Thank you BBC for raising attention to SEND, we need to fix it

Thank you Jayne McCubbin and BBCSend

Hopefully, you will have been watching BBC Breakfast this week, or been following the discussion on Twitter or possibly even listening to the your call on Radio 5 about home education (2 mins 44), but this week, there has been a focus on some of the current issues with SEND in England (the laws are different in Wales & Scotland).

Jayne McCubbin has been wonderful this week in drawing attention to some of the issues, with great input from Autistic Children, IPSEA, National Autistic Society and others.

The focus of this blog is centred around a Twitter thread, where I asked for guidance on how reports for EHCPs could specify either ambiguous provision or limited sessions (6 seems to be a number used frequently in NHS SALT Triage) to meet requirements in an EHCP.

As you can see from my previous blogs, my personal experience, and that I have seen through my training in SEN Law and supporting others, consistently draws a theme in Section B (SEN) and Section F (Provision), of a lack of specificity, many times outcomes are dire in education, or worse, institutions.

This is particularly amplified in my experience of excellent practice for one ASD twin in mainstream, and the opposite with his twin in Generic SEND school for which, we are again commissioning suitable reports out of our pocket and fighting at Tribunal in January!

Back to the point of this blog.

When investigating whether an EHCP is required, the Local Authority must commission suitable reports to inform needs, these are governed by Regulation 6 of the SEND Regulations 2014. This includes;

(a) advice and information from the child’s parent or the young person;

(b) educational advice and information

(d) psychological advice and information from an educational psychologist;

(f) advice and information from any other person the local authority thinks is appropriate;

(g) where the child or young person is in or beyond year 9, advice and information in relation to provision to assist the child or young person in preparation for adulthood and independent living; and

(h) advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from.

I have copied the subsections which may be used to identify SEN.  These reports should all be specific in the identification of need (s20 C&F Act 2014) and the required provision (s21 C&F Act 2014) as is highlighted in the recent case of JD v South Tyneside Council (SEN) [2016] UKUT 9 (AAC), for which, I’d like you to read the excellent guidance by Boyes Turner on the case.

In short, the critical point is that the plan should be “so specific and clear as to leave no room for doubt as to what has been decided and what is needed in the individual case”.

The application of Law at the Upper Tribunal, in this case, leaves no room for any other practice or standard of a report, it even suggests some of the types of unhelpful, unspecified language which was used in the report in that instance.

When this legal standard is applied to the Children and Families Act 2014 statutory duties on Education, Health, and Care and joint commissioning (for the reports of type in Regulation 6 SEND Regulations 2014 above), that a local authority in England must exercise its functions with a view to ensuring the integration of educational provision and training provision with health care provision and social care provision, where it thinks that this would;

(a) promote the well-being of children or young people in its area who have special educational needs or a disability, or

(b) improve the quality of special educational provision.

Must is a legal duty, it cannot be obviated, so the duty for the LA is clear, and as you can also see in the subsection above.

So what is the duty of the professionals who are commissioned to write reports to inform SEN and Provision?

Well, where a local authority requests the co-operation of a body in securing an EHC needs assessment in accordance with section 31 of the Act, that body must (legal duty) comply with such a request within 6 weeks of the date on which they receive it. (except for limited exceptions you should be aware of).

So we have established, that reports, must, unless exception is proven, be provided within 6 weeks of commissioning (ensure you know when this occurred to keep track, as the LGO have decided in other cases, that if there is unreasonable delay, a private report can be commissioned to fulfil the requirement).

But what about the content and suitability of the report.  Well, this is more complicated, as the report is a contractual obligation between the principal (the LA) and the contractor (the professional), the YP or Parent/Carer, are third parties to that contract.  A failure to meet the deadline is a contractual issue to the LA, but a regulatory one (Regulation 8) to which a complaint process must be exhausted until level 3 where the LGO would intervene.

However, there are also professional guidelines and governance for the professionals writing these reports which may or may not meet the legal standard required of these reports.

For example, the Royal College of Speech and Language Therapists (RCSLT) have published guidance on standards for their members, which is generally (apart from one or two legal semantics) very good in its interpretation of what is required under the Children and Families Act 2014 (this could be improved by also including legal interpretation of terms in caselaw like JD v South Tyneside above).

It states;

  • Advice requested by the LA must be provided with six weeks.
  • Advice should:
    be clear, accessible and specific,
    normally be quantified,
    relate directly to the needs of the child or young person and not the availability of resources, be based on available evidence and best practice,
    not name specific schools,
    include time required to support staff, attend meetings, write reports, review the evidence, measure outcomes and monitor progress.
    Addressing speech and language impairment should normally be recorded as special educational provision unless there are exceptional reasons for not doing so.

It goes further about the provision itself in that;

In the majority of cases, speech and language therapy is educational provision, and therefore ultimate responsibility for ensuring that speech and language therapy specified in an EHC plan is delivered rests with the LA.

Where the SLT considers there to be a significant shortfall in the provision, they should bring it to the attention of their line manager, the designated medical/clinical officer, the child’s parents, the LA and other partners, to facilitate timely provision being made by the LA.

HCPC standards These responsibilities set out in the Children and Families Act are in addition to, and should be considered in the context of, the HCPC standards that all registered SLTs must adhere to.

So you can see, the guidance from RCSLT clearly states the standard required of content, and also makes suggestions about responsibilities to challenge where this is not adhered to.

Who are the HCPC?

