Children and Families Bill: the Department of Education's response

Submission to the Public Bills Committee 

Back in April 2013, I co-authored a submission to the Public Bills Committee on the Children and Familes Bill. It was based on evidence gathered from many parents from all over the country. You can read the submission here

Our concerns included the Bill's failure to do anything to address the endemic nature of unlawful practice within the SEN system and the Bill's Pathfinders' poor responses to Direct Payment pilots. 

Firstly, we noted that the Bill does nothing to address the fundamental conflict at the heart of the system: namely, that the LA remains assessor of need and funder of provision. We also set out some of the poor practices commonly encountered which the Bill simply will not change. They include:

  • Deliberate delay to save costs (especially dragging cases out to Tribunal)
  • SEN Panels' opaque decision-making which can hide unlawful practices
  • Reliance on locally created policies without reference to the law to refuse assessments and statements, or put parents off from requesting them
  • The inconsistent patchwork of policies and practices between LAs
  • Difficulties moving between LAs with a statement
  • Lack of measurement of outcomes for LA interventions for children with SEN
  • Mediation being used as a deliberate delaying tactic
  • Statemented children being deprived of their speech and language and occupational therapy provision once they are not in the school system

Secondly, we noted that the Bill does not even require that all decision-making should be in the best interests of the child. We felt this undermined the human rights framework and that much more could be done to empower children to have a voice in the system.

Thirdly, I set out my experience of applying for Direct Payments from my Pathfinder local authority. In essence, they categorically refused to entertain an application from me despite months of correspondence on the issue. This meant that, eventually, I had no option but to instruct lawyers who threatened judicial review on the grounds that this was a clear and  incomprehensible breach of the clear wording of the Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012. The LA seemed to believe its position was consistent with the Department of Education's view of the law although it was not consistent with the law itself. Being forced to make an application for judicial review just to apply for SEN DPs was a complete waste of my time, a waste of public funds not least because legal aid was obtained in my son's name for the challenge, and it caused unnecessary stress.

The recommendations in our report were as followed: 

1. No progress in enhancing children’s rights can be made while the link between LA assessment and funding remains. The Government should radically alter the lives of children by establishing an alternative and wholly independent method of assessing children’s SEN.
2. If the status quo remains, the Bill should require LAs to issue decisions in relation to EHC Plans in a far more transparent and accountable way. For example, Panels, if used, should include parental representation and independent practitioners and parents should have the right to observe their operation. This may reduce unlawful policies based on resource allocation which continue to undermine children’s rights.
3. All LA decisions should be judicially reviewable to prevent the consistent use of delay tactics by diversion through SENDIST. Currently, if a decision is open to appeal in SENDIST, it is unlikely to be judicially reviewable causing inequitable delay to the child. This should be stopped.
4. The Bill should guarantee legal aid for Tribunals in the child’s name so that s/he may have their voice heard, through their parents if necessary. This would put families on a level playing field. The current system is reliant on the means, tenacity or financial ability (or all three) of parents to pay for independent evidence and representation. This is unacceptable and it means that many children are being failed under the current system.
5. Cost penalties should be imposed on LAs who delay decision-making until Tribunals hearing and the cost of provision should be reimbursed to schools and through additional provision for the child.
6. The Bill should confirm that the use of DPs is a right granted to parents unless the LA can show that it would not be in the child’s best interests to obtain provision this way. DPs should not be tied to the LA’s efficient use of resources because the existence of block contracts will simply preclude access to these payments. DPs for social care are not currently limited in this way.
7. EHC Plans should be transferable between LA’s with no need for further re-assessment, save for the usual annual review.
8. The Bill should entitle children to continue to access services under their EHC Plan even if they are out of school.
9. The Bill should confirm that all decisions must be taken in the best interests of the child.
10. The Bill should demand an increase in partnership working with parents and should set out what that means in statutory terms.
11. The Bill should better articulate the right of the child to be heard.

Department for Education's response

We sent a copy of our paper directly to Mr Timpson's office. Last week we received this response from the DfE's Special Educational Needs and Disability Division. They have consented to me sharing it publicly.

