This case was an appeal to the Court of Appeal against a decision of the High Court, rejecting a human rights challenge brought against a change in the SEN transport to school policy of the local authority. The case was Drexler v. Leicestershire County Council  EWCA Civ 502 and while the appeal was unsuccessful and concerning provisions in English law, it has some useful and interesting points for us to consider.
The case of AD v. London Borough of Hackney  EWCA Civ 518 was recently heard by the culinary trio of Lords Justice Bean and Baker, and Mr Justice Cobb at the Court of Appeal. It is the latest in a series of unsuccessful legal challenges to local authority budget cuts affecting (or potentially affecting) special educational needs provision in England and Wales.
The Scottish Government guidance we have been looking at is called “Guidance on the presumption to provide education in a mainstream setting“, and yet it is only now – on page 13 of the document – that we reach consideration of the sometimes thorny issue of deciding on the right provision for a child or young person.
Having finished describing the four key features of inclusion (present, participating, achieving and supported), the Scottish Government guidance on the presumption of mainstreaming, then moves on to consider the question of inclusive practice.
In this, the sixth part of a series on the Scottish Government (2019) Guidance on the presumption to provide education in a mainstream setting, we will be looking at the fourth and final of the “Key features of inclusion” : Supported.
In this, the fifth part of a series on the Scottish Government (2019) Guidance on the presumption to provide education in a mainstream setting, we will be looking at the third of the “Key features of inclusion” : Achieving.
The latest newsletter is now available to download. Do please read it, share it and subscribe using MailChimp for future editions.
This edition looks back at the significant legal and policy developments in 2019, and forward to the extension of early learning and childcare provision.
The support spotlight this edition is on an innovative work placement project from The Salvesen Mindroom Centre.
Do let me know what you think about the newsletter in the comments.
Johann Lamont MSP recently launched a consultation on a proposed private member’s Bill in the Scottish Parliament. The consultation period for the Disabled Children and Young People (Transitions) (Scotland) Bill ended today (22 January 2020).
At age 16, the aspirations of disabled and non-disabled young people are broadly the same. By 26, however, disabled people are more likely to be out of work than their non-disabled peers, and are three times more likely to feel hopeless and to agree that “Whatever I do has no real effect on what happens to me”.
The Bill, as set out covers three main big ideas:
- A National Transitions Strategy;
- A Scottish Government Minister with special responsibility for transitions; and
- Transitions plans for every child and young person with a disability.
In principle, the Bill addresses some big issues, but I do think the details and structure proposed need some work.
My full consultation response can be found below.
In this, the fourth part of this series on the Scottish Government (2019) Guidance on the presumption to provide education in a mainstream setting, we will be looking at the second of the “Key features of inclusion” : Participating.
It will not have escaped your attention that there is a UK General Election campaign underway at the moment. IPSEA (Independent Provider of Special Education Advice) have released a manifesto asking the next Government to address a “SEND system in crisis”. SEND is an acronym for Special Educational Needs and Disability.
Now, IPSEA is an organisation which does not operate in Scotland, and education is a devolved issue, so this is not directly relevant to the situation north of the border. The education system and the ASL framework in particular has significant differences. However, it remains of interest to see what the position is like elsewhere in the UK, and to compare that to the Scottish situation, in relation to each of IPSEA’s 7 “asks”.
1. A robust system of accountability so that local authorities know there are serious consequences if they flout the law.
The complaint here is that SEN law seems to be disregarded with few consequences for local authorities. In Scotland, there are fairly well developed and reasonably accessible mechanisms for dispute resolution and for putting right things which have gone wrong at the time they do. It is far less straightforward to seek restitution for things which have happened in the past (even in the relatively recent past).
IPSEA mention the ability of a family to pursue a complaint to the Local Government and Social Care Ombudsman (LGSCO) – and indeed there are examples of compensation being recommended by the Ombudsman in SEND cases.
