Memorandum submitted by Independent Panel for Special Education Advice (IPSEA)

INTRODUCTION

1. This submission is made by the Independent Panel for Special Education Advice, a registered charity that provides advice and support for parents of children with special educational needs (SEN) and/or disabilities.

2. IPSEA was established in 1983 and currently assists over 3000 parents and carers of children with SEN every year, including over 25% of those making applications to the Special Educational and Disability Tribunal (SENDIST). Our opinions are therefore based on evidence from an extensive sample of actual legal cases involving SEN and disability throughout England and Wales.

SUMMARY OF SUBMISSION AND RECOMMENDATIONS

3. We recommend that local authorities continue to have overall conduct of assessment, subject to considerable new involvement of independent agencies as follows:

3.1. The procedure for assessment to be changed to ensure that independent experts (suitably accredited by relevant professional bodies) provide the necessary reports in assessments, having consulted local authority experts who have had past professional contact with the relevant child.

3.2. To ensure this change is effective three associated legislative changes would be required:

3.2.1. Expert evidence obtained for statutory assessment should include a description of the quantity and frequency as well as the type of provision required.

3.2.2. Similarly, Part 3 of statements should include the quantity, frequency and type of all provision specified.

3.2.3. Any expert evidence provided for annual reviews of statements should confirm whether any changes should be made to the quantity, type and frequency of all provision specified in the current statement.

3.3. We would also recommend that statements are prepared in line with a national, detailed standard prescribed by DfES.

4. We also propose changes to who decides whether assessment will take place in response to either parental or school requests. We propose that a system of moderation of decisions to assess is developed on a regional basis, involving local educational stakeholders with sufficient independence from the local authority that will be responsible for the provision involved. This moderating body will have the power to review local authority refusals to grant an assessment. An alternative solution would be for SENDIST to fast track appeals against local authority refusals to assess, through the use of a SENDIST appointed independent expert who would review the local authority's decision and have power to overturn it.

How might assessment of special educational needs be undertaken other than by the relevant local authority without the establishment of a new separate agency for the purpose?

5. In our opinion the following current institutions might perform this function, but all are inappropriate for the reasons stated:

5.1. The Department for Education and Skills would potentially have the necessary knowledge and expertise to perform the assessment role. However that role would conflict with its role as ultimate funder and arbiter of provision, and specifically with its role as complaints handler in the SEN system.

5.2. Regional SEN Partnerships would have the advantage of local knowledge and expertise. However they are too close to their constituent local authority members to allow for sufficient independence, and we understand that they are to be disbanded by 2008.

5.3. Psychologists (from all parts of public services) could be set up in a regional pool to conduct assessments, with participating psychologists only expected to prescribe provision for children outside their employer's area. However we doubt whether this would work in practice given the closeness of local authorities within regions, and the potential for local arrangements between them, which may in practice fetter the independence of these psychologists in performing assessment.

5.4. The Special Educational Needs and Disability Tribunal (SENDSIT) would have the expertise and knowledge to perform the role, especially given its mooted regionalisation in the near future. However apart from specific involvement in decisions about to assess at all (see paragraph 15 below), this role would be difficult to operate alongside its critical judicial role in deciding disputes regarding the contents of statements.

6. In practice, therefore, a separate institution would be required if "assessment of special educational needs [is to] be undertaken other than by the relevant local authority". However for the reasons given below, we believe that the introduction of more independent expert evidence and other external interventions into a system still administered by local authorities would bring about the necessary improvement required in the assessment system.

How might local accountability for assessment be maintained if the local authority does not directly undertake the assessment?

7. There will be profound difficulties with local accountability if this separation takes place. In local education services, other forms of assessment of children with SEN will continue as a joint process between schools and local authorities, including:

7.1. Growing initiatives to encourage school self-assessment in their overall planning and development of provision for children with SEN.

7.2. Specific self-assessment by schools of the provision requirements of their population of children with SEN in "audit" systems operated by many Local Authorities as a means of delegating their SEN budgets to schools.

7.3. Broader common assessment of children by Childrens Services, incorporating education, health and social services assessments.

The danger is that a separate statutory assessment process by a separate organisation may undermine rather than enhance local provision for children with SEN, by failing to interact adequately with the remainder of the ongoing, long-term assessment of those individual children by schools and local authorities.

8. On the other hand, provided that a parent retains a right of appeal to SENDIST regarding assessment and statementing, there is no fundamental problem with overall accountability if a local authority does not directly undertake the assessment.

What other issues need to be addressed in order to make the separation of assessment and provision effective?

9. Our view is that the current system, administered by the local authority, can allow for effective separation of assessment and provision if more is done to ensure that it works properly.

10. We understand the concern of the Select Committee is to ensure that an objective assessment of a child is achieved, taking into account relevant expert and factual evidence, before provision is considered. The key to this is the preparation of evidence of the child's needs, in particular expert evidence. The core problem with the functioning of the current system of assessment is that local authorities are obliged by law to employ their own educational psychologists[1] to contribute the required minimum expert report in every statutory assessment[2]. The advice must include description of the "provision which is appropriate for the child in light of those features of the child's case, whether by way of special educational provision or non-educational provision"[3]: i.e. the type of provision required.

