, do they really have undertake research too?

Of course, the starting point for research must be a clear data analysis and a contextual evaluation of parents' experiences. To their great credit, this is precisely what Kids First have achieved.

Kids First Report

Kids First have produced their report because:
The DfE told us that abuse of the Tribunal system by Local Authorities is just hearsay. They quoted the large number of parent withdrawals prior to hearings as evidence of a balanced system.
Sadly, this is similar to the dismissive response we received (here) and this attitude astonishes me. Does the DfE really believe what it is saying in light of all the detailed evidence it must surely have received on this issue? There is also ample evidence of poor practice in previous reports on the SEN system, including the Lamb report and the Report to the House of Commons Select Committee on Education in 2006-7.

Tackling this head on, the Kids First report goes on to say:
We wish to trigger a debate in Parliament about the SEND Tribunal, its shortcomings, and the way in which it severely lets down disabled and SEN children. We believe that there is still time to amend the Children and Families Bill and/or associated regulations in order to bring about an equitable system. 
I wholeheartedly support this call.

The report provides a very useful insight into the use and misuse of the Tribunal system by LAs. It really is worth a detailed read so that the voices of parents and families can truly be heard. Their experiences make grim reading.

Additionally, this report is important because it is based on Tribunal data which, incredibly, is not publicly available: it had to be specifically requested by the group. The data confirm:  29% of appeals lodged were conceded by LAs before the hearing (indicating weak LA cases). Parent withdrawals account for 47%. However, this figure does not take account of the fact that many parent withdrawals occur because Local Authorities concede the main points. Of cases that go to Tribunal, 68% of hearings were lost by LAs (the report concedes that "no doubt some were finely balanced").

The report's conclusions are startling, yet, sadly, unsurprising:
Our contention is that the cases that Local Authorities concede should not reach the appeal stage at all. We know that it is possible to avoid Tribunals in most situations because some Local Authorities do this already. 
Our second contention, based on the survey, is that too many appeals are won by parents. 63% - 73% of all cases are either conceded by Local Authorities, partially conceded, lost at a hearing, or partially lost at a hearing. This means that around 2/3 of all appeals are potentially avoidable. The strain and long term impact of a Tribunal on a family is immense. (See parent comments below in appendix 4). Even those who eventually win their case, normally after years of fighting, are worn down and bitter about the system. We would like to see Government make changes to achieve a more equitable and civilised approach to SEN disputes. Tackling the misuse of Tribunals would be a good start. 
The report makes the following very sensible proposals 
A. We would like the Government to amend the Children and Families Bill or its regulations to place a duty on the DfE to publish the statistics showing Tribunal outcomes by Local Authority and the outcomes of all SEN Tribunals.  
B. We would like the DfE (or Ofsted) to review the statistics each year and investigate the working practices of Local Authorities who fight large numbers of Tribunals. It would help if the First Tier Tribunal could also monitor Local Authority concessions and parent withdrawals in a more robust way.  
C. We would like the DfE to have the power to impose penalties on Local Authorities who regularly concede Tribunal cases very close to a hearing date.  
D. We would like a robust, independent complaints process that will follow up all claims about misconduct against Local Authorities and applies penalties where necessary 
Isn't this precisely the type of struggle the Green Paper promised to remove from the system? The DfE refuses to engage on how the Bill is going to reduce the struggle without improving legal accountability and I don't see those organisations being paid to implement the reforms holding them to account for this.

Instead, in the face of severe budgetary restraint and a Government committed to reducing the costs of 'welfare' (Osborne  stressed recently his belief that we need  an 'affordable' state - I think we know what this means), we have, until very recently, had leading organisations talking only about what lovely choices parents will have with personal budgets - marmite on toast anyone? Now, they are talking of 'broken promises'.

It is surely time to engage fully with what these reforms will mean for all our children, particularly in terms of education. We need those with the ear of Government, those who have been consulting, piloting and implementing reforms, to throw their weight behind campaigns like this and build on them (even if they cannot lead them from the front). We need to challenge Government indifference to such fundamental issues as the right of a child to have their needs met.

Reform needs evidence and we need action

We need evidence based policy and law-making. Our children deserve nothing less.

We know what happens to people who stay in the middle of the road. They get run down.  - Aneurin BevanLaw based on rhetoric and driven by political ideology about who is 'deserving' of state support will inevitably lead to children and young people finding themselves without the services they require. And without the legal means to protect their rights.

Some herald these reforms as introducing a new era of harmony between LAs and parents. But where is the evidence for such grand assertions? The law, as it currently stands, is frequently ignored or side-stepped and children's legal rights often seem entirely unenforceable. How on earth will this suddenly change in practice with the Children and Families Bill? Isn't it all about the money?

The reality is that these reforms may mean that far fewer children are granted legally protected provision and far more are 'dumped' on schools with their needs to be met solely from school resources. This is extremely worrying as it is clear that many schools, who are committed to inclusion, are really struggling with Government changes to the funding regulations already (see this Guardian article - well done to IPSEA for highlighting this issue).

