2.59 Despite the best efforts of parents and professionals to agree on the special
educational provision for children, sometimes they do not agree. We believe that it is important to have an independent forum where such disagreements can be resolved and that parents have the right to appeal; we have no plans to remove parents’ right to appeal to the First-tier Tribunal (SEN and Disability) if they disagree with decisions made by local authorities. However, while it is important for this right to continue, we know that parents can find the appeal process stressful.81
2.60 It can be better for parents and a better use of public funds if disputes about
assessments and statements are resolved earlier and through non-judicial
means.82 The Tribunal is already taking steps to encourage the resolution of cases
well before the appeal hearing where appropriate.
2.61 We want to boost the role of mediation facilitated by an independent party in the
appeal process. Where mediation has been used by West Midlands authorities, four out of five cases reached a settlement between parents and the local authority without going to the Tribunal. There are currently dispute resolution services but, despite the potential benefits of mediation, they are under-used and under-promoted, with an average of little more than one mediation per authority per year and more than half of authorities reporting no mediations during one year.83
80 Langer et al (2010) and Robertson et al (2010) 81 Runswick-Cole (2007)
82 Tennant et al (2008) 83 Harris et al (2009)
2.62 We propose that parents and local authorities should always try mediation
before a parent can register an appeal with the Tribunal, but we do not want this to affect the time that parents have to appeal or to change parents’ right to appeal.
2.63 Parents are able to use the local authority and NHS complaints processes, both informal and formal, if they are unhappy with the services they are getting. We want to use the assessment and plan pathfinders described in chapter one to test a more coordinated approach to mediation for parents across education, health and social care when parents aren’t content.
Question 16: Should mediation always be attempted before parents register an appeal to the First-tier Tribunal (SEN and Disability)?
Question 17: Do you like the idea of mediation across education, health and social care? How might it work best?
2.64 Although the Tribunal must take into account the efficient use of resources when considering decisions on school placements, some decisions by the Tribunal can have significant financial implications for the local authority. For example, when the Tribunal rules that a child needs an expensive school place, this can represent a new large share of the local authority budget. Given the potential impact on the local authority budget, we would like to ensure that the Tribunal continues to give both priority to ensuring that children’s SEN are met and full weight to the
efficient use of resources when considering the best way to meet their needs. 2.65 The Ministry of Justice has been consulting on changes to the provision of legal
aid. The proposals, as consulted on, would mean that legal help and advice would no longer be available to parents to help them prepare appeals to the First-tier Tribunal (SEN and Disability) in SEN cases. However, legal aid would continue to be available where it is now for parents to make disability discrimination claims on behalf of their children, that is, legal help and advice for First-tier cases and legal representation for cases that go before the Upper Tribunal. The Ministry of Justice is currently considering the responses to the consultation and will be publishing a response to the consultation in the late spring. The consultation also proposed that a new exceptional funding scheme should be introduced to provide legal aid for cases outside the scope of legal aid where the Government is satisfied that this is necessary for the United Kingdom to meet its domestic and international legal obligations. The Ministry of Justice and the Department for Education are working closely on this issue.
2.66 The new Courts and Tribunals Service will begin on 1 April 2011, and some parents are concerned about what the integration of the Courts and Tribunals Services might mean for the formality of the venues in which SEN appeals and disability discrimination claims are heard. The new Service will preserve the unique and distinctive features of tribunals and will continue to aim to hold SEN and disability hearings in appropriate settings.
2.67 We believe it is important to open up the right to appeal for children, as
recommended by the United Nations Committee on the Rights of the Child, so that those, such as looked after children, whose opportunity to have their cases heard at the Tribunal is restricted by their circumstances are not disadvantaged. Government has previously consulted on giving secondary school-aged children the right to appeal SEN cases to the First-tier Tribunal and to make disability discrimination claims. The responses to the consultation were overwhelmingly in favour of giving children this right.
