The irritation with the DCSF about the letter which they sent to local authorities is still rumbling on. The main concern seems to be, as far as I can make out, that they state plainly that if a child with a statement is not seen once a year at the annual review, then a School Attendance Order should be issued. This is what they say in Paragraph 12 of the letter;
"If local authorities are denied access to the child and are unable to see the provision that is being made they cannot fulfil their duty of ensuring that the provision is suitable for the child and meets his or her SEN and should issue a school attendance order."
It is suspected that by offering this advice, the DCSF are in a sense jumping the gun a bit on the new law and setting a dangerous precedent as far as those parents whose children do not have statements are concerned. In other words, today they are advising this about kids with special needs, tomorrow they'll be saying that any child not seen once a year should be the subject of a School Attendance Order. This is nonsense.
The statement of special educational needs is a legal document which sets out a child's requirements. It names a school and also details such things as, for example, speech and language therapy. Every year, the statement must be reviewed. This is a statutory duty which the local authority has. Now if the statement names a particular school and a range of provision which a child requires, then it is the responsibility of the local authority to see that the child has these things. If the child is removed from school, then the local authority has a duty to see that the child is still getting those things as long as the statement remains in force; that is to say that the child is in receipt of as good an education and the same range of services as would have been the case if he was still at school. They are still in that sense responsible for the child. If the family won't let anybody see the child or visit the educational setting, then obviously the local authority will not be able to decide that the provision in the statement is being made for the child. In such a case, they must assume that they remain responsible for providing the education and services set out in the statement. The correct course of action is for them to return the child to the school named in Part 4. This has always been the case; it is not some sinister new plot by the DCSF! It certainly has nothing to do with the new Children, Schools and Families Bill.
This is the case legally and one can also see why the local authority would issue an SAO in those circumstances. They have a duty to see that this child is getting those services and if he isn't, then they are legally at fault. If for no other reason than covering their own backs, it would make sense for them to be a sure of this. I also think that there is a case to be made ethically for them to see the child in the educational setting and assure themselves that the education and services being received by the child is as set out in the statement. Failing to do this would mean an abdication by the local authorities of their responsibilities, both statutory and moral. I am certainly aware myself of cases where the local authority has not seen a child with a statement during the annual review and neither have they issued an SAO as a result. The DCSF are simply reminding them of their existing duty and telling them what they should do under these circumstances.
All this has absolutely nothing at all to do with possible annual visits to the educational setting of home educated children without special educational needs, as suggested in the Children, Schools and Families Bill. The only similarity between the two cases is that both the annual review of the statement and the proposed monitoring visits in the new law are both taking place once a year.
It is beginning to look as though some home educating parents of children without special educational needs have seized upon this letter as some sort of bargaining chip or weapon to use against the Department for Children, Schools and Families. Specifically they seem to be seeing it as a way to help prevent the introduction of the new act. This is unfortunate. Children with special needs can be horribly vulnerable, far more so than most children of comparable age. It is debateable whether or not local authorities should have the right to see regularly all home educated children. The general duty for parents to provide children with a suitable, full-time education is so vague that it would be hard for most parents to be proved not to be doing so. With children who have a statement, the case is far more detailed and specific. Rather than the wooly definition set out in cases such as Bevan v Sheers, there are explicit instructions about where a child with a statement should be educated and what extra provision should be made for her. Since the duty for providing these things devolves legally upon the local authority, it is not at all unreasonable that they should seek to establish that the terms of the statement are actually being adhered to.
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"They are still in that sense responsible for the child. If the family won't let anybody see the child or visit the educational setting, then obviously the local authority will not be able to decide that the provision in the statement is being made for the child."
ReplyDeleteSurely the local authority are responsible for the provision set out in the statement in relation to the school the child attends. If the parent decides to home-educate the child, the LA remains responsible for maintaining the statement, in case the parent needs that support or should the child return to school. Responsibility 'for the child' is, and remains with the parent, unless responsibility has been formally transferred to the LA (as in 'looked-after' children). It is only 'if it appears' that the child is not receiving a suitable education that the LA should make inquiries and if all else fails, issue a SAO.
There is no indication in the SENCOP, that this letter is supposed to be reminding LAs about, that LA officers are expected to visit the homes of children with statements, nor to see the children or their educational provision, nor even to see their parents during the course of the annual review of the statement. The parents must be invited to the annual review meeting and the child's views sought where possible.
