| SPOTLIGHT |
Amrita Hurst and Callum Scott consider the latest issues faced by local authorities when it comes to the provision of SEND support to children and young people.
After 10 years of the Children and Families Act 2014 and after 100 days (or thereabouts) of a new government, there remain a number of headwinds affecting local authorities and their delivery of SEND provision.
We foresee that continued strains on public services, especially as related to health and social care, will very probably lead to a greater use of the ‘extended appeal’ process by families seeking to secure such provision through an Education, Health and Care (EHC) Plan. This on the back of a recent survey citing only 59% of SEND families felt their child was supported in mainstream provision.
We are also seeing examples of very expensive Education Otherwise Than In School (“EOTIS”) packages in which parents are requesting highly bespoke packages of provision which (arguably) exceed what is reasonably required by their child’s special educational needs. Alongside this we are aware of cases in which local authorities appear at Tribunal with sparse/no evidence to rebut the evidence adduced by parents or by the young person.
In many instances, a local authority is presented with a request for EOTIS notwithstanding that there is no right to request EOTIS, as there is the (qualified) right to request a particular school or college is named in an EHC Plan. In our experience, such requests are often made immediately prior to a phase transition - where a child is moving from primary to secondary school or secondary to post-16.
Oftentimes, the position is complicated by the fact that whilst a setting is named in the EHC Plan, the pupil has not attended for a prolonged period – either because of ill-health or because of parents choosing elective home education. We frequently see cases in which the local authority is unable to adduce evidence of any setting which can be considered by the tribunal. The effect of this is that the tribunal is left with no alternative but to direct that an EOTIS package is secured for fear of the child/young person going without provision.
We anticipate that the imminent introduction of VAT to private school fees may lead to a further source of pressure on an LA’s SEND offering. The additional expense caused by the application of VAT to fees might lead to a greater demand for LAs to fund placements/special educational provisions in the independent sector which were previously funded by families.
We are aware of some authorities having agreed to fund independent schools (i.e. schools that are not approved under the Section 41 scheme) either wholly or in part, with said independent school then being named in Section I of the EHC Plan. With the EHC Plan naming this setting the statutory duties on the local authority to secure the provision, which extends to the setting named within the EHC Plan, and to pay the independent school’s fees take effect. There may be an opportunity to consider whether pupils are at the most cost-effective setting. Care should be taken to ensure that this is not a decision that is exclusively driven by cost efficiencies as this may give rise to grounds for a public law challenge. However, there may be scope – depending on the particular facts – for a child/young person to move from an independent setting to a maintained/non maintained special setting as part of the statutory annual review process.
There remain a number of challenges affecting the SEND system and LA’s delivery of provision to children and young people. At a fringe event at this autumn’s Labour Party Conference, the Education Secretary expressed her view that “We need to have a conversation about how we look to reform the system overall”. However, we note that the SEND system is just one of a number of policy areas that have been identified for possible reform.
Amrita Hurst is a partner and Callum Scott is a solicitor at Bevan Brittan.
