Broken SEND #5

 This is a more technical post than others and digs into legislation around Special Education Needs for children who are unable to access school or college.  The acronym is the somewhat unweildy EOTAS (Education Other Than At School).

Section 61 of the Children and Families Act 2014 basically states that a LA is premitted to specify education provision outside of school or post-16 institution.  And states that before doing so, the LA has to consult the child's parent or the young person (without any need to take into consideration their views).

If this were the end of the story it would pretty much give the LA unlimited powers in this area.  Thankfully, this broad section is modified by the SEND regulations also in 2014 and modified in 2018. https://www.legislation.gov.uk/uksi/2014/1530/contents

The SEND regulations is the basis for the SEND Code of Practice which is the framework within the LA must act in delivering SEND provision.

Enough of the legal stuff!  For my purposes, I requested under Freedom of Information the terms of reference (ToR) of the County Placement Group (CPG) that is the all powerful decision making panel regarding EOTAS education (which is the water that I swim in).

The Contents of the ToR looks great.

Purpose of the meeting,

Principles

Membership

Accountability

Review

Methods of working

Procedures for the meeting

Decision making.

This was everything I wanted to know in order to get an understanding of how they could have arrived at such a poor decision regarding my son.

The purpose, is simply stated as: to ensure consistent and timely decision making in relation to all proposed packages for EOTAS.

So, I can see exactly why they were involved.  They want to make sure that the decision of whether to approve the suggested changes should happen or not in a timely manner.  It isn't entirely obvious what this needs to be consistent with.

Digging deeper to the Principles, we start to understand a bit more.

They start with the main principle of SEND - that children, young people and families are at the centre of EHCP process.  Which, of course, all families involved in EHCP processes will not recognise!

Then the real principles are laid out:  timely, consistent and fair, parity and equity, to ensure that provision meets need.  And of course, the killer: to uphold the efficient use of public funding.

So, given no additional accountability, all proposed provision could, in theory, be rejected on the grounds of efficient use of public funding.  Especially in the context of local authorities running out of money.

In our decision, the CPG ignored all input from our son and ourselves, they cut out a section where a Need was laid out, and having cut out the Need, they also cut out the Provision to meet this Need hence making more efficient use of public funding.  There is also an aspect of parity and equity involved - if they had agreed to the provision we were looking for, then other children would also be able to access it.  It sets a precedent.

This notion of precedent is extremely important.  The whole idea of EHCPs and SEND provision is that it is personal to the child or young person.  It involves their needs (the difficulties they face) the outcomes that both professionals and family and child want to achieve, and preferences around how this is delivered.  Each case should be evaluated on its own merits.  If the LA has a concern for precedent, then this immedicately clashes with the person centred approach.

Membership of the CPG is a minimum of three people.  The chair - who is the Service Manager, and two others who are assistant service managers or senior managers.  There is no requirement for the panel to include people who know about health or social care, which is odd. Nor any representation from parents or family, which is probably unlawful as I explain at the end of this post.

Accountability is only Children and Families Act.  The Terms of Reference also make reference to some case law from 2014.  This is important because it allows the LA to focus on cost.

IPSEA have published a good account of the case:  https://www.ipsea.org.uk/devon-county-council-v-oh-2016-ukut-292 Which started well with the SEND Tribunal agreeing with the parents, and the Upper Tribunal revesring the decision (imagine the cost of all this) concluding:

There is no duty on the LA t make sure a child or young person actually achieves the best possible educational and other outcomes.

What this means, according to IPSEA is that whilst the LA must consider how to achieve the best possible outcomes under CFA 2014, it is allowed to take other matters into account such as cost.

This is something that I hear often from the offiers that we deal with "The LA has fully considered ..." or "The LA has considered carefully ..." both coming before the conclusion to deny provision that the child and family want and that meets needs as offered by professionals.  So long as the 'consider' they can decide pretty much what they want.  Of course, this leads to Appeals, but I have argued in previous blogs that the delay involved in Appeals is to the benefit of the LA and the officers involved.

So, our lawmakers have dug a hole that will trap every family. I call this the Get Out of Jail Free card, to be used when things get difficult and potentially expensive. This is something that needs to be rethought through at Government level as it is hugely destructive.

Methods of working is pretty vague as well.  There is a form and lots of information that must be presented to panel.  However it also requires that the area team manager must agree the case prior to its submission.  So, the default panel position is to agree with the area team manager.

Procedure for the meeting lilterally adds no insight into what goes on during the meeting.

Decision Making equally adds no insight.  It confirms that decisions in ToR are agreed at panel, with the exception of where costs exceed £100k when the panel provides a recommendation for the Assistant Director of childrens service to sign off.  It doesn't describe whether each decision is by panel vote, or whether the Chair makes the decision following discussion.


Has this been helpful for me?  Partly.  It confirms what I had thought, that there is no accountability whatsoever on the actions of this panel.  There is no scrutiny.  It is incredibly powerful because the SEND officers can distance themselves from decision making.  Although this is only partly true because the area manager must sign it off.  It will be interesting to learn what this pre-sign off looks like in our case.  I will dig this out, presumably using a Subject Access Request under the GDPR Act.  The LA must share personal data that they hold about us.

It was also interesting because the ToR doesn't cover the response that I had previously got from a FoI request regarding whether the Panel can look at cases outside of the annual review cycle.  So, I will be pushing back on this which I consider to either be a case of misdirection, lying, or there being other documents that haven't been shared with me yet.  I can see a complaint and another FOI request coming out of this.

One piece of information always leads to many different outcomes.  It's a bit like a detective story getting to the bottom of how we have ended up in such a mess.

Surely our pubic servants should work with much greater levels of transparency.  It is ridiculous that parents, like me, should have to spend their weekends digging through pieces of legislation, case law, and pushing out a raft of complaints FOI requests and information requests through data protection legilsation just to find out what is going on. 

Let's end with the SEND Code of Practice, which is a statutory document for Local Authotieis.  I.e. they must operate within its prescripts if they wish to act lawfully.

Local Authorites must have regard to the importance of the child or young person, and the child's parents participating as fully as possible in decisions, and being provided with the information and support necessary to enable particpation in those decisions.

Seems a long way from reality.


Here is the ToR as received from the FoI request.














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