The narrative that budget cuts will hit students with Send hardest is inaccurate – and unlawful

Article first published in TES, 3rd March 2017 @ https://www.tes.com/news/school-news/breaking-views/narrative-budget-cuts-will-hit-students-send-hardest-inaccurate-and

Authors: Michelle Tempest-Mitchell & John Furlong

Two parents of children with SEND urge schools to stop putting the burden of funding cuts on the shoulders of our most vulnerable students

Michelle Tempest-Mitchell writes:

When your child’s development doesn’t mirror his or her peers, you are forced into a complex and alien world of assessments, services, diagnosis, policies and legal speak that doesn’t just mark your child as different in the classroom, but is ultimately exhausting, confusing, and frustrating for parents.

We parents battle for years – literally years – to have our child’s rights to an equal education as acknowledged in law and ensure that the practical day-to-day help they need in school is put in place to help them achieve their individual potential. No matter the form of disability or special need, we take some comfort in the fact that they are a protected class, free from discrimination and prejudice, protected in law.

Misleading statements
That is until schools are threatened by budget cuts. Then we see repeated comments by heads and governors from all educational settings casually stating the need to abandon these children because they need to balance the books.

We see schools passing the buck to the Local Authority (LA), who’ll pass it back to schools immediately, leaving the child without an education for no reason other than a misfortune of DNA or development. Is this who we are as a society?

TAs are suddenly a discretionary spend. TAs that support Send children in the classroom, TAs that deliver accessible teaching, support therapeutic interventions and support vital social interactions.

Unhelpful myths
It’s true the funding around SEND is complex, and with schools having to find the first notional £6,000 from their budgets (which often supports TA funding), it is getting harder to find. But then schools don’t help themselves.

Teachers and SENDCO’s inadvertently pass on LA-created myths like “you have to spend over £6,000 to be considered for a EHCP” and “your child needs to be two years round his peers to be considered for an EHCP”, rather than fully understanding the Send guidelines, their specific legal responsibilities and those of the LA.

LA policy is not law. And schools should be working with and supporting parents to stand up for our children, not throwing them under the bus.

It’s your time to choose. Do you stand up for your SEND children? Treat them like any other child and make them the success story of the cuts – not the victims.

John Furlong writes:

A number of alarming reports are appearing in the media that quote teachers, governors and unions saying cuts to school finances mean that provision for children with Send has to be reduced or removed altogether. It is being suggested that children may be refused admission to a school, be asked to leave, or will receive less than an appropriate education.

These comments are dangerous because they create an atmosphere that normalises the forced removal of children from schools or loss of provision. More importantly, the actions described in these comments are discriminatory and unlawful.

The right to be educated
As a starting point, the law is very clear that children with Send have the right to be educated in a mainstream setting. While the law provides limited exemptions, lack of funding is not one of them. It would be unlawful for a school to refuse admission, as would asking a parent to remove their child from the school, taking away vital support during the school day or reducing their timetable to less than full time for financial reasons.

Let’s talk about money. Increasingly, schools are finding they cannot demonstrate they have spent the (notional and nebulous) £6,000 required by many local authorities before triggering an Education Health and Care (EHC) needs assessment, which can unlock further funding or resources. Such are the pressures on the budget that there is simply not enough cash to go round. The jam is too thinly spread.

But this financial barrier put in place by Local Authorities (LAs) is not the legal test for an EHC needs assessment. A school does not have to show it has spent this much on a child before an assessment can be triggered.

Needs assessments
If a school cannot make the right provision because it does not have enough money, or for any other reason, it should request a needs assessment. On receipt of the request the LA would be expected to acknowledge that the school cannot meet the needs within their resources and would therefore agree to the request. If the LA refuses, then the school should encourage and assist parents in an appeal to the Send Tribunal, which can – this is key – make the local authority carry out an assessment.

Appealing to the SendTribunal is a straightforward, quick process. The timescale is approximately 12 weeks from start to finish and it is usually a paper exercise. Recent Department for Education research shows 94% of refusal to assess appeals were withdrawn, conceded or decided in favour of families, which implies something is going badly wrong with the process. And yet only approximately 7 per cent of families currently appeal a “refusal to assess” decision. Appealing is the gateway to proper funding.

A needs assessment should identify all the Send a child has and may or may not result in the LA issuing an EHC Plan (EHCP). Parents, ideally with school support, can appeal a refusal to issue an EHCP to the tribunal, which can stand in the LA’s shoes and make it issue an EHCP. The LA has to make sure the EHCP is fully resourced.

If a child already has an EHCP, then the school should ensure that it is properly quantified and specified. This is crucial in order to secure the right amount of money from the local authority to meet the cost of the provision. It is the legal duty of the local authority to quantify and specify the provision in the EHCP and ensure that the provision is put in place.

Where an EHCP is not properly quantified and specified parents should request that the local authority hold an early Annual Review, which schools can support. Insist if necessary.

If the local authority refuses to amend the EHCP following an Annual Review, the school should encourage parents to appeal to the Send Tribunal, which can make the local authority quantify and specify the provision. The local authority then – this is key – must provide what the Tribunal has written in the amended EHCP irrespective of cost.

I’m sure you are spotting a theme here.

Judicial review
If an EHCP is properly quantified and specified, but the local authority refuses to provide what is written in an EHCP, then parents could complain to the Local Government Ombudsman or make a claim for Judicial Review against the local authority.

A Judicial Review would be against the Local Authority and not the school. It would not cost the school any money. A Judicial Review claim would be made in the child’s name and the family may well be entitled to legal aid, as in this instance it would be the child’s means, not the parent’s, that would be assessed. There is certain work that is required before a Judicial Review claim is submitted, and this often will spur a local authority into action, resolving the matter.

Samantha Hale, associate solicitor at Simpson Millar, advises: “Parents should be aware that they cannot pursue both a complaint to the Local Government Ombudsman and Judicial Review and it is often therefore advisable that they seek legal advice to see which remedy would be more appropriate in their case.’

There is no lawful reason why children with SEN should not receive their educational entitlement because of budget cuts. Teachers, schools and colleges should work with parents to secure the right funding by following the law rather than local authority policy. Do not be put off by your local authority. Please work with us to give our children the education they need.

Details of the SEND Tribunal can be found here: https://www.gov.uk/courts-tribunals/first-tier-tribunal-special-educational-needs-and-disability

 

 

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