More fundamental change is needed to ensure all children with SEND receive essential support | Bolt Burdon Kemp More fundamental change is needed to ensure all children with SEND receive essential support | Bolt Burdon Kemp

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More fundamental change is needed to ensure all children with SEND receive essential support

Latest announcement from the Department of Education

On 29 March 2022, the Department of Education announced that as part of a delayed review into the special educational needs and disabilities (“SEND”) support system for children, it will focus on earlier intervention, pledging additional funding of £70 million.

Whilst extra funds and a focus on earlier intervention are always to be welcomed, more fundamental changes are required to ensure all children with SEND can access the help and support they need, and at the earliest possible time in their education. Acting early means children will have a much better chance of coping and flourishing at school, reducing the likelihood of school refusing and long-term mental health issues.

As a Child Brain Injury lawyer and having two wonderful children of my own with SEND, I am all too aware of the difficulties parents of children with SEND face in trying to secure the support their children need not only to access the curriculum but also to thrive in school, both on an emotional and a social level.

Bias towards children of more educated and better off parents

It’s an uncomfortable fact that the current system is weighted in favour of children of more educated, better off parents. Injecting more money into the system is not going to change that. It won’t redress this inequality. Many children will continue to have their needs unmet, with serious long-term implications for both their mental and physical health and their ability to fulfil their potential. That cannot be right on any level.

The high cost of securing adequate provision for a child with SEN

To successfully take on a local authority, as a parent, one must have resources, both financial and emotional to keep up the fight. Local authorities will not award Education Health and Care Plans (an “EHC Plan” is the starting point for meeting a child with SEND’s needs in school), and more importantly, adequate provision and/or school placements and funding for both under an EHC Plan unless a parent can compellingly demonstrate with hard evidence that additional funding for these things (beyond the funding already allocated to schools for children with SEND), is essential to meet their child’s needs and allow them to access the curriculum. In the event the local authority won’t agree to these things, parents can appeal the local authority’s decision to SENDIST (the SEND “Tribunal”), but again, evidence will need to be submitted to prove the child’s need for the provision and/or school placement sought. Such evidence takes the form of professional reports from healthcare professionals who are able to comment on the child’s needs, such as educational psychologists, occupational therapists, physiotherapists, speech and language therapists etc. These reports are incredibly expensive –  they necessarily involve a lot of work on the part of each professional , including detailed observation of the child, interviewing parents, teachers and caregivers and reviewing questionnaires completed by these people. If a matter proceeds to Tribunal, any of these healthcare professionals may be called to give evidence, which comes at an additional cost. The costs associated with proving their child’s case in the tribunal must be borne by the parent who has exercised their right of appeal, whether or not they are successful at Tribunal. These costs are simply not affordable for many parents, whose ability to work and earn money is compromised by the need to care for and meet their child’s complex needs. Parents also need to have the emotional resources and be able to find the time to keep up the fight. This has the potential to be challenging particularly for parents already exhausted from having to meet their child’s complex needs, as well as those of other siblings whilst in many cases, also trying to hold down a job. For single parents, the situation is even more challenging.

So from the start, the system is biased towards more educated and financially better off parents who can afford to commission the reports needed to evidence their child’s needs and also legal representation to ensure their child’s position is persuasively argued at Tribunal.

Radically changing the costs regime in the SENDIST

One way of improving system could be to embrace radical and systemic change in how costs are treated in these cases. This would not only incentivise local authorities to resolve points in dispute much earlier, benefitting both children and their parents, but it may also mean that parents could access legal representation for their children, which currently is out of reach for so many people. When parents have to represent themselves because they cannot afford legal representation, they are immediately at a disadvantage. They are on an unequal footing to the local authority, who will usually be represented by a legal team and instruct barristers to represent them at any hearings.

Whilst the tribunal has the power to award costs, currently, the general rule is that both parties ie the local authority on the one side and the parents of a child with SEN on the other bear their own costs in an appeal to the Tribunal. This means that the local authority has little incentive to be pro-active in resolving the point in issue ie the nature and extent of child’s provision/school placement, even when they have the pressure of a tribunal hearing upon them.

By way of a real life example, I challenged the local authority’s refusal to include provision for sensory occupational therapy input in my son’s EHC Plan. My local authority indicated they were prepared to go all the way to Tribunal on this point. My view was that there was, from my local authority’s perspective, nothing to lose in going all the way to Tribunal, in fact, I sensed they thought it was worth taking the chance in the hope the judge might find in their favour and that they would then escape having to provide sensory OT and fund the associated cost. They maintained throughout the process that the provision I was seeking for my son was unnecessary, even though they did not produce any evidence whatsoever to support this or to counter the report I had submitted as evidence of my son’s needs from a renowned sensory OT expert, at considerable personal expense.  Ultimately, even though my appeal was successful and the judge thankfully made an order that the local authority fund weekly sessions for my son with a specialist sensory OT, the local authority walked away, not having to contribute a penny towards any of my legal costs. I still wonder whether the cost of pursuing the appeal was around the same amount as the actual cost expended by the local authority in funding the weekly sensory OT sessions.