The letter to LAs, as with a number of recent pronouncements on the part of the DCSF, appears to see responsibility for the child's education as being shared in some unspecified way, between the parent and the LA. Waving one's arms in the general direction of shared legal responsibility and not making it crystal clear where parental responsibility and LA responsibiiity begin and end, but instead urging LAs and parents just to be nice to each other is a recipe for chaos, resentment and some very cross magistrates and local ombudsmen.
Suzyg, you say;
ReplyDelete"Surely the local authority are responsible for the provision set out in the statement in relation to the school the child attends."
Not really. The provision set out in Part 3 is quite separate to the school or educational setting named in Part 4. Never the less, the local authority has, while the statement remains in force, a statutory duty to see that the child receives all the things mentioned in the statement.
My irritation about this is that on some of the lists parents who know nothing about statements are treating this as a chance to get back at the DCSF or local authorities. I have seen little mention of the welfare and rights of children with special educational needs. Instead, people are saying things like, "Excellent angle to take" or"They have played into our hands". This letter is about vulnerable children and people doing the best they can for them; not a cunning new scheme to persecute home educators!
I'm aware that the provision set out is in a separate section to the educational setting, but nonetheless the budget for the provision will depend on the educational setting. Children need different support in different settings. This is one reason why LAs are so reluctant to carry out statutory assessments at home and the reason why the school is named.
ReplyDeleteWith regard to parents 'getting back' at the DCSF and LAs, I haven't seen any of these posts, but would point out that with regard to SEN, neither the DCSF nor LAs have a very good track record as far as the welfare and rights of children with SEN are concerned. I feel that a handful of parents exploiting this letter is neither here nor there; for central and local government to make a hash of SEN provision is surely inexcusable.
It seesm to me that the wording of the whole statement thing has always been easy to interpret as you wish. Yes, the statement lays down the obligation of the LA, not the parent, but it is simple to see how an LA could say "these requirements have been set down as the considered opinion of experts(!) about what this child needs and if the parent isn't going to make sure they are met, they must be failing". In addition some of the children concerned are very vunerable because of disability/ health needs and social services may already be involved; families in ths situation can find themselves swept along by the system and whatever the rights and wrongs I always feel some degree of cooperation is less likely to lead to more aggressive involvement by the authorities.
ReplyDeleteSo I am definitely against the sort of advice that sometimes appears on lists of basically telling a family with a statemented child that *they* don't have to do anything ....
Julie-"They dont have to do anything" i dont think many home educators are saying that. What we do say is keep everthing in writing with a copy and answer all letters in a clear way making sure that they LA follows the law not making it up as they go along! I have found writing a letter saying please can you explain what it is you mean by your last letter?
ReplyDeleteJulie-"I always feel some degree of cooperation is less likely to lead to more aggressive involvement by the authorities"
yes cooperation in writing will lead to less involvement by the authorities!
maybe DCSF/Balls think SEN is an easy target!? but i think he find they not and they will demand that everying is done in the correct legal way!
What I am trying to say that if the LA insists on seeing a statemented child, then I wouldn't advise a family to say "no".. before this latest letter from the DCSF I thought that such actions might put a family at risk of social services interference; now I suspect that for many LAs it definately will!
ReplyDeleteJulie_What i am trying to say that if the LA insists on seeing a statemented child then i wouldn't advise a family to say "no"
ReplyDeleteWe need to see why an LA would insist on seeing a statemented child? Had the LA followed to law in the correct legal way? What letters had been wrote by the LA? Had complaints been made by the family about they LA?
It is quite legal for a family to say no to they LA insisting on seeing they child my advice is to kep every thiny in writing keep copy's of all letter sent and recevied from your LA.
Where possible talk to your child about all of this and explaing everythin to him/her do not allow any LA to bully you!
Putting together a statement of special educational needs for a child and then ensuring that the provisions which it contains are actually made available to the child, is not some bizarre ploy by the DCSF and local authorities to make life difficult for home educators! It is done to make sure that a vulnerable child is getting what she is legally entitled to. Many local authorities are disgracefully slack in providing what is needed for children with special needs. When the DCSF starts leaning on them to make sure that they undertake their duties, I do not see this as a bad thing at all.
