Administrative Justice Council makes recommendations on improving local authority SEND decisions

The Administrative Justice Council (AJC) has set out recommendations to improve the quality of local authority decision-making for children and young people with special educational needs and disabilities (SEND).

The report, commissioned by the AJC, highlights that the Special Educational Needs and Disability Tribunal upholds 96% of the appeals it hears, amid a 200% increase in appeals over the last decade.

Exploring potential reasons for this high success rate, the Working Group has set out “non-policy” solutions to improve SEND decisions. The findings include learning from the Tribunal, mediation, and the Local Government and Social Care Ombudsman.

In its learning from the Tribunal, a key issue identified by the report related to divergence between the test for deciding whether to carry out an assessment set out in legislation, and the approach set out in statutory guidance.

The working group also considered placement decisions and ways in which decision-making around provision could be made more effective.

Based on its findings, the group made the following recommendations for local authorities:

• Local authorities should routinely reflect on their experiences at tribunal hearings and seek to learn from the First-tier Tribunal’s written decisions.
• Local authorities should work together with experts and their professional bodies to ensure wording in reports is chosen to ensure the appropriate level of service will be allocated to the child/young person and outcomes for each need/provision identified. LAs should include “the ‘who, what, when and how long’ details that are meant to spell out the local authority’s duties” to the pupil.

The report notes that mediations provide “a rich source of learning” about LA decision-making practice and about how these are experienced by parents and young people, as this is often the first point of contact for redress on SEND issues.

Common issues identified in the course of mediations included: “problems with evidence gathering and communication prior to a decision being reached by LAs; inadequate problem solving and partnership working; providing support to schools, colleges and families; limitations in the use of learning from mediation to improve decision-making and avoid disputes arising in the first place and LA’s sending people to meditation who do not have the necessary decision-making power”.

In order to enhance learning from mediation the group made the following recommendations for local authorities:

• Invest resource early on in the evidence gathering stage and in communication with parents and schools before decision-making.
• Ensure that caseworkers have time to speak with families and young people and placement settings in advance of a decision being made.
• Collaborate and communicate with parents, young people and schools/colleges to ensure that families, young people, and placement settings are clear what evidence is being considered and to allow for contributions from those people and settings affected by decisions.
• Make the voice of the child or young person the golden thread throughout decision-making as personal testimony is a valuable form of evidence that often fills out the picture and leads to changed decisions on EHC needs assessments and on EHC Plans.
• Adopt a procedure of “Way Forward” meetings with families (including with schools and colleges where appropriate) following a panel decision
• Provide written feedback to those who have made an application in relation to an EHC plan setting out: (i) what they have been asked to decide; (ii) the evidence they have considered; (iii) their findings on the evidence they have been provided with; and (iv) the decision they have taken as a result.

Also contributing to the report, the Local Government and Social Care Ombudsman shared its experiences of upholding some 90% of SEND investigations for children and young people – something which it recently revealed to be now its largest area of work.

In its learning from the Ombudsman, the Working Group said that the Ombudsman’s casework provides a source of learning about how LA decision making can be improved.

The report notes that three issues were identified in this area. The first related to ensuring effective complaint handling in order for issues to be dealt with “quickly and effectively and to prevent problems escalating”.

The second was around making better use of feedback from complaints. “The Ombudsman’s uphold rate in the education area is 77% (compared with 66% for the Ombudsman’s overall casework) and this consistently high uphold rate suggests that more could be done to learn from experience”, said the report.

It added: “Finally, the Ombudsman has started conducting joint investigations in relation to NHS SEND teams and this was identified as an important area where there is more potential for learning.”

In order to enhance learning from the Ombudsman, the Group recommended that local authorities should:

• Invest in and adequately resource their complaint handling functions.
• Ensure democratic oversight of complaint handling, through an appropriate committee, in order to drive improvements and increase accountability.
• Ensure that the person designated as an LA’s monitoring officer should provide some internal oversight of the way in which lessons are learned from complaints.

Lastly, turning to enhancing training provision, the Group found that there was “very good” training on SEND law currently available to LAs; however, this could be costly and as a result take-up of training was “patchy”.

The report notes that training is “a crucial, overarching way in which inconsistencies in local authority decision making could be addressed”.

The working group recommended that training would need to be based on “a comprehensive framework of competencies for SEND decision-makers” and would need to be fully funded to ensure it could be widely taken up by LAs.

In order to enhance training provision, the Group recommended: “The Department for Education, working with existing providers and LAs, should lead the development and delivery of a fully-funded ongoing programme of training in SEND law, conflict resolution and communication skills for all relevant LA staff.”

It added: “This should be developed in the context of a nationally agreed framework of competencies and occupational standards for LA decision-makers. The DfE should consider, in reviewing the engagement and impact of such, whether the training becomes compulsory for LAs in the medium to longer term.”

Welcoming the report, Paul Najsarek, Local Government and Social Care Ombudsman, said: “Local authorities have an opportunity to improve the outcomes for families of people with SEND, by investing properly in good complaint handling. But our experience shows many councils are missing this invaluable free feedback.

“Effective complaint handling can help resolve issues earlier in the process and avoid protracted disagreements, and unfortunately this is something we regularly see in the investigations we uphold.

“I welcome the report’s recommendations, which also suggest an increased focus on ensuring strong democratic oversight of complaints data, and a bigger role for council monitoring officers in overseeing how their authorities learn lessons from complaints.”

Lottie Winson