The HCPC are the regulator of these professionals (and others).  As a regulator they do have powers, which include;

  • They can hold ‘hearings’ where health professionals and lay people decide if a registrant’s fitness to practise (ability to practise) is impaired by their conduct, competence or health.
  • The hearings are there to protect the public – not to be punitive to the registrant.

 

The maximum sanction is to strike a person off the register, meaning they cannot work within the UK for a minimum of five years.

I have gone through the https://www.hcpts-u    k.org/ database of hearings for Speech and Language Therapists, the only suspension has taken place, where a professional missed dysphagia (a condition regarding swallowing) where their expertise wasn’t sufficient and this affected health.  I haven’t found a single case where a failure to adhere to guidance on reports have been sanctioned.

This is likely because as above, the HCPC are there to “protect the public, not to be punitive to the registrant”.  Looking at the lack of any action or sanction on non-adherence to SEND Regulations 2014, Children and Families Act 2014 or RCSLT Guidance I am unable to find guidance on the same from the Regulator the HCPC .

So why is this all important?

Well, without the above being applied, you can’t possibly hope to have a school implement advice, or get a Local Authority to fund it?

As you can see from my previous blogs, I have challenged this at Tribunal and have been vindicated.

You’ve seen the law on specificity, you’ve seen the guidelines from Speech and Language Therapies, now here is just one of my own examples of this in action, in reports by a member of the RCSLT, and registrant with the HCPC.

Recommendations to meet Speech, Language and Communication Needs

YP will require a high level of adult support to follow daily routines.  He will require opportunities to develop social interaction skills with peers in a small group.

YP requires continued speech and language therapy support to advise on his speech, language and communication development through alternative approaches and further develop these to support YP’s understanding and expression.  YP will require support from staff with experience and knowledge of alternative methods of communication, i.e. Makaton, Symbol Use and Intensive Interaction and be in an environment, whereby this total communication approach is embraced.

I will leave out the Speech and Language Therapists’ name for now, but the date of that report was 9th June 2015 (well after the law changed).

Issues with this report:

YP will require a high level of adult support to follow daily routines.  So what is a high-level, is it a number of hours? People? Is it their experience or qualification? Which routines? Follow independently? Or with support? (none of this is so specific as to leave no room for ambiguity).

He will require opportunities to develop social interaction skills with peers in a small group. What type of opportunities? What is an example of an opportunity? How many opportunities? What kind of social interaction? Is it non-verbal interaction? Pre-verbal interaction? Verbal interaction? Alternative communication method interaction? Who are his peers? What constitutes a small group?

YP requires continued speech and language therapy support to advise on his speech, language and communication development through alternative approaches and further develop these to support YP’s understanding and expression.   Continued at the same level? What is that level? How much? How often? By whom? Alternative approaches to what? Which alternative approaches? To develop what exactly? How is Br’s understanding and expression demonstrated or measured?

YP will require support from staff with experience and knowledge of alternative methods of communication, i.e. Makaton, Symbol Use and Intensive Interaction and be in an environment, whereby this total communication approach is embraced. This part is actually the best part of the report, however, what kind and how much support? What symbol use? What is intensive interaction? How is experience and knowledge of Makaton, Intensive Interaction shown?  The last part, I’m ok with… but you get the point.

The big recap (or the short version if you prefer)

  • Awareness has been raised by BBC & Jayne McCubbin on prime time morning tv.
  • Unlawful reports make it impossible if unchallenged for schools to know what to implement, how to implement or to have funding provided to implement advice. They cannot follow these reports to Assess, Plan, Do, Review the plan’s effectiveness in that area.
  • A detailed, specified, quantified report is no guarantee of its use in preparation of the EHCP (we are at Tribunal again in January for this reason) and it doesn’t mean the school will actually implement or follow this report (again, this is an issue we have to resolve for one of our two Autistic twins).
  • A good report, included, funded and implemented by a good school, does get good outcomes!
  • The law clearly shows this should be the case.
  • The RCSLT Guidance also supports these aims.
  • Their members, in a significant number of instances including our own, fall well short of these standards (whether as is normally the case, commissioned by the LA or whether the parents have gone to the expense to try and get a quality report privately).
  • The potential unlawful standard of reports is not a part of the EHCP Tribunal process.
  • The potential unlawful standard report is not part of a contractual obligation for the young person it is intended for.
  • The regulatory body, the HCPC, do not currently have any guidance similar to the RCSLT on standards and lawful requirements for its registrants that it is the regulatory body for.
  • There are 152 Local Authorities  carrying out EHCP assessments, SSEN conversions and reviews in England.
  • There are 200 Clinical Commissioning Groups in England.
  • There are 15,547 registered Speech and Language Therapists under the HCPC in England
  • There are 38,969 Occupational Therapists under the HCPC in England
  • There were 175,233 children and young people with statutory Education, Health and Care (EHC) plans and 112,057 children and young people with statements of special educational needs (SEN) maintained by local authorities as at January 2017
  • If each of those had SALT as part of their SEN, that’s 287,290 reports for each area of SEN by professionals to be relied upon to make detailed, quantified, specified provision in each SSEN/EHCP
  • Assuming complaints are made, there was no result of a sanction of a member for Speech and Language for unlawful practice under obligations of C&F Act 2014 or SEND Regulations 2014 within the current calendar year.
  • People wonder why vague reports continue, when there is no sanction for their acceptance by LA under their Contractual performance to meet their duty, there is no sanction for unlawful standards of reports at SENDIST, there appears to be no sanctions for unlawful standards of reports at HCPC Tribunal Service.
  • No one in government seems to be aware of, understand or care sufficiently about these issues in order to ensure compliance.

Please feel free to comment or share your examples.

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