Council leaders have defended their decisions to take families to tribunal to settle disagreements about provision for pupils with special educational needs to MPs this morning.
Parents are occasionally taking “unreasonable positions” about what provision their child is entitled to, leaving councils with little choice but to settle the matter in court, one council leader told the parliamentary education select committee this morning.
It comes after Schools Week revealed last week that Medway council faces shelling out the same amount in legal costs after a failed attempt to make a school admit an autistic pupil as the school had originally requested in extra funding to meet that child’s needs.
Meanwhile councils have spent £100 million on fighting parents seeking support for children with high needs over four years, but lost nine out of 10 cases.
Thelma Walker, MP for Colne Valley, raised the figures with council bosses as part of the education select committee’s inquiry into the state of special educational needs this morning, which in previous hearings has focused on a lack of funding for SEND pupils.
Richard Flinton, chief executive of the North Yorkshire county council, said tribunals were necessary when councils can no longer “negotiate” with parents.
“Most people are reasonable but sometimes for whatever reason somebody will be hung up on a reason and you can’t negotiate your way out of it, and then you have to have some place to arbitrate and rule on it,” he said.
He gave the example of a family who are “pushing to be re-located from North Yorkshire to Kent because they believe better provision will arrive in Kent for their child”.
It’s an unreasonable position to take
“It’s an unreasonable position to take and we need to work that through with the family and if we can’t work that through there will be a point at which we need to arbitrate what’s happening there,” added Flinton.
When Walker pointed out more than just “a few people” are ending up in tribunal cases , Flinton said in North Yorkshire 80 cases were set to go to tribunal last year but only 10 ended up in court.
Parents who disagree with the provision and funding a council determines for their child can go to a tribunal court. In turn, schools rely on the provision and funding laid out in Education Health and Care Plans (EHCPs) to support pupils with high needs.
Meanwhile Steve Rumbelow, chief executive of Rochdale Borough Council, said going to tribunal was “the right thing to do” in some cases.
However he added that sweeping SEND reforms under the 2014 Children and Families Act were meant to make the system “less adversarial” yet tribunals “have not worked in the way it was envisaged”.
The current set-up with tribunals is “more expensive than the arrangements were before”.
He also admitted the tribunal success rate was low.
Finally John Henderson, chief executive of Staffordshire county council, said the council did all it could to try to avoid “entrenched positions” on both sides.
Last week a landmark judicial review found Medway council had unlawfully removed provision set out in an EHCP for an autistic pupil, including a sensory room, to try to force a school to admit him.
The school had requested £40,000 in additional funding to support the child which Medway had refused – but lawyers told Schools Week this is the amount the council will now have to pay as a result of losing the case.
The council leaders today all agreed their spend on tribunals is impacting on their high needs budget.
If parents are winning 9 out of 10 cases at tribunal, then that would suggest to me that they are not taking unreasonable positions by asking for specific provision. Instead, it suggests to me that councils are failing pupils with SEND on a massive scale.
Councils complain about costly out of area provision, yet don’t provide in-area provision. For example, my LA has no autism units attached to mainstream schools. They’ve been planning to do something about this for the 14 years my kids have been of compulsory school age but nothing has materialised, and I suspect nothing ever will, because if an area provides well for a type of SEND then people will move into that area to get it. This means there’s a clear incentive to be a bit rubbish, which means parents go to tribunal because they’re desperate which means there’s less money to spend on facilities.
As a qualified solicitor if my client was consistently losing 9 out of 10 cases at trial I’d seriously recommend them to adopt a new approach to dispute resolution. As a mother of a special needs child and as a litigant in person who has been through the SEN Tribunal process I strongly suspect that in absolute majority of cases LAs are dragging parents through an adversial process to deter others from pursuing their cases.
How many parents with no legal experience are willing to draft their own pleadings, comply with a Tribunal set formal timetable and to through the stress of having to not only attend Court, but to do their own advocacy? Our LA did not attempt to reach any compromise before hearing and engaged in a defence constructed mainly of victim blaming. They lost, even after having spent thousands on a barrister.
The Tribunal will only be properly effective when they can routinely impose at least costs, if not fines and/or damages. Parents must have access to legal aid. Otherwise LAs will continue abusing the process and kids with special needs continue being failed by the very people whose job is to ensure their acccess to education.
Absolute joke I have been fighting for my daughter to get the help she needs and should be entitle to. What happened to equality of opportunity well my daughter’s is very behind her peers and is going to struggle moving into secondary school. Why don’t parents get listened to more as we know our children better than anyone. All we want is the best provision for our children.
The Times editorial of 17 November 2018, entitled ‘School Bullies’, highlighted the use by many LAs of a controversial law firm which had had to apologise in 2016 for tweets mocking parents of SEND children. It said delaying or denying support to SEND children and young people was false economy. Early intervention can reduce the need for more expensive support later. More importantly, it’s immoral – The Times makes this clear:
‘Children with special needs do not deserve punishment. Councils should rethink their priorities’.
I believe the school our children attend need to be held accountable for there failing, then the local authority for not putting in the correct services. The local authority should hold the heads of the school responsible for the the burden they put on the system, as if it is taken care of sooner than later it would be far less expensive than trying to sort out an older child transfering into secondary school.