Thursday, 9 June 2016

"We are not the ones creating an adversarial system" - a previously unpublished post from 2014

Still relevant (and there are 12 reasons, not 11!):

It is gratifying to learn this blog has the ear of The Department. As a result of this post, the DfE requested clarification from North Yorkshire about its intention in April to move everyone to the EHCP process, before legislation was enacted. (It didn't investigate very hard.)

The Council responded by saying, in effect, what it wrote was not quite what it meant, and that of course, parents could still opt for a statutory assessment if they so wished. So how many statutory assessments were carried out since NYCC announced its move? There were none from April to mid June and post-April the Council was giving notably evasive answers about statutory assessments (see here at 27 May letter). We don't have the data up to September. 

That in itself is suggestive, not conclusive of an absolute policy change, but this blog was also given first hand information from two unconnected senior teaching professionals who were both told by officials that all assessments post-April were to be EHC needs assessments only. Evidence exists if the DfE cares to dig.

The Council then ended its response by quoting from this blog (our emphasis):
It is interesting to note that the blog ends with a DfE quote, 'new legislation which was, in part, created to "..minimise the adversarial nature  of the system for families and to maximise value for money.' I am fairly certain that we are not the ones creating an adversarial system.
We are not the ones creating an adversarial system.

North Yorkshire has been attempting to curtail spending on SEN and reduce the number of children with statements since 2003. It has used the recent SEN funding changes and Children and Families Act to systematically undermine statutory provision for children with SEN, and pitched schools against parents. Many families are not happy with the provision their child receives. Talk of battling the authority is common. Here are the some of the ways the Council has made it harder (and therefore more adversarial) for parents to access appropriate provision for children:

1"A greater focus on gatekeeping"
In January 2014 the local authority announced its intention to place "a greater focus on gatekeeping"  EHCPs and statements (Appendix 4 of page 75 here). It re-organised its decision making process so that a reduced number of senior staff make decisions about assessments, using the CAN-Do resource allocation system (RAS). 

This comes on top of a past declaration of "intensive 'gatekeeping'" by the authority in February 2010 (2) and an announcement to "tighten the processes of prescribing entitlement to statements"(4) in March 2012.

The law is very clear, and the legal threshold has not changed for many years. A child must have each and every special educational need met. The responsibility for this lies with the council, so talk of 'gatekeeping', 'containing' and 'tightening' outside of  The C&FA, The Education Act and SEN Code of Practice is extremely dubious.

2 Director's statement
In a statement in 2011 by the then Director of Children and Young People's Service:
...Cynthia Welbourn advised the Forum that there was a need to control expenditure better in what is a high spend area. Schools have a strategic interest in containing the number of new statements as the additional funding would have to be found from cutting school budgets. (3) 
3 Computer says no
North Yorkshire developed the Comprehensive Assessment of Need Tool for Education; Resource and Support Planning for Schools (CAN-Do) during the SEN Pathfinder programme. It is an RAS to be used as part of, or entirely for, the assessment for an EHCP. Feed in a description of the child and it spits out an indicative budget for the cost of provision. Contained within the RAS is the revised assessment criteria. The council has plans to commercialise the system to sell to others. And for that reason it has refused to publish the RAS or the revised assessment criteria (see here). It makes professionals who complete the RAS sign a gagging clause (see here). The council currently assesses a child using a secret criteria and will not allow parents or the wider public to know what those criteria are, which makes the indicative budget or provision allocated somewhat hard to challenge, and runs counter to natural justice.

4 National funding changes
Delayed by a year in North Yorkshire until April 2014, changes to funding mean that:
'The requirement for schools to meet the first £10k of provision could have a 'dampening effect' on the demand for statements (EHCPs).'(Appendix 4, page 75 here).

The Council did nothing to mitigate the potential risk that children who would otherwise have a statement will not receive one due to the reluctance of schools to apply due to new funding changes. In fact, it positively welcomed the move.

5 Partially funding statements
North Yorkshire has taken an additional step to make a school think twice before applying for or supporting an EHCP, or find reasons not to accept a a pupil with an EHCP on the school role in the first instance. For a school with more children with EHCPs than the 'notional number' allocated by the council, it will receive £1000 per child less than the provision costs.

A school with a good reputation for educating children with SEN, attracting a higher than anticipated number, will be penalised. Peter Dwyer, the current Corporate Director - Children and Young People's Service - put it this way :
In discussing these proposals with colleagues it is felt that we should go for the £5,000 as opposed to the £6,000 as a disincentive to schools from applying for statements if they believed the shortfall was to be fully funded. (Para 3.8 here)
Quite how this can be in the best interest of the unfortunate children counted over a school's notional number or applying to a new school is difficult to fathom. It also flies against the spirit and meaning of the SEN Code of Practice and law.

