Monday, 14 May 2012

Children's Law Centre exposes the SEN Review

The Children's Law Centre submitted a briefing paper to Stormont earlier this month  regarding the Department of Education's Special Educational Needs Review as well as it's potential effect on Inclusion for children with SEN. The paper is a must read for every parent, teacher and anyone else who cares about children with special educational needs.

I have copied and pasted it below with full citations and acknowledgement to Rachel Hogan BL and the Children's Law Centre, Belfast.


Please pass this on to all you know who have an interest in the education and inclusion of our children.
If you want your own copy contact Rachel Hogan at the Children's Law Centre in Belfast: 02890 - 245704

A big thank you to the parents who sent me this document!!! You know who you are.










SPECIAL EDUCATIONAL NEEDS & INCLUSION

POLICY DEVELOPMENT





BRIEFING PAPER



CHILDREN’S LAW CENTRE

3 May 2012



The Children’s Law Centre is providing this briefing paper to highlight some of the main issues and to make recommendations in relation to the ongoing development of the Department of Education’s SEN and Inclusion Policy. There are a number of key focus points to which we would like to draw attention. To highlight the practical issues we have appended case studies.







For further information please contact Rachel Hogan BL, SENDIST Representative at:



Children’s Law Centre

3rd Floor

Philip House

123-137 York Street

Belfast

BT15 1AB



Tel. 028 90 245 704














Contents




Legal Enforcement in the Context of Budgetary Pressures 2




Benefits of Maintaining & Extending Appeal Rights 9




The “Bureaucracy” Argument 10




L’s Application – “A Frustrating Circularity” 11




A New Bureaucracy 13




Offer of Services 13




Statutory Duty to Cooperate 15




Monitoring Outcomes 17




Early Intervention/Capacity Building 18




Protecting the Legal Rights of Children with Disabilities 20




Effective and Efficient Delivery of Education 22




Information Sought from the Department 23




Conclusion 24




CASE STUDIES




Appendix 1: L’s Application – Summary Judgment 25




Appendix 2: Shared Classroom Assistance 29



Appendix 3: Carla’s Story 30



Appendix 4: Cooperation – A Successful Outcome 32



Appendix 5: Failure of Early Intervention 33



UPDATE



Appendix 6: The Department’s “Revised Key Changes” 34





Legal Enforcement of Children’s Special Educational Provision in the Context of Budgetary Pressures



The Minister for Education has stated that the policy proposals aim to safeguard the legally enforceable rights of the most vulnerable children in the education system who have special educational needs and disabilities. He has indicated that children’s legal rights will not be eroded by proposed changes.



This will not in fact be the impact of the proposals as currently framed because of the planned reduction of the number of children who will be able to access a directly enforceable statutory right to provision under Article 16 of the Education (NI) Order 1996 (“the 1996 Order”) through the making of a statement of special educational needs. The Department of Education has indicated at a recent reference group meeting on 8th March 2012 that around 50% of children who attend mainstream schools and have a statement, will be likely to fall below the threshold of “multiple and/or complex” need required for the making of a Coordinated Support Plan (CSP). It is not clear exactly how this estimate of 50% has been calculated or whether it reflects the true extent of the reduction in statements/CSPs, but it is according to the Department, based upon those statements which have within them ELB provision/support services only.



Since many statements that we deal with are made for children in mainstream education with mixed provision, including educational provision arranged by Boards and provided by Health Trusts and since such children may not meet the definition for access to a CSP, we are very concerned that mainstream children in particular will be vulnerable to a loss of their equality of access to a practical and effective education due to the lack of an effective mechanism for securing, protecting and enforcing ongoing provision (e.g. if denied allied health services).



It is impossible to say how accurate an estimate this 50% is since no analysis of current statements has been disclosed by the Department at this stage. In particular it is the case that many statements viewed by CLC and others are wrongly drafted with health therapies placed in the “non-educational needs” section when in fact, in many cases, therapies are both in law and in fact, educational needs. We regularly raise this issue with ELBs and at SENDIST hearings with the result that therapies are re-designated as “educational needs”.



It is important in trying to protect the rights of the most vulnerable children, to be clear about firstly who the most vulnerable children are and secondly the true reasons for the shortcomings of the current system.



On the first point, the Department appears to be working on the proposition that statements should be maintained mainly for children in special schools and in learning support centres/special units attached to mainstream schools and that these children are the most vulnerable. It seems that the Department considers that a relatively small number of children in mainstream schools may require a CSP if their needs are “multiple and complex” to the extent that significant additional help is needed in the mainstream classroom.



The majority of children who have SEN attend mainstream schools1 and about 40% of these mainstream children require the provision of external supports from the Boards. 4.4% of the school population (14,000 children) currently holds a statement of special educational needs.2 In order to acquire a statement and in line with the Code of Practice, the child’s needs must be demonstrated to be “significant and/or complex” such that he/she cannot be provided for within the resources normally available to a mainstream school.



A definition of “multiple and complex” is currently being drafted. The Department has informed CLC on the one hand that children with no health needs could potentially be included under the definition if their needs are “multiple and complex”. On the other hand the Department informed us that children whose needs could be met by schools in conjunction with ELBs would have no need for a statement – the implication being that only children with health needs would be complex enough to meet the definition. This matter needs to be clarified as it is an issue of fundamental importance in relation to accessible, enforceable legal rights.



It should be noted that almost 10,0003 children who currently have statements in a mainstream school /unit will have had a full multidisciplinary statutory assessment on the basis of having demonstrated, in accordance with the Code of Practice, “significant and/or complex needs” and will have been granted a statement due to requiring a level of help within the classroom which it is not reasonable to expect a school to provide, taking into account the existing ELB support services of which the school can avail. All of the children who currently have statements are likely to be able to demonstrate multiple and/or complex needs according to the information that the Department is currently presenting. There is clearly a gap in public information about how access to statements is going to be restricted and reduced which hinges on the difference between the term “significant” and the term “multiple”.



The Department seems to be taking the view that if a support service is provided by an ELB (e.g. classroom assistance) then there is in fact no need for a statement/CSP to access that help. However, CLC, parents and others have been given no reassurance whatsoever about how a service can be accessed where the need for its employment is disputed and how continuance of that provision can be ensured where there is no legal means of redress against the ELB providing the service via an independent hearing and adjudication process.



It is also important to note, in terms of parity of arms between parents/children and ELBs/ESA that in order to access legal aid for independent reports as a means of ending a dispute and ensuring parity between parents and Boards, parents require access to an appropriate legal forum.



On the second point, regarding the true reasons for the shortcomings in the current system, many of the principles proposed (early identification and intervention; inclusion; provision based on needs not processes/resources; in-school provision with access to ELB support services ) are already enshrined in the current system via the 1996 Order, SENDO and the Codes of Practice (Article 13, 1996 Order – ELBs’ duty to identify SEN; Article 14 – resource limited duty of health trusts to help ELBs; Article 15 – statutory assessment; Article 16 – ELBs’ duty to specify and arrange provision). The Codes of Practice are child-centred and due regard is not accorded to them, as required by law, with the argument presented by ELBs in legal challenges that they have no enforceable statutory duty to provide what is needed if it is not specified in a statement (i.e. stages 1-3 or the equivalent to Level 1, school-based provision).



The difficulty with the current system in our experience is not the number of stages in the process. It is that the legal provisions and statutory guidance are not properly adhered to by some schools and by ELBs in the operation of the system and that there are no enforcement mechanisms at the school-based stages. Even after a SENDIST hearing, enforcement of special educational provision may only be asserted via the costly legal mechanism of judicial review as there is no enforcement mechanism in the legislation regarding breach of a SENDIST Order. These are the difficulties which the Department should be aiming to overcome.



The only method of improving the current system is to enhance and extend statutory appeal rights so that there is a statutory obligation on ELBs/ESA to provide appropriate specialist services at the time when the need for their employment is identified and recommended, regardless of whether a child has a statement/CSP. Since these specialist services are ELB/ESA based provision, or educational needs provided for by health trusts and arranged by ELBs, the right of appeal should lie against ELBs/ESA and responsibility for access to/allocation of specialist services should not be delegated to schools as would appear to be the current proposal.



It is not sufficient to restrict appeal rights to CSPs because many children who will not qualify as having multiple and complex needs and who will not therefore have an effective appeal to SENDIST against refusal of a CSP, will still require timely provision of Board/ESA individual support services e.g. literacy support, individual classroom assistance. For example, children currently access 1-1 classroom assistance provided by the Board via a statement. There is no mechanism to access this valuable assistance without a well drafted statement. This issue is raised by parents and carers time and time again with our advisors. An unenforceable PLP, even in an optimum format, will be a pale imitation of a legally enforceable statement designed with advice and reports from specialist qualified professionals. Indeed, the 14,000 children who currently hold a statement have had the benefit of a multidisciplinary statutory assessment to identify the precise nature of their needs. It is unclear how children will qualify for an assessment, either as a means to gaining a CSP or outside the CSP, as a means to identification of and provision for their needs.



Question: How can a child whose needs are relatively straightforward access an ELB/ESA provided classroom assistant (e.g. as a means of early intervention) if they do not meet the threshold criteria for a CSP?



