The in crowd
In a few weeks' time, the Crane family will go to the High Court. If they lose their case, they may have to sell their house to pay costs. If they win, they know they have nothing to gain personally. But it could set a ground-breaking legal precedent on how local authorities make decisions about where to place children with special needs and how they can defend those decisions when parents bring a case to Special Educational Needs Tribunals. And by doing so, it will enable parents to avoid the blood, sweat and tears that it has cost the Cranes.
Niki Crane, now 14, was born with non-specific brain damage, which resulted in severe learning difficulties. When he was born, the doctors told Wendy and Peter he would never walk or talk. Just take him home and love him, they said. They took him home and loved him all right, but they also sensed, as he grew up, that in the right environment he would thrive. They were right.
He went to a local mainstream playschool near the Lancashire village of Hesketh Bank, where the family lives, then on to the local primary school. He had one-to-one assistants full time and blossomed. The boy who the doctors had written off was taught to talk and to walk by his school friends. Niki learned how to climb up and down stairs and by the time he entered the juniors, he was walking to and from school half a mile away. He rides a horse, too.
But like so many children, when it came to secondary transfer the tide turned. Although the professional reports in his new statement at age 11 recommended a trial two-term placement at his local high school and although Lancashire local education authority put together a package of support services to implement the transfer, the school in question, Tarlton High School in Preston, refused to accept Niki. The reasons given were that the building was unsuitable: the toilet facilities were inadequate and would cost Pounds 12,000 to put right and there were stairs in the school. Niki, however, does not use a wheelchair, so has no need of a special toilet and has no trouble with stairs. Neither his home nor his primary school has any adaptations to toilet or stairs.
But Wendy and Peter Crane only heard about those reasons later. Three weeks after receiving the letter charting Niki's new statement, they were shocked to get a letter from the LEA offering their son a place at a special school 17 miles away.
It only emerged after a Special Educational Needs Tribunal had taken place that the LEA's volte-face was the result of intense lobbying from the staff association and governors of Tarlton, who decided that they did not want a child with severe learning difficulties at their school. Meetings were held behind closed doors and minutes were shredded, it was later revealed in documents to which Lancashire County Council had originally denied the tribunal access.
Wendy and Peter Crane lost their tribunal case. According to their representative, John Wright of the Independent Panel for Special Education Advice, "The tribunal backed the LEA's decision to send Niki to a special school because it saw that it was a complicated case and believed that the education authority knew what was best".
The Cranes, backed by IPSEA, the disability rights movement, and legal specialists believe they have been dealt an injustice by Lancashire and on May 12, they will be challenging the tribunal's judgment in the High Court. They are arguing the tribunal's decision on a point of law. "We're trying to show that this kind of decision shouldn't be made by school governors or heads, but by qualified special educational needs officers from the local authority, " says Peter Crane.
Moreover, says John Wright, "We're saying that the tribunal failed to require Lancashire education authority to produce evidence on which it based its decision. In doing so, the tribunal failed to follow the basic rules of evidence". Under Section 316 of the Education Act 1996, local authorities have "a qualified duty to secure the educational needs of children with special needs in mainstream schools" unless it can be proved that it would not be in the best interests of the child, or that it would interfere with the education of other children or that it would be an inefficient use of resources. None of these exceptions is relevant in the case of Niki Crane, believe solicitor David Rubain and IPSEA's John Wright.
The case, although exceptionally complicated, has relevance to other parents, too. "It will highlight the practice of schools, staff and governors making decisions on placements of children with special needs," says John Wright. "They are not legally entitled to do so. It should be in the hands of the LEA. But it is not uncommon for children with special needs to be denied places because of the negative attitudes of schools." In addition, it will clarify the need for local authorities to confer with schools about potential placements but only in reference to the school's ability to meet the child's needs.
Lancashire LEA declined the opportunity to comment on the case.
Meanwhile, Niki has lost three years of schooling and three years of friendships and learning from other children in mainstream school. His parents declined the LEA's offer of a special school place and kept him at home. They insist that the school is unsuited to their son's needs and that the distance would isolate him from his community. Wendy gave up her midwifery career and they have bought in private tutoring. During these three years, there have been no offers of home tuition or visits from LEA inspectors to check on what has happened to Niki.
