Must try harder

The message that emerged from Ofsted's recent review of special needs provision was that too many children were being incorrectly diagnosed. Blame was pinned on the teachers involved, which was met with a furious reaction from the union NASUWT which we at the Children's Legal Centre shared.

What was most surprising is that Ofsted did not highlight the real problem with special education needs (SEN) assessments '“ local authorities shirking their responsibilities. The report, A statement is not enough, concludes the quality of statutory assessments vary wildly between local authorities, and there is no strategic plan of action in

local services. It also reveals that, while the number of children being identified as having SENs has gone up, the number of children being issued with 'statements', identifying the strongest level of need, has gone down. In January 2010 there were 30,000 fewer children with the protection of a statement than in January 2003.

Unlike Ofsted, we do not attribute the general rise in SEN identifications to misdiagnosis or shortcuts. Identifications of SENs have gone up because awareness levels have gone up. But we believe the statistics prove what we have been witnessing first hand for several years '“ local authorities trying to keep children on the lower levels of SEN support rather than assessing and giving the right support to children with more serious needs.

The SEN system is complicated, and covers an extremely large scale of need. At the bottom is 'school action', which covers children affected by milder SENs such as very moderate literacy difficulties. If a child falls into this category, they are helped within their school with money from a delegated budget. At the other end of the scale, children with the highest level of SENs, such as autism or significant literacy difficulties, should be given a 'statement' which, along with the huge amount of funding necessary, can only be obtained following a statutory assessment conducted by a local authority.

Postcode lottery

The SEN Code of Practice sets out specific guidelines for local authorities to consider when determining whether to conduct a statutory assessment or to issue a statement. But we have found that several local authorities have generated their own criteria to follow when deciding whether to issue a statement or conduct a statutory assessment.

In our experience, parents and carers have not been shown these criteria, and they are not considered when a parent appeals. As such, a number of local authorities may be unlawfully imposing additional, more stringent, regulations to avoid assessing children or issuing statements.

For the children and their families trapped in this postcode lottery, there is only one avenue left to pursue '“ litigation. Legal groups like ours offer help with appeals to the First-tier Tribunal (FTT), formerly known as the Special Educational Needs and Disability Tribunal, but this approach is not without its difficulties. The FTT takes approximately six months to hear an appeal because of the volume of appeals being submitted. During this time a child may be without any SEN support, causing irrevocable damage to their education. For appeals to be successful, it is often necessary to instruct an independent expert to conduct one, or several, assessments of the child.

If a parent or carer qualifies for legal aid, they might be able to secure legal help for free. But for families who do not qualify, or who live in the growing number of legal aid 'deserts', assistance is either impossible to find or incredibly costly. Some parents have been forced to pay as much as £30,000 to secure a statement for their child. The FTT's annual reports indicate that since 2004 there has been a steady increase in the number of successful appeals against refusals to conduct statutory assessments. In 2004 only 58 per cent of appeals were successful, but in the most recent, 2009, report this figure had increased to 66 per cent.

But the problem does not simply lie with obtaining a statement for a child with SEN. We have represented families who found their child's statement did not provide sufficient support or the specificity of provision required to meet their child's needs at appeals to the FTT. We are usually successful. In fact, 94 per cent of all appeals of this kind were successful in 2008-09, according to the FTT's annual report. This suggests a worrying trend of local authorities conducting insufficiently detailed assessments or producing statements which do not cater for the entirety of the child's SENs.

Teachers should not be blamed for this problem. But the parents of children with SENs should not be forced to pay thousands of pounds just to have their child's prevailing educational needs correctly assessed. Local authorities are undoubtedly facing tough economic times, but that is no excuse for them failing to adhere to their duties to children with SENs.