Department’s Response: Classroom assistance will be available at Level 1. There will be a duty upon the Boards of Governors and/or Principals to identify the need.



However it remains unclear how a PARENT who has identified such a need for a child who is not eligible for a CSP can ensure access to or continuance of the assistance without a legal appeal right, which would be available under the current system upon a Board’s refusal to carry out a statutory assessment at Stage 4.



Without any public consultation or evidence-based reasoning, the Department has moved to a 2 stage system, rather than the 3 stage approach first proposed. The originally proposed intermediate stage which has now been removed post-consultation is the “school plus ESA support” stage (currently stage 3) which in terms of legal enforceability would have acted as a trigger point for access to a statement/CSP, as is clear from the reasoning of Mr. Justice Treacy in a recent judicial review taken by CLC entitled “L’s Application4. This change in the proposals to a 2 level system is likely to increase further the negative impact upon access to legal appeal rights within the proposed system.



Further, it is difficult to see how the ELBs/ESA will be able to fulfil their statutory duty to identify children for whom a statement/CSP will be necessary under Article 16 of the Education (NI) Order 1996 if there are only 2 levels within the system.



Question: How will ELBs/ESA fulfil the statutory duty to identify children with SEN for whom they should take responsibility at Level 2, when Stage 3 of the current process is removed (i.e. school plus ELB support, followed by review of progress to see whether statutory assessment may be required)?



It has further been proposed by the Department that the mechanism for access to a statement (currently stage 4 – statutory assessment) will be removed as a “stage” and will instead operate as a “process”. This has serious implications for legal enforcement of children’s rights because an ELB’s refusal of a request for statutory assessment is one of the main triggers of appeal rights in the current system.



The Department has rightly placed emphasis on children in special schools and special units as requiring the legal protection of a CSP. The Department has also correctly identified that mainstream schools with a good ethos of inclusion and with capacity building measures in place should be able to make school-based provision for the majority of children with SEN and should be able to ensure full inclusion.



The highly obvious gap in the proposal is the removal of at least an estimated 5000 (or 50%) of statemented mainstream children from the enforceable statementing system and transfer of these children into the unenforceable school-based system where there are no statutory appeal rights to secure specific provision i.e. that which is equivalent to Stage 3, which will now be in Level 1. Parents and children will be rendered virtually powerless within the SEN system, having only recourse to the Department, the Board of Governors, the Ombudsman or the High Court. Such remedies involve significant cost and delay and in our experience are not effective solutions to the detailed practical problems arising in SEN cases, which are best dealt with by an independent specialist panel.



Disempowerment of parents, carers and children is against the principle of the best interests of the child which should always be the primary consideration in any action concerning the child (UNCRC, Article 3; UNCRPD Article 7). Further it is against the aim of providing an efficient, effective education system in partnership with parents.



These 5000 plus children will be added to the 10,592 children currently at Stage 3 (as per 2010 census), many of whom have already faced significant delays in assessment and referral for external support at Stage 3 and are already waiting on lengthy waiting lists for appropriate identified specialist provision to be arranged by Boards.



When the above enforceability issues are taken together with BUDGETARY PRESSURES which are a barrier to efficient effective special educational provision, the outlook is rather bleak in terms of resourcing the “enhanced mainstream sector” upon which the review proposals are depending:



  1. The £180million shortfall in the Department’s resource budget as announced in the press5. At the reference group on 8th March 2012 the Department had no information whatsoever in response to a question about what the impact of this shortfall would be on SEN support.
  2. The significant savings of £180 million (spending cuts) that require to be made during the current budget period to 2014/15 include that “Professional Support Services to schools will be re-organised to ensure that teachers and school leaders receive the support required to deliver core priorities. This service is expected to deliver savings of £15/£30/£30/£30m over the Budget period.” 6
  3. The ongoing pressure on the aggregated schools budget, despite an injection of £120million from the Department of Finance. 7
  4. The stagnation and under-resourcing of ELBs and their support services pending ESA, as noted in the Department’s Resource Accounts to the year ended 31st March 2011 wherein it is stated at paragraph 6 that “there have been increasing pressures on the Departments NDPBs, particularly as they have been subject to vacancy control...longer than originally intended. Many of the senior posts across the NDPBs are now filled by staff on temporary promotions”. 8
  5. The fact that a large proportion of schools are under stress according to the Department’s viability audit. A recent press release on this topic states that “There are a number of schools, both primary and post primary, that are evidencing stress in one or more area. In the primary sector 390 schools out of a total of 839 are evidencing stress in at least one category – that is 46.5% of all primary schools. Similarly, in the post-primary sector 124 out of a total of 148 secondary schools - that is 83.8% of schools are evidencing some degree of stress. The grammar sector is not immune to stress, with 24 out of 68 (35%) evidencing stress in one or more areas. 9
  6. The fact that the £210 million reported spend on SEN cannot be ringfenced, as suggested by the Minister in his report on the 18th January 2012 to the Education Committee at Stormont10 and confirmed by the Department at the reference group on 8th March 2012, because it is not a “budget” but a summation of monies reported as spending in the past year on a very wide range of services, wages, salaries and administration11. Given the pressure on all parts of the education system to make savings and cut spending as evidenced by the savings delivery plan there is no guarantee whatsoever that the current level of spending on SEN will be maintained this year or in the years that follow.
  7. According to ETI reports for 2010/2011, the arrangements to identify, assess and meet the needs of children with SEN were not of a high standard in many of our schools. 18% of the primary schools inspected and 38% of the secondary schools did not meet the expected standard. 12





Vulnerable children with SEN and disabilities who are educated in mainstream schools are at high risk in terms of the impacts of ongoing failure of provision. These are the types of cases where there are likely to be contentious issues and where enforceable appeal rights are most critical. These are the types of cases which are likely to end in poor outcomes for children with the failure of inclusion, discrimination on the ground of disability and refusal of admission by Boards of Governors being likely scenarios. The Department will likely face increased levels of Article 101 complaints against Boards of Governors for refusals to admit children due to resource considerations.



There is also a possibility that parents in an increased number of cases will feel that they have no option but to place their child in a special school as opposed to inclusion in mainstream education, based on a perception that special educational provision might be more accessible in terms of meeting identified needs. Such a development highlights the retrogressive impact of the current proposals upon children’s rights generally and in particular upon the right of inclusion and the human right to personal integrity and personal development under Article 8 of the European Convention on Human Rights (Schedule 1, Human Rights Act 1998).



If the policy is brought forward as proposed, CLC calls for the provision of statutory legal appeal rights to an independent appeal panel for parents and children against decisions made by schools and ELBs/ESA at:



  • Level 1
  • The point of transfer from Level 1 to Level 2
  • Level 2
  • And CLC calls for measures to render statutorily enforceable the Orders of the independent appeal panel/s13



We recommend the retention of the originally proposed “school plus ELB/ESA ESA support” stage (equivalent to Stage 3 of the current system) to enable ELBs/ESA to meet the statutory duty to identify children for whom they should assume legal responsibility at Level 2.



For Illustrative Case Studies, please see:



Appendix 1 – child with no statement needing literacy support – L’s Application14



Appendix 2 – statemented children with complex needs – legal enforcement



Benefits of Maintaining/Extending Appeal Rights



There are 70-80 SEN appeals registered each year with SENDIST under the current system to enable parents to enforce children’s legal rights. These are relatively inexpensive (in comparison to judicial review) with a tendancy for settlement before a full hearing and less would be needed if the system were more efficient at early and appropriate intervention within an enhanced mainstream sector, as envisaged by the Department.



Removal of the right of access to SENDIST by dilution of appeal rights for at least 5000 currently statemented children and all those who follow behind them through the school system will leave Judicial Review against schools, the ELBs/ESA and the Department as the only very costly option unless the Department maintains and/or extends appeal rights both inside and outside the CSP system to ensure full and proper legal accountability owed by ELBs/ESA and the Department to parents/children. Such an arrangement to truly preserve and to extend appeal rights would serve the new system well and could avoid wasted costs to schools and damage to their budget management in the event that schools are left as the only possible respondents to legal action.



It should also be noted that Boards of Governors of schools act in a voluntary capacity. They could not in our view be in a position to take over and properly discharge legal responsibilities which the ELBs currently hold and which are to be transferred away from the ELBs to schools when the number of statements is cut under the proposed 2 level system. The children who would have had statements but who would not qualify for a CSP are children with complex, significant needs. In the absence of the proper supports available within an enhanced mainstream sector, transfer of this extra legal responsibility to Boards of Governors is likely to be harmful to the interests of the affected children, detrimental to the effective management of schools and damaging to the outcomes produced by the education system.



Note: DARS has been mooted as a potential avenue of conciliation or dispute resolution. The Department now proposes, as explained at reference groups that “parents would always use DARS as a means for resolving a dispute before an appeal is made to SENDIST”. It seems that DARS is envisaged as an option for resolution at Level 1 also, with a proposed duty upon Boards of Governors to inform parents of the existence of DARS when they are in dispute. While pre-action negotiation can only be beneficial in most cases and the role of DARS should certainly be enhanced, dispute resolution is only effective when there is legal action as an option at the end of the process – otherwise there is no motivation on the part of the ELB/school to engage due to an imbalance of power in favour of the ELB/school.



