Broken SEND #4

 In this fourth blog, I look at information and follow my journey over the past couple of weeks.

One of the big inequalities in the fight between LA and Parent of SEND child is access to resources, including information.

The LA has systems which file and store all correspondence and information over the duration of the child's education (almost 20 years in my case) and people who are paid to process that information.  And specialists, including legal counsel, to interpret the information.  Parents are largely on their own (with a shout out to SENDIASS and IPSEA who provide support services).

Recently, in a meeting with our SEND team, I asked them what information was presented to the Panel regarding our latest attempt to get the right education for my son.  "We don't share operational forms or documents with parents" was the, somewhat snooty, response.

In a previous meeting, I asked them whether they would present our case to panel early so that we could have a change to his education this term rather than having to wait until next year.  "The panel has changed its operating policy and now will only look at cases as part of the annual review process."  "No", in other words.

Thankfully, parents have access to other pieces of legislation which help them against this 'stonewalling' from the LA.  Freedom of Information Act 2000 (FOI), and General Data Protection (GDPR) Act 2018  Parents can also raise complaints.

The LA is highly proficient at batting back any such requests, but they are limited in terms of how they can do this.

So, having received a final amended EHCP which clearly didn't meet our son's needs, my course of action was:

1.  FOI request.  An FOI is useful to find out about corporate policy and pretty much anything that isn't personal.  A request is severely limited in terms of scope and you need to be careful about specifying what information you want otherwise it will simply be batted back as requring too much time/effor to compile (there is a limit in England of £450 for councils to comply with the request).

I wanted to know:  a) why the LA had changed its policy regarding Panel reviews outside of the EHCP cycle as this clearly had adverse impacts on children's education if they had to wait up to a year before any changes could be made.  And b) whether the Panel in our case had acted outside it's terms of reference in rejecting the changes that we had proposed before we had gone through all of the review and revisions processes.

I submitted my request, got a request for clarification because the Panel in Hampshire has multiple functions and therefore not a single set of terms of reference.  I immediately learnt that the SEND team had lied to me because the Panel hadn't recently changed its operating practices.  I am still awaiting the full terms of reference.

2. Subject Access Request (SAR).  This is part of the GDPR legislation which allows parents to request information held by the LA relating to their children.  Or for young adults, they can request their own SAR information.  This will come back redacted so that you cannot see other people's personal information, including names, but will have all of the relevant information held about the child.

Again, it is worth specifying the information request carefully, as the LA can make a charge if it is too extensive.  So dont' try "please provide me with all information held relating to my child"!

So, I aksed, for all of the information surrounding the Panel decision in question, with specified dates for them to search.  I asked for emails (internal and external), meeting agendas and notes, panel submission, panel notes and ratoinale for the decision.  All of the information that I was told that the LA don't share.

Finally, I have submitted a number of complaints, and have more to raise.  With complaints, I need to be careful because anything that is subject to Appeal through the Tribunal cannot be complained about.  So, I cannot complain about the EHCP contents (specifically statements of Need and Provisions).

The complaint process is hard work, and designed to either wear you out or delay things.  I am not sure which, yet.  In Hampshire there are now three stages, and I have gone through stage 1.

In stage 1, the SEND officers that I deal with on a daily basis are tasked with reviewing the complaint.  Not surprisingly this is pretty superficial and came back with no new information.  I moved straight onto stage 2.

One of my complaints was immediately batted back.  Because the Panel had refused to include some of my son's needs and the provision to meet these needs, it meant that the Outcomes we had specified in the EHCP were no longer achievable.  An anolgy might be having an outcome to achieve an A'level English in four years time, and then cutting the provision for English tutoring.  Just not possible.

Because of a 'feature' of the SEND legislation, Outcomes are not appealable.  Makes no sense to me as they form part of the triumvirate of Needs, Desired Outcomes and Provision.  But that is the case.

So, I raised a complaint that the LA had include Outcomes that aren't achievable which is in contravention to the SEND code of practice.  They need to be SMART - Specified, Measurable, Achievable, Realistic and Time bound.

Immediately the LA batted this back because, in their opinion, the rest of the EHCP is appealable and the results of this appeal will affect whether or not the Ourtcomes are Achievable.  In effect, if the Tribunal Judge agrees with us, then the LA will need to include the missing Needs and Provision and then the provided Outcomes are SMART.

Thankfully, this means that I don't have to go through the labourious Complaints process.  I can now escalate directly to the Local Government Ombudsman for a ruling on this.  I have to say, that I am not optimistic, but either way it will serve to clarify this rather grey area.

My argument will be that the Tribunal is entirely forward looking in its approach and judgements, and it will not make any reference to Outcomes in this process.  So, unless the LGO steps in, there is no accountability whatsoever around Outcomes in EHCPs.  And, in all likelihood, the Tribunal won't meet before my son starts his education next academic year, and so at that time, all providers will be working towards Outcomes that they consider to be unachievable.

My advice to others.  When starting on an appeals process, have a good think about what information you have, and what information would be useful in progressing your case.  There is normally a way to get hold of this information using FOI, SAR and Complaints processes, and I strongly urge you to use them.  Get advice from SENDIASS on the best way to do this in your situation.