Whatever happens at the High Court, it will be too late for Niki to reclaim those lost years as far as his parents are concerned. The irony is that the family moved to beautiful rural Lancashire from the unlovely east London borough of Newham believing he would have a better life. Little did they know this scrap of urban jungle would, in the late Nineties, transform itself into an oasis for children with disabilities, boasting the most enlightened inclusion policy in the country. Had the Cranes stayed in Newham, Niki would be in a mainstream school in his neighbourhood today.
Forget NorthSouth divides. In terms of special needs philosophy, Lancashire and Newham are on different sides of the world. Newham is arguably the only LEA in the country to have developed an inclusion policy in answer to parents' demands. It is a dramatic example of how parents can move mountains, or at least councils.
According to director of education Ian Harrison: "Parents campaigned to make sure that inclusion became council policy. Some of the campaigners became councillors and they, together with political lobby groups and the successive education acts, ensured that the policy was implemented." This revolution has resulted in Newham having the lowest national figures for disabled children enrolled in special schools - 5 per cent. That figure will be marginally reduced in the future, but some specialist places will remain.
"Our ultimate goal is total inclusion," says Ian Harrison, "but that doesn't mean we will close every special school. Our focus is to see improved provision and practice in mainstream." At present, Newham has closed its two special schools for moderate learning difficulties, leaving two for children with severe learning difficulties. All mainstream schools now have children with special needs and some schools, including primaries, have specialist services.
"Responsibility for the provision rests with and is accepted by the schools themselves," according to Newham's Inclusive Education Strategy. To help all schools, a combination of GEST and local authority money, totalling over Pounds 200,000 a year, is going into Project Inclusion, a training and consultancy programme.
What Newham is doing is bold and does not come cheap. But it looks like becoming a template for the future if, as Ian Harrison puts it, "the political will to close special schools and the budgetary commitment to pump-prime and reallocate resources" are there. What about the schools themselves? "On the whole," he says, "teachers and schools are very much in favour. Of course, some are more enthusiastic than others. But practical problems are being dealt with."
What is so radical about the Newham model is that among its architects were people with disabilities and their families, driving it, steering it, informing it. As Micheline Mason, a lifelong disability rights campaigner puts it, "You can't learn how to include us and how to expand the concept of normality unless we are there to teach you how to do it. It is us who will be teaching the teachers".
The inclusionist view is not shared by everyone. Andrew Sutton, director of the National Foundation for Conductive Education, believes there are some children for whom mainstream school is simply not appropriate, let alone possible. He prefers the concept of dynamic inclusion: children should be placed in the least restrictive environment to meet their needs, which may move between special and mainstream provision as the child develops. "A child's parents might choose different things at different times," he explains. "For instance, a deaf baby may start off with a visiting tutor at home. Then parents might choose a specialist pre-school. Then they may move to a mainstream primary school with regular visits by a specialist teacher. Then the child may be moved into a specialist unit within a school, either full or part time. It is a philosophy based on the changing needs of the child." This also upholds the principle of parental choice, he says. If there are no special schools, he asks, "what happens to the child with major developmental disabilities, for example with severe autism? How will an ordinary school have the training and the systems for specialised interventions to make real inroads? What's to be gained by having this child in a school if no impact is being made? Inclusionists have no understanding of the development of children, of pedagogy or with the recognition that society should expect outcomes from all children. They are parochial in their focus and their understanding".
He is sceptical about Newham's inclusion strategy. "How can you," he asks, "be part of mainstream society at the age of six if you can't control your bowels and bladder?" Micheline Mason, who was in special schools until the age of 18 and has ensured that her 12-year-old daughter Lucy, also in a wheelchair, has attended mainstream schools all the way through, sees things from the opposite end of the spectrum. "You learn a lot more in school than just the curriculum. You learn about your place in the world and about your culture. To separate any group of children, for any reason, is teaching exclusion by example. From our point of view, inclusive education is about the liberation of a people who have been silenced."
The Invisible Wall, a BBC TV documentary and book to be published at the beginning of May, about the Crane case and about inclusion issues generally. Available from Parents with Attitude at 9 Cherry Vale, Hesketh Bank, Lancashire PR4 6PE
SEN organisations: Parents for Inclusion: 0171 735 7735 IPSEA: 01394 382814 or 01628 478986 Special Education Needs Tribunal Office: 0171 925 6925 National Institute for Conductive Education: 0121 449 1569