Children and Families Act ‘potentially damaging’ and ‘frightening’, lawyer warns

by Elaine Maxwell, education, health and social care lawyer and a partner at Maxwell Gillott

The proposals to change the system of deciding the educational provision for children with special needs, as part of the Children and Families Act, was announced with a great fanfare back in the summer of 2010.

At first glance it seemed parents and those who have to deal with the problems on a daily basis might end up with something that better met needs and avoided some of the inevitable disagreements that arise whenever care crosses the boundaries of different providers and budgets – education, health and social care. But has the final result lived up to the initial promise and hope?

From my perspective as a solicitor who has spent the last 20 years advising parents of children with special needs, there are things I welcome – such as the extension of properly enforceable, and appeal-able, provision up to the age of 25.

There is also a new general principle that local authorities have a duty to organise the ‘best possible educational outcomes’, but it remains to be seen how far this can be enforced on behalf of children and their families.

‘Much that disappoints’

But there is much that disappoints and some provisions that could be potentially damaging.

The new Code of Practice talks a lot about integration and holistic provision between the three service providers as though this is a completely new idea. It’s not, and its use in this context will not change things enormously.

Clearly new systems are being put into place to encourage co-operation, but how will this work in a system already stretched to breaking point where special needs officers, social workers and health professionals already find themselves involved in too many meetings, with too little time or manpower?

The new Education, Health and Care plans are not going to be the magic wands parents are seeking, simply because the Special Educational Needs and Disability Tribunal will only be able to look at educational provision just as now.

Without the potential ability to appeal against health or care provision they find inadequate, parents and young people are left in much the same position as they are now, particularly as there is no sign that budgets for health and social care are being expanded.

The new provisions have been brought in rapidly with little apparent consideration of the need to give councils enough time to plan.

Missed deadlines

To make matters worse, the new Act required local authorities to issue details by 1 September of how they were going to move over to the new system. Despite this deadline, the regulations and guidance for transition were only published at the end of August.

It seems that the indecent haste with all this may have more to do with a desire to get everything set up and functioning in time for the next election, rather than an orderly system working with the organisations on the ground.

We are already seeing a large number of misleading statements coming from local authorities on what the entitlement of young people is under the Act, yet it seems that those on whom the parents are to rely for support will not be able to point this out.

Parents are left confused and the promised parental supporters have yet to show much of an impact. On top of that, any change in the drafting of legislation inevitably raises legal arguments on just what the new words mean, yet the Department for Education has specifically stated that the role of independent supports will not be to advise parents on the law.

Even worse, there is apparently no guarantee that this support will remain available beyond 2016, or that each area will be able to recruit and pay for the 12 supporters originally promised. Instead they may have to rely on local volunteers.

‘Frightening and mad’

Most frightening of all are the provisions for young people beyond school leaving age. Until April, few of us dreamt they would have the sole right of appeal and there was a risk parents might not be consulted or able to deal with an appeal to the tribunal on behalf of their young person. Frankly, this is mad. The issues around further education and additional support are immense and would challenge many young people whether or not they have learning difficulties.

While there are some who want to be involved (and I always advise parents to make sure their teenager buys in to the provision or it simply won’t work), a large number will feel they don’t want to be involved in this and would rather get back under the duvet or to the attractions of the Xbox. In case anyone thinks I am denigrating young people, I should say I have raised two teenagers with elements of special needs (one of whom now works with young people in a special school) and both categorically state they would not have engaged properly with the process at the time. They were both of above average ability, but otherwise typical teenagers.

While I welcome the new focus there has been nationally on how we meet the needs of children with learning difficulties or disabilities, I believe actual, positive change could have been achieved by small changes to the existing statutes, without all the uncertainty and inevitable legal actions that flow from this widespread revamp.