Contact : Katie Crabb, Ext 7911 e.mail [email protected]

Chief Executive's Department

1. Introduction

At the 5 December 2005 Children's Services PRC meeting it was agreed to set up a Children's Special Needs Task and Finish Group to look at where the Statutory Assessment process leads to an appeal being lodged by parents, and the possibility of a tribunal. This information was not accessible in the summer because of difficulties with the Tribunal database.

A meeting was held on the 8 February by the Special Needs Task and Finish Group to consider a report on the Special Educational Needs Tribunals and questions were raised with officers from the Children's Services Department.

A briefing session was held on the 14 February to the Children's Special Needs Group plus the Chairman of the Children's Services PRC and presentations were given about Children with Special Educational Needs (SEN) and Children with Disabilities.

After the meeting on the 8 February and the briefing on the 14 February there were several questions which needed clarifying in order to determine why parents lodge appeals. These written questions were forwarded to the Children's Services Department for a response by the end of March.

An internal audit report is just being finalised by County Treasurer's that has looked at the process for statutory assessment and tribunals and concluded that: assurance can be given that the internal control systems enable the objectives for SEN to be achieved as:

· There is a comprehensive framework of control to ensure that the activities and procedures achieve the service's objectives for the system control objectives reviewed

· Testing has shown that these controls are working in practice

· There are no significant risks and no recommendations have been made

Part of the internal audit covering management information and budgetary control has been deferred to 2006/07 due to problems experienced with the Special Educational Needs database.

2. Context

The County Council's SEN Service maintains approx 4780 statements of SEN and carries out approx 460 statutory assessments each year. When statutory assessments are carried out, it is normally in response to a request from a parent or from a school or pre-school. A few result from the recommendation from a professional (e.g. paediatrician, educational psychologist).

The statutory assessment process which is laid down in the SEN Code of Practice requires reports to be requested from the school/pre-school, educational psychologist, NHS Trust, social care service, and parents. Reports from Social Care are normally provided in about 5% of statutory assessments; these are the children who have an allocated social worker and are receiving, or have recently been receiving, support from the Social Care Service.

3. Where does the Statutory Assessment process lead to an appeal?

From the information provided we were able to analyse the reasons for SEN appeals in the academic year 2004 - 2005

Of the 103 appeals, 47 appeals were made which were not related to the contents of the statements, the majority of which (32) were because Hampshire County Council refused to assess. However, 21 of these appeals were later withdrawn. See Appendix A - Table 1.

56 of the appeals were based on the contents of the statements 27 of which disagreed with Part 2, 3 and 4 and 18 disagreed with part 4. See Appendix A- Table 2.

By Special Educational Need most of the appeals submitted were for children with moderate learning difficulties although most of the appeals that went to a tribunal and were upheld were for children with autistic spectrum disorder. See Appendix A - Table 3

4. What steps are being taken to prevent appeals which are later withdrawn?

The Children's Services Department works with schools and other services and providers to build the capacity of the County Council's mainstream and special schools, local pre-schools and other services to cater effectively for greater diversity and severity of children's special educational needs. Schools work with support services to assist them in better meeting the needs of children and families within their local community so that children's needs can be met as close to home as possible, thereby reducing reliance on non-County school provision.

The SEN Service uses a moderation panel to achieve consistency in its responses to requests for statutory assessment; this group comprises Children's Services staff and includes invitations to Head teacher representatives from primary, secondary and special schools and colleagues from other agencies. As part of their ongoing programme of monitoring and review officers have, within the last year, taken further steps to reduce the number of Hampshire appeals overall and specifically to reduce the number of appeals against refusal to assess by:

· officers in the SEN service making telephone contact with parents to inform them of, and have opportunity to discuss reasons for decisions against which parents have the right of appeal

· the establishment of a panel of officers to scrutinise all appeals before any decision is taken about whether or not the County Council should oppose the appeal

· building on the existing arrangements for senior officers of the SEN teams to work with parents to resolve matters wherever possible without recourse to an appeal hearing

· providing clear guidelines and criteria about levels of need and appropriate interventions for children at School Action and School Action Plus

· developing as a pilot an alternative to statutory assessment for children with high incidence needs (moderate learning difficulties, emotional behavioural and social difficulties, and specific learning difficulties)

Officers report that the outcomes from the pilot of the Inclusion Partnership Agreement (IPA) are encouraging and have recently been discussed with the Children and Families Branch Standing Group of Primary Head teachers who are happy to support the further development of this initiative across the county.

The IPA would be part of the repertoire of processes available to support children with special educational needs and might well be used instead of a statement for children with high incidence needs in mainstream schools.

· Involving the Parent Partnership Service to help parents to understand reasons for decisions and assist them in discussions with casework officers, to help resolve concerns or disagreements.

· using an independent mediation service, Global Mediation, as one of the authorities with the South Central Regional Inclusion Partnership.

