The recently published Lamb Report on special educational needs (SEN) and parental confidence has made some interesting recommendations. But are they all realistic? Westley Laird reviews the report and reflects on its viability

What is the historical context to the Lamb Report?
The Lamb Inquiry was established as part of the government’s response to the Commons Education and Skills Committee report on SEN in 2007. The Inquiry investigated a range of ways in which parental confidence in the SEN assessment process might be improved.

How has the government reacted?
Lamb’s final recommendations total 51, 49 of which Ed Balls has approved. Since the Inquiry began, the DCSF has announced a £38m package of measures aimed at addressing the outcomes to be achieved by children with SEN. This included the Achievement for All pilots taking place across 460 schools. In April 2009, the DCSF also committed to ensuring that the white paper Your Child, Your Schools, Our Future: Building a 21st Century Schools System mainstreamed the needs of parents who have children with SEN.

Ed Balls has reasserted his commitment to listen to parents and provide them with advice, information and support. He agrees with Lamb that we need to be more ambitious for children with SEN and disabilities and supports Lamb’s call for a cultural shift in the way in which schools, LAs and other professionals work with parents and children.

What are the key themes in the report?
The report was split into four substantive themes. These are:

  • Children’s outcomes at the heart of the system
  • A stronger voice for parents;
  • A system with greater focus on children’s needs
  • A more accountable system that delivers better services

Legally, it is easier to split his recommendations into distinct areas so that their implications are clearer. The following six areas cover all the pertinent recommendations: information and policies; bullying; exclusions; disability equality; the Disability Discrimination Act (DDA) and legal challenges and redress.

How will information-sharing and policy-drafting change?
Lamb put strong emphasis on parental involvement at every level of policy-drafting and training across the children’s workforce (Recommendation 8). Furthermore, Lamb’s Recommendation 15 noted that the mandatory content of schools’ SEN policies should be simplified and made more accessible and that schools should involve parents in the content of the policies. Recommendations 17 and 20 suggest that annual review meetings for children with statements include a consideration of parental needs and the establishment of a national advice line for parents.

How has Lamb tackled bullying?
Lamb and the DCSF have attempted to ameliorate the disturbing figures associated with disability and bullying by investing further in this area, (Recommendation 9). They have developed a web-based mentoring scheme and provided all agencies with the Make Them Go Away DVD. National Strategies will help monitor the impact of different approaches and promote equality schemes for disabled pupils (Recommendation 10).

Will the exclusions landscape change post-Lamb?
The exclusion figures for pupils with SEN are concerning. Statutory guidance on the role of the behaviour and attendance partnerships is therefore to be published (Recommendation 11). Guidance on exclusions is also due for governing bodies and IAPs to ensure they have due regard to SEN and disability information (Recommendation 42). National Strategies are being further commissioned to work with LAs to reduce SEN exclusions (Recommendation 12) with a focus placed on developing staff skills.

Will there be changes to disability equality duties (DED) and DDA obligations?
The ‘reasonable adjustment’ duty in the DDA is to be amended to remedy the exclusion of schools from the requirement to provide auxiliary aids and services (Recommendation 51). Lamb feels that it is anachronistic to continue in this manner given that so much SEN funding is now delegated to schools. Schools no longer being exempt from providing auxiliary aids and services will better reflect their frontline role in making reasonable adjustments for disabled children.

As a number of LAs currently fall short of their DED with regard to disabled children and education, Lamb recommends that they have further obligations to report to the DCSF – via National Strategies – on their compliance with disability equality schemes (Recommendation 25).

Will the DDA changes affect any legal challenges or redress?
The variation in the operation of the SEN system was one the most notable factors the Inquiry identified. Lamb noted the real need to challenge poor performance. The report has, under Recommendation 38, given the secretary of state the power to issue directions should he find that an LA has failed in its statutory duties. The local government ombudsman (LGO) will also, under Recommendation 41, handle complaints against schools and LAs rather than the secretary of state.

As the LGO is an independent body, Lamb feels this will increase the accountability of the service provided and ensure that all complaints are handled in a fair way. Use of the LGO represents a potential unified route for SEN complaints. A consultation is under way to seek views on draft regulations for the LGO’s new responsibility. The DCSF envisages the new system going live in April this year.

In Recommendation 47, Lamb proposed that the government implement a right of appeal to the tribunal for children and young people to bring claims in their own name. However, commentary suggests that a bolder legal approach may be called for if the changes are to bring real, not just token, improvements. The report also proposed that parents have access to representation at tribunals (Recommendation 48).

So, how viable are these recommendations?
Though all the recommendations are likely to be accepted, the jury is still out with regards to their viability and prospect of implementation. A report detailing the government’s response is due shortly. However, given that the final report was not published until mid-December 2009, this response may also be delayed.

The report, on the whole, contains some sensible proposals and a report that motivates and inspires readers should be applauded. However, a document that cannot easily be transposed into existing law, systems and structures is not so helpful and some of the recommendations are perhaps too woolly in their scope and expectation.

What next?
Lamb is due to review the report’s progress in April. It’s unlikely that there will have been any material change by this time.

This e-bulletin issue was first published in February 2010

About the author: Westley Laird is a lawyer at Browne Jacobson. To find out more about the legal services Browne Jacobson provides in the education sector and to visit their website, please follow this link www.brownejacobson.com.

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