Thank you for your e-mails of 3 May and 15 June concerning your evidence to the Children and Families Bill Committee.Please accept my apologies for the delay in replying.
I  would like to address the three areas of concern raised in your evidence.  The Government’s reforms, being taken forward in the Children and Families Bill seek to achieve the very same aims set out in your paper – reducing the struggle and promoting the voice of the child.
The pathfinders which are running alongside the passage of the Bill through Parliament are showing that, with greater involvement of parents and all the agencies which contribute to meeting a child’s SEN in the assessment process, parents are happier with the outcomes and feel less of the power imbalance that the evidence refers to. 
Of course not all conflict will be taken out of the system and there will still be cases where there is disagreement between parents and local authorities.  The Bill introduces mediation into the appeal process but the Bill was changed following pre-legislative scrutiny so that recourse to mediation is entirely at the discretion of parents.  They will not have to delay matters as the evidence suggests if they do not want to – but, of course, if they go to mediation and the case is resolved then they could be getting the provision they want for their child far more quickly than if they decide to go to the Tribunal. 
The Bill preserves rights and duties which exist under the current system.  Local authorities will continue to have a duty, where necessary, to assess children and arrange suitable provision for them and will continue to be subject to complaint to the Secretary of State and the Local Government Ombudsman if they act unreasonably, fail to carry out their duties or perform poorly in their administrative processes or the evidence suggests malpractice by local authorities, for example in the Tribunal process. 
For their part, many local authorities would say that parental advisers tell the parents to register appeals with the Tribunal just to “up the ante” and would say that in many cases they only take legal representation to Tribunal appeals because the parents have – the last year in which the Tribunal published these figures (2009-10) showed that parents were legally represented in 18% of cases whereas local authorities were represented in only 15% of cases.  A more transparent system which the Bill encourages will, we believe, reduce this sort of suspicion and contention. 
Following pre-legislative scrutiny the Bill, at introduction to Parliament included a new clause which lays a duty on local authorities when carrying out their functions to have regard to the views, wishes and feelings of the child and his or her parent and to the importance of involving the child and his or her parent participating as fully as possible in decisions. 
This clause also covers young people – that is those over compulsory school age – who are for the first time in the Bill given rights to act independently of their parents within the SEN system.  In addition the Bill provides for the establishment of pilots giving children the right to appeal and make disability discrimination claims to the Tribunal.  The Government is satisfied that the SEN provisions in the Bill are compliant with the European Convention on Human Rights. 
The third area of concern in your evidence relates to the testing of direct payments for special educational provision.  Although it is highly regrettable that you felt the need to resort to judicial review (and I should reiterate the reforms have a clear aim to reduce such conflict), I would not use this as absolute criticism of the testing.
Rather it is exactly the type of concern we needed the pathfinders to exposeThat is why we asked a representative from our delivery partner, the Council for Disabled Children, to meet with you and hear first hand of your concerns and experiences in seeking a direct payment for your son.  The lessons learnt from this case are informing the work of our pathfinders, including that of the champions, and will inform draft regulations governing personal budgets and the next iteration of the draft Code of Practice. These will be  published for consultation in the autumn.
Further information on the work of the pathfinders, including testing of direct payments is available in the most recent report from the independent evaluation, published on the Gov.UK website, on 13 June. 
There are elements of the response which we found perplexing not least that a civil servant should feel moved to be so very clear about his disagreement with everything that a group of parents had said. 

On a personal level, I took exception to the comment "it is highly regrettable that you felt the need to resort to judicial review" as this approach overlooks entirely the unlawful practice of the Pathfinder which led to the need to threaten judicial review! It is like saying  - it is highly regrettable you chose to enforce your legal rights rather than just walk away!

We were also taken aback at the suggestion that parental advisors encourage parents to "up the ante". Justifying things from a LA perspective is very worrying especially as these assertions are not based on any evidence. Our view is: the law is the law. LAs consistently break the law and refuse to offer children assessments and when they do assess, they frequently refuse to issue statements or issue statements with the lowest possible level of provision. Additionally, any education lawyer will tell you that statements are rarely quantified and specified in the way the law requires making them legally unenforceable. The consequences of these practices are that parents are forced to jump through hoops to get legally enforceable provision for their child. If advising parents of their rights is considered "upping the ante" by the Government, then I have to doubt whether there is any genuine willingness to really reform the system. Again, the approach appears to be say "it is highly regrettable you chose to enforce your legal rights"!