Similarly, making conciliation or mediation mandatory would not be effective as successful outcomes are dependent upon cooperation of the parties and the will to engage and resolve matters as equal partners. The ultimate right to appeal is the only effective mechanism by which ELBs/ESA are accountable and answerable to parents and children. It should be noted that in CLC’s experience the majority of parents are extremely averse to raising disputes directly with schools due to the potential for bad feeling and negative impact on relations in the longer term.





The ‘Bureaucracy Argument’



The Department has indicated that the 5 stage process is bureaucratic and that this is the reason for reduction to 2 stages.



There is a misconception within the proposals about the reasons for the bureaucracy and delay within the current system. It is a simple demand and supply equation. It is not in our experience because there are 5 stages. Legally, in accordance with the Code of Practice, these stages are not hurdles to be overcome. A child can go straight to Stage 4 if needed. However, in practice because the system has been historically under-resourced, ELBs have erected their own hurdles to delay processes and to allocate scarce resources in order to spread costs further across their budgets. ELBs sometimes insist on going through each stage in turn even when a child clearly requires and is legally entitled to a high level of specialist input.



This creates a cascade of delay, in direct contravention of the principle of early intervention. Such delay should certainly be removed from the system with a more child-centred approach, improved resourcing and the proper implementation of the current framework by decision-makers.



To illustrate that the source of the bureaucracy is in the operation of the system rather than a product of the 5 stage framework, we are aware that the one of the ELBs introduced without any legal basis, Stages 3(a), (b) and (c) to the Code of Practice to be overcome before a statutory assessment would be considered.



Another ELB devised several layers of criteria for access to specialist direct literacy support for children who have already been assessed as needing this critical support to access the curriculum. One of the criteria is that the child has been on the waiting list for over a year. This is a clear failure to adhere to the Departmental policy of early intervention. This approach was found to contravene the legal rights held within the statutory framework in the recent judicial review undertaken by CLC in L’s Application15



L’s Application highlights the point that decision-makers within the special education system, the objective of which is to meet the needs of children with SEN and disabilities, are at all stages subject to the supervisory powers of the High Court and that decisions must be taken in the interests of the child.







L’s Application – “A Frustrating Circularity”



L’s Application [2012 NIQB] 18 - CLC acted for a 9 year old child with dyslexia who took a judicial review against an ELB in relation to its decision to refuse to provide direct teaching support to the child this academic year (i.e. from September 2011).



In October 2010, the child was assessed by the Board’s educational psychologist who recommended that a referral be made to the Board’s outreach support service for pupils with specific literacy difficulties and in the interim he should continue to receive a high level of literacy and numeracy support within the school’s own special needs arrangements. Following this assessment, the child was put on the Board’s waiting list to receive direct teaching support. However, due to the limited financial resources available to the Board to provide literacy support, it applied a new set of criteria for allocation of its services and the applicant was not allocated direct teaching support for 2011/12.



The case proceeded to full hearing on 1st February 2012. Both a summary judgment and the final judgment (dated 14th March 2012) are available to download on the Northern Ireland Court Service website.16



Mr. Justice Treacy noted in his comprehensive analysis of the legal significance of the operation of the 5 stages of the Code of Practice that “the Board’s approach to its powers and duties...created a frustrating circularity which is damaging to the interests of children”.



He concluded in his judgment that “the SEN System does require Boards to find some fair way to prioritise demands for specialist support for children at Stage 3” (of the Code of Practice for Identification and Assessment of Special Educational Needs)”. In applying this finding to the Applicant’s case he made the following conclusions:




  1. The board has a statutory duty to exercise its powers with a view to identifying all those children who require statutory assessment.
  2. In exercising these powers it is entitled to have appropriate regard to the resources it has available to meet non-statutory obligations and therefore to prioritise its interventions in a fair and appropriate way.
  3. The rationale and objectives on the SEN system require that boards use their power to make non-statutory interventions within a reasonable time i.e. a period of time consistent with the objectives of the system.
  4. What is a ‘reasonable time’ is context specific and will depend on all the facts of the individual case. In considering what is ‘reasonable’ the decision maker should have regard to evidence about the effects of delayed intervention on the condition and on the prospects of success of the intervention when made.
  5. In the present case, evidence from the Department of Education indicates that intervention for numeracy and literacy difficulties have an 80% success rate if provided at the age of six to seven, but only a 20% chance of success if delayed until the age of 10. The Applicant is fast approaching the end of the time frame for optimal success of intensive intervention; therefore the intervention must be delivered for him without any further delay.
  6. The intervention proposed by the Board under its new criteria is not sufficiently intensive to satisfy the requirements of para 2.60 of the Code17. The intervention to be delivered to the Applicant should be direct literacy teaching from a literacy specialist as indicated by the Educational psychologist.

The Court made an Order against the ELB for reimbursement of the Applicant’s legal costs.



Shortly following this judgment, the ELB gave effect to the Court Order by implementing direct literacy support provision for the Applicant. The child is now receiving two half hour sessions of direct teaching support from a specialist Outreach Literacy Support Teacher, which is delivered in a small group setting in his own primary school.



It is CLC’s view that this judgment will have broad implications not only for children with dyslexia who are currently awaiting appropriate and timely literacy and numeracy support from education and library boards, but potentially for all children at every stage on the SEN register who require early intervention, including those who are awaiting stage 3 service provision, such as for example, autistic spectrum disorder support services, emotional and behaviour support, therapeutic interventions via the ELBs’ multidisciplinary assessment and support services such as MAST and educational psychology assessments.











A New Bureaucracy



It is no doubt the case that schools will be forced to invent their own individual bureaucracies to allocate special educational provision on the transfer of legal responsibility for thousands of children to them from Boards. In the absence of proper capacity and within their existing budgets, already under significant strain, schools cannot realistically be expected to provide an appropriate standard of provision, much less to facilitate full inclusion in mainstream for children with significant SEN and disabilities. Alarmingly, this is a much more complex, bureaucratic system of allocation than that which has been administered by the 5 Boards.



The level of delegation of legal responsibility to schools within the proposed system is highly likely to produce substantially increased inequality in the allocation of resources at the school-based stage/s, exacerbated by a lack of transparency in relation to schools’ accounting for SEN spending. Moving the resource problem to schools is unlikely to result in an effective, efficient delivery of education. The more likely outcome is an inefficient, unregulated, unaccountable system.



It is entirely unclear how the Department proposes to regulate consistency of approach by schools. We would ask for clarification on whether clear guidance will be issued to schools regarding any new statutory duties placed upon them? Who will be responsible for monitoring and regulating compliance? How will schools be held accountable by the Department? What redress will parents and children have when the special education provision does not meet an acceptable standard?



CLC would suggest that the solution to the bureaucracy issue is a single point of transparent, accountable SEN resource allocation via ESA. This also makes clear sense in terms of giving parents and children legal enforcement rights when resource allocation decisions on professional services which are external to the school are ineffective or unfair. It is less likely, under a more straightforward system such as this, that pockets of disability discrimination would develop in mainstream schools. When children’s needs are not met, parents would be able to appeal against ESA rather than trying to enforce against their child’s school.



Further, the efficiency of schools could only be damaged if the legal enforcement is to be against schools. Valuable time and resources are required for teaching, not for the defence of legal actions, which would likely involve the costly mechanism of judicial review.





Offer of Services



The Department has set out, in a document supplied at the end of the sitting of the reference group and appended to this paper as Appendix 6, a proposal in relation to “offers of service” in relation to ELB/ESA supports. It is described as a central concept whereby the ELB/ESA would have to set out in writing every year “the range of supports they intend to make available to schools”. It is stated that “this would ensure that ELB/ESA supports would be more flexible, responsive and put in place more quickly than at present”.



However, this arrangement is not in fact a new development and is already in place according to paragraph 2.41 of the Code of Practice which states that “SEN support services provided by Boards can help schools identify, assess and make provision for children with special educational needs. Boards should notify schools of the services and expertise which they can arrange or make available in order to meet children’s needs, with or without statements”.



It is therefore difficult to see how the Department’s idea that this will make the system more flexible and responsive can be brought to fruition. Indeed service planning and provision should be needs-centred, based upon the needs of the children within the system and not upon a resource-centred fixed menu of supports which cannot in reality be “flexible and responsive”.



There is no clarity about legal accountability or enforceability for parents and children in relation to decisions to refuse access to SEN support services. CLC strongly urges the Department to build in statutory time limits for special educational provision, once a need is identified at Level 1 and at Level 2.



