Schools face the growing prospect of being caught in legal crossfire between local education authorities and parents of children with special needs. For as LEA budgets shrink, more and more parents are turning to formal tribunal hearings to win the help they believe their children need.
Record numbers of parents appealed to the Special Educational Needs and Disability Tribunal (Sendist) in 20023, according to draft figures obtained by The TES and due to to be published later this year. Any parent who is unhappy with LEA decisions about their child's special needs - over whether to assess or statement, or over details of help andor schools allocated - has the right to appeal to Sendist. (These appeals are separate from those under the new Disability Discrimination Act).
Last year, 3,535 families appealed - a 16 per cent rise on the 3,048 in 20012. The growth is accelerating: last year's increase was the biggest for five years. Annual tribunal cases are now five times the 600 to 800 anticipated when Sendist was established in 1993 (see charts).
So why do so many appeal? According to charities and special needs campaigners the reason is that local authorities are deliberately refusing children the assessments and provision to which they are legally entitled.
They are doing so, say charities, knowing that some parents will take their child's case to tribunal - and win. But they expect, too, that many more will be too intimidated or poor to use a tribunal - most spend about pound;,5000 on their case, according to the National Autistic Society - or simply not realise that under law their child is entitled to much more.
And in the middle of this - often knowing clearly what help the child should receive - is the school. For every tribunal case, schools must report extensively on a child's needs and education. But in many, heads, senior managers and special needs co-ordinators (Sencos) get caught up in an emotionally-charged struggle between parents and LEA, in which they may come under pressure to support the arguments of both sides.
"It's not uncommon for heads to feel completely torn between the needs of the child and the LEA's case," says Kathy James, head of professional advice at the National Association of Head Teachers.
She, like other union and disability campaigners, has spoken to heads and Sencos who have been warned off by LEAs when they seemed prepared to support a parent's tribunal case. All these heads and Sencos, when approached by The TES, were too afraid of repercussions from their LEAs to speak publicly, even when guaranteed anonymity.
Helen Kenward, deputy head of Filsham Valley secondary in Hastings, will talk about cases she has come across in work for the Secondary Heads Association: "I know of some Sencos who haven't agreed with the LEA on things like placements. They end up in a tribunal trying to defend what they don't want to defend."
And almost inevitably, they lose. Special needs campaigners argue that LEAs deliberately offset the cost and embarrassment of losing handfuls of cases against the much higher cost of giving hundreds of children their legal entitlement. As evidence they hold up the following facts:
* more than 60 per cent of appeals are settled by LEAs before the tribunal hearing. (In a third of these, the LEA concedes the parents' case entirely.
In all but a handful of the rest, according to research by the National Autistic Society, parents get most or all of what they want. Often LEAs back down just days before the hearing.)
* LEAs then go on to lose three out of four cases actually heard by the tribunal (which applies law that LEAs themselves are meant to know and administer).
* Some LEAs continue to make the same arguments in case after case, even though every time they have made them in the past the tribunal has ruled against them.
In a normal court, says John Wright of the Independent Panel for Special Education Advice, (IPSEA), the charity which supports parents in appeals, precedent is binding. Once made, a ruling applies everywhere. But Sendist tribunals are not binding.
LEAs are exploiting this legal loophole, says Mr Wright: "I have been in a hearing in the morning supporting a parent where the LEA has lost, and in the afternoon it has made exactly the same case about another child. The tribunal chair just rolled his eyes and the LEA lost again."
The implication for schools is that many special needs pupils whose parents will not or cannot take the LEA to a tribunal are not getting the support to which they are entitled. In particular, says John Wright, figures show two issues over which LEAs are consistently prepared to do battle, and consistently lose. One is refusing an initial assessment of pupils' needs.
The other is specifying how many hours of support - whether that be speech therapy, in-class time or specialist teaching - a statemented pupil is guaranteed.
Last year, 1,429 parents appealed to Sendist for their child to be assessed after their LEA had refused. Most of them won. More than 1,200 appealed over the contents of their child's statement, most of whom will have been demanding specified support hours rather than a vague phrase such as "support as necessary," says John Wright. Again, most won. In his experience, only a small proportion are asking for high-cost private tuition.
Graham Lane, chair of the Local Government Association's education committee agrees that it is indefensible for local authorities to refuse to assess a child: "Authorities are legally bound to assess and if an officer is refusing then parents can seek redress by going to see an elected member."
LEAs would prefer a more conciliatory system, he says. But they have to balance the needs of a child whose parents appeal with the needs of other children in the authority, within a limited budget: "The trouble with the tribunal system is that the people making the decisions are not responsible for spending the money. It's easy for them to decide something they think is in the interests of the child, not realising the authority will have to pick up a huge bill and other children will suffer."
No one knows how many other families could win tribunal appeals. No one collects statistics on how many are refused assessments andor statements.
LEAs are not obliged to publish policies on how much support they could give special needs children.
But the Department for Education and Skills is worried: it wrote to all authorities last summer warning them that refusals to specify provision were illegal.
In the past three years IPSEA has successfully challenged Newham, East Sussex, Derbyshire, Wirral and Barnet over blanket refusals to specify. The Barnet case gives the only possible indication of how big an issue schools might have on their hands if all rather than just a small percentage of parents exercised their right to a tribunal hearing.
For when Barnet announced last March that it would no longer specify the number of hours of support on children's statements, its decision affected 600 pupils. But after two days, when IPSEA decided to challenge the decision, it had received just eight calls. That replicated across the country could mean thousands silently suffering substandard care.
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Some of this year's cases where schools have been torn between the child's needs and the local education authority include: 1 An LEA told the tribunal that an autistic child's school - the parents wanted another - had experience of such children. The parents lost their case. The school's head was so incensed he gave the parents a written statement saying his school had never had a child with autism. The Special Educational Needs and Disability Tribunal is reviewing the case.
2 A child who unscrewed a pencil sharpener and cut himself with it in class 20 times, in a pattern of self-harming, was said by the LEA to require no special provision because his reading age was adequate. The school backed the parents against the LEA.
3) A child with cerebral palsy was refused support because her needs were met in school. Ofsted reported the school, unusually, had 25 per cent of pupils with special needs but none with statements, adding pointedly that "the school's efforts to statement pupils have been unsuccessful".