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Children with Special Educational Needs

Volume 628: debated on Monday 11 September 2017

The petition of Alan and Karen Entwistle,

Declares that the petitioners are the parents of a son who is visually impaired and has learning difficulties because of prematurity and has been diagnosed as autistic by Great Ormond Street hospital; further declares that the petitioners have had difficulties getting the local education authority (Lancashire) to work with them and recognise that they as parents have a uniquely good understanding of the needs of their son; declares that the continual legal disputes with the local authority have now cost the family over 80,000 and depleted all their savings; further declares that the local authority decided to prosecute the family (on the anniversary of their eldest son's death) for not sending their son to a school that they believed would be harmful to him; further declares that they were unable to fund legal advice to defend themselves, but did manage to get pro bono support as a consequence of this were found that they had no case to answer.

The petitioners therefore request the House of Commons Education Select Committee investigate the use of legislation relating to absence from school by local authorities to punish parents who disagree with the local authority as to what is best for their children and to propose changes in legislation so that local authorities are required to work with parents rather than simply use the criminal law to impose their will on families.

And the petitioners remain, etc.—[Presented by Julie Cooper, Official Report, 11 July 2017; Vol. 627, c. 2P .]

[P002044]

Observations from the Minister of State, Department for Education (Mr Robert Goodwill):

The Department’s priority is to reduce overall school absence. The evidence shows that every extra day of school missed can affect a pupil’s chances of achieving good GCSEs, which has a lasting effect on their life chances. Local authorities have clear powers to tackle poor attendance, including prosecution where this is considered appropriate. This is underpinned by section 7 of the Education Act 1996, which outlines the parent’s duty to ensure that their child of compulsory school age receives an efficient full-time education suitable to the child’s age, ability and aptitude, and to any special educational needs the child may have, either by regular attendance at school or by education otherwise.

The Department agrees that parents must be involved in decisions made about their child’s needs and suitable education; as such legislation and statutory guidance exists to govern how local authorities should approach their duties to provide support for children and young people with special educational needs and disabilities (SEND) and to provide ways for parents and local authorities to resolve disagreements about that support.

Local authorities are required under statutory guidance in the SEND Code Of Practice to work closely with parents during Education Health Care (EHC) needs assessments and plan development. They must listen to the views, wishes and feelings of the child (or young person) and their parents; and take into account their aspirations, the outcomes they wish to seek and the support they need to achieve them.

Parents may choose to home educate their child and this can include children with an EHC plan; but in these cases as with all children, the local authority must assure itself that the provision being made by the parent is suitable. Where the child has an EHC plan, the local authority must review the EHC plan annually to assure itself that the provision set out in it continues to be appropriate and that the child’s special educational needs continue to be met.

Where parents disagree with the local authority about the best provision for their child, legislation and statutory guidance requires local authorities to provide disagreement resolution and mediation services to parents and to promote these as a way of resolving disputes without recourse to legal remedies. Before appealing to the Tribunal parents must consider using mediation as a means of resolving disagreements with the local authority (except where the only disagreement is about the school named in an EHC plan—in these cases it is not compulsory to consider mediation).

If it is not possible to resolve disagreements through mediation, then parents may appeal to the First-tier Tribunal (Special Educational Needs and Disability). The Tribunal aims to be facilitative and accessible, so it should not be necessary to employ legal support when making or defending an appeal. No additional weight is given to evidence because it is presented by a lawyer, and many parents pursue their case successfully without legal representation.

Where, despite the involvement of mediation and disagreement resolution services and the Tribunal, parents and the local authority are still not in agreement about special educational provision for a child, and this results in the child not attending school, the authority must make arrangements where for any reason, a child of a compulsory school age would not otherwise receive suitable education. In these rare cases, a local authority may decide that a School Attendance Order (SAO) is necessary to ensure that the child is not disadvantaged by missing valuable time at school.

In particular, if the Tribunal has ordered the naming of a particular school and the parents refuse to send their child to that school, the local authority may consider that in issuing a SAO it is making sure that the Tribunal order is enforced (the Tribunal itself has no powers of enforcement). A SAO may also be served if a parent, having chosen to home educate their child, fails to satisfy the local authority that their child is receiving suitable education. A SAO should only be served after all reasonable steps have been taken to try to resolve the situation. The SAO will name a school where the parent must register their child to receive education. Where a child has an EHC plan that names a school, that school shall be named in the SAO.

Where a parent fails to comply with a SAO, they may be committing an offence and can be prosecuted under section 443 of the Education Act 1996. When deciding whether to prosecute a parent for failing to comply with a SAO, the local authority must also consider whether it is appropriate to seek an Education Supervision Order (ESO) under section 447 of the Education Act 1996. The local authority may seek an ESO instead of or as well as prosecuting the parent.

In carrying out its statutory duties under the Children and Families Act 2014 and the related SEND Regulations and SEND Code of Practice, a local authority is expected to act reasonably. If parents consider that a local authority has acted unreasonably in carrying out its duties, they can complain to the Local Government Ombudsman (LGO). If the LGO finds in favour of the parents, it can make recommendations as to how the local authority might put matters right. In the vast majority of cases, local authorities accept and implement recommendations from the LGO. The LGO can look only at the manner in which a local authority has carried out its duties, not the merits of decisions that have been properly taken.

If, having complained to the LGO, parents feel that issues have not been resolved, they can complain to the Secretary of State under Sections 496 and 497 of the Education Act 1996. These provisions enable the Secretary of State to take expedient action where a local authority (or the governing body of a school) has failed to carry out a statutory duty or has done so unreasonably. “Unreasonably” has been defined by the courts as acting in a way that no other local authority, having regard to its statutory duties, would act. Any action that the Secretary of State takes must be expedient in the sense that there must be something the local authority (or governing body) could be directed to do that would put matters right.

The reforms in the Children and Families Act 2014 were the biggest change to the SEND system in a generation. The Department have been monitoring the implementation of these reforms through termly implementation surveys of local authorities, as well as parallel surveys of parent/carer organisations. SEND professional advisers have followed up any concerns identified in particular local authorities.