Reference is made to the Provisional Criteria18 and Good Practice Guidelines19 which are designed to provide guidance on the allocation of resources with a focus on the responsibility of the school to exhaust all relevant measures and strategies before calling upon ELB resources. The criteria are said to be provisional pending the outcome of the SEN and Inclusion Review. However, CLC has reservations about these criteria and guidelines as they appear to have been used as a means of implementing the proposed policy before consultation has been carried out. Further, some of the provisions do not sit well with the policy of early intervention e.g. a child cannot generally access a statutory assessment before he/she has had specialist literacy support to assist with dyslexia but many children cannot access the literacy support because of extended waiting lists of over 1 year.20



Further, statutory assessment is allocated to children whose needs are “significant and/or complex” which generally equates to performing in the bottom 2% of the population21, whereas 4.4% of children currently need statements. This 2% criterion perpetuates an underestimation of need using figures from the 1980s, when the Warnock Report was written. From CLC casework we are aware of the consistent exclusion of children from services which they need on the basis that they do not fall into the bottom 2% of the school population in terms of attainment. This method of allocation ignores the essential practice of early intervention.



The Department appears to propose that Boards of Governors will have a general statutory duty to provide for children with SEN. It is important to be aware that currently, the duty upon Board’s of Governors is a qualified duty which is effectively resource-dependent, rather than an absolute enforceable duty, so that enforceability is extremely problematic. The Department has published a “Guide to Governor Roles and Responsibilities” which was last updated on their website on 9th March 2012.22 It advises that in relation to mainstream, provision “The Board of Governors must use its best endeavours, in exercising its functions in relation to the school, to secure that if any registered pupil has special educational needs, the special educational provision which his/her learning calls for is made.”



Best endeavours” in the current financial climate are unlikely to meet the needs of children with SEN and disabilities as many schools appear to be struggling to deliver even basic educational services to children generally. In terms of finance, the guide is clear in stating that “Pupils with special educational needs may require extra help. The cost of extra help for pupils without statements who attend mainstream schools is met from the school’s budget allocation.”



The very serious implications of the lack of proper resourcing of the Department’s SEN policy are clear. There are ongoing issues with under-resourcing of the policy of inclusion at present and ongoing incidents of discrimination which CLC legal staff advise upon regularly. The transfer from ELBs to schools of legal responsibility for special educational provision for at least half of the pupils who currently hold statements, without the resources to enable schools to deliver upon their responsibilities will in our view lead to a failure of the policies of inclusion and early intervention and the potential harming of the education, health and development of thousands of children on the SEN registers of mainstream schools. We view this as a matter of very grave concern.



Ultimately, if the Department’s policy were to be implemented in the manner proposed, it would be likely to lead to potential human rights breaches, due to the damaging impact upon the physical and mental integrity of children with SEN and disabilities and in some cases, exclusion from the education system through lack of proper support.



Statutory Duty to Cooperate



The 5000 plus children who are to be moved away from provision via a statement/CSP currently rely on their statements because they need ELB support services and/or health services, including direct 1-1 support in order to remove barriers to inclusion and to enable access to the curriculum. Examples of such direct support include classroom assistance, literacy support, behaviour support, autism support, speech and language therapy, occupational therapy and physiotherapy.



If the statement is removed, access to these supports becomes the school’s responsibility at level 1. At level 1 it is proposed that a child will have a Personal Learning Plan (rather than the existing Individual Education Plan). As the proposals stand, a PLP will not be a legally enforceable document and will not trigger legal rights of appeal to SENDIST. Therefore a PLP carries no mechanism for ensuring a child receives ELB/ESA supports or therapies to meet educational needs from the allied health services in cases of dispute between parents, schools ELB/ESA. Nor would staff from a mainstream school have the expertise to place such supports within a PLP.



Schools have no extra money to take responsibility to buy in these services and has no agreements with health (as the ELBs do) regarding arrangement of therapies which qualify as educational needs – e.g. occupational therapy to enable a child with autism to use their senses in an integrated manner so that they can access the curriculum; speech and language therapy to enable a child with developmental problems to understand and use language; specialist literacy support to enable a child with severe dyslexia to learn to read and write. Further, it is crucial to recognise that although health trusts currently have a qualified statutory duty to help ELBs under Article 14 of the 1996 Order, they have no statutory obligation to help or cooperate with schools.



Education officers and health staff currently share a level of cooperation regarding educational provision, however there is no absolute statutory duty to cooperate to ensure that the special educational provision for and inclusion of children are guaranteed. The mechanisms for cooperation are far from clear. Ultimately, under the current system ELBs are legally responsible for educational provision which is specified in a statement, if health professionals decide not to cooperate.



The impact of this is that the best interests of children using a “whole child approach” are not at the heart of decision making and neglect of children’s interests creates inefficiencies, ultimately increasing costs to both departments in assisting the child later in life and in defending legal actions.



It is CLC’s experience that reports and evidence provided by health professionals and ELB professionals are increasingly vague and use “coded” language to express what a child needs, with no specific identifiable legally enforceable recommendations which can be transferred into a statement of SEN. We believe this is the result of resource-based pressures upon the system. This has implications for the procedural integrity of the SEN system, undermining children’s rights to access specific supports to meet their needs and leaving Health Trusts, ELBs, the Department and professional employees who give evidence in disputed matters, open to negligence claims.23



The unwillingness/inability of the health trusts to recommend and provide direct therapeutic support (in mainstream schools and increasingly also in special schools) and the concomitant reluctance of the ELBs to specify therapies as educational needs on the statement or to make provision at the school-based stages requires to be addressed. Legally ELBs are required to meet identified needs and to arrange the provision. The education budget is in danger of further erosion as health trusts fail to deliver therapeutic services to children and refuse assistance to ELBs because ultimately, ELBs must provide.



In our view, from a children’s rights perspective there is no valid argument that can be made against a statutory duty to cooperate upon health and education as part of the SEN legal system.



Question: of the 5000 plus children who will lose their statements and the 10,592 children at Stage 3 currently, a proportion of which will need therapy input and will not now move to statutory assessment under the new proposals, a large proportion will have no statutory right of appeal to SENDIST if therapies are wrongly denied. How can therapies be accessed?



The Departments of Education and Health need to give serious thought to this issue as failure to provide may well result in judicial review, discrimination claims, negligence actions and claims for damages in the longer term in relation to children who have not been enabled to access the curriculum to their full potential.



CLC calls for the enactment of a statutory duty to cooperate as a matter of urgency.



CLC calls for legally enforceable rights of appeal to an independent expert panel to be attached to the Personal Learning Plan so that parents and children are enabled pursue supports which are wrongfully withheld.





Monitoring Outcomes



A statutory Personal Learning Plan with no real outcome accountability and optional annual review offers no guarantee to children at the school-based stages and removes some existing safeguards for regular monitoring of learning targets. IEPs /PLPs can be an excellent tool when used effectively and monitored closely in partnership with parents but the quality of IEPs currently varies considerably from school to school. We have seen many examples of vague IEPs which do not address children’s needs in a meaningful way or are simply reissued year after year with targets unaltered. It is pointless to have a “plan” without regular identified points in time to monitor and measure the outcomes from the plan.



Monitoring is even more important if school-based service provision is to become the predominant method of service delivery. A year is a long time in the education of a child who has SEN or a disability. PLPs should be regularly monitored and reviewed for educational effectiveness throughout the school year in partnership with parents and children, at least termly. This is a reasonable proposition given that most children receive school reports twice per year. Clearly children who have SEN or disability require a higher level of planning and review to ensure they reach their full potential on an equal basis with their peers and access timely appropriate early intervention when difficulties are brought to light.



The statutory guidance that is to be produced should contain complaints mechanisms for parents and children to access if the PLP is not designed, monitored or implemented properly by a school.



Appendix 3 – Carla’s Story – Physiotherapy in Mainstream School with Statement



Appendix 4 – Cooperation – Successful Outcome for Child - Therapies





Early Intervention/Capacity Building



The Department, via the ELBs/ESA must properly and fairly prioritise the spending of their block grant in order to resource specialist services, ensuring timely appropriate provision of direct specialist 1-1 help for the children who need it. This is not currently the case so that children are placed on lengthy waiting lists and class teachers/parents are given “advice and strategies” in place of the intervention that is actually needed. This is happening currently with education provision, as described in detail in L’s Application (discussed above) and also with health provision, where children are given written strategies instead of 1-1 therapy.



Advice and strategies” are being placed as targets in Resource Allocation Plans through which ELBs account to the Department and to the public in terms of the efficiency of interventions. “Advice and strategies” are being substituted for appropriately intensive specialist direct 1-1 support while children are on lengthy waiting lists in order to give the impression that children are having their needs met. CLC is of the view that in measuring the quality and effectiveness of service provision which is made in response to identified needs, ELBs/ESA should focus on services being delivered directly to children and not on diluted forms of indirect provision, where the child has no contact with the specialist.



It is necessary to consider once a child’s needs have been identified, how and when they are to be met. The Minister proposes correctly that early intervention is the key. However, it is not necessarily the provision which is within the capacity of schools that poses the greatest problem. It is the professionally trained and qualified person providing individual support which is external to the school which is in short supply. We would be concerned that schools are being asked to have specific statutory responsibility for allocating provision which is not under their control or within their resources i.e. ELB/ESA support services.



The proposal to balance general “capacity building” against the provision of individual support to those with “multiple/complex needs” may be attractive in theory but in practice a child may not have multiple/complex needs under the awaited proposed definition but may still need tailored individual external support for what are in fact very significant needs which substantially impact upon equality of access to education. An example is a child with dyslexia who needs LTSS (specialist direct literacy teaching). It is fairly straightforward to see what is needed but because of a lack of resourcing for LTSS, such a child cannot currently access LTSS in some ELB areas until he/she deteriorates and develops significant/complex needs around the age of 9 or 10 years, when the potential for the intervention to have a positive impact is significantly diminished. Further, the service is only provided to bring a child up to a basic functional standard, as opposed to a level consistent with the child’s full potential.



