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Councils place 'unlawful hurdles' in way of parents seeking SEND support

MPs hear that councils are 'gatekeeping' by setting criteria for needs assessments that are not required by legislation

child with send

Cash-strapped councils are putting "hurdles" in the way of parents seeking support for children with special educational needs and disability (SEND) by setting "unlawful" criteria to receive a needs assessment, MPs have heard.

The Commons Education Select Committee was told that the recommendations of SEND experts were regularly being overridden by "somebody who is controlling a budget".

The committee was hearing evidence this morning as part of its inquiry into SEND.


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One of the topics covered during the session was the high number of successful appeals against council decisions relating to education, health and care plans (EHCPs). 

Alison Fiddy, the chief executive of IPSEA (Independent Parental Special Education Advice), which offers independent legal advice on SEND, said: “If local authorities complied with the law and were able to justify their decisions not to carry out an assessment of a child’s needs when a request is made…that would also result in fewer appeals."

Ms Fiddy said that councils were engaging in "gatekeeping" when it came to SEND support.

Her comments were backed up by Michael King, the local government and social care ombudsman. “What we’re seeing is some local authorities introducing requirements that parents must meet before they will accept their duty to carry out a needs assessment," he said.

"Does that request have to be in writing for example? We’ve had a number of conversations with local authorities about that – the guidance is silent on it. Do people have to fill in particular forms? If there’s a referral made by an education psychologist, should the local authority then act on that?

"We see a number of hurdles being put in place, local authorities putting in place systems that aren’t actually in the legislation."

Ms Fiddy said that councils were setting "unlawful" criteria to qualify for an EHCP assessment, such as not considering undertaking an assessment unless £6,000 has been spent on a child under SEND support, or not considering an assessment without referral from an educational psychologist. 

"Those are the types of very common criteria that set a higher bar, a higher threshold for assessment than the law provides."

Imogen Jolley, head of public law at solicitors Simpson Millar, said that rather than tailoring care to the needs of individual children, councils presented parents with an inflexible package based on what they thought was affordable. 

"I will speak to an SEN caseworker who will say 'this is what we offer locally, this is all the provision that’s available locally.' [I] will say, 'No, this is a system around the needs of an individual child.' And it’s a brick wall…there is a rigid system in place.”

She also said that expert opinions were being overridden because of financial considerations.

“What is happening is that the people who have the training and the background and the understanding – the social workers and the specialist nurses – are making decisions and are putting forward suggestions that are then being overridden by somebody who is controlling a budget and a purse."

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