5. Appeals going to Tribunal

From the information received in March 2006, a total of 25 of the 103 appeals lodged in 2004/05 had been to the tribunal. Of these 25 tribunal hearings, 18 were upheld, and 7 dismissed. These figures could increase, because the outcome of 25 of the 103 appeals was still pending. The reasons for 10 of these appeals were disagreement with Parts 2, 3 & 4, seven of these were upheld and three dismissed. See Appendix A - Table 4.

The cost of the appeal process for the103 appeals was estimated to be in the region of £75,00 to £100,000 per annum. This is the direct staffing cost and is based on the time spent on tribunal work by the three Assistant Education Officers within the SEN service. It is worth noting that the average cost of a placement in the independent sector is about £50,000 per annum but costs of around £100,000 per annum are common, with some cases costing more than £200,000. For a child placed in Year 7 this could represent a total cost to the County Council in excess of £800,000, based on an annual cost of £100,000.

An estimate of the external legal fees for the calendar year 2005 indicates that approximately an additional £9,000 was spent on cases that went to the tribunal. However, it is understood that this sum includes costs for some cases that proceeded to the High Court.

For a straightforward appeal where a barrister is involved the costs are between £500 to £700 per day plus VAT. Barristers are engaged for a very few Special Educational Needs and Disability Tribunal (SENDIST) cases. The County Council Legal Services do not retain a barrister to deal with such cases because the requirement is infrequent and the issues are so complex that specialist expertise is needed. A sample of tribunal cases for the North of the County shows that from Sept 2004 to date, parents have been represented by a lawyer in 16 cases; the County Council briefed a barrister to represent it in only 4 of these cases. The chair of the Tribunal panel is always a lawyer (barrister or solicitor) who may question or challenge issues relating to the law, including relevant case-law. An appeal hearing can last for half a day or a full day and is sometimes adjourned to allow for consideration of late evidence or for additional information to be sought.

6. How universal is the Special Educational Needs provision across Hampshire?

An analysis of the data was given by area i.e. North, South and West which showed that the North had the highest number of appeals but it was explained that the North in fact covers a larger area and therefore has a greater number of cases.

The approach to making provision for children with special educational needs in Hampshire has been one of working to deliver the authority's SEN policy and other key policies in relation to inclusion and behaviour support. In a county the size of Hampshire the view has been taken that it should be possible to meet the needs of the majority of children and young people from within the county's own provision. Special Provision in Hampshire published annually gives an overview of resourced provision in mainstream schools and special schools. The number of required placements in each school is reviewed annually to ensure an appropriate match between the number of available places and children/young people with statements. There is an advisory review group for each main category of SEN and part of the brief is to monitor the match of needs and provision and to support the relevant Education Officer (SEN) with any developments.

In addition to an analysis of needs, developments take into account accessibility routes to ensure compliance with non stressful transport arrangements.

Specialist provision is developed and used in collaboration with other local authorities, such as, Bournemouth, Reading, Southampton, Portsmouth and West Berkshire.

7. Portage and the Parent Partnership Service

Portage is a home visiting service which offers and delivers specialist programmes of intervention, support, help and advice to families with a young child who has special needs. Children receiving Portage are usually aged between six months and three years old, but they can be referred from birth.

The Parent Partnership service provides impartial advice, information and support to parents/carers of children and young people with special educational needs throughout Hampshire. Essentially the service provides practical support to help parents get across their views and to ensure that they receive information on their rights, roles and responsibilities. The service is open to the parents/carers of all children with SEN from 0 to 19. An approach from a family can happen at any time during this period.

The Parent Partnership service handles a high level of referrals per annum with approximately 120 new referrals per month. The majority of the team's time is spent dealing with individual enquiries from parents and providing support at meetings. It was noted that the County Council spends less than the average for Local Authorities on Parent Partnership. Currently the County Council has three FTE Parent Partnership Officers and one FTE support services officer. This represents a County Council spend of £1.26 per pupil, whereas the average for Local Authorities is £2.56. There is insufficient capacity to significantly improve working relationship with voluntary organisations and parent's groups. Developing stronger links in this way would help promote a better understanding of the myriad of issues involved and promote partnership working to forestall potential disagreements.

8. Children Looked After

25% of children who are Looked After by Hampshire County Council have statements of SEN in comparison to the national average for children looked after of 27%.

9. Conclusion

The statutory assessment process leads to appeals in part because of the legislative framework which gives parents only two months to register an appeal if they are unhappy with a decision about their child's special educational needs. The information and advice given to parents by the SEN Service at all stages and decision points is explicit in stating parents' rights of appeal. The system is set up to encourage parents to lodge appeals so that they do not miss out on their statutory rights and this inevitably contributes to a high number of appeals which are later withdrawn. In particular, appeals against the refusal to assess, to issue a statement or to re-assess are more likely to be withdrawn.