It is important to note that external support is currently sought by schools for 40% of children who are on the SEN register (according to the Department’s information, shared at the reference groups). That external support is specialist support, which cannot effectively be replicated by a teacher within the classroom setting, regardless of access to training or access to the DE resource file, with over 500 pages of cut and pasted strategies (some of which are outdated and unsuitable). “Advice and strategies” from specialists does not compare with 1-1 specialist assistance direct to the child and in many cases is not intensive enough to meet the child’s individually assessed needs.



One must bear in mind that the main problems with the current system are in the school-based stages of provision. This may explain why of the 3000 responses only 10% are in favour of the proposals on CSPs, which actually move the vast majority of children into the part of the system which is not working well and where the greatest pressures and delays exist. This is the school-based part of the system where there are no appeal rights and decisions lie with SENCOs, Principals and Board’s of Governors, whose decisions are largely unscrutinised and unregulated.



According to ETI reports for 2010/2011, the arrangements to identify, assess and meet the needs of children with SEN were not of a high standard in many of our schools. 18% of the primary schools inspected and 38% of the secondary schools did not meet the expected standard.



Parents face great difficulty and enormous distress in challenging schools and we are aware that they often hold fears of negative impacts upon their children in situations where they might otherwise consider a complaint or a legal action. CLC staff members are well aware through casework that many parents do not challenge blatant school failures for these reasons. Therefore it is our view that accessible legal appeal rights to an independent expert panel are a priority at Level 1 of the proposed model of special educational provision in order to empower parents and children to take action against wrongful decisions and to preserve the procedural integrity of the SEN system.





Appendix 5 – Failure of Early Intervention – Exclusion - Discrimination





Protecting the Legal Rights of Children with Disabilities

A wide range of legal protections are in place to protect the rights of children with disabilities, including the right to mainstream education via SENDO, the right to inclusive education under UNCRPD and the equality duty placed upon public authorities in the exercise of their functions under Section 75 of the Northern Ireland Act 1998.

As noted above, the Department has recognised that some schools have much better standards of inclusion than others. It is our view that failure to remove barriers to education for disabled children may amount to disability discrimination. The Department proposes to strengthen the legislative duty upon Boards of Governors to improve consistency in provision across the school system. Coupled with clear statutory guidance for schools and proper resourcing of the policy of inclusion by the Department, enhanced duties upon Boards of Governors in relation to their own functions in the day to day running of schools has merit in terms of setting standards for inclusion and driving improved consistency amongst schools.


Given current budget constraints as outlined earlier, it is likely that in schools with excellent standards of inclusion and SEN provision, demand for places for children with SEN and disabilities will put pressure on the delivery of education as the resources available remain static or are reduced. It may well be the case that where a child has a disability, whether physical or otherwise, which requires the expenditure of significant school resources to support the child, there will develop pockets of disability discrimination, increased exclusions and refusals to admit to school.



We are aware of a significant and growing number of children who are not attending school because the specialist supports, including learning support centres or units attached to mainstream and/or specialist individual support within mainstream are simply not available. At area planning level within the Department and at ELB level currently, the system is failing to ensure inclusion for all of these children who are able to learn but have no suitable environment to attend. This is exacerbated by the under-resourcing of the Home Tuition Service which is not able to provide for children who are clearly in need of interim support, despite the fact that there is are legal obligations to make provision for such children under Article 86 of the Education (NI) Order 1998.



These are children who may be extremely vulnerable emotionally and despite their right of inclusion and right to education, are isolated or are unable to cope with their environment and are not accessing education. As more and more children are moved into the school-based stage at Level 1, we anticipate there will be a proportionate increase in disability discrimination as the school system struggles to cope with competing resource demands. Given that ELBs are unable to cope with this problem and that they are refusing statutory assessments for such children, some of whom we have assisted, it is untenable to suggest that schools will be able to assume legal responsibility for appropriate provision for such children at Level 1.



The significant delegation of responsibility to Principals/Boards of Governors at the proposed Level 1 is likely to produce serious legal implications with an increase in cases of suspension/expulsion/parental withdrawal of children with social, emotional and behavioural difficulties and/or an increase in refusals to admit the children to school and discriminatory restriction of educational and social experiences available to children because schools do not have the resources to make reasonable adjustments to include all pupils as required by law.



This problem is exacerbated by the fact that schools are not designated as public bodies for the purposes of section 75 of the Northern Ireland Act 1998. Therefore schools are not bound by the statutory obligations under section 75 of the Northern Ireland Act 1998 to ensure equality of opportunity for all children when carrying out their functions. We would advocate that schools should be designated as public bodies.

The adverse equality impacts of the Department’s proposals have not been taken into account in any meaningful way, nor have the views expressed through consultation impacted upon the proposals being taken forward by the Department. Central to the carrying out of an EQIA are the obligations on the Department as a designated public body under section 75 to take into account the views expressed through consultation. The Department, as a designated public body under section 75 of the Northern Ireland Act 1998, is under an obligation in making any decision with respect to a policy adopted by it, to take into account any assessment and consultation carried out in relation to the policy24.

The CLC does not believe that the Department has complied with this obligation given that some of the policy proposals are appearing in schools before the end of proper consultation and pilot schemes have been commenced. We believe that widespread opposition to the proposals has been discounted by the Department in formulating its policy proposals, in breach of section 75 of the Northern Ireland Act 1998.

We believe that if the Department progresses with this proposal, which will result in a reduction in legally enforceable rights to provision, there will be very clear potential for adverse impact on grounds of disability. We wish to see this proposal amended to mitigate the adverse impact or an alternative introduced which will further the policy aims and remove any adverse impact in line with the Department’s obligations under section 75 of the Northern Ireland Act 1998.

We urge the Department to carry out a full and comprehensive EQIA, taking into account actual budget allocations for these proposals as a matter of urgency as we believe that this is fundamental to ensure the Department’s compliance with its obligations under section 75.

The manner in which the Department has been progressing with its proposals appears in our view to be in contravention of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Amongst other relevant obligations,

Article 1 of the UNCRPD states that “The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

Article 4 deals with the governmental obligation to implement the UNCRPD including the obligation “to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention” and to take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes”.

It is CLC’s view that the policy proposals as currently framed are likely to cause significant regression of the human rights of children with disabilities25, as opposed to the progressive implementation and realization of those rights which is agreed under UNCRPD, which has been ratified by the UK and the EU.

The inherent human dignity of children with SEN and disabilities is under threat from the removal and weakening of the domestic structures designed to protect their rights under the 1996 Order and SENDO. The current 5 stage system, operated fairly and effectively and properly resourced, has the potential to enable children to access their education on an equal basis to their peers.





Effective and Efficient Delivery of Education



If the current proposals go ahead the consequence will be that a significantly increased number of children will not have their special educational needs met due to lack of enforcement mechanisms and due to inequalities caused by a proliferation of school-based systems of resource allocation. The costs to the Department are likely to increase while standards in schools are likely to fall. Children attending schools which are already feeling strain because of budget restrictions/cuts will be the first to feel the full adverse impacts of these proposals. There is a very real risk that disability discrimination will become ingrained within our education system and the legal right to inclusion in the education system will be subject to significant breach.



In order to ensure the effective and efficient delivery of education, it is imperative that the Department takes stock of the 3000 responses, 90% of which do not endorse the proposals on the changes to the 5 stage process. The overwhelming opinion which is being voiced in response to the proposals is that statutorily enforceable appeal rights are critical to confidence in the system and must be maintained to ensure legal compliance by ELBs/ESA and enhanced to govern school-based decisions about individual 1-1 supports for children with special educational needs and disabilities.





Information Sought from the Department



CLC is requesting the Department provides the following information:



  1. The information used to calculate an estimate of a 50% reduction in statements for children in mainstream education under the new proposals.
  2. A full and proper analysis of provision currently made for children in mainstream education via statements.
  3. How many statements are currently in force for the sole purpose of providing a piece of equipment?
  4. What are the proposed criteria for access to the process of a statutory assessment?
  5. What is the legal status of the proposed “offer of services”?
  6. Can a parent/child apply for an “offer of services”?
  7. What is the appeal mechanism for a parent/child against a refusal of services?



Note: In relation to “2” above - the Department, at the reference group meeting on 8th March 2012 repeated as it regularly does, an example of statements being used as a vehicle to access a laptop. Indeed statutory assessments are only granted where a child’s needs are shown to be “significant and/or complex”, the child has not responded to relevant and purposeful measures taken by the school and others and the child cannot be provided for within resources normally available within mainstream schools. CLC has never come across such a situation where a statement is granted just to provide a laptop and takes the view that the Department seeks to minimise the importance and credibility of the current statementing process in a manner which does not reflect the real issues which include the historical under resourcing of early intervention, delays in identifying needs and the failures of provision at the point of need. Statements in our experience are vehicles for provision such as classroom assistance, 1-1 specialist support, speech and language therapy and occupational therapy where therapy is necessary to meet a child’s educational needs. ELB’s state to us that equipment is the school’s responsibility and are reluctant to put equipment into a statement at all.



