Not special enough

Who will stick up for the educational interests of looked-after children with special needs, asks SALLY GILLEN

Parents of children with special educational needs can challenge their education provision if they are unhappy with what they are offered. But who fights for the rights of children in care who aren’t having their educational needs met? The answer, in theory, is social workers. As corporate parents, they are responsible for making appeals to the Special Educational Needs and Disability Tribunal (Sendist). In reality though, because such a move would mean taking on their employer, few do.

Lawyers are increasingly concerned that, as a result, looked-after children – many of whom already struggle for academic success – are being doubly disadvantaged if they have special needs. Figures from the Department for Education and Skills show that 27% of looked after children have an SEN statement.

David Ruebain is chair of the Law Society’s mental health and disability committee. Hebelieves that a social worker would need to be “incredibly robust” to challenge their own employer. “The problem has become even more stark now that education and social services departments have merged into children’s trusts,” he explains. “It is going to be highly unlikely that anyone will appeal.”

Head of the Independent Panel of Special Education Advice (Ipsea) Roger Inman agrees. In Ipsea’s 23-year history, the organisation has dealt with just one or two cases where an application
has been made by a social worker on behalf of a looked-after child. “There is a blindness within the DfES as to the realities of what you can reasonably expect an individual to do,” he says. “Who is going to want to their head above the parapet?”

Julia Thomas, a senior education solicitor at the Children’s Legal Centre in Essex, says that even when social workers take the issue very seriously, they are effectively battling the system. She adds that she has dealt with cases where a social worker has begun an appeal, only to be discouraged by senior managers from pursuing it.

Children in long-term foster placements may on the face of it be in a better position than those in residential care. But foster carers are not recognised as parents by the system so, even if
they are committed to appealing to Sendist for the child in their care, they still require the backing of the child’s social worker.

Inman and others have flagged up this flaw in the system to the DfES, but the government is reluctant to recognise the extent of the problem.

Solutions proposed by the Law Society include the creation of a national independent agency made up of independent professionals who could fulfi l the corporate parent role in relation to
SEN. But the government is less than welcoming, perhaps because it believes creating such a body would undermine its own drive to create more joined-up services for children. A DfES
spokesperson says corporate parenting may be examined within the green paper on looked after children, due to be published this month.

Thomas believes there are other ways in which the system could be changed and adds that the government’s inaction on the issue is down to “a lack of understanding by the powers-that-be of how powerless these children are”.

“Children themselves have no right of appeal and that is where the problem lies,” she says. “The starting point has to be to give the child a right of appeal. Then the follow up would be that the local authority should have a statutory duty to advise them, perhaps through advocacy.

“The child would be empowered to take their own case forward. But, of course, many children would not be capable of making that judgement.”

Unfortunately, there is no way of knowing how many children are not having their educational needs met. But, as Ruebain says, even if there are 10 children for whom there is a problem “that is
too many”.