No use crying, 'It's not fair'

21st February 1997 at 00:00
Local authorities are bound to be fed up with the special needs tribunal. It forces them to do justice to children in their care, writes Chris Gravell. As a parent who has taken her child's case to the Special Educational Needs Tribunal, and supported others who have also done so, I was sad to see the local authorities repeating their attack on the tribunal and the parents who appeal to it.

I am sure that all parents of children needing extra help will support the local authorities when they argue for more money for these children's education. The authorities, however, render these arguments invalid when they claim deficits are caused by too many greedy middle-class parents using the tribunal unfairly, as is implied by John Fowler of the Association of Metropolitan Authorities when he says local authorities are angry at forking out vast sums for children who don't need statementing and that "some special needs are very class-related".

Like many complicated procedures that involve careful preparation and record-keeping, the tribunal benefits those who are literate and methodical, or who can find advisers who will take on some of the burden for them.

The remedy to the class bias is to make the tribunal more accessible, not to do away with it because the middle classes use it more. And the reason that so many parents succeed is because local authorities are not yet routinely meeting their obligations in law to the children for whom they have very specific responsibilities, not because parents have some unfair advantage.

Prominent in LEA evidence of the unfair nature of the tribunal are figures for their costs incurred in defending these cases. But if they are losing so many, council charge-payers might well ask why they aren't correcting their practices rather than repeating the same errors that lose them cases.

And what of the costs of appealing for parents, who do not have legal departments sitting down the corridor, or photocopiers, fax machines and free expert advice on tap, all paid for by public money? The distortion of family life while parents pour their time and energy into these appeals, and the stress of the long wait and the hearing itself, are costs that cannot be quantified in financial terms.

Local authorities complain that there has been a huge growth in appeals since the tribunal was instituted by the 1993 Act (although one should look at numbers as well as percentages: the number of parents who appeal is very low, perhaps because of the complexities I referred to above).

This increase, however, is to be expected. The framers of the 1993 Act set up the tribunal because parents had found the previous system to be grossly unjust. The reason so few parents complained before was that the appeals were heard by the LEAs themselves, and tended to confirm the decisions appealed against.

What the LEAs do not seem to ask of their own findings is why two of the authorities responding to their survey had no appeals to the tribunal at all, while one had 27. That comparison is surely as worthy of consideration as the historical one.

The LEAs complain that "the tribunal judges each case on its merits under the law I and does not take into account the picture of special needs across the authority". I'm sorry, chaps, but the tribunal is simply doing what it and you have the duty to do in statementing children. In law, an education authority must decide on provision to go in the statement simply on the basis of individual needs - it's only in deciding on placement that LEAs can consider resources. And they do, which is presumably why parents lose cases - such as that of Zelda and Chloe McCollum, (TES, January 31).

When the LEAs wax indignant at the tribunal's tedious insistence on lawful behaviour, they tacitly admit that they are not obeying the law. Their protest here is reminiscent of the Ministry of Defence's attitude to sex discrimination cases (these dreadful women are blaming us for unlawful acts and costing us too much). Like the MOD, LEAs have been used to doing things in their own unlawful way for a very long time, and cannot quite believe that things have changed.

Sheila Knight, chairwoman of the Association of London Government, said the tribunal was setting "dangerous precedents". Nothing could be further from the truth: a serious problem for parents is precisely that the tribunal has no precedent-setting power, which means that parents in some areas are taking case after case on the same point of law against the same LEA.

These parents, however, are a tiny minority compared with the number who receive unlawfully written statements as a result of the authority's practice, and do not have the knowledge or the power to do anything about them. We see a need for strengthening safeguards against such abuses of power, rather than weakening them, especially on grounds of equality.

Ms Knight also complained of "many inconsistent and poor-quality decisions". Inconsistency and poor quality was a common complaint in the early days, but most people seem to agree that decisions are now much improved. In any case, authorities have the funds to appeal to the High Court against bad decisions, whereas parents can seldom fund an appeal and seldom qualify for legal aid.

If the local authorities succeed in getting a review of the tribunal, I hope the review will bear in mind the check on abuse the tribunal provides. It is needed to guard the individual rights of parents and children (children who are among the most vulnerable in our society) against unlawful or unreasonable acts by the agency of government that is supposed to provide them with access to education. If that function were removed, parents and children would be rendered impotent victims of injustice, as they were before the 1993 Act.

I suspect, however, that it is not the tribunal that the local education authorities are really complaining about, but that they are being forced in a minority of cases to obey the law, which is based on the individual rights of this very small group of children.

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