There is a calculation in this though, said the consultant working with children’s service providers. “Local authorities know that if they target vulnerable, low-income families then their right to recourse is limited, particularly given the decimation of legal aid and a paucity of the kind of advice many families crave”, the source said.
As David Wolfe, the QC, puts it: “Children with special needs are, however, probably the most legally protected people in our society, but there are still an awful lot of parents who don’t know their rights, which contributes to a hefty skew in favour of middle class kids.”
Lawyers like Wolfe will usually, he says, only ever end up seeing cases in which families have got to appeal, and those families are usually ones with adequate financial resources.
There are, however, signs of hope. SEND action groups have sprung up across the country, with parent-campaigners like Amanda, Alicia McColl in Surrey and Gillian Doherty of SEND Action using their years of hard-won knowledge and experience to help other parents like them.
In the courts too, a fightback has begun. Anne-Marie Irwin was the solicitor who brought a landmark legal challenge against the British government’s funding policy. For the first time, allegedly unlawful decision making by local authorities relating to SEND was being traced directly back to its source in central government underfunding.
In the two day hearing in June 2019, the court was told that the Chancellor and the Secretary of State for Education had acted unlawfully when setting the national budget in October 2018 and that the allocation for children and young people with SEND was “manifestly insufficient” in the face of clear and incontrovertible evidence of a “substantial national shortfall”.
The case was brought on behalf of three families of children with SEND and was supported by many others. The families lost the case but, says Irwin, “in many ways, we felt it was a success because the government was required to provide evidence about how they had taken their decisions. It was a packed court and the publicity was extraordinary”.
Local authorities make cuts in their services because they don’t have sufficient funding and for lawyers like Irwin, “it can be very frustrating to bring cases against local authorities when central government is the issue”.
The court found that the case – that central government was the cause of the problem – was arguable. “On a different set of facts, it’s entirely possible that a case like this would succeed”, says Irwin.
Bristol City Council provided Irwin and the court with a statement saying it couldn’t meet its legal obligations to SEND children under the current funding arrangements. It is far more common, though, for local authorities to say that they have to make cuts but to stop short of saying that they are being forced to act unlawfully because of those cuts.
Many campaigners now argue that the necessary next step is for local authorities to do their version of declaring bankruptcy – issuing a section 113 notice. Or at least admitting that budget cuts have led to unlawful decision making at a local level (and this is not just happening in SEND cases but in a variety of contexts – see other openJustice articles on the subject).
Meanwhile, the picture SEND parents’ paint of the situation remains one of perpetual conflict. “I’ve been fighting for 15 years”, Amanda says. “The stress level is unbelievable when you represent yourself at tribunals.”
She helps other parents of children with SEND and says, with characteristic candour, that if she had a 5-year old child today, she would be “near to slitting my own throat. The traumatic effect that it’s had on my life is unbelievable. You’re fighting everyone. There are several cases of children killing themselves.”
During the course of this article, I spoke to and communicated with more than ten parents of children with SEND. Mothers and fathers, every one of them was a single parent. “The father of my children couldn’t stand the strain of it”, Amanda says. And so he left. “I don’t hate him for that. I can see why you would run. I had to learn how to do it all.”
These days, she tells some families they would be better off homeschooling their children. The battle to get them the education they are legally entitled to is simply too hard.Print