The SEN Service has, however, taken several steps as outlined in section 4 to prevent appeals which were later withdrawn for example, by discussing the reason for decisions with parents, reviewing decisions about refusals to assess with a moderating panel and developing a pilot initiative, the Inclusion Partnership Agreement, as an alternative to the statutory assessment process. More could be achieved by looking at the resources of the Parent Partnership Service.

Another area which should be considered is the better use of data to support not only the management of the service but also associated areas of Children's Services. The SEN Service and Legal Services may wish to consider further the potential cost-benefit to the County Council using a lawyer to defend the most complex Tribunal hearings.

10. Recommendations

The task and finish group recommends the following to the Children's Services Policy Review Committee:

1. That it adopts and puts forward the following recommendations to the Lead Member for Children's Services:

a) The Lead Member for Children Services is asked to agree in principal the potential benefits of expanding the preventative work of the Partner Partnership Service (including the Inclusive Partnership Agreement pilot), and to consider extending it where possible within existing resources.

b) That the data management systems and use of management information across Children's Services in this area be improved.

2. That the Policy Review Committee continues to monitor progress on outcomes from the above, initially through a briefing in October.

Section 100 D - Local Government Act 1972 - background documents

The following documents discuss facts or matters on which this report, or an important part of it, is based and have been relied upon to a material extent in the preparation of this report.

NB: the list excludes

1. Published works

2. Documents which disclose exempt or confidential information as defined in the Act.

Special Educational Needs Tribunals Report - 8 February 2006

Phil Butler, Special Educational Needs Education Officer


Appendix 1

Table 1 - Appeals not involving contents of statements
No		With drawn	Upheld	Dismissed	Outcome pending ##	Local resolution
32	Refusal to assess	21			9	2
8	Refusal to statement	4	2	1	1
6	Refusal to re-assess	6
1	Cease to maintain		1
47	TOTAL	31	3	1	10	2

Table 2 - Appeals involving the contents of the statement

No		With drawn	Upheld *	Dismissed	Outcome pending ##
27	Disagrees with Part 2, 3 & 4	11	7	3	6
18	Disagrees with school named in part 4	7	3	3	5
4	Disagrees with Part 2 and 3	2	1		1
1	Disagrees with Part 2 and 4		1
2	Disagrees with Part 3				2
3	Disagrees with Part 3 and 4		3
1	LEA refused to change school named				1
56	TOTAL	20	15	6	15

* some of these may have been up-held in part, the Tribunal accepting some changes requested by parents but refusing others.

## the decision from the tribunal had not been notified when the data was analysed.

Part 2 of the Statement gives details of the child's special educational needs as identified during the assessment

Part 3 describes the long term objectives that the special educational provision should aim to meet, the special educational provision that the child should receive to meet the needs set out in Part 2 and the arrangements to be made for setting short-term targets and regularly reviewing the child's progress towards those targets.

Part 4 gives details about the school where the child will receive the provision set out in Part 3 or the arrangements for education to be made other than at school.

Table 3 - Appeals by type of Special Educational Need

Area of need	No of appeals	went to tribunal	upheld	dismissed
Moderate learning difficulty	34	3	2	1
Autistic spectrum disorder	19	8	6	2
Speech, language and communication needs	14	3	3	0
Physical disability	12	3	3	0
Specific learning difficulty	9	2	1	1
Behaviour, emotional and social difficulty	8	2	0	2
Severe learning difficulty	4	2	1	1
Hearing impairment	3	2	2	0
TOTAL	103	25	18	7

Table 4 - Reasons for appeals going to Tribunal

No	Reason for Appeal	Upheld	Dismissed
10	Disagrees with Part 2, 3 & 4	7	3
6	Disagrees with school named in part 4	3	3
3	Refusal to statement	2	1
3	Disagrees with Part 3 and 4	3
1	Cease to maintain	1
1	Disagrees with Part 2 and 3	1
1	Disagrees with Part 2 & 4	1
25	TOTAL	18	7

Part 2 of the Statement gives details of the child's special educational needs as identified during the assessment

Part 3 describes the long term objectives that the special educational provision should aim to meet, the special educational provision that the child should receive to meet the needs set out in Part 2 and the arrangements to be made for setting short-term targets and regularly reviewing the child's progress towards those targets.

Part 4 gives details about the school where the child will receive the provision set out in Part 3 or the arrangements for education to be made other than at school.

Appendix 2

Children's Special Needs Task & Finish Group

Councillor Anna McNair Scott

Councillor Pat West

Councillor Brian Dash

Councillor Jo Kelly

Councillor Michael Cartwright

Children's Special Needs Briefing Group

Councillor Anna McNair Scott

Councillor Pat West

Councillor Brian Dash

Councillor Jo Kelly

Councillor Michael Cartwright

Councillor Pamela Peskett

Councillor Robin Hughes

Councillor Sharyn Wheale

Councillor Charlotte Bailey