Treat SEN children fairly, local authorities told

This report came out this week and we've now had the chance to write about it and we'd love to hear your views too at the end. ombudsman-report

The report, by the Local Government Ombudsman, calls for fair treatment for SEN children and their families and the support to which they are entitled.

In case you're wondering, the LGO offers a free service to investigate complaints about councils and some other services such as education admissions appeal panels and adult social care providers.
This report, "SEN: Preparing for the Future" (direct pdf download here), highlights a number of examples of complaints about unlawful exclusion (see Ambitious About Autism campaign about this subject) children being denied specialist support, and many having their education opportunities limited because of long delays.

The LGO says last year it received more complaints about education and children's services than any other area.

"A common phrase we hear from families when resolving a dispute about SEN is that it feels like a constant battle. It should not be this way. When things go wrong it is vital that councils act quickly to avoid children being disadvantaged."

None of this will be news to parents like us who have often lived those very circumstances. And it is no coincidence that the report is published just weeks before the Children and Families Bill is to be signed off by Her Majesty. In fact, the report pretty much makes clear it's a shot across the bows to local authorities.

"As with any new legislation its success will be dependent upon the way the changes are implemented. By publishing this report we aim to inform the way councils approach the new legislation by highlighting some of the problems that have occurred under the current arrangements. By learning the lessons of the past I hope that future mistakes can be avoided"

drjanemartin-LGO
Dr Jane Martin

In the report, the Ombudsman, Dr Jane Martin, welcomes the Government’s recent amendment to the Children and Families Bill to undertake a review of how well the appeal arrangements are working and its commitment to look more widely at how other complaints that are relevant to education, health and care planning are handled.

She says, "...A clear and accessible route to redress should underpin these new arrangements and [I] look forward to contributing to that review by sharing our experiences of resolving complaints."

To me, this says Dr Martin is determined that the view of complainants are looked at and learned from, rather than the government just treating the review as an academic exercise. And I'm quite sure the DfE does realise by now that everything about this Bill is being carefully scrutinised by disabled children's charities, SEN lawyers and parent representatives.

It is this scrutiny that has brought positive changes, even at the last minute, to the Bill, but it is also clear that the timing of elections and pressure from individual politicians have had a negative impact as well.

Additionally, and here I am voicing a widespread but often unspoken concern, is the question of how being funded by the DfE affects the actions of certain charities and now, parent carer forums. The question posed by some cynics is, are they/will they be less willing to forcefully challenge the government and in some cases their local authorities when their funding depends on good relationships?

Those concerned would say as resounding 'no'  and it's to be hoped that the relevant funders value an opposing viewpoint so the best decision is made. In any case, where else can the money come from to ensure that the parent voice is heard?

When talking about a delay in statutory provision, the report states that, "Generally where the council has had clear knowledge of what provision is needed and a likely start date for that to happen, delay is not acceptable. We usually expect straightforward provision to be in place within no more than four weeks and complex provision to be available within no more than half a term."

This is a very useful statement for parents and advocates to remember when a statement or EHCP has been issued and it may be useful to remind the LA SEN department of it, so the staff know and, importantly they also know that you know.

The ombudsmen report also proposes a series of questions that councillors and committees can ask of their local authorities when scrutinising the delivery of services for children with SEN, as well as sharing a number of recommendations based on good practices seen in councils across the country.

A parent can usually only access the Ombudsmen service once they have exhausted the council's own complaints procedure, the SEND Tribunal process or a Judicial Review or other court proceedings, where appropriate. However, when they do look into a case, they can award damages to the family and I would recommend that you read this report for examples of these in action.

Its recommendations to councils for the future are based on best practice it has observed:

  • keep to the timescales for the assessment and statement process especially in issuing a final statement which gives parents their statutory right of appeal to the Tribunal;
  • consult concurrently rather than sequentially with several schools when considering suitable placements to avoid unnecessary delay in reaching a decision;
  • take timely actions following annual reviews where amendments are needed to provision, placement and the statement;
  • recognise the need for timely planning and provision for all phased and other transfers to new schools;
  • ensure the availability of suitable alternative provision when placements break down or when there are delays in providing a suitable school place;
  • make sure the provision set out in the statement is in place at the start of a statement, after reviews or for temporary periods;
  • work closely with NHS and other partners to address possible and known shortages of specialist input;
  • work with schools to ensure pupils with SEN do not receive ‘unofficial’ exclusions and remind schools of the legal position on such exclusions.

