Amelia Wallington argues that with the integration of children’s services there should be a more joined-up and multi-agency approach to assessing educational needs

The Children Act 2004 insists that agencies should work together to ensure that all children benefit from the five outcomes outlined within it. One of these outcomes, that relating to educational assessment and achievement, is already catered for in the statutory framework for SEN, but education lawyer Amelia Wallington argues that with the integration of children’s services there should be a more joined-up and multi-agency approach to assessing educational needs.

Before the Children Act 2004
Since the implementation of the Children Act 1989, times have changed significantly. The tragic death of Victoria Climbie in 2000 forced the whole area of child protection back into the political limelight. Her death initiated the Laming Inquiry to consider whether it was time to revisit the statutory framework for child protection. The subsequent Laming Report identified that poor multi-disciplinary working routinely led to fragmented, often low status services working to different and sometimes conflicting priorities. Children were seen as everyone’s responsibility, but agencies were often unclear about their individual responsibilities. This lack of accountability and poor coordination across organisational boundaries was found to be a root cause of serious shortcomings on the ground.

The Laming Report led, in turn, to significant changes in the statutory framework for child protection. This began with the publication of the government green paper Every Child Matters, which proposed that services involved with children should work more closely and that the occupations involved should be inter-connected. It was considered that the way ahead for children’s services had to be an operational model which did not see child protection as distinct from policies to improve children’s lives as a whole, but rather placed child protection as an integral part of the spectrum of services provided to help and support all children and their families. Against this background, the Children Act 2004 was implemented on 15 November 2004.

‘They [SENCOs] may, therefore, find themselves having to assist the LEA in the fulfilment of statutory obligations under the SEN statutory framework despite the fact that the
proposed course of action is contrary to a holistic approach to promoting the welfare of the child being developed by a wider inter-agency team’

Children Act 2004
There is little doubt that the implementation of the act has radically changed the legislative landscape for child protection in this country. However, the act seeks in time to achieve wider reform by initiating changes in the culture and practice of professionals working with children in order to bring services together. On a practical level, it has long been recognised that educational professionals, including SENCOs, are well placed to support the LEA with their child protection duties. This emanates from the fact they have a unique vantage point derived from their day-to-day contact with children and are, therefore, often able to observe outward signs of abuse, changes of behaviour or failure to thrive at the earliest possible opportunity.

The reform now under way is designed to secure the cooperation of all agencies involved in delivering children’s services with a view to ‘promoting the welfare’ of all children through the achievement of the five outcomes set out in the act. These are:

  • physical and mental health
  • protection from harm and neglect
  • education and training
  • the contribution made by them to society
  • economic, social and emotional wellbeing.

Achieving these outcomes is part of the enterprise of ‘safeguarding’. Yet while educational assessment and achievement is now just one component of safeguarding, it is one which retains a legal identity more ‘distinct’ than other parts of the safeguarding package such as health and social care. This is due to the continuing existence of the detailed statutory framework and case law relating to provision for special needs per se. This article considers that this approach may become unhelpful and that the integration of children’s services must also lead to, in time, education, health and social services adopting a more joined up way of assessing educational needs.

The statutory framework for the identification and assessment of children who are educationally vulnerable is derived from the Education Act 1996 and Special Educational Needs Code of Practice. In order to comply with its statutory obligations in respect of children with SEN, LEAs must ensure that appropriate educational provision is being delivered effectively. This includes an obligation regularly to review policies and support available for children with SEN, to ensure effective delivery of resources to support early intervention and inclusion and improved specialist advice and support to schools and parents. Also of reference is case law. For example, the case of The Queen on the application of IPSEA Ltd -v- S & S for Education and Skills (2003) EMCA CIV07 might be seen to limit the ability of an LEA to provide for ‘the changing needs of the child’ in a statement of SEN.

However, with the implementation of the Children Act 2004 these legal obligations must now be fulfilled alongside the delivery of a holistic approach to the achievement of a child’s welfare by a multi-disciplinary team. Of course, this is not a completely new concept. The SEN Code of Practice recommends that where services for children with special educational needs are working in partnership with other agencies, provision should be based on a shared perspective and should build wherever possible on mutual understanding and agreement. However, following the Every Child Matters agenda and associated reform in this area, this is a far more fundamental part of the responsibility of a SENCO.