In Scotland, the Scottish Public Services Ombudsman (SPSO) generally refuses complaints related to additional support needs, as these should be dealt with by the Tribunal or other statutory mechanism instead. It can, in theory, recommend compensation, but basically doesn’t. Professional negligence claims in education cases are difficult legally, and vanishingly rare. All in all, it remains the case (as IPSEA state) “so much of the burden is placed on parents when things go wrong”.
One “simple fix” would be to give disabled pupils facing discrimination at school the right to seek compensation (including damages for “injury to feelings”) in the same way that disabled persons facing discrimination in any other field can do, and that pupils facing any other form of discrimination can do. This would require the amendment of the Equality Act 2010, so it is a matter for the UK Government, and therefore this election, even in relation to Scotland.
Why is it – uniquely among victims of unlawful discrimination – that disabled school pupils are prevented from seeking compensation for the wrongs done to them?
2. Better joined up working across education, health and social care, particularly during the EHC needs assessment process.
There is no doubt that this is an issue in Scotland as well. A Co-ordinated Support Plan is required only where there is a need for co-ordination of support, but it can often be difficult to get “appropriate agencies” to contribute, attend meetings etc.
Is there an opportunity for a revised, statutory Child’s Plan scheme (freed from the shackles of the Named Person debacle) to facilitate this joined up working for children and young people with additional support needs?
3. Mandatory SEND law training for all those involved in assessing and meeting the needs of children and young people with SEND. The national qualification for SENCOs should also include a module on the SEND law framework.
I am a lawyer, and often deliver ASL law training to those involved in assessing and meeting the needs of children and young people with additional support needs. So, I clearly think it has its place – I would probably say that it’s not anyone’s top priority though.
The SQA recognise and certify HNC and HND courses in Additional Support Needs. While the HNC is described thus, “Candidates may work or wish to work as an assistant within a mainstream or specialised school”, there is no national or required qualification for Support for Learning Assistants in Scotland.
4. The extended powers of the SEND Tribunal currently being trialed under the national trial for a single route of redress should be made permanent, but also strengthened so that the Tribunal can make binding orders in relation o children and young people’s health and social care needs and provision.
SEND Tribunals are currently in the midst of a two-year national trial. During this time (April 2018 to March 2020), SEND Tribunals can make non-binding recommendations on:
- the health and social care needs specified in EHC plans;
- the health and social care provision specified in EHC plans related to the learning
difficulties or disabilities that result in the child or young person having SEN; and/or
- the social care provision specified in EHC plans that is made under Section 2 of the Chronically Sick and Disabled Persons Act 1970.
There are no current plans to confer similar powers on the First-tier Tribunal for Scotland (Health and Education Chamber), even on a trial basis. Perhaps the assessment of the trial period in England will prompt consideration of extended powers in Scotland, too.
5. Stronger guidance on SEN Support to ensure there is clarity over how children should be supported at this level and what good quality SEN Support looks like.
It is a difficult task to describe “what good quality SEN Support” looks like as it is, inevitably, going to vary from child to child, even where children share a diagnosis. “Supporting Children’s Learning”, the Code of Practice in Scotland, is being revised at the moment, and already contains some very useful examples illustrating the variety of approaches needed to meet the diversity of needs encompassed by the broad term “additional support needs”.
6. The jurisdiction of the LGSCO should be extended to enable it to investigate complaints about schools who fail to deliver SEN Support.
In Scotland, I feel that the process of independent adjudication effectively fills this role. Regular visitors to the blog will know that I am a fan of this system. The main problem is a simple lack of awareness.
7. Adequate funding to ensure that all children and young people with SEND receive the support they need to meet their individual needs whether that’s under SEN Support or through an Education, Health and Care plan.
It’s hard to argue with a call for “adequate funding” – agreeing what level of funding is actually adequate is another question. One point to note is that any additional funding for SEN Support in England would, in terms of the “Barnett consequentials“, result in a corresponding increase in the Scottish budget, though it would be for the Scottish Government (or potentially Scottish local authorities) to decide whether or not any such increase would go to additional support for learning.
Scottish Parliamentary elections are due to take place in 2021. Perhaps organisations working across the additional support needs sector in Scotland should even now be thinking about a similar manifesto?