Conclusion



We hope that our comments have been constructive and useful and are happy to meet with staff from the Department to discuss anything raised in this paper. We await receipt of the information requested and responses to the queries raised from the Department as soon as possible. We wish to be kept informed of progress and we look forward to further engagement in the development of this policy.







































































APPENDIX 1



Case Study: L’s Application [2012] NIQB 18



Difficulties related to the absence of appeal rights at Stage 3 and/or Level 1



Wednesday 14 March 2012

COURT FINDS THAT BOARD FAILED IN ITS DUTY TO IDENTIFY SUPPORT NEEDED FOR CHILD WITH SPECIAL EDUCATIONAL NEEDS


Summary of Judgment


Mr. Justice Treacy, sitting today in the High Court in Belfast, concluded that the approach taken by an Education Board to identify and assess the support necessary for a boy with special educational needs was unlawful.

The application for judicial review was brought by the mother of a 9 year old boy, LC, with special educational needs including dyslexia.  In March 2010, when in Primary 4, he was referred to the educational psychology services of the relevant Board by his school principal.  He was assessed as having well below average word reading and spelling skills and reading comprehension.  The psychologist recommended that a referral should be made to the Board’s outreach support service for pupils with specific literary difficulties and in the interim he should continue to receive a high level of support for literacy and numeracy within his school’s own special needs arrangements. 

LC’s mother expected he would receive direct literacy support for his P5 year.  Instead she was informed that a teacher from the literacy support service would go to the school to discuss LC’s previous test scores with the class teacher and offer general advice on teaching strategies that should be adopted.  LC’s mother asked the Board to review its decision.  She was told on 22 August 2011 that due to the high level of referrals for direct teaching support the Board had applied criteria the effect of which was that LC would be considered as a priority in 2012/13.  The Board also noted that it had a limited budget for the provision of non-statutory support.  LC’s mother sought to challenge the delay in providing him with the specialist support identified by the psychologist by way of judicial review.

The Education (NI) Order 1996 and the Department of Education’s Code of Practice on the Identification and Assessment of Special Educational Needs (SEN) establish and describe the system which governs this case.  The SEN system has 5 stages:

  • Stage 1 – Teachers identify and register a child’s special educational needs and, consulting the school’s SEN co-ordinator, take initial action;
  • Stage 2 – The SEN co-ordinator takes lead responsibility for collecting and recording information and for co-ordinating the child’s special educational provision, working with the child’s teachers;
  • Stage 3 – Teachers and the SEN co-ordinator are supported by specialists from outside school;
  • Stage 4 – The statutory assessment stage - If the Board is of the opinion that a child has special educational needs and it is necessary for the Board to determine the special educational provision which any learning difficulty he may have calls for, the Board will serve a notice on the child’s parent informing him that it proposes to make an assessment of the child’s educational needs; and
  • Stage 5 – The “statementing” stage – The Board will make and maintain a statement of the child’s special educational needs if, in light of an assessment under Stage 4, special educational provision is deemed necessary.

Mr. Justice Treacy said that the legislation and the Code set up a unified system targeted at the identification and assessment of special educational needs.  In Stages 1 and 2 the school has legal responsibility to meet the needs of pupils with special educational needs.  At Stage 3 the school still has legal responsibility to meet the child’s needs but the Board has the power to intervene and assist schools at any stage.  Boards do this through the special educational needs support services. 

Describing the process, Mr. Justice Treacy said it was essentially one of elimination in which schools seek to identify as early as possible those children who are displaying a qualifying level of difficulty in their learning.  Those children whose difficulties persist despite school based intervention at Stages 1 and 2 are reviewed.  New more intensive action is planned and delivered and the effect of this level of action is assessed again.  Each cycle of planning action and monitoring eliminates some individuals from the pool of children who require further action.  Each elimination also operates as part of the identification process.  As children with less severe difficulties are eliminated from the pool, so those children who remain behind come closer to being identified as the group most likely to require statutory assessment.  The children left at the end of Stage 3 are recognised as having more severe learning difficulties and as being “likely candidates” for intervention at Stages 4 and 5.

The judge said it was important to note the legal significance of each cycle at the school based stages.  Each intervention has two possible outcomes for the child.  First, it may meet his special needs by school support thereby disqualifying him from consideration for any higher level of support.  Alternatively, it may prove that his needs cannot be satisfied at that school based stage, and thereby qualify him for consideration at the next level of support.  For children on Stage 3 the next level is statutory assessment.  Mr. Justice Treacy said that in such cases the necessary Stage 3 intervention must be delivered and its effect monitored in order that evidence of this child’s candidature for statutory assessment can emerge.  A statutory assessment can only be made when the Board is satisfied by evidence that all available school based intervention, including intervention with support from Board specialists, has been tried and has failed to remedy the child’s difficulties sufficiently.  If the Board does not use its power to provide specialist support at Stage 3 no evidence will emerge to indicate whether the child’s needs do require statutory assessment thereby actively impeding the identification process.

Mr. Justice Treacy said that under this system the Board has a statutory duty to decide whether or not a child meets the criteria for statutory assessment as well as the power to supply or deny the assistance the child needs in order to prove whether he meets the criteria or not.  He noted that essentially there is potential within this system for Boards to “regulate” the flow of cases which are likely to qualify for statutory assessment by controlling the pace at which they provide access to specialist expertise at Stage 3 of the SEN procedures. 

The judge said the question therefore for the Court in this case was whether the Board can lawfully delay the child access to specialist intervention when assessment of the effects of that intervention is the only way he can ever become identified as a child in need of statutory assessment.  He concluded that the Board’s approach was incorrect.  He said the Board is required to make the purposeful interventions needed to enable the child to move forward towards “identification” which comes when the evidence shows that no school based intervention is capable of meeting his needs.  If the Board refuses a school based intervention that it has power to supply, the refusal automatically stops the process of identification from progressing any further.  For this reason, outright refusal of such an intervention is unlawful and contrary to the Board’s general duty under the 1996 Order. 

Following from this, the next question was when must the Board exercise its powers in favour of the child in the assessment process?  The judge said that it is well known that a public authority may take resources into consideration when exercising its powers.  He said it appeared that Parliament in drafting the legislation intended Boards to use their powers to move all children in the direction of identification, but to allow them a margin of discretion as to the time frame within which this would be achieved. 

The judge said that the next question was therefore how long is too long, or when does a delay amount to a refusal?  Mr. Justice Treacy did not agree with the approach taken by the Board that it was not possible to prioritise any particular category of disability as being more important or more urgent than another:

I consider that action on a child’s learning difficulty is sufficiently urgent to require prioritisation in any case where failure to act will make the difficulty more severe or more entrenched than would otherwise be the case.  Where this would be so, the failure to use a power of intervention actively contributes to the seriousness of the learning difficulty and increases the likelihood that it will eventually require statutory assessment.  Such a result is inconsistent with a SEN system which continually promotes action designed to minimise or eradicate learning difficulties, and which reserves statutory assessment for the small minority of children whose learning difficulties have failed to respond to every intervention available in the school based stages.”

Mr. Justice Treacy concluded that the SEN system requires Boards to find some fair way to prioritise demands for specialist support for children at Stage 3.  In applying this assumption to the case of LC he concluded:

  • The Board has a statutory duty to exercise its powers with a view to identifying all those children who require statutory assessment;
  • In exercising these powers it is entitled to have appropriate regard to the resources it has available to it to meet non-statutory obligations and therefore to prioritise its interventions in a fair and appropriate way;
  • The rationale and objectives of the SEN system require that Boards use their power to make non-statutory interventions within a reasonable time, ie a period of time consistent with the objectives of the system;
  • What is a “reasonable time” is context specific and will depend on all the facts of the individual case.  In considering what is reasonable the decision maker should have regard to evidence about the effects of delayed intervention on the child’s condition and on the prospects of success of the intervention when made;
  • In the present case, evidence from the Department of Education indicated that intervention for numeracy and literacy difficulties have an 80% success rate if provided at the age of 6 to 7, but only a 20% chance of success if delayed until the age of 10.  LC is fast approaching the end of the time frame for optimal success of intensive intervention, therefore the intervention must be delivered for him without any further delay;
  • The intervention proposed by the Board is not sufficiently intensive to satisfy the requirements of the Code.  It should be direct literacy teaching from a literacy specialist as indicated by the educational psychologist.

NOTES TO EDITORS


  1. This summary should be read together with the judgment and should not be read in isolation.  Nothing said in this summary adds to or amends the judgment.  The full judgment will be available on the Court Service website (www.courtsni.gov.uk).