2.68 The Department for Education, working with the First-tier Tribunal (SEN and
Disability), will pilot giving children the right to appeal and make disability discrimination claims in two or three local authorities with a view to extending the right to all children across England. The pilot will test whether the right to appeal is something that children would use, the best way to handle these appeals, and the cost implications of this change.
3 Learning and
achieving
Chapter summary
3.1 Parents’ confidence that their child’s needs are being met is vital to making the system feel less adversarial. A central piece of this jigsaw is the capacity and commitment of the education system to give every child and young person the chance to succeed. Every child, whether in a mainstream or special setting, deserves a world-class education to ensure that they fulfil their potential. Everyone who works with disabled children and children with SEN should have high expectations of them and the skills to help them to learn.
3.2 But the system doesn’t always work in the way it should for disabled children and young people and those with SEN. Too many face significant barriers to their progress and achieve less well than their peers at school and in further education. Disabled children and children with SEN are more likely to be bullied or excluded than their peers. They also tell us that they want to be educated by people who understand their impairments, without fear of being stigmatised by their peers and in an environment where poor behaviour is not tolerated.
3.3 To provide the best opportunities for all children and young people we must confront the weaknesses of our education system. Children’s needs should be picked up as early as possible, but teachers tell us that they have not always had training to identify children’s needs, or to provide the right help. Head teachers have been overwhelmed with top-down initiatives rather than having the freedom to drive improvements.
3.4 Previous measures of school performance created perverse incentives to over- identify children as having SEN. There is compelling evidence that these labels of SEN have perpetuated a culture of low expectations and have not led to the right support being put in place.
3.5 In our Schools White Paper, The Importance of Teaching, we set out our vision to match the best education systems in the world. Building on that, our proposals in this Green Paper will mean that:
• teachers and other staff in schools and colleges are well trained and
confident to: identify and overcome a range of barriers to learning; manage challenging behaviour; address bullying; and intervene early when problems emerge;
• schools will have additional flexibility to support the needs of all pupils, and will have additional funding to support disadvantaged pupils through the pupil premium;
• teachers feel able to identify effectively what a child needs to help them to learn and to plan support to help every child progress well, reflecting the specific needs of children with SEN and those who may just be struggling with learning and need school-based catch-up support which is normally available;
• parents have the information they need about how the school is supporting their child;
• schools are more clearly accountable to parents, governors and Ofsted; and • special schools share their expertise and services to support the education,
progress and development of pupils in other special and mainstream schools, leading to a greater choice of specialist provision.
3.6 To work towards this:
• we intend to tackle the practice of over-identification by replacing the current SEN identification levels of School Action and School Action Plus with a new single school-based SEN category for children whose needs exceed what is normally available in schools; revising statutory guidance on SEN identification to make it clearer for professionals; and supporting the best schools to share their practices. This will help teachers to spot quickly and accurately any barriers to learning and provide the right support to help each child progress;
• we will introduce an indicator in performance tables which will give parents clear information on the progress of the lowest attaining pupils;
• starting with those judged by Ofsted to be outstanding, all maintained special schools will in due course have the opportunity to become Academies; and
• parents and members of local communities will be able to establish new special Free Schools.
3.7 While parents are the single biggest influence on a child’s life and development, schools play a vital role in educating children and young people and preparing them for the future, including for training and employment and to play a constructive role in society. In this chapter we set out our approach to ensuring that teachers, lecturers, and school and college leaders have the right training and professional development to identify and meet the needs of disabled children and children with SEN. This chapter describes the importance of special schools in supporting quality in the special education sector and how we will ensure sharper accountability for all pupils’ progress at school to parents, local communities, governors and inspectors.
3.8 International evidence shows that the most important factor in effective school systems is the quality of teachers and teaching.84 For those children that face the
greatest educational challenges, high quality teachers trained to support pupils with a wide range of SEN will be the most powerful way to drive up attainment. Here, we set out our approach to improving the initial training and ongoing development of teaching staff and school leaders in special and mainstream schools, sharing excellent teaching practice in supporting pupils who are disabled or who have SEN, and identifying and developing special school leaders.