Contrast this with the way the civil claims work. This is the system which governs the compensation claims my team and I pursue for our child clients who have suffered brain injury as a result of mistakes made by healthcare professionals or as a result of accidents. In these cases, if the Claimant (ie my client) is successful in proving their case against the Defendant (usually hospital trusts or motorists), not only does the Defendant have to pay the Claimant a sum of compensation, but they will also pay their reasonable costs. There is a general duty on both parties imposed by the Civil Procedure Rules (which governs these claims) to try to mediate and negotiate settlement wherever appropriate, with a view to saving costs. In the event that the Claimant loses, then each party generally bears their own costs and the Claimant, if they have acted reasonably, does not have to pay the Defendant’s costs.

This upshot of this is that in civil claims, Defendants have a very clear eye on how much a court hearing or a trial could cost them and, if they consider it’s likely that a judge may find against them, they are incentivised to try to negotiate an agreement with regard to the point in dispute to avoid a court hearing or trial and the associated costs. Not so at all in the SENDIST. Indeed, my partner, Claudia Hillemand, another child brain injury solicitor who also heads up our SEN team arrived at my son’s tribunal hearing 20 minutes early with a view to entering into negotiations with the local authority’s Counsel to try to save the cost and time of going into a tribunal hearing, only for the local authority’s Counsel to arrive seconds before the start time of the hearing with no time for such discussions. Counsel brought with her  staff members from my son’s school, all of whom have always been hugely supportive to us and were upset and uncomfortable at having been enlisted as witnesses for the local authority, which was effectively trying to avoid providing my son with the sensory OT sessions he so desperately needed.

Had the local authority known they would have to pay the costs I had incurred in proving my son’s need for OT provision and to mount an appeal of their decision not to grant this, then would they have gone all the way to Tribunal or would they have offered sensory OT sessions far earlier, both benefitting my son as he would have started this therapy sooner, whilst also  saving me considerable cost?

Furthermore, if there was a fairer costs regime in which the losing local authority had to pay the successful parent’s costs, with each party only bearing their own costs in unsuccessful appeals (which is effectively the case now even when parents are successful), then more parents could effectively make use of the SENDIST system knowing that if they were successful, any reasonable costs they had incurred in taking the local authority to Tribunal, including the cost of experts’ reports and instructing legal representatives would be met by the local authority. Legal representatives may well then offer  “no win, no fee” funding arrangements to parents so that they could access legal representation and achieve an equal footing with the local authority on the basis that their legal representatives would be paid on the successful conclusion of the case, whereas currently, legal representatives can only be instructed on a private basis, their costs having to be paid up front and/or on an ongoing basis by the parents. Whilst Legal Aid funding is a possibility, it is not available to all and can be restrictive.

Of course, such a radical change in the cost regime may well result in a wholesale change of approach in how local authorities look at how they meet the needs of  children with SEN.There has historically been resistance to changing the general rule that each party bear their own costs. This is underpinned by the argument that tribunal proceedings should be as brief, straightforward and informal as possible and that parties should not be put off bringing or defending appeals through fear of having to pay the other party’s costs.

However, this ignores the reality that there is significant cost involved for parents wishing to successfully appeal local authority decisions, which is in itself a barrier to accessing the tribunal in the first place and means many children are not securing the vital support they need.  I would go further and say that often, local authorities exploit the current system, letting some cases run all the way to Tribunal without making any attempt to resolve issues in dispute, as they have nothing to lose in doing so, whilst hoping that parents may withdraw appeals because they no longer have the financial or emotional resources to sustain such an appeal.

Final thought

Claudia Hillemand, Partner in the Child Brain Injury team and Head of SEN says:

“There is a lot to digest in today’s SEND Green Paper; my initial review leads me to have serious reservations about the ability of the proposals to make a meaningful difference to children and families I work with.  At best, we can consider this a positive first step towards overhauling a system in crisis, but for many it  comes too late, and sadly does not go sufficiently far enough to fix that which is broken.”

Of course, what I propose above may not be the solution. There may be better ways. But whichever way you look at it, the system is not working, and fundamental and systemic change is needed. Without this, the complex needs of many children with SEN will sadly continue to go unmet, with serious long-term implications for their mental health and ability to function and participate in society.

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