Children with Special Educational Needs

Debate between Alun Cairns and David Simpson

Wednesday 30th March 2011 Westminster Hall

[Alun Cairns]

I am grateful to my hon. Friend for underlining an important point that is acknowledged in the Green Paper and, I think, far and wide. Teacher training is extremely important in the initial stages, but so is continued professional development. That is particularly important in relation to school exclusions. Evidence from Mencap suggests that 72% of pupils who have been excluded have special educational needs. I believe strongly that lack of support for a special need is often the cause of disruptive behaviour, and in view of the Government’s plan to change the school exclusion legislation, I hope that changes to SEN policy and teacher training will help reduce that percentage. The exclusion of those pupils is our fault, not theirs, if their needs have not been addressed. The Green Paper also considers how the statementing process should be changed so that resources are used in a more efficient way. That is the area on which I wish to focus today.

I was delighted to see that the Green Paper proposes maintaining the principle of a statement of SEN. It aims to reform the process, so that there is a single education, health and care plan, but still recognises the need for statutory protection for parents and pupils with regard to the provision of SEN support. That is great comfort and reassurance to all parents. The current system is cumbersome, costly and inconsistent, and is seen as being used by some authorities as a delaying tactic to frustrate the wishes of many parents.

In spite of that flawed process, the system is seen by parents as the back-stop that can guarantee a level of provision. If a parent can find their way through the maze, a statement can deliver what they want and what their child needs. Clearly, all sides are spending significant sums of money considering and discussing the matters. The money spent on advocacy and the challenges involved would be better spent on delivering provision. The new approach aims to make the process swifter, simpler and more efficient, but I have some questions and concerns about how and whether all aspects will work, so I want to talk the Chamber through the current process and compare that with my understanding of the proposals in the Green Paper.

The starting point is typically a parent or teacher identifying, or raising a question about, a child’s special educational need. Once the request for assessment has been made, the authority has six weeks to decide whether to assess the child. That will lead to a 10-week period in which the assessment is conducted. If a local authority questions or objects to the need for a statutory assessment, a parent will have to follow a cumbersome process to appeal via a tribunal; that comes with a significant delay. I am aware, for example, of an appeal just to obtain a statutory assessment that was registered on 10 August 2010 and not heard until mid-January 2011.

After the assessment, a decision will be made on whether a statement of SEN is needed; if it is, a proposed statement must be issued within two weeks. The parents are given the proposed statement and an opportunity to make representations within two weeks. After a further six weeks, the local authority will present its final statement.

[David Simpson (Upper Bann) (DUP)]

I congratulate the hon. Gentleman on securing this very important debate. In my constituency, there are a number of schools with children who have special needs. According to the Library research paper, on 9 March 2011, The Daily Telegraph stated:

“Thousands of children will be removed from school ‘special needs’ registers under Government plans to stop teachers over-diagnosing behaviour and learning problems.”

The parents whom I speak to have a real difficulty with that; does the hon. Gentleman agree with them?

[Alun Cairns]

I am grateful to the hon. Gentleman for raising that point. That is certainly an issue that causes worry among many parents. However, we need to recognise that the school funding formula almost leads to a perverse incentive for schools to classify children as having SEN. Very often, what is needed is additional support in the classroom, rather than a classification of SEN. It is the perverse incentive that is the root of that problem, but I accept absolutely that the issue needs to be teased out and clarified while the White Paper is being drafted.

The whole statementing process is meant to take 26 weeks, but we need to add in the delays due to the tribunal, which I have mentioned. If a parent is dissatisfied with a statement, they can appeal to the tribunal again. Delays such as the August-to-January delay that I mentioned earlier in relation to the assessment appeal will also be incurred in the case of a statement appeal. Parents who have to go through two appeals and the 26-week statementing process can therefore be left waiting for a total of 16 months to get a statement confirmed. That delay in securing the right SEN support can be damaging, particularly to a young child of four, five or six, as 16 months is a significant percentage of a child’s life.

The Green Paper highlights the Government’s will to speed up the process, and proposes cutting the 26-week period to 20 weeks. That is welcome, but the wait for the tribunal hearing also needs to be addressed if we are genuinely to speed up the process from start to finish. The Green Paper, however, talks about a mediation requirement. In principle, I can see the attraction of that, but I question its merit in practice because of the new delay that that could introduce. An insistence that mediation should take place before the right to appeal would be detrimental due to that delay, and I ask the Minister to allow mediation to take place in parallel with the wait for the tribunal hearing. In reality, discussions already take place right up to the day of the tribunal. It is most frustrating for an authority to agree to something on the morning of a hearing when the parents have been asking for it for the previous six to eight months.

Furthermore, I am not wholly convinced that mediation will work in practice. Parent partnerships already exist to allow for mediation, but few people take up the option because the relationship has usually broken down. We need to consider the pressure on the parent of an autistic child who has to battle month after month with a school and a local education authority, and then face a tribunal.

The Green Paper highlights extended choice for parents, but we need to recognise that legislation already offers parents significant choice. It is often the disagreement caused by the difference between the wishes of parents and the offer from the local education authority that leads to tribunal proceedings.