6 Poor management by schools
The council has decided no additional money will be given to a school if it runs a budget surplus over the last three years (1). It won't agree to an EHC needs assessment on this basis.

It would be beneficial for the local authority to clarify how a refusal to assess or provide an EHCP can be justified for a child whose needs are obviously above and beyond that which can normally be provided by a mainstream school even with a three year budget surplus. There is no provision in law to deny a child an EHCP on this basis, as far as we are aware.

7 Cutting funding for statements
Since 2011 the Council has reduced the funding for most types of statements/EHCPs from £540 to £460 per annualised hour, a cut of 15% excluding inflation.

8 Increase to local funding threshold
In 2013 the Government set the funding threshold for statements at £6000 + AWPU, and said local authorities which were highly delegating, such as North Yorkshire, should delegate less (Operational guidance for providers - high needs reforms, 2013). This was not the legal test. The Council didn't want to do this because it didn't want to go back to writing more statements, so it negotiated with the DfE and set the level at £9200 +AWPU. The result is it is harder to get an EHCP in North Yorkshire than most other local authorities.

9 Poor management by the local authority
In 2012 the council closed two special schools for children with behavioural, emotional and social difficulties (BESD), Netherside Hall and Baliol Schools. It amalgamated the staff and students in converted facilities on the site of a former naval base in Harrogate and named the new school Foremost. It cost £11M to convert and £2M per year to run. The school was dogged with problems from the start - see here, here, here and here. It has only ever been half full. As a result of the problems, the council had to place some children in independent schools instead. At the beginning of the year the council said it had given up on Foremost and announced its intention to effectively close the school and tender for a private provider to take over from October. Only one bid was received and this did not meet the quality threshold. The authority reluctantly announced its intention to keep running the school until an alternative solution can be found.

The problems at Foremost have caused additional unplanned spending by the local authority. It is projecting a further ~£650k spend per year in order to fund independent places, with no end in sight. Quite rightly it is reluctant to move children once they are settled in a placement. The knock on effect on other children with SEN is not clear, but the result of the overspend has led the council to review (again) decision making for out of area placements, attempt to negotiate reduced fees to independent schools, and fund additional "legal support for decision making" (Appendix 4 of page 75 here).

10 Legal representation
The council has spent over £50,000 on external legal advice since 2012 in a calculated move to make savings to the SEN budget by increasing its chances of winning at Tribunal. For any appeal involving an out of area placement or 'complex' (read expensive) case it will pay for legal representation, despite the Tribunal system being designed as an informal mechanism where legal representation is supposedly not needed. (See here).The council provided spurious reasoning for taking these steps, which were all refuted by the Ministry of Justice - see this post. Parents must bear the cost of legal representation at Tribunal themselves as Legal Aid is not available.

The council's attitude to Tribunal can be seen in this comment made when it submitted a response to the Support and Aspiration Green Paper consultation:
The SEND tribunal system does not take into account the fact that if local authorities were to put in the level of provision which they direct in individual cases for all young people in the authority with similar needs, local authority budgets would be significantly overspent. The system can lead to inequity of provision for young people with SEN. (5)
The job of the Tribunal is to stand in the local authorities' shoes and follow the SEND Code of Practice and the law. It is not in the business of awarding gold-plated provision, only what is appropriate to meet need. This statement is as close to an admission that the provision in the county is not up to an acceptable standard as we are ever likely to see.

11 Secrecy
The Council really doesn't like people knowing about the quality of the services it provides. It has been unwilling to disclose internal audits in the past and it refused to disclose an audit of its autism provision by the National Autistic Society. It was only when the Information Commissioner made a finding against the authority was it forced to publish.

12 Broken promises
During the consultation period for its Children and Young People's Autism Strategy, the council claimed it had begun Personal Intervention Programmes (PIPs) for pre-school children - for those who were most in need of early, intensive help. It had committed to them in the strategy. Except that, in reality, no children received a PIP because that part of the policy was abandoned before it began. Instead, the Council introduced a record of intervention. It substituted a programme of intervention for a piece of paper.

We will deal with the difficulties the new EHCP process causes to parents in another post.

1 Schools Forum paper High Needs Contingency proposal para 3.9 here, and agreed by the Schools Forum in the Minutes of 17 October 2013, para 550 here
2 Supplementary Papers to the Medium Term Financial Strategy and Revenue Budget 2010/11 p13 , here
3 Schools Forum minutes 21 September 2011, p14 here
4 Schools Forum paper Update on SEND Budgets, March 2012, Para 9.3 here
5 See this post

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