11. Consequently educational psychologists employed by local authorities are obliged to specify provision in assessments that will be paid for by their employers. The result of this profound conflict of interest for educational psychologists is that they frequently deliberately omit detail of the amount and quantity of provision and/or recommendations for school placement in their assessment reports in order to avoid triggering compulsory expenditure for their local authority employers. On some occasions this implicit fettering of the opinion of local authority experts has been reinforced by explicit restrictions set by local authorities on the content of reports of their educational psychologists[4]. This results in statements that give inadequate protection to children because they do not contain any specific details of provision and therefore cannot be enforced by their parents in the courts. Most critically, it leads to children not actually receiving the help that they need, and frustration of the whole purpose of the statementing process.

12. Our recommendation is that the procedure for assessment is changed to ensure that independent experts (suitably accredited by relevant professional bodies) provide the necessary reports in assessments, having consulted local authority experts who have had past professional contact with the relevant child: i.e. the reverse of the current prescribed process[5]. This will liberate local authority experts to get on with everyday support of provision for children with SEN, which they often do not have enough time to do at present. If there is an increase in costs it will be minor, and improved assessment and statementing should lead to a reduction in overall local authority costs. In particular, the growing costs incurred by local authorities resisting parental appeals to SENDIST will be reduced through more satisfactory assessment and statementing.

13. To ensure this change is effective three associated legislative changes would be required to make sure that statements contain sufficient details to ensure that children's needs are met:

13.1. Amended regulations prescribing that expert evidence obtained for statutory assessment should include the quantity and frequency as well as the type of provision required. This will be needed by the independent writers of statements, and parents are also entitled to this information.

13.2. Part 3 of statements should include the quantity, type and frequency of all provision specified[6].

13.3. Any expert evidence provided for annual reviews should confirm whether any changes should be made to the quantity, type and frequency of all provision specified in the current statement.[7]

These changes are needed to ensure clarity and effectiveness of assessment whether the assessment process is split off from the provision process or not.

14. We would also recommended that statements are prepared in line with a national, detailed standard prescribed by DfES which adds current know-how and operational detail to the skeleton format for statements prescribed by Schedule 2 of The Education (Special Education Needs) (England) (Consolidation) Regulations 2001.

15. A separate, but crucial preliminary issue that will need to be addressed is who will have the power to grant assessments in response to either parental or school requests. In the last year of completed statistics 2005-2006, 40% of the appeals to SENDIST related to refusals by local authorities to either assess or re-assess. If a separate body is going to conduct assessments, consideration will also need to be given to what power they will have, if any, in deciding requests for assessment by parents and schools. In our opinion it would be inappropriate to give a separate body power to agree the commencements of assessments (they would be commissioning themselves to do assessments) but we are very concerned that if this decision making power remained entirely in the hands of local authorities, they would refuse even more assessments in order to minimise the number of independent assessments conducted. One option would be to create a third body to review refusals to assess by local authorities. This would further complicate the system but may be necessary to ensure sufficient access to assessments. We endorse the recommendation of the Special Educational Consortium that a system of moderation of assessment decisions might also be developed on a regional basis, involving existing local educational stakeholders with sufficient independence from the local authority that will be responsible for the provision involved. We would give this moderating body power to review and overturn local authority refusals to assess. An alternative would be for SENDIST to fast track such appeals through the use of a SENDIST appointed expert who would review a local authority's refusal to assess and have power to overturn it. This would have the benefit of allowing the currently overworked SENDIST panels more time to deal with the more detailed appeals regarding statements.

16. Another issue that needs to be addressed is that common assessment between various public bodies pursuant to the Childrens Act 2004 will require that any separate performance of statutory educational assessment under the Education Act 1996 is synchronised to the performance of other forms of assessment of children with SEN that may be required under the umbrella of local children's services.

17. We have read and entirely endorse the separate submission of the Special Education Consortium, of which IPSEA is a member.

June 2007

[1] The Education (Special Education Needs) (England) (Consolidation) Regulations 2001, regulations 10 (1)

[2] Ibid regulation 7 (1) (d)

[3] Ibid regulation 7 (2) (c)

[4] For example, in 1991 psychologist John Linsie was sacked by Solihull for telling parents he was unable to comment on appropriate placements due to Solihull's policy. In 2005 Oxfordshire responded to an FOI request by IPSEA by revealing its 'Guidelines for the completion of Psychological Advice' which state 'It is not expected that the educational psychologist will indicate specific amounts of teaching time of Learning Support Assistance...'.

[5] The Education (Special Education Needs) (England) (Consolidation) Regulations 2001, regulations 10 (1)-(2)

[6] s324(3) Education Act 1996.

[7] The Education (Special Education Needs) (England) (Consolidation) Regulations 2001, regulation 20(5) (g) & (h)