You can read the Ombudsmen's own précis here. The report is linked from the top right of that page. Do you think this report will make a difference?

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Tania Tirraoro

Founder, CEO at Special Needs Jungle
Founder of Special Needs Jungle. Parent of two sons with Asperger Syndrome.
Journalist & author of two novels and a guide to SEN statementing. PR & social media expert. Rare Disease & chronic pain patient advocate.
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5 Comments

  1. Graham Manfield

    Much of this report’s content rings true for us as a family and others in our LEA. In fact we’ve resorted to complaining to the Ombudsman twice following lengthy but ultimately fruitless negotiations with our LEA. Following the latest LGO ruling of maladministration our council agreed to review services for deaf children and take into account the views of parents and deaf children. Astonishingly, after months of delay, I found out this week that they have refused to share it will families.

    Why on earth are they so reluctant to be open and transparent about such critical information, affecting the lives of our vulnerable children?

  2. battling parent

    I think we need stronger action rather than yet another report from the LGO. They issued a similar report, Out of school,Out of mind, in 2011 reminding councils of their legal duties to provide education – it’s made little difference.

    My LA failed to provide many months of full time education yet the LGO found that there was no fault in them not complying with the law. Despite offering to provide a huge amount of evidence to them they didn’t want it, they preferred to believe the views of LA staff even when I could clearly show what had occurred. Illegal acts were just brushed under the carpet and ignored. I know of other people who have had similar experiences and have found the LGO to be neither impartial nor fair.

    Until local authorities, and schools, are held to account they will carry on ignoring their legal duties because they know that they can get away with it! Meanwhile it is the children, and their families, who suffer.

    1. Elaine Maxwell, MG Law

      This report is timely but not new. All of us who deal with SEN on a regular basis know that it is rare for local authorities to complete tasks within the statutory timescale, and that they can often only be forced to do so through the threat of legal action. This has got much, much worse of the last few years with the cuts to local authorities. Not only do they not have the same money for SEN provision, but they now have fewer administrative staff to deal with the processes that have to be undertaken. As a solicitor running a firm specialising in special needs cases, I have in the past kept a spreadsheet for children out of education so that we can make sure we get them back into education at the first opportunity. It soon became apparent that virtually all of those children who were not receiving education for a period of more than 2 months had a statement of special needs and some had been out of school for more than 2 years before the parents finally managed to find our contact details. When my own son (dyslexic and with aspects of Asperger’s) started school refusing because he could not cope with the stress of being unsupported in his mainstream school, the local education authority took no notice at all. In fact rather than spend time having to go through the statementing and appeal system, I was able to send him to a small private school which catered for his needs, but the LEA were unaware of this and certainly did not want to have to face the prospect of putting something suitable in place in the state system. Other parents are not in my more fortunate position or may not have a suitable small school nearby.

      In my view none of this is going to get better with the pious words in the Children and Families Bill. Indeed I expect it to get much worse as local authorities become even more like headless chickens trying to work out what the new system really means. We are already hearing some bizarre statements from authorities such as the new plans are only available if a child has either a social care or health need in addition to an educational need. It may not have been intended to mislead parents, and it may of course be that the local authority itself is not fully aware of the position. But all of this tells me parents are in for rocky times ahead.

      1. Hi Elaine, I agree with your comments, although I tend to think the local authority SEN dept ranks and file have a lack of real understanding of what’s happening and so they should err on the side of caution when speaking to parents or preferably get informed. LAs will be running training, I’m assuming (I know Surrey are) but the timescales make this a huge threat.

        Some parents are being told they can’t apply for a statement any more – which is just not true and I would recommend they do so asap, even if the health and social care aspect of an EHCP are important to their child’s needs – they’ll still get an EHCP eventually even if they apply for a statement now..
        Maybe you should write us a guest post on your views!

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