Why the culture around SEND needs to change

Law firm Baker Small was criticised in many media this week for boasting about defeating parents of children with special needs in tribunals. But their behaviour is not isolated, says Tania Tirraoro – it is illustrative of broader cultural attitudes

The Children and Families Act 2014 was supposed to transform parents’ experience of getting help for children with special educational needs and disabilities (SEND). Many of us also hoped it would help to change the mind-set from “parents are pests” to “parents know their children best” – the latter statement is even included in the new SEND code of practice.

But even now, there are still far too many people in schools and local authorities who lack the necessary training in both the mechanics and the ethos of the new system. As a result, there has been chaos, with transfers of children’s statements of SEN to the new education, health and care plan (EHCP) taking months longer than the deadline of 20 weeks.

Transfers of statements to the new plans are taking months rather than weeks

It’s the lack of culture change that’s a particular problem. This was all too evident over the weekend in a series of gloating tweets from Baker Small, a law firm, ridiculing parents of a disabled child over their apparent loss of an appeal at a SEND tribunal. The firm holds more than £1 million worth of contracts representing a number of local authorities at the tribunal, defending their decisions about SEND provision.

Watching it unfold on Twitter was a surreal experience and a revealing one. The apparent anti-parent stance is not an aberration; it is sadly still all too common even after almost two years of the new rules.

Going to the SEND tribunal is not something parents do lightly. It’s a stressful, frightening experience, particularly when the local authority (LA) has brought in a lawyer and the parent cannot afford representation. Therefore, many may choose not to appeal because life with a disabled child – or children – is difficult enough, without making enemies of the school and the LA, which parents fear may rebound on the way their child is treated. Only the most fearless or the ones who can afford a lawyer go ahead, unless you are lucky enough to find  free advocacy.

One of the things the new system brought in was independent supporters to help parents from the moment they apply for an EHCP to the final decision. However, there aren’t enough of them, and the support does not extend to an appeal. Parents then have to find their own support, either from a lawyer, a paid advocate or from a charity such as IPSEA, SOSSEN or, if the child has autism, from the National Autistic Society.

For the local authority, however, if they’ve shelled out money to a law firm and somebody appeals, it’s easy just to hand the case over. Not every LA does this – some send their own tribunal officers to the appeal and now, more cases have an informal telephone hearing to help to resolve certain issues.

The changes were supposed to stop things ever getting this far. However, while the Children and Families Act contains the broad principles, it left the detail to be filled in by the new SEND code of practice (CoP) and regulations. But the CoP leaves far too much detail to be figured out by local authorities
and schools.

At this point, you’re relying on the will of an LA to meet the spirit of the law and the expertise of each individual special needs co-ordinator to be able to interpret the CoP for the good of the child. It all comes down to training, and there simply hasn’t been enough of it.

But when parents are routinely misinformed, while schools and LAs still deny the existence of a child’s SEND, despite evidence to the contrary, while academies remain reluctant to take on children with SEND and while far too many new EHCPs do not sufficiently quantify or specify support as is required by law, then the tribunal is where more families will end up.

Without understanding – and embracing – the principle that the new system puts the child and family at the centre of the process, it will have been a colossal waste of the half a billion pounds it has so far cost.

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  1. Judith Newman

    This article fails to mention that there is a free and impartial Information, Advice and Support Service in each Local Authority area. IAS staff are trained by IPSEA to support children, parents and young people with SEND (not just those going thrush EHC Needs Assessments), and this training includes tribunals.

  2. Polly Moyer

    Excellent article, Tania. To me what is happening with SEND families mirrors what’s happening with disability support generally. When I was in the episodic phase of MdDS I qualified for health benefits(DLA)but signed off when I went into remission. Now I am in the chronic phase I applied for PIP and was turned down. There were many administrative mistakes made during my claim and the report from the ‘health professional’ was largely inaccurate. I complained about this but nothing was changed so the decision was taken on the basis of false information. I was passed from pillar to post and no-one was ever held accountable for their mistakes. I took it to the tribunal stage but my doctor advised me to give up after that, because the stress of the process was making me so ill.
    My concern here is not just that I was treated so badly, but also the cost of the whole process, which must have run into thousands. I gather that the benefits agency are now being granted even more money so that they can be represented at the tribunals as too many people are winning their cases at that stage. So, rather than investing in health research, it seems that the government would prefer to invest in preventing people from appearing on the disability register, leaving them with no status and no support.
    As it happens, I got off lightly. A fellow rare conditions activist found the claim and appeal process so stressful that she was in hospital for several weeks which must have also cost ‘the system’ a fortune. She also lost earnings during this time.
    As I’m sure you know, Rare Disease UK estimates that anyone with a chronic condition spends approximately 2 hours per day on managing their condition. This is, effectively, unpaid labour. The cultural change I’d like to see would be that SEND families – and everyone with disabilities – are paid for their work.
    I agree that watching the Baker Small saga unfold was surreal. I hope that the media exposure of bad practice and cultural cruelty will help drive much needed change.
    All best wishes,