[Alun Cairns]

I am grateful to the hon. Gentleman for that intervention. It underlines a point that I plan to make later about the support that parents need. Mediation could possibly work, but we need to understand the breakdown in relationships and the support that parents therefore need.

I turn to the statement itself and the issues that can lead to disagreements and appeals. More often than not, draft statements are vague and imprecise. Parents will seek to make changes in order to gain an appropriately detailed statement that guarantees the provision that they need. Let me offer an example relating to the provision of speech and language therapy. A poor statement would read, “The child will have access to a communication programme,” whereas a well-prepared statement would record, “The child will have direct speech and language therapy with a therapist once a week for a period of 30 minutes.” That detail is important because if the speech and language therapist is sick for a period or goes on maternity leave, a local authority will rarely move to reappoint a suitably qualified individual, even if they can, given the shortage of therapists. If the provision is specified in a statement, parents can demand it, even from the private or third sector, if necessary. Clearly, it is in the interest of the local education authority to draft a vague statement to prevent such demands reaching the High Court.

That leads me to the backdrop of the tension that develops between parents and local authorities. Parents want a detailed, appropriate statement. They sometimes request that support be given more frequently than is offered, or seek a placement in a specific school, possibly out of county, and that has financial consequences. In a small number of cases, an independent special school is requested. Parents may even press for one-to-one support in a mainstream school. Those demands, which stem from the choice already afforded to parents in current legislation, will always have cost implications. That is usually at the core of the differences between the two parties.

Section 86 of the School Standards and Framework Act 1988 states:

“The duty imposed”—

that is, the duty on the authority to comply with parents’ preferences—

“does not apply…if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources”.

A similar term is used in the Green Paper, which states on page 17:

“unless it would not meet the needs of the child”

or

“would be incompatible with the efficient education of other children”.

It is obvious why such clauses and statements need to be included in legislation and Green Papers, but as long as they are, we will always end up with parents rightly demanding more for their children and local authorities seeking to reduce provision on the basis of cost. I do not see how legislation could be drafted without such a clause to protect the public purse, but it will always be the point on which disagreements will arise.

One option could be a better definition of what a parent can expect, but that focuses on inputs rather than outputs and runs against the principle of facilitating the best outcomes possible, which is at the core of the Green Paper. I have no doubt that many measures in the Green Paper will make a significant difference in supporting children with special educational needs. Early identification, a multi-agency approach, and assessment by health visitors in particular—the number of health visitors is to increase—are extremely welcome. The simplification of school action and school action plus is welcomed by parents, because they are often seen as a delay to the statutory assessment that I referred to earlier.

[David Simpson]

The hon. Gentleman mentioned the shortage of speech and language therapists. Would he agree that that is a key component of all this? There is a major shortage of therapists across the whole of the United Kingdom, and the Government need to do something to encourage young people into that profession.

[Alun Cairns]

I am grateful for that intervention. Without a doubt, the shortage of speech and language therapy is a significant difficulty, but as I highlighted earlier, if need for it is recorded in the statement of special educational needs, parents can rightly demand it, and can even go to the High Court to secure it. I am familiar with some cases where that has been done. However, I worry about those pupils who need speech and language therapy support but who do not have a statement. The shortage of such support does not make things easy for local authorities, assuming that they have the resources to provide it, and it naturally drives up costs. I am grateful to the hon. Gentleman for raising that point.

Improved training of teachers will make a positive difference in reducing special educational needs later on. The point about speech and language therapy is particularly relevant, because if support is provided early on, soon after screening at the age of two and a half, which is mentioned in the Green Paper, that can save significant sums later. I would like to believe that the Minister recognises the importance of that issue.

Budgets for parents to buy services directly will also help significantly. That is the principle of choice. One example that I can offer relates to sensory integration therapy, which local education authorities fail to recognise but the parents of autistic children value hugely. That service is provided by specially trained occupational therapists.

More explanation is needed of how budgets will be allocated, so that parents can exercise the choice and freedom that we want to give them. Will it be on a banding basis? If so, it will lead to further challenges and appeals aimed at moving the child to a higher band that would give greater access to resources and better provision. The new assessment regime and joint working with various agencies will simplify the process, but there needs to be clarification on whether there will be a single assessment regime as well.

Finally, I want to underline my concern for parents who do not have the capacity to challenge the system. This point was made earlier in an intervention. To get the best chance of securing provision, a parent may employ an advocate, independent speech and language therapists, occupational therapists and educational psychologists to give evidence to challenge the local authority’s case. After all, the local authority has ready access to such services. Clearly, that would be a significant expense for any individual or family, but if their call is that an independent special school costing, say, up to £100,000 a year is the only way to secure provision for their child, paying such experts at the appeal stage could be seen by them as an investment.

My worry is that the parents of some children with special educational needs will not have the necessary capacity; many may have special educational needs themselves. It angers me that those with the resources and the capacity who can work their way through the system will get what they need, but the children of parents who cannot afford it or cannot work their way through the system will be left without appropriate provision. I am sure that the Minister will agree that stopping those who can is not an option, and that the challenge is to deliver a system that provides the right support at the outset to those who cannot.

I am grateful for the support that I have received for this debate, and for the interventions that have been made. I hope the Minister will accept my comments as a positive welcome for the Green Paper.