One parent has told me this:
Our LA is going down the resource allocation system route - which is ridiculous and completely against the whole concept of the Plan which will be individual: how can the Plan be individual if you are being stuck in a band due to being allocated points? It doesn't work for adults, it's just cost cutting.
And we were told at Annual Review that 'statements won't come with hours anymore it will be all about outcomes' like the two are mutually exclusive. You can tell they all sit in the same meetings sharing the same mantra. Of course there will still be Plans with hours in them. How can they plan a personal budget or pay a private provider other than agree to fund so many hours at so many pounds? I think they meant mainstream school statements wont specify hours only outcomes for school to deliver - so leaving school to decide how many hours to provide. This suggests there will be a whole new wave of litigation to re-establish existing principles.
Another parent said on twitter recently:
 My LA already talking about the most 'severe' SEN. Saying schools will have to do more

This in itself makes the Bill something which should be attracting the attention of all education commentators and children's charities because it will affect all schools and all children. Presently, we risk sleep-walking into a nightmare of cuts to SEN budgets and the 'marketisation' of SEN provision sold to us under the guise of 'joint working' and 'cooperation'. This is not just about education. Many children can only access the health provision they need e.g. speech and language therapy if it is on a statement. This will potentially impact on children's access to services across the board.

Unions, school Governors, charities, parent groups, education commentators, disability activists and politicians need to start thinking about how this really will play out in the face of this simple reality: there is no money. 

So what will happen?

  • In practice, will LAs make the threshold for EHCPs dramatically higher than that for SEN statements, excluding thousands of children from legally enforceable provision?
  • Will LAs cease some children's statements, leaving them at the mercy of school resources on the grounds that schools have enough funding? This SENCO suggests this is happening already. How widespread is this? Such practices will affect all children and not just 'SEN kids'. The groundwork for this is surely being laid with the un-evidenced suggestions that children's problems at school are as much about poor teaching and bad behaviour as SEN -see 'Be on your best behaviour for Mr Timpson'.
  • What will 'joint commissioning' and 'joint working' between LAs and NHS services really mean?Will it result in fixed agreements about what type of children will get help and in what way? This sort of 'blanket policy' approach would be unlawful.
  • Will we have competitive tendering for SEN provision? The charities piloting SENDirect should address this openly. LAs clearly don't want direct payments for SEN so I can only see this working if NHS block contracts are replaced by cheaper contracts with the private sector. Who benefits from this?

Some of this may already be underway. One parent told me:
The outsourcing of services to private consortia is already going ahead. Last year, we were invited to a consultation on changing the way that paediatric SALT and OT are run, in our County. I say "invited" - I wouldn't have known if it wasn't for a tweet by a local BBC journo. Unable to attend the meeting, I completed the online questionnaire. There was no question asking 'should these services remain within the NHS?' The questionnaire was already biased towards these services being privatised. Even at "consultation" phase, it was already pretty much a done deal, no doubt with a provider already having been courted. Health authorities have been told that they have to do this with a certain percentage of services.
Another parent pointed out Devon's Integrated Children's Services to me. These services are already run by Virgin Care.

In the South East, another parent confirmed similar developments:

Today, I was told that children's services have been outsourced to Virgin. As of now, the 'chief' health visitor was unsure how to word a referral for a toddler (16 months) who is delayed in some areas of development (lack of speech, no imitation, currently fails the MCHAT) and has an older sibling with severe autism. She is fairly sure that the referral will get rejected, but time will tell. (she is totally pro-active, and will keep pushing the referral; her problem is she doesn't know how to get a child that she agrees shoudl be looked at a little more closely, onto a waiting list)

It is deeply regretful that we should be at this late stage in the legislative process and have so many unanswered questions but it is not too late to act.

Demand a moratorium. Demand reassurances there will be no cuts to SEN services. Demand an evidence base for these reforms.

The last word

As always, I will leave the last word to a parent because we are the evidence and our voices deserve to be heard. This story is sadly representative of the battles many have faced. Battles which some parents are simply unable to fight and which, I fear, this Bill will do nothing to change:

I appealed to SEN tribunal over Parts 2, 3 and 4 of my son's statement.  My LA refused to provide SLT and OT in Part 3 of my son's statement. The NHS SLT agreed he had difficulties but insisted he didn't need any help that school could not provide, and the NHS OT admitted he needed help, but that she does not specify or quantify the amount because it would upset the LA. So I had to spend ££££ getting independent reports to describe, specify and quantify the support he needed.

The LA ignored the independent reports and the school head teacher told me that she'd been advised by the education officer that they didn't take private reports into account.

© Zen Sutherland
The LAs response to my grounds of Appeal were "we can't respond because we didn't receive an attachment (which had been sent and could easily have been re-sent)". When required to name witnesses, not one was named, instead "to be confirmed" was entered in the forms.

The date for final evidence passed without any evidence from the LA. I made an application to tribunal for the LA to name a school, and Part 4 was agreed. They would still not agree to Parts 2 and 3.

However, just one week before the hearing, the LA agreed to my whole appeal. I withdrew because it would have cost £0000s in fees if I had applied for a tribunal order which takes at least 10 days to come through.

My experience shows that LAs defend appeals when they are indefensible, drawing out cases and delaying support. 

I am aware my withdrawal may be misconstrued, and this demonstrates how important it is for statistics to record the reason for withdrawing.

I would add that, after all this expense and stress, my LA are now refusing to provide the therapy in Part 3 of my child's statement - the therapy I have fought so hard to obtain. This means my child is still being failed and that I am now being forced to consider starting judicial review proceedings with all the additional costs and distress this entails.

It never ends.

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