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Education, Health and Care Plans

Volume 795: debated on Thursday 14 February 2019


Asked by

To ask Her Majesty’s Government what is the cost to (1) parents, and (2) local authorities, of appealing education, health and care plan decisions.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and draw the House’s attention to my declared interests in the register.

My Lords, costs for parents and local authorities will vary, depending on the circumstances of individual cases. Local authorities and families can access free advice and information about SEN tribunal hearings. The vast majority of cases for education, health and care needs assessments are concluded without the need to resort to tribunal hearings.

I thank the Minister for that reply. The British Dyslexia Association has provided me with figures which show that local authorities are having to fork out nearly £10,000 for each of these appeals and that parents are having to fork out over £6,000. “Tiger parents” are winning nine out of 10 of these appeals. Would the Minister care to speculate on the situation of somebody who is on the minimum wage, who cannot afford to spend £6,000 and who does not know how to deal with local bureaucracy, perhaps through having the same educational problems as their child? How well will they cope with this system?

My Lords, the tribunal process is designed to be as accessible as possible. Parents should be able to appeal and present their case without the need for expensive legal representation; local authorities should also not need to engage lawyers. Free advice and support regarding appealing is available from the tribunal and SEND Information, Advice and Support Services, which exist in every local area. To put this in perspective, only 1.5% of cases are appealed through tribunals, so the percentage is not as serious as is often said. However, we accept that this is an issue, and we are looking at how we can improve it.

My Lords, there is a danger of us asking similar questions on this issue and goading the Minister into getting his fists up. I propose that he might talk to his Secretary of State about what is clearly a growing problem. While resource is fundamental to it, so is the process adopted by local authorities. Would he suggest to his Secretary of State that all English upper-tier local authorities might be drawn together for a meeting, so that they can examine best practice and ensure that, in the end, the money goes to the pupils, not the lawyers?

To reassure the noble Lord, I would never take my fists to him under any circumstances. He raises a very important point, because a number of local authorities have literally zero appeals and others have a much higher proportion. It is important that we get them to talk to each other. There are a couple of other points to make. First, under the old regime that ended in 2014, the number of appeals was rising every year, so this is not a new trend. Also, under the new scheme we have two extra areas of potential appeal because we have a much wider age group—we now take them up to the age of 25, instead of just 16. We are also piloting in some areas the ability to appeal on the health and social care element. The main point the noble Lord makes about better collaboration between local authorities is well taken.

My Lords, could my noble friend advise the House whether the costs are always reimbursed if appeals are successful?

My Lords, I do not have that information to hand but I will write to my noble friend to deal with it specifically.

My Lords, autism is the special educational need that most often features in SEND appeals. Many of the cases are the result of local authorities having refused an education, health and care plan needs assessment, yet the majority of such appeals are won by parents. I very much take on board the point made by my noble friend Lord Blunkett about bringing local authorities together. But does the Minister accept that where a child has an autism diagnosis that fits in with the SEND code of practice, it should not be permissible for a local authority to deny that child’s family a needs assessment?

The noble Lord is right that autism accounts for the highest proportion of all claims at about 43% of appeals. We are very much focusing on this as an area of concern. In December last year we announced a number of measures to help deal with this, including joining up the healthcare and education services to address autistic children’s needs holistically, developing diagnostics services to diagnose autism earlier, improving the transition between children and adult services so that no young people miss out, and improving the understanding of autism and all its profiles, including recently identified forms such as pathological demand avoidance.

My Lords, I declare a personal interest as I have a grandson who is on the spectrum; also, a lot of people who have mental disabilities are joining the Motability scheme through PIP. I completely support the point made by the noble Lord, Lord Addington: according to the Ministry of Justice, the figure is 89% and the cost was £34 million last year. We are fortunate to have a Minister who is hugely interested in trying to enhance the position of such people, but the real point I want to make is that this goes beyond money. The anguish of the parents and the upset is the key factor. Are there ways to expedite all the measures that we would like to see taken?

I absolutely take my noble friend’s point. As all parents know, a parent can never be happier than their least happy child. There are huge emotional issues involved in this. That is why we are continually reviewing the policies, as we did in December last year, as I mentioned in reply to the noble Lord, Lord Watson. We are also increasing the capital funding available to special schools where they have severe difficulties relating to autism.

My Lords, it is very easy to forget when talking about tribunals and costs to local authorities and to government that we are talking about children and young people who have special needs—in many cases severe special needs. The Minister will remember that when we established education, health and care plans in the Children and Families Bill, everybody celebrated. Now that celebration has turned into a nightmare as parent after parent does not get the package they need. The fact we now have parents going to the High Court demanding a judicial review is surely an indictment of where we are at.

My Lords, as I mentioned in response to an earlier question, the percentage of appeals is 1.5%. Broadly, that is not much higher than under the old regime, which changed in 2014. This is a new way of dealing with children with needs and we need to remember that; we are still on a learning curve. We have made significant investment in this since it was rolled out—£391 million in total—dealing with a whole range of things such as the parent carer forums, where a key part of these reforms is putting parents at the centre of the process. But I accept that any level of appeal is causing distress and we are working to reduce it.