The oncoming storm

The pips have been squeaking in relation to funding for children with SEN for a very long time now and the issues is not only hitting the headlines and the television, but making itself manifest in court challenges. Last month saw an interesting case argued before Lewis J, against central government alleging systemic underfunding of special educational needs provision.  A report of the case can be found here:

The families case as reported in the press was described in this way:

Jenni Richards QC, for the families, told the court in written submissions: “The evidence strongly supports the contention that there is a genuine crisis in Send funding. Importantly, it is not the case that the shortfalls in funding are currently being absorbed by local authorities with relatively little impact on frontline provision.

“On the contrary, the direct result of the lack of funding is that children with Send are not being properly educated, notwithstanding the fact that parliament has required their needs to be met. This has the potential to blight the lives of these children forever, seriously limiting the scope for them living independent lives as adults.”

Richards accused the chancellor of acting unlawfully when setting the national budget in October 2018 and made the same allegation against the education secretary over additional Send funding made available in December 2018, accusing each of failing to take sufficient account of the “nature and extent of the crisis” when making those decisions.

She said: “There is no evidence that the defendants have ever asked themselves whether Send funding is sufficient to allow local authorities and schools to comply with their statutory duties and meet the needs of this particularly vulnerable cohort of children and young people, whereas all the evidence … says it is not.”

I cannot help but feel that the case is doomed to failure: such challenges are magnificent in their scope, but rarely succeed as challenges in recent years to allegedly discriminatory budgets formulated in breach of the Equality Act 2010 have demonstrated.

Public law decision making at the highest level is invariably multi-factorial, involves issues of judgment and policy and often there is no “right” answer, given the constraints of resources, and judicial deference to matters which lie in the political sphere. I would be interested to be proved wrong and will be reading the judgment carefully when it is handed down, possibly in September/October now.

In other media, last month the BBC programme Newsnight in an extended piece discussed the issues of children who have SEN not receiving the SEP that they need and in particular who may have been through the assessment process and been issued an EHC Plan, but who lack a placement. The clip lasts some 9 minutes and can be found here: .The focus of the programme was on children with SEN who may well have an EHC Plan who don’t find a suitable school.

The root causes of the current crisis: burgeoning need with static or declining resources are amply explored in another article in the Guardian which can be found here;

The simple fact of the matter is that with resources for SEN proving inadequate, and with schools under no absolute duty to provide SEP which might be required, an EHC Plan which imposes enforceable obligations on a local authority to make SEP is now a “golden ticket”.

Moreover, given that tribunals will readily accept that it is “necessary” to have an EHC Plan to receive SEP which might otherwise not be provided, the issue of resources can be sidestepped by those children, still very much the minority of all children with SEN, who have a plan. The consequence, in turn is that any parent of a child with SEN who finds SEP cut or not available, will simply ask for a plan, and when that is refused, simply appeal. No wonder that the statistics for appeals to the FTT are shooting up and will continue to rise, until the law is changed, or more money is available.

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