ENDS

If you have any further enquiries about this or other court related matters please contact:

Alison Houston
Judicial Communications Officer
Lord Chief Justice’s Office
Royal Courts of Justice
Chichester Street
BELFAST
BT1 3JF

Telephone:  028 9072 5921
Fax:  028 9023 6838
E-mail: Alison.Houston@courtsni.gov.uk









APPENDIX 2



Case study – inappropriate sharing of classroom assistance – vague unenforceable statement



Difficulties related to enforcing existing appeal rights via statements



A young child with complex needs arising from physical disability was granted a full time classroom assistant provided by the ELB as part of a statement. A second child in the same class was assessed as needing a statement and classroom assistance. The needs of both children were such that there was no doubt they each needed an assistant to access mainstream education. The ELB insisted that the school share the first child’s classroom assistant with the second child, despite the vociferous objections of both sets of parents and the school staff both on the grounds of safety and the ability of the children to learn and be included in school life.



The statements both read “{name} shall have access to adult assistance at a level determined by the board”. This allowed the board to dilute the provision without breaching the strict terms of the statement.



The parents each lodged appeals to SENDIST seeking amendment to “full time one to one adult assistance”. Soon after, the Board having reviewed the classroom situation granted two full time classroom assistants. They nonetheless entered their intention to oppose the appeals. The parents realising their provision could again be diluted were very distressed that they would have to attend a tribunal and bring witnesses because the Board refused to record on the statement provision which has actually already been arranged.



After significant intervention, advice, drafting of paperwork and negotiations via Children’s Law Centre and SENAC working together on behalf of the children, agreements were reached at a late stage without the need for a hearing.



The time wasted by the Board in opposing these appeals and drafting proceedings in such a straightforward matter illustrate just how difficult matters can be for parents and how difficult it is likely to be for parents and children to access ELB/ESA support services via the proposed “offer of services”.



Without the right of appeal to SENDIST the issues would not have been resolved as Board Officers would not have been accountable for their decisions which are resource driven rather than based on the identified needs of children.



Note: if these children did not have statements and had only PLPs under the proposed system, the parents would have had no appeal rights and no power to resolve matters with the ELB.





APPENDIX 3 – Carla’s Story





Carla attended SENDIST with a CLC legal representative to make sure that adults would listen to her after a proper solution was not reached during a SEN appeal and a disability discrimination claim. Her obvious needs were disputed over several years with the impact that she became very aware of her disability which she had not really worried about before. After the various hearings and the consumption of therapists’ time attending Tribunal the matter was resolved by agreement at the door of a Tribunal Review hearing which took place after a substantive hearing and decision-making process by a SENDIST panel. Carla has written out her own story which is below.





Hello My name’s Carla and I’m 13. I’ve got cerebral palsy but I’m lucky because I only have physical difficulties. I can walk a bit with help. I love horseriding, swimming and I’ve even been skiing on the Olympic run in Whistler in Canada. I was in a sit-ski and it was amazing!

I’ve always gone to an ordinary school and I was doing really well until they took my physical help away at the beginning of P7. No-one was allowed to help me walk anymore and I ended up sitting in my wheelchair all day at school.

Suddenly my marks were awful, compared to what they had been and I was in a real panic because it was only seven weeks to my transfer test. My mum ended up teaching me at home and I was delighted to get an A.

However when I went back to school things were the same. They said that nobody could help me get around because of health and safety. I felt like everybody mattered except me and although I knew it wasn’t right for me to sit in the same position for hours on end, that’s really what happened.

I’d always had Physio exercises in school and walking and I knew that if I had to spend almost my whole school day sitting I wouldn’t do well because I was uncomfortable and when you’re uncomfortable you can’t concentrate. I want to be a journalist or an RE teacher and you need to go to university for that. I thought that if things continued as they were I would never have the chance. It was a hopeless situation.

Then we found out about the Children’s Law Centre and when we phoned up they said they might be able to help. We went for meetings there and they said what was happening to me wasn’t fair and they would try to do something about it.

And that’s what’s happened. There was lot of hard work and effort by lots of people in the Children’s Law Centre, legal stuff, lots of letters and meetings and a Tribunal. We even thought we’d have to go to Court, but thankfully it’s all been sorted out and now a Physio Assistant will be coming in to my school twice a week to help me.

Honestly, if it wasn’t for these marvellous people my future would be horrible. Now at least I know that if I work hard enough, I have chance of becoming a journalist one day, which is my dream.

I felt that no-one listened to me and that because I was only a child I was just stuck with what adults decided for me. But the Children’s Law Centre stood up for me and now I know that my opinion does count after all.

So at the start of this disastrous experience I was very shy and terrified to speak up for myself but now I have no fear. I want other children to know that if you have a major problem or if you think something’s not fair, never be afraid to contact the Children’s Law Centre. They will be there for you no matter what”.

















































APPENDIX 4 – Cooperation – Successful Outcome for Child



A Children’s Law Centre legal representative together with the parents, the school Principal and the ELB Officers who consulted with health colleagues were able to sit down together and agree therapy provision contained in a statement for a little boy with a high IQ and excellent academic potential but a range of social, emotional and sensory issues which were beginning to impact on behaviour and mental health. Part of the solution was a comprehensive tailored IEP drawn up in cooperation with the parents.



Provision agred by the ELB included the following:



  1. 25 hours classroom assistance and 5 hours supervisory assistance per week.
  2. Classroom Assistant to receive training from the Autism Support Service.
  3. Access to a differentiated curriculum to take account of the child’s superior cognitive ability.
  4. 1 to 1 Occupational Therapy provision quantified and defined as educational provision in Part 3 of the statement.
  5. An individualised “sensory diet” for home and school to be implemented by an Occupational Therapist.
  6. The child’s IEP to be re-designed to target educational outcomes and a separate behaviour plan to be devised by the school.



The child has been reviewed and is now doing very well at school.



Unfortunately this type of cooperation is not the norm and children can suffer terrible life-long consequences, including mental health difficulties associated with isolation from their peer group, while a dispute continues unchecked. The prospect of Tribunal appeal here helped focus minds and the willingness to negotiate an agreed way forward was a key factor in the successful outcome.



It is noteworthy that without a right of appeal to the Tribunal, the parents would not have been able to access parity of arms in making their case by accessing legal aid for independent reports with specific recommendations tailored to the child’s needs. Reports prepared by Health Trust staff are often vague and non-specific as they are under pressure regarding the wording of reports and the impact on the budgets of their employers if specific help is set down in writing.



This child’s younger brother is at the school based stages of the Code of Practice and is facing delays in accessing an Educational Psychology Assessment. His parents are again in a position of having to navigate the stressful process of trying to access a timely assessment and appropriate provision to meet his needs. This situation does not reflect the Departmental policy of ensuring early intervention to meet children’s special educational needs.









APPENDIX 5 – Failure of Early Intervention – Exclusion - Discrimination



We have experience of a recent case where a Board of Governors of a school deemed suitable and named on a statement by an ELB is refused to perform its statutory duty to grant admission to a disabled child with social communication and social functioning difficulties.



The school Board of Governors argued that they did not have the resources to cope with any more children with SEN due to staffing and environmental pressures.



As is very often the case, many of the child’s difficulties stem from failure of identification, early intervention and a lack of specialised, targeted support at the school based stages of the Code of Practice. The child’s parents have made many efforts over the years to seek help for their child but have been unable to secure significant assistance from the education system. This is largely because the system is operated in such a manner that it is reactive to crisis situations rather than proactive in preventing crisis through early intervention.



The ELB refused a request for statutory assessment in circumstances where the need for this was very clearly evident. On lodgement of an appeal to SENDIST a statutory assessment was commenced.



The child has become socially isolated and unable to go to school despite a wish to attend school because an appropriate placement has not been afforded to her. A significant package of support is on offer from the ELB but the school has refused admission because of resource implications. A second academic year out of school approaches its end for this child, while delay after delay takes valuable time and educational, emotional and social development away from the child.



In the rural locality where this child lives, the options are slim and this may be a last opportunity to access education. There is no learning support centre/ASD Unit attached to a mainstream school in the area. The child wants to be educated in a mainstream school.



Given that this child actually has a statement with a support package on offer from the ELB, it is likely that other Boards of Governors who perceive that the Department’s policies will place added stress upon their school resources will be prepared to refuse admission to additional children with SEN. This will be done with much greater ease for those children who do not have a statement/CSP.











APPENDIX 6 – Department of Education’s updated position - “Revised Key Changes Proposed” – received by CLC at a reference group meeting on 8th March 2012.





Revised Key changes proposed to existing SEN framework and Statements of special educational needs.

It is proposed to move to a more straightforward 2 level structure to replace the current 5-stage process for identifying and meeting needs, carrying out an assessment and putting in place a Statement.

Level 1

Level 1 is where the school is in the lead, they will have assessed the needs of the child and are able to make provision in the classroom that meets the child’s needs. This may for example include-

  • one to one teaching for a time each week
  • time with a classroom assistant
  • time with a peripatetic teacher
  • a laptop or recording device
  • specialist teaching to address learning needs



At Level 1 the school will have a general duty to write a Personal Learning Plan for the child which will set out what the child’s needs are; what extra help they need and what educational outcomes this help will produce.

At Level 1 the school will also be able to access help from ELB/ESA – for example training for the teacher, peripatetic teacher, some one to one help for the child.

Level 2

Level 2 is where the ELB/ESA is in the lead. If a child’s special educational needs are such that the school cannot provide what the child needs then the ELB/ESA will have a duty to assess those needs, make provision for them and a Coordinated Support Plan will be put in place, which will focus on outcomes for the child.