To innovate is not to reform.  - Edmund BurkeThe reference to the outdated Tribunal figures (2009-10) regarding representation is baffling. The difference in legal representation is only 3% between LAs and parents so hardly worth making a point of. However, these comments completely overlook the point we were making: LAs have teams of people working on these cases. They have SEN teams, legal departments, schools, block contracted NHS partners. The parents have none of these resources. It is disappointing that this point should be treated so dismissively. LAs are not victims: they are multi-million pound public bodies who work on these type of cases daily. Parents are trying to support high need children, hold down jobs and look after other children. To fail to see the disparity and unfairness is to completely or deliberately miss the point.

Likewise the comment that you can make a complaint to the "Local Government Ombudsman if [he LA]act[s] unreasonably..... for example in the Tribunal process." The  LGO is consistent about one thing: it cannot and will not deal with any matter relating to a Tribunal.

Further, in relation to our point on children's rights, of course, a duty to "have regard to the views, wishes and feelings of the child" is not the same as saying decisions must be made in the best interests of the child. It is disappointing to note the lack of explanation for failing to ensure that, all decisions about provision are driven by what is best for children in accordance with Article 3 of the Convention on the Rights of the Child.

Finally, like many 'stakeholders' in the reform process, mention is made of the "more transparent system which the Bill encourages" without any reference to any concrete proposals in the Bill which will guarantee this greater transparencyI can find none.


Some concerns were raised with the DfE about the tone of the letter. They responded saying:

Thank you for your email of 28 June.

I would like to assure you that I was not making a personal or value judgement on your actions. Rather, I was expressing regret that the need for judicial review arose, please accept my apologies if this was not clear in my previous e-mail.

The Council for Disabled Children (CDC) are the Department's Strategic Reform Partner. They provide policy and practical advice to the Department on the reform programme. It was in this capacity that Philippa met [correction: we spoke on the phone] with you and although CDC's involvement did not resolve your case (Philippa was clear from the outset that she was not seeking to mediate) they have helped ensure we understand the issues that your experience with the pilot scheme has exposed.

I repeat the point in my previous e-mail that such learning is informing the ongoing work of the pathfinders both in the ongoing testing and as we work towards implementation. I would also like to reiterate that the Department will be consulting on both the draft regulations governing personal budgets (including direct payments) and the draft Code of Practice in the autumn and we would welcome your views on those documents. 

Further postscript

It is interesting to note that, on obtaining disclosure from my son's file, it is clear that the DfE employee who responded above was substantially involved in advising my LA throughout my judicial review application. During this process, internal advice from the LA lawyer seemed to suggest that although a direct payment may have to be agreed, it could be stopped at any point in the future on a host of potential grounds.

Additionally, the reality of direct payments is that the LA are completely disinterested in the opinions of the independent speech and language therapist (SLT) they are paying for with public money via direct payments. Previously, the LA seemed to delegate complete responsibility for decision-making in SLT to their block contracted NHS SLT service, implementing everything they said without question. Presumably, this is because the NHS service is contracted to do the work and it costs the LA no more if the service decides to do 1 visit or 10 visits. Under the terms of the block contract, the NHS service will provide whatever is on the child's statement. Could this constitute a possible disincentive to the NHS service ever recommending significant levels of provision? Mmmm, it makes you wonder.

Under the block contract, life was good. Information freely flowed between LA and NHS SLT team, meetings were conducted without informing the parents, reports were compiled and disclosed without parents ever having sight of them, the service would attend Tribunals en masse against the parent to justify its service model of indirect working. It was as if the LA and NHS service were one and the same. Now, under direct payments, the independent therapist is never contacted, her advice is simply ignored - indeed, it is never acknowledged. And when she asks for increased provision - what do they do? Speak to her? Ask for a meeting to see why? Ask for further advice from her because she has been working with the child for over two years? Pick up the phone to chat it through? Approach the parents for a chat? No. They ask an NHS SLT working under their block contract who has never met the child to "prepare a report for Tribunal". No discussion. No explanation.

I can't quite imagine an LA commissioning an independent therapist to check their block contracted colleague's recommendations - can you?

So much for concerns about public money being wasted.

So much for parent 'co-production'.

So much for a market in SEN provision.

And so much for the best interests of the child

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