Oral answer (Lords) on Local Authorities: Children with Special Needs - Nov 22

To ask Her Majesty’s Government what guidance they provide to local authorities about the provision of support to children with special needs; and what assessment they have made of the cost to local authorities of appeals against their decisions.

My Lords, detailed guidance to local authorities about their responsibility to provide support for children and young people with special educational needs and disabilities is set out in the Special Educational Needs and Disabilities Code of Practice: 0 to 25 years, and in a range of other guidance materials produced by the Department for Education. Local authorities’ costs in relation to appeals will vary considerably depending on local circumstances and the nature of those appeals.

I declare my interest as president of the Independent Schools Association, which works on behalf of more than 500 smaller, less well-known independent schools. Has my noble friend seen press reports that in the past four years, local councils have spent more than £100 million fighting parents of children with special needs who sought support, and that in nine cases out of 10 the local councils lost? This clearly warrants urgent investigation. Does not the high cost that some parents can face going to tribunals make it extremely difficult for many families to challenge unfair decisions? 

Does my noble friend agree that, while some local councils recognise that in appropriate circumstances, a local independent school can be the best option, many other local authorities tell parents—quite wrongly—that an independent school cannot be named in an education, health and care plan? So will the Government review their 2015 code to help more parents who would like their children with special needs to go to an independent school, thereby strengthening the policy of partnership that the Government have with the independent sector, where some 80,000 children with special needs are now being educated?

I have seen the press report; it is right that local authorities respond appropriately to any special needs tribunal appeal—and in doing so they will inevitably incur some costs. The vast majority of cases for education, health and care needs assessments are concluded without the need to resort to tribunal hearings. As the House will appreciate, the system is designed to be person-centred and to ensure that families are properly engaged at all stages. We are investigating £20 million more until March 2020 to improve the quality of information, advice and support available to families. On my noble friend’s point about independent schools, he is absolutely correct that parents have the right to ask that an independent school, approved under Section 41 of the Children and Families Act 2014, be named on their EHC plan, as such schools are treated legally in the same way as maintained schools.

My Lords, everyone in this House will be familiar with the pressures on local government. Nevertheless, there is no excuse for the way in which, too often, local authorities and their local health providers fail to implement the education, health and care plans, and for the fact that the Children and Families Act is not working in the way that was originally intended. Will the Minister give a guarantee that more work will be done across departments to ensure that people get the rights they need, and, above all, that children get the kind of education and health support that makes it possible for them to live independent lives in the future?

The noble Lord makes a very valid point. Much work is going on in that area to ensure that local authorities and CCGs work ever more closely to ensure that the EHCs come through and are correct for each particular child—as each particular child counts. We have invested £391 million for local areas to support implementation since the Act came into force in 2014. This includes £252 million direct to local authorities to cover the so-called “new burden” of implementing the reforms, and a further £60 million from 2014 to 2018 for independent supporters.

My Lords, when you have a system in which going to law to get your legal rights enforced has become the norm—which is what has happened here—is that not an absolutely clear sign that something is going wrong? If we are to continue with this system, we must put more money into it or at least ensure that the appeals system is not dependent on lawyers. If we do not do that, we are clearly failing—and, as the noble Lord, Lord Lexden, pointed out, we are making sure that those who do not have financial resource are effectively excluded from the state education system provision for these children.

I know that the noble Lord has strong feelings about this area, and so do we. But I say again that the vast majority of cases are concluded without the need to resort to tribunal hearings. Where families make an appeal, the local authority will need to judge how to respond, and, in so doing, must put the interests of the child or the young person first. Ultimately, it is for local authorities to make these judgments. This is a long-term rollout, so it is too early to say how well it is working, but we believe that we are definitely going in the right direction.

My Lords, earlier this year we had the shameful sight of parents crowdfunding legal action against cuts to SEN provision caused by councils whose own budgets have been cut yet again. There are certainly local authorities which could target scarce resources more effectively, but it would be wrong to let the Government dodge responsibility for the fact that there is inadequate SEN provision across the board, because they have sole ownership of that. 

The Minister said in his Answer to the noble Lord, Lord Lexden, that councils have responsibilities under a code of practice. That is all very well, but local authorities have had their budgets cut by almost 50% since 2010, which makes it extremely difficult for them to meet their needs. The Minister made no reference to that. This is driven by the austerity policy, which was eviscerated brilliantly by the noble Lord, Lord Skidelsky, in the Budget debate in your Lordships’ House last week, when he called it,

“economically illiterate and morally fraudulent”.—[Official Report, 13/11/18; col. 1828.]

What could be more morally fraudulent than parents being driven to the courts to seek the adequate SEN provision that their children so desperately need?

It is not so much that they are being driven to the courts. The fact is that it is beginning to work well, to the extent that the local authorities, in conjunction with CCGs and schools, are identifying what is required. Altogether, 5,460 appeals were registered in 2017-18. So the number of appeals is going up and demand is going up. It is varied around the country: Kent, for example, had 204 appeals. The point is that the load on local authorities is increasing. Yes, we recognise that there are strains, but the most important thing is to put the child and the young person first.

Will the Minister look at the issue raised by the noble Lord, Lord Lexden, about independent schools, and make it clear to local authorities that children have equal rights with those at maintained and other schools?

I will certainly take that back and will also give a little more information about it. The local authority must, after consultation with the independent school, name the requested school unless specific criteria apply indicating that provision would be unsuitable for the young person’s needs. The school or institution named in the EHC plan must then admit the child or young person—so it is pretty clear.

Perhaps I might take the Minister back to the Answer that he gave to my noble friend on the Front Bench. He mentioned the variability in the occurrence of appeals from local authority to local authority. That suggests the criteria against which special educational needs are being measured also vary from local authority to local authority—which I believe they do. Does he think that that is appropriate?

It is certainly true. As I said earlier, the system is still relatively new and we will need time to fully bed it in. There are early signs that the system overall is working. We have given £391 million to local areas to support implementation of this. We are yet to ascertain why there is variability. For example, I know that in Bradford and Shropshire there have been very few appeals, but in Kent and Surrey there have been a lot. So there is quite a lot of work to be done to analyse the statistics. It may be something to do with the idiosyncrasies of the particular areas.

My Lords, I apologise to the House. I forgot to remind noble Lords of my declared interests.