  • This would reduce the bureaucratic overload for school and ELB/ESA that is associated with the current framework and producing a statement.
  • The two levels would reflect the level of need of the child and not the stage of response from the school or ELB/ESA.
  • ELB/ESA would apply the agreed common criteria for complex and/ or multiple needs.

Offer of Services

  • Central to this change to the SEN framework, is that the ELB/ESA would have to set out possibly in a booklet or on-line, every year, the range of supports they intend to make available to schools. This would ensure that ELB/ESA supports would be more flexible, responsive and put in place more quickly than at present.
  • The ELBs have already developed provisional criteria for initiating a statutory assessment of a child’s SEN, this will be amended to take account of the changes brought about by the review and will ensure consistency across all ELB areas.
  • The ELBs have also developed Good Practice Guidelines providing advice and guidance for schools when making provision for a child with SEN; these will be amended to take account of the changes proposed.











































Definition of multiple and complex needs

  • Proposed to keep the current definition of SEN in legislation-

The Education (Northern Ireland) Order 1996 defines “Special Educational Needs” as ‘a learning difficulty which calls for special educational provision to be made’. A child has a “learning difficulty” if a) he has a significantly greater difficulty in learning than the majority of children of his age, or b) a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in ordinary school.

The Special Educational Needs and Disability (Northern Ireland) Order 2005 defines a disabled pupil as a ‘pupil who is a disabled person’. The terms ‘disability’ and ‘disabled person’ are defined in the Disability Discrimination Act 1995. A ‘disabled person’ means a person who has a disability. A person has a disability ‘if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities’.

  • Children with the most significant special educational needs would have a CSP, as determined by and ELB/ESA, in cases when either additional education supports alone or additional education and health supports are required.
  • A definition of complex and/or multiple needs will be drawn up – it will be used by the ELB/ESA to determine the level of need that requires a CSP to be put in place and to ensure a consistent approach across all schools.





























Co-ordinated Support Plans

  • At Level 2 – ELB/ESA – led statutory Co-ordinated Support Plans (CSPs) will be introduced for SEN children with the most significant educational need /educational and health need.
  • CSPs will have a new emphasis on outcomes and targets for SEN children and on greater input by parents.
  • CSPs will generally apply to SEN children in special schools or learning support centres, and to those in mainstream classes with the greatest level of need.
  • A legislative definition of complex and/or multiple needs is proposed for those children who require Level 2 support - this will assist ELBs/ESA to identify the SEN children for whom they have a specific responsibility.
  • The statutory timeframe for ELBs/ESA to produce a CSP would be set at 20 weeks – compared with the current 26 weeks to produce a statement.
  • The statutory duties on Boards of Governors would be strengthened to positively promote the achievement of high standards of identification, assessment and SEN provision across all schools.



Annual Reviews

  • The statutory process for the annual review of statements/CSPs will be more flexible to allow the Principal and parent to meet every year to discuss the progress and needs of the child and to decide if a formal review is required.
  • A formal review would only be carried out where either the parent or the school feels a review of provision is necessary.
  • Health sector input will only be required if they make provision for the child.
  • This will reduce the bureaucracy on ELBs/ESA and schools to formally review every statement/CSP every year.















Personal Learning Plans (PLP)

  • Currently statutory guidance requires school to put in place individual education plans (IEP) for SEN pupils; it is proposed that these will be replaced by Personal Learning Plans.
  • It is proposed to introduce a new general statutory duty on Boards of Governors to ensure that every child with SEN will have a PLP put in place.
  • There will be an emphasis on educational outcomes and regular reviews of a child’s progress to ensure that the interventions put in place are effective.
  • They will provide assurance to parents that the needs of their child can and will be met by the school.
  • Will set out the targets, strategies and support a child needs.



Resolving parental disagreements over SEN provision

  • Parents would continue to have the same rights of appeal to the Special Education Needs and Disability Tribunal (SENDIST) in relation to Coordinated Support Plans as currently exists for statements.
  • The ELBs/ESA would be required to provide Dispute Avoidance and Resolution Services (DARS) for parents in a more independent way than now.
  • It is proposed that parents would always use DARS as a means of resolving a dispute before an appeal is made to SENDIST.
  • It is also proposed that Boards of Governors should also have a duty to make parents aware of DARS in cases there the dispute is between the parents and the school at the school-led level 1.
  • It is also proposed that consideration be given as to how children and young people may be given a right of appeal to SENDIST in relations to SEN or disability matters. A pilot is planned to run in England on giving children the right to appeal – we will consider the outcomes of this pilot.















Transitional arrangements

  • Following introduction of the legislation there will be a 2 year transitional period prior to full implementation.
  • During this 2 year period ELBs/ESA would undertake a statutory transitional arrangements review (STAR) of the needs of children with a statement.
  • This would determine how the right level of support from the school or from ELB/ESA will be provided, for example if the child’s level of need is deemed to be at Level 1 then the school will have to ensure that the appropriate provision is made for that child.
  • The intention of the new framework is not to change the provision that a child will get, but to make simpler the process by which the necessary support is provided at Level 1 rather than through a CSP.
  • There will be a right of appeal for those children who are transferred to Level 1 support.
  • Transitional reviews will not be required for:

    • Children in special schools or learning resources centres (special units) who would automatically transfer to coordinated support plans ; or
    • Statemented children within 3 years of leaving school.



1 93% or 60,500 children as per 2010 census – exact figures on this for 2011 not yet available but are likely to be slightly higher


2 Approximate estimate based on increased numbers in 2011 school census. Exact figures awaited. In 2010 there were 9600 statemented pupils and 4.2 % of all school children had a statement. In 2011 4.4% of all children had a statement.


3 2011 school census/Information shared by DE at a reference group


4 See full judgment at Paragraph 37: “It is important to note the legal significance of each cycle at the school based stages. Each intervention has two possible outcomes for each child. First, it may meet his special needs, proving that they can be met by school based support at the level he is on and incidentally disqualifying him from consideration for any higher level of support. Alternatively, it may prove that his needs cannot be satisfied at that school based Stage, and thereby ‘qualify’ him for consideration for the next level of support. For children on Stage 3 the ‘next level’ is statutory assessment. In such cases the necessary Stage 3 intervention must be delivered and its effect monitored in order that evidence of this child’s candidature for statutory assessment can emerge.” Treacy J.


5 DE Press Release 6th February 2012 : http://www.northernireland.gov.uk/index/media-centre/news-departments/news-de/news-archive-de-feb-2012/news-de-060212-education-minister-announces.htm


6 DE Savings and Allocations Proposals: See Savings Delivery Plan which has been updated to take account of the injection of £120 million to shore up the Aggregated Schools Budget - http://www.deni.gov.uk/budget_2011-15_savings_delivery_plan_revised.pdf


7 DE Press Release 12th January 2012: http://www.northernireland.gov.uk/index/media-centre/news-departments/news-de/news-releases-archive-january-2012/news-de-120112-odowd-welcomes-120million.htm


8 DE Annual Report and Accounts to 31st March 2011: http://www.deni.gov.uk/2010-11_de_annual_report_and_accounts.pdf


9 http://www.northernireland.gov.uk/index/media-centre/news-departments/news-de/news-de-060312-publication-of-school.htm


10 Officially reported on Hansard


11 Including centrally incurred costs expended by ELBs at Stages 3 and 5 of the Code of Practice (educational psychology, statementing officers, advisory services, peripatetic teachers, classroom assistants); administration costs, monies to GMIS and VGS and certain earmarked projects


12 Page iv Ministerial Foreword - Summary Report of Responses to Every School A Good School – Review of SEN & Inclusion


13 Note: there is currently no statutory provision for the enforcement of Orders made by SENDIST or any other independent appeal panels re education issues and the only mechanism remaining is judicial review, whereby cases are remitted back to the Tribunal for a further hearing, causing unnecessary delay.


14 2012 NIQB 18


15 [2012] NIQB 18 - see summary judgment attached at Appendix 1



17 Paragraph 2.60 states that “Stage 3 begins with a decision either at Stage 2 review or following discussions about an initial concern between the SEN co-ordinator, Principal, teachers and parents, that early intensive action with external support is immediately necessary”.


18 http://www.belb.org.uk/Downloads/eqia_provisional_criteria.pdf


19 http://www.selb.org/specialeducation/Documents/GoodPracticeGuidelines.pdf


20 See page 17 Provisional Criteria re dyslexia – Stage 3 supports (such as LTSS) must be exhausted before statutory assessment can be considered.


21 The 2% threshold is evident throughout the Provisional Criteria


22 http://www.deni.gov.uk/index/85-schools/5-school-management/79-school_governors_pg/schools_79_governor-roles-and-responsibilities_pg/schools_79_chapter-12-special-educational-needs_pg.htm#finance_alink


23 Jones –v- Kaney [2011] UKSC 13 removes immunity from legal claims against expert witnesses in relation to breach of duty in contract or negligence


24 Schedule 9 (9)(2) of the Northern Ireland Act 1998


25 Including, amongst others, the right to education under Article 24

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