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High Court to rule on special needs

A controversial method of dealing with disabled children now faces a major legal review in a court case thought likely to set the future direction of meeting special educational needs.

East Sussex County Council's formulaic system for allocating extra educational help has been seen by many local education authorities as a model for the future, and has attracted the favourable attention of officials from the Department for Education and Employment.

But it has also drawn criticism from some special needs advocates who believe that the council's decision to hand maximum responsibility to schools, while cutting down on bureaucracy, is also less sensitive to the needs of pupils.

They claim that the LEA is making "worthless" promises to pupils and parents, with no guarantees that the schools will deliver. And that East Sussex is in effect allocating help according to its spending limits rather than according to what pupils actually need.

Now the policy is being challenged in court by the Down's Syndrome Association. The association has recently won permission to seek a judicial review - the High Court procedure for dealing with public bodies accused of breaking the law.

Special needs remains a deeply troubled area despite rare political consensus - Government ministers have been praised for their co-operative attitude. Local authority budgets have not risen in line with an apparently remorseless increase in the demand for special educational help and LEAs are resorting to tougher criteria for deciding who should get help, encouraged by the Government and by the Audit Commission.

Following their recommendations, LEAs are trying to achieve standard treatment between schools and to invest at the classroom level to head off later, expensive, intervention in the form of a statement of special educational need.

The new Code of Practice for the Identification and Assessment of Special Educational Need was introduced with this in mind and insists that schools should take a large share of the burden.

East Sussex has gone further than most other councils. Almost the entire budget for three common problems - specific learning difficulties (dyslexia, for example), moderate learning difficulties (which the Down's Syndrome children have), and emotional and behavioural difficulties - has been handed over to schools. Schools are expected to cope with any children displaying these disabilities.

But, says the Down's Syndrome Association, there is no guarantee that the school will have enough money to help the child while the council, which has emptied its coffers, is arguing that the responsibility and the precise levels of help on offer rest with individual schools, along with the money. The association says this is illegal.

East Sussex has already won round one of the dispute: the Secretary of State for Education ruled in its favour on a similar appeal. This time the courts will decide. The judges will face two very different understandings of LEA responsibilities. As councils recently told the House of Commons select committee on education, they think their job is to hand out money as fairly as possible. Special needs advocates say that the law demands something else: that each child's needs be met.

Katy Simmons, co-ordinator with the Independent Panel for Special Educational Advice, says that East Sussex is not the only council proving reluctant to specify on children's statements of special educational need how many hours of help they should get. This is, she says, becoming a standard tactic to help councils manage budgets - a tactic that only well-informed parents can challenge by appealing to the new Special Needs Tribunal.

"The problem is that local authorities are cocking a snook at [the tribunal], " she says. "We have worthless statements and non-implementation of tribunal judgments." Parents, she says, are driven in large numbers to seek Orders of Mandamus, compelling LEAs to do as the tribunal panels direct.

Sally Capper, a barrister and educational advocacy worker with the Down's Syndrome Association, accepts that councils face financial difficulty, but says that they should face up to their responsibilities.

"The parents have no guarantee that what their child needs will be provided. It means schools will be discouraged from having children with a greater number of difficulties. It's anti-equal-opportunities."

She tells the story of one mother who "had to hawk her child round from school to school before she could find one that would accept a pupil with Down's Syndrome.

"What [councils] are trying to do is smooth over their problem at the expense of children."

In a prepared statement, East Sussex said: "One of the major concerns of parents is that the school may decide not to make the provision set out in their child's statement of special educational needs even though the resources have been delegated.

"The county council wishes to make it absolutely clear that schools must in law fulfil their responsibilities. If a school fails then the council has the power to step in and put the necessary resources in place."

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