The case of looked after children
It is perhaps in respect of the education of looked after children that the Every Child Matters agenda and inter-agency coordination may be considered most challenging. It is also where the tension with the pre-existing SEN statutory framework is perhaps most evident. Whilst not all vulnerable children have SEN, the educational attainments of looked after children fall well short of national targets and improvements are modest.

Latest government figures show that more than half of the 7,500 children in care who leave school each year do so without a GCSE or an equivalent qualification. This compares to 96% of all pupils in England who get at least one GCSE or GNVQ and 55% who get at least five A*-C grades or equivalent. A coordinated approach by a multi-disciplinary team to improving the life chances of looked after children, enabling them to achieve their potential, play a fuller part in their community and become economically independent, is clearly laudable. However, in some circumstances the hands of educational professionals may be tied by other statutory obligations when they try to work within a multi-disciplinary team to achieve these outcomes.

A conflict of interest
As education lawyers for schools and LEAs, Browne Jacobson have recently been approached to advise a number of LEA clients in respect of claims made to SENDIST and judicial review challenges about a child’s statement or the statutory assessment process which has taken place in the context of wider child protection considerations. This case study (see panel) is an example of the tensions that can occur.
In this case study, the LEA was clearly conscious of the continuing importance of working closely with the other professionals involved with Annie’s care and of seeking to develop a holistic therapeutic approach to support her complex needs.

However, it was not possible to achieve this within the timescale of action required under the SEN’s statutory framework with the consequence that the LEA were ultimately forced to take action contrary to the wider objectives of the CCP.

Interestingly, when the Every Child Matters agenda was being developed, the government identified a number of barriers standing in the way of children with SEN, including poor coordination between health, education and social care professions and too much bureaucracy associated with the SEN system. However, to date no action has been taken to resolve the bureaucracy which sometimes creates tensions for SENCOs and other education professionals. They may, therefore, find themselves having to assist the LEA in the fulfilment of statutory obligations under the SEN statutory framework despite the fact that the proposed course of action is contrary to a holistic approach to promoting the welfare of the child being developed by a wider inter-agency team.

Whilst the tensions between the Children Act and SEN framework are likely to be frustrating to education professionals and LEAs, there will, of course, be cases where the obligations and timescales under the SEN framework are important to ensure timely progress is taken to secure appropriate educational provision for a child. Achieving a holistic approach to safeguarding will often be a time consuming challenge and the protection afforded to a child’s educational provision by the SEN statutory framework, in the meantime, is therefore vital. However, consideration needs to be given to easing the professional burdens currently placed upon education professionals by these sometimes conflicting statutory agendas if joint working practices are to flourish.

Amelia Wallington, solicitor is a member of Browne Jacobson’s education team which handles a wide range of cases in the field of special education

Case study: Annie

Annie is nine years old and a looked after child. She has global complex special educational needs. Her amended statement was issued on 15 October 2004. Part 4 of her statement named a local special school. In September 2005, Annie was permanently excluded from the school.

In the same month, the LEA responded to a request by Annie’s mother for a reassessment of her educational needs. The LEA was of the view that a statutory assessment was not appropriate at this time because Annie was not in a long-term placement. Once a new placement had been found, the LEA would consider a further assessment if necessary. In the meantime, Annie attended a link placement.

At the end of September, Annie was re-registered on the child protection register. As a result, a Complex Care Panel (CCP) was reconvened to consider the appropriate care to be provided for Annie. The LEA attended the regular meetings of the CCP and considered that Annie would benefit most from an educational placement where a team of professionals could work with her in a therapeutic setting and that this would fulfil the terms of her statement. However, before such a placement could be found, the health and social services components of the CCP determined that Annie should be placed with foster carers in a neighbouring local authority. As a result, the LEA took steps to secure a suitable school placement for Annie in the neighbouring authority.

A place was reserved at an appropriate school with a view that it would be taken up once the foster placement had been finalised. It was the intention of the LEA to amend Annie’s amended statement as soon as the foster placement had been finalised. However, unfortunately, there was then a further delay in the finalisation of the CCP’s arrangements for Annie’s global needs in terms of finding a suitable foster carer.

By this time, Annie’s statement had still not been amended by the LEA who considered that to temporarily place Annie in a local school would be disruptive and unsettling for her when she later moved and contrary to the core objectives of the CCP.

Annie’s mother instructed solicitors to bring a legal challenge against the LEA claiming there had been a failure to maintain Annie’s statement under Section 324 of the Educational Act 1996 and to make appropriate amendments to ensure it contained accurate details of the current special educational provision and her current needs.