Getting the right placement is fraught and unduly challenging, and school support is vital to families’ uphill battle, writes Bolt Burdon Kemp‘s Mollie Benjamin
As a solicitor who acts for children who have suffered brain injuries, I am all too familiar with the difficulties faced by families in navigating the special educational needs (SEN) system and securing appropriate school placements.
In truth, children who have additional educational needs are being let down by the SEN system. A lack of funding coupled with the complicated application process and costly appeal system is often a barrier to children receiving the educational input, equipment and therapies they need to access the curriculum and thrive throughout their education.
This failing SEN system also results in schools and teachers being denied the training, support and funds they need to provide necessary input for children with complex needs.
The Children and Families Act 2014 was hailed as the biggest reform to child welfare legislation in decades. It introduced education, health and care plans (EHCP) for children and young people aged up to 25 who are assessed to have special educational needs.
The aim of the EHCP is to identify a child or young person’s educational, health and social needs and set out the additional support required to meet those needs in one legally binding document.
Appeals are intended to be “user friendly” but this is a far cry from reality
The law sets out what should be included in the EHCP within the 12 sections including health, social care and special educational provisions required by a child or young person that are related to their SEN or disability. The task of how to implement them is decided by the local authority, with little indication of guidelines or recommended practices for assessments and subsequent development of EHCPs.
But ever–growing restraints on funding are driving local authorities to provide inadequate support for children with SEND, even if they are entitled to it within their EHCP. A recent BBC News article highlighted the challenges faced by parents of two children, both of whom have autism, in securing a suitable school place. One family spent £18,500 challenging the local authority’s decision in the special educational needs and disabilities tribunal. The local authority had refused to carry out an assessment for an EHCP.
Refusals to assess, and inadequate provisions in EHCPs following assessment often mean that families have no choice but to challenge the local authority in the tribunal. The appeal process is intended to be ‘user friendly’ but this is a far cry from what families face in reality.
Although legal representation is not required, families often face a local authority represented by an experienced legal team; without it, it is an uneven playing field. Few families are in a position to instruct solicitors privately. Legal aid is only available in a small number of cases, and even then it is limited in scope. The process is onerous, expensive, time consuming and overly adversarial.
In 2019-2020, 7,917 appeals were lodged at the tribunal and in 95 per cent of those, families were successful over the local authority. It is estimated that the total cost of defending appeals at the tribunal since the introduction of the Act is almost £200 million.
And there are no ‘winners’. Each successful appeal represents a child who was entitled to more support, went without, and had to fight to receive it. Or a child who didn’t get the placement they needed, with repercussions for them and others.
In 2019, only 60.4 per cent of new EHCPs were issued within the prescribed 20–week time limit. There is rarely any action taken to ensure that local authorities adhere to procedures within time.
The system is failing young people and needs to change. But in the meantime, schools play a vital role in assisting children to secure appropriate provisions for support in their EHCPs.
This dysfunctional process inevitably causes tensions. Open lines of communication with families are essential. Working together, teachers and parents are best placed to identify needs early. The evidence they gather can prove vital to ensure children access the support they need to thrive and reach their potential.
Which is what the system should be supporting, rather than undermining.