A slippery fast track to help?

1st March 1996 at 00:00
As MPs scrutinise special needs appeals, an education officer complains that parents who misuse the tribunals have nothing to lose. One year into the operation of the special needs tribunal system, the Commons education select committee is investigating its workings. So this is perhaps a good time to assess the record so far of the body to which parents can appeal against decisions made by local education authorities about their children's special needs. Established by the 1993 Education Act, the system replaced the previous local appeal system which was said not to operate fairly because it was not neutral.

The tribunal's first annual report noted that the new system is proving to be very popular with parents with around 50 new cases per week being registered. However, the reasons for this popularity are not very palatable to the main providers of SEN services, the local authorities.

Having represented a local authority at about a dozen hearings, I can see why the tribunals are so well-liked. They tap directly into parental frustration by offering a platform to air their grievances against the education authority and offer a possible solution to the problems not solved by the LEA.

Some parents of children with severe special needs remain traumatised, angry and even devastated by pain and loss long after the needs have been identified. Parents of children with learning difficulties in reading, spelling, writing or other basic educational skills also often exhibit anger and frustration directed at teachers, schools and ultimately the LEA, when their child fails to make the progress they expect.

Many parents have had inadequate counselling or support and view the LEA bureaucracy of assessments, statements and the rest as unnecessary obstacles to be negotiated. Local authority professionals, themselves racing against the deadlines of the special needs code of practice, have no time for long-term family support.

It is too early to know what effect the parent partnership schemes funded by Grants for Education Support and Training are having on rates of appeal to the tribunal, though anecdotal evidence suggests not much. The rise of the single-issue SEN lobby - often fuelled by selective interpretations of the 1981 Education Act - has been given further momentum by the tribunal.

Around half the cases taken to the tribunal so far are to do with "dyslexia". Overshadowing all the decisions which the tribunal has to make about dyslexia or other learning difficulties is the central problem of making decisions about the child irrespective of the necessary external frames of reference. Many local authorities operate special needs audits with clear, age-related descriptions of educational achievements, developmental expectations, criteria for statutory assessment and severity of sensory impairments.

This complex exercise gives an authority-wide view of what locally constitutes special needs in relation to the code of practice stages one to five. So if such an authority refuses to assess or produce a statement for a child, it is on the basis of the information provided by the audit. In other words this means that in terms of the pupil characteristics of all locally-managed and grant-maintained schools within the authority's area, the needs of the pupil are not of such severity to require the authority to make special provision.

So what is the LEA to make of the situation when the parents go to the tribunal which decides that the child does require both a statement of special educational needs and extra provision, despite the fact that the LEA has compelling evidence to the contrary from its SEN audit of all pupils within the authority's area?

This particular scenario has occurred fairly frequently during the past year and leaves LEA officers fuming in disbelief, not only because of the tribunal's own inconsistency of judgment from case to case, but because the judgments are at odds with two 1992 Audit Commission reports, Getting in on the Act and Getting the Act Together, which recommended that local SEN criteria should be made explicit and transparent by introducing SEN audits.

The hundreds of hours spent annually by teams of heads, SEN co-ordinators, inspectors, educational psychologists and advisory teachers in carefully validating the criteria for stages of assessment can and frequently are overturned by such inconsistent tribunal judgments.

In one recent dyslexia case in which I was representing the LEA, the tribunal outcome was to direct the authority both to statutorily assess and make provision for a pupil who was just within the lower end of the unstatemented audit band. So, by the same token, is the LEA expected to produce statements of special educational needs on the other 20 per cent of the school population who also have similar levels of special needs?

This de-contextualisation of the problems presented to tribunal creates other difficulties to do with the nature of "evidence" and the nature of the tribunal itself. In those cases where parents are seeking enhanced provision for their child through a statement, they have an overwhelming imperative to maximise the child's difficulties.

To achieve this aim, parent advocates in the tribunal (often privately-hired educational psychologists) make highly speculative interpretations of the child's scores on standardised tests or criterion-referenced tests all to prove the point that the child's problems are really serious and so require special or specialised provision.

Just before one tribunal hearing, I was informed by the barrister representing the parents, that the child had "deep-seated and highly complex problems" which could really only be addressed by placement in a residential school in the country specialising in dyslexia. That is the legal game of course - combative, black is white until proven yellow. However, had the barrister ever seen a real child like the ones who populate our schools, would she still insist that the child had complex problems?

Nor could I pull rank with the 28 years I'd spent working as a teacher, educational psychologist and so on, because the parents, by going to the tribunal, had already given their vote of no confidence, not just in me, but in all my colleagues who knew the child well and who had contributed to the advice.

The tribunal's jurisdiction, including the power to amend the statement, seriously undermines the LEA's decision-making credibility. The conduct of the tribunal with the focus on the individual child ensures that the child's needs are seen to be very special in that adversarial forum even when they aren't. In reality the tribunal is giving encouragement to a biased sample of parents clamouring for resources for their own child.

Many authorities, including my own, have experienced parents who make their own private placement arrangements for the child then go to the tribunal with the hope that the LEA will be directed to bear the cost or go to the tribunal seeking more expensive non-maintained provision, even if there is adequate or even good, locally-maintained provision.

One such case which recently went against my own authority will cost Pounds 350,000 over the next six years, yet all the professionals were convinced that the child's needs were well met in the locally-maintained school. The parents, however, for personal and domestic reasons, were determined to have the child placed residentially.

Parents have nothing to lose. They are using the tribunals as a fast track to resources, irrespective of the merits of the case in relation to other children. Local authorities will find it difficult to manage budgets if they are required both to maintain services for the majority and finance expensive placements for those cases which are determined by tribunals on an inconsistent basis.

The chairman of the tribunal, who is usually a barrister, insists at the outset that the tribunal is not there to make "professional" decisions but is concerned with the evidence presented before going on to overturn the professional decisions made by the LEA in almost 50 per cent of cases.

Several of the chairs on cases I have attended have evinced spectacular ignorance not only of special education in particular, but state education in general.

This lack of real knowledge feeds further into the de-contextualisation and, at its worst, can take the form of bemused detachment on the part of some chairs who are perhaps unaware of the significance, complexity and frequency of occurrence of a wide range of learning difficulties and life-long disabilities.

The author is an education officer in a metropolitan authority

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