Dad David McCarthy gives a raw and compelling account of battling for the rights of his three sons, who have special educational needs.
I’m a father of three boys with special educational needs (SEN).
All three have what is known as an Education, Health and Care Plan (EHCP) and are educated in mainstream schools.
For those who don’t know, an EHCP is a legally binding document issued and funded by the Local Authority. It records the child’s SEN, the ‘provision’ (such as therapies) required to address that child’s SEN and the placement where the child is to be educated. It’s intended to (in so far as possible) place a child on a level playing field to be able to access education.
This reflects the principle of the welfare state that material and economic support will be provided to individuals in need based on their individual requirements. Accordingly, the system is entirely legislated to operate around the needs of the child.
In practice, however, the needs of the child have become a distant secondary concern at many Local Authorities. Despite their statutory obligations, my experience has been they are entirely guided by the object of saving money.
Local Authorities can (and do) force families to bring up to three separate appeals to the SEN tribunal before issuing an EHCP. Often, this occurs despite the family having overwhelming written evidence of their child’s need for an EHCP.
In many appeals, a year or more later, the Local Authority will often concede the appeal in the days prior to the hearing or appear at the hearing without making any serious attempt to contest the appeal. There is no disincentive to Local Authorities wasting the family’s and the tribunal’s time and resources in this manner.
For our particular experience (we are not alone), it’s taken five successful appeals to the SEN tribunal against our Local Authority to secure these three EHCPs. We’ve also had to bring another four successful appeals to force the Local Authority to update their EHCPs following Annual Reviews.
The need to bring legal proceedings (with all the cost implications inherent in so doing) has resulted in delay in our boys getting the support they needed.
Indeed, delay is one of the main devices Local Authorities employ to save money. This has in turn produced a toxic culture of parent-blaming by those intent on focusing on managing Local Authority budgets in place of acting in the child’s best interests.
Delaying support is particularly damaging to children with SEN and their families. I’m personally aware of a number of cases where children with complex SEN were not supported and sadly lost their lives. Others felt they were left with no option but to home educate.
Many of the expert reports I’ve obtained over the years have also taught me that therapies/interventions are almost always more impactful when given to children at a younger age. Delaying therapies/interventions/a proper school placement (and, therefore, that child’s full opportunity for education) can also cause unnecessary mental health problems.
At two of our son’s Annual Reviews this year, we presented independent expert reports showing that additional speech and language or occupational therapy was required. Despite there being clear statutory obligations to consider these reports, they were ignored by our Local Authority. No amendments have been made to the EHCPs.
This will force us to bring a further two appeals to the SEN tribunal and allow the Local Authority to, potentially, postpone paying for that provision for over a year.
The conflict of interest for Local Authorities inherent in this system, where on the one hand they are the budget holder and on the other decision maker, has caused both unprecedented numbers of appeals to be filed and SEN tribunal hearings. The number of appeals being registered has more than doubled in the last seven years.
Incredibly, the Local Authority loss rate in all appeals to the SEN tribunal is currently running at the rate of 96%.
As a direct result of the scale of the unlawful decision-making by Local Authorities, the waiting time for a SEN tribunal appeal to be heard has also nearly doubled from around six months to close to a year.
The impact of this short-sighted approach for families with children with SEN has been devastating.
Every week, the Local Government Ombudsmen (LGO) publishes anonymised decisions on individual complaints against Local Authorities. Many of these decisions show children with SEN having been deprived of an education for many months or years through Local Authority inaction. Perversely, the savings made by the Local Authorities through such inaction vastly outweighs the nominal compensation the LGO awards to the families involved.
The most galling aspect of this situation is a SEND Review that was published by the government in March 2022. Instead of tackling the real problem of persistent unlawful decision-making by Local Authorities, it has proposed to introduce even more delays into the current system.
I believe Local Authorities are storing up huge long-term social problems. Every child with SEN will become an adult. We should be aiming to foster their ability to participate and operate in our society as independent adults rather than fast-tracking these individuals into care homes or Acute (Mental Health) Treatment units.
On a happier note, I’m pleased to add that, despite the many challenges faced, one son is doing well at grammar school, another is expected to transition to grammar school next year and the third is working hard on a bespoke programme across home and school that meets his SEN.