ReplyDeleteQuite apart from this, it would be a really bad idea for the parent of a child with a statement to try and forbid the local authority from seeing the child, particularly when the annual review is taking place. Julie is right, this will practically guarantee social services sniffing round your family!
I have 3 children with SEN, two of whom had statements from pre-school age until the end of school (well the one who is 16 is still there!) Both of these were educated at school, my 3rd SEN child who was home educated didn't have a statement but would have done had she remained at school. Interestingly I cannot complain in many way about the statemented ones; they always got exactly what the statement said they should have; it may be significant that their needs were considerable (one is profoundly disabled the other has mainly physically disabilities) and there was never any disagreement about what should be provided!
ReplyDeleteI do wonder whether that would have been the case with my dd; it is evident that provision for autism is patchy in many areas and disagreements between parents and schools/LA seem to abound. Fortunately as I took her out of school as a solution to the issues we already had there was no need to worry further about such things; we just got on with educating her.
I do have huge sympathy for the plight of those who take their children out of school in such circumstances, but I do feel we have to be wary of urging parents of such children ( ie statemented ones)to simply tell the LA to go away. In every case in which I have been involved in which there have been serious problems with the LA, social services have already been involved and they have been the initiating factor in any action- the LA by comparision have been quite hesitant to act.
Simon you are sadly mistaken. Your statement "the local authority has, while the statement remains in force, a statutory duty to see that the child receives all the things mentioned in the statement." is wrong. The LA have a duty to ensure the child's needs are met. A very different thing.
ReplyDeleteThe educational provision (part 3) is related to the school mentioned in the statement or, at the very least, a school setting (part 4) (the named school is usually still there but has the standard EHE sentence added afterward). This provision is disregarded when the child is EHE as it is related to the educational setting. The parent's duty is limited to meeting the educational needs (part 2) in the previous section of the statement.
There is also a non-educational needs (part 5) and provision section (part 6) which remains fully in force with EHE. Things in there can include, for example, hydrotherapy and speech therapy. These things often have to be brokered, by the LA, on behalf of the child, from the PCT.
As for the letter itself, the DCSF *has* in my opinion taken not only the most draconian line possible in it, but have actually got the law wrong in one very crucial area.
They say:
“If local authorities are denied access to the child and are unable to see the provision that is being made they cannot fulfil their duty of ensuring that the provision is suitable for the child and meets his or her SEN and should issue a school attendance order”
This is, in my opinion, legally incorrect because it assumes one cannot look at the suitability unless one has access to the child or the provision unless it is *seen*. There is no legal basis for this and in fact it contradicts the 2007 EHE guidelines.
That is not to say that in the case of SEN it may sometimes be crucial to see the child but this is about the child’s needs being assessed; it is not about the educational provision. So the authority could, for example, make a case that the ed psych needed to assess the child (because a child with SEN is in a different category as far as responsibility of the LA goes to a child without SEN).
An alternative for the parents to take might be to get a child assessed by another professional privately who could then attend, or send a report to, a statement review meeting.
Access is about assessing special ed need not about provision of ed in these cases.
So the parents are right to be kicking up a fuss about the above sentence as it has no basis in law.
Alsion, one of us is mistaken. You say;
ReplyDelete"The educational provision (part 3) is related to the school mentioned in the statement or, at the very least, a school setting (part 4)"
This is not so at all. Part 3 contains the details of the special educational provision that the local authority feels this child needs. Some of it, speech and language therapy for example, may be in a school setting or anywhere else. This is certainly not limited to the school named in Part 4, I'm not sure where you have got that idea. If the child needs speech and langauge therapy, she will still need it if removed from school! For instance, Part 3 might specify that the child is extremely distractable and needs very small group tuition. This will apply whatever the educational setting. Part 3 describes the type of education which the local authority feels is needed by the child. Part 4 tells us where the authority means to furnish this provision.
I have in front of me a statement relating to a child who attends a mainstream school. In Part 3 of the statement, speech therapy is specified. This is provided not in the school setting, nor indeed by the local authority at all. instead, it is provided by the area Health Authority in a Speech and language Therapy Unit attached to a Health Centre. The child leaves her school once a week and visits the unit. This is not uncommon. The idea that the things in Part 3 are somehow connected with the school or schoo setting is quite wrong.
ReplyDeleteIf this child were to be deregistered from the school by her mother, the provisions in Part 3 would remain in force. It is the local authority's statutory duty to see that she gets them.