Copyright © 1995 Tom Allen. First published in Web Journal of Current Legal Issues.
*The author would like to thank his research assistant, Alexis Usher, for her help in the preparation of this article.
This article looks at recent changes in the English educational provision which make it more difficult for parents to obtain a satisfactory education for children who have special needs, while at the same time expanding their legal right to the question the provision their children do receive. It examines the general trend to consumerism as the underlying philosophy of educational 'planning' and the statutory framework for protecting the position of special needs children. In particular, it discusses the statutory meaning of special educational needs, the duty to provide for and integrate special needs children into the mainstream, and the existence and scope of substantive and procedural rights to an adequate education. It appears that the statutory system does provide a degree of protection for special needs children and their parents, but consumerism still represents a serious risk to their position.
The provisions of the Education Act, 1981 were continued and, to some extent, strengthened by the Education Act 1993. In the intervening years, however, the Conservative Government passed the Education Reform Act 1988, which introduced a 'consumerist', market-driven system of allocating educational resources (see generally Harris 1993). This article therefore examines how a market-driven system affects children with special needs, and whether the Education Act 1993 is sufficient to protect children with special needs, given the competitive framework of the current system.
This article begins with a brief description of the structure of the state education system in England. The Education Reform Act, 1988 is then discussed, and it will be argued that it represents a serious threat to the position of children with special needs. The article therefore looks at the protection provided for children with special needs in the Education Act 1993, and asks whether it is adequate. It also asks whether, by concentrating on the legality of educational provision, the emphasis on rights diverts the resources of all participants - schools, parents, and pupils - from the provision of education to the administration of education.
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In the 1980s, the Thatcher Government sought to introduce elements of the free market into public services. In particular, it wished to minimise the role of central planning over the allocation of resources, and substitute market-driven mechanisms in their place. In the field of education, the Education Reform Act 1988 represents their most important step in this direction (see generally Harris 1993, Flude and Hammer 1990, Maclure 1990). The Act is intended to ensure that decisions regarding the allocation of resources are based on the choices of consumers, rather than the choices of administrators. Parents are seen as the consumers of education; hence, the system is designed to allow parents to choose their child's school, and the funding received by each school depends primarily upon the number of pupils on its rolls. As a result, the LEA will lose its power to allocate funds and pupils amongst the schools, and in time the survival and expansion of individual schools will depend upon their ability to convince parents to entrust their child's education to them. As we will see, this shift to the ideals of the free market represents a direct threat to the education of children with special needs.
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156(1) For the purposes of the Education Acts, a child has 'special educational needs' if he has a learning difficulty which calls for special educational provision to be made for him.
156(2) For the purposes of this Act, subject to subsection (3) below, a child has a 'learning difficulty' if -
(a) he has a significantly greater difficulty in learning than the majority of children of his age
(b) he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local authority.
156(4) In the Education Acts, 'special educational provision' means -
(a) ... educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools [funded by the relevant local education authority].
The interpretation of the definition has proved problematic, for several reasons. Firstly, it reveals a tension between two different perspectives on 'needs'. The reference to a learning difficulty in s 156 seems to be centred on the needs of the individual child. However, a learning difficulty only amounts to a 'need' if it calls for 'special educational provision'; by defining this in terms of the provision generally available in the area, s 156(4) defines this in terms of the resources available to the LEA. Hence, SEN pupils could be defined as those whom the providers of education perceive as requiring greater resources than others to educate in the mainstream, even if those resources have very little to do with the activity of teaching and learning (see Galloway and Goodwin 1987). The second reason is more practical. It appears that LEAs find the definition itself a difficult one with which to work. In its study, the Audit Commission discovered that there is considerable variation between LEAs in determining when a child's learning difficulties are serious enough to fall under the statutory definition. (Audit Commission 1992, paras 15-23). These differences were attributable, in part, to confusion over the scope of the statutory definition. Furthermore, as it is the LEA who is responsible for determining whether the child does have special educational needs, the lack of clarity works directly against the parents and the child. In other words, their statutory rights turn on a definition whose meaning lies within the power of the LEA to determine.
Insofar as integration in the mainstream is concerned, the 1993 Act continues to require LEAs and schools to attempt to educate SEN pupils in ordinary classes in ordinary schools (s 160). This general duty is subject to several qualifications. Firstly, the LEA must take the parents' views into account (this reflects the view of parents as consumers) (Education Act 1993 Sched 10 para 3). In addition, the Act states that educating an SEN child in an ordinary school should be compatible with -
There has been some evidence that the level of integration increased after the 1981 Act came into effect. (Harris 1993, p 236) However, much of this improvement probably would have occurred without the statute, because the qualifications on the statutory duties are broad enough to permit a school or LEA to put a minimal effort into integration. In particular, the references to 'efficiency' gives LEAs and schools the scope to avoid making a substantial commitment to integration, if they so wish. However, the pursuit of 'efficiency' should not permit the school to ignore the duty to integrate simply because it involves a disadvantage to the school or other pupils. 'Efficiency' suggests that the real question is whether the disadvantages of integration outweigh the advantages. Of course, this question resists a precise answer - ultimately, it depends upon the best judgement of those involved. The crucial point here is that the judgement is exercised solely by the LEA and the school. The parents of an SEN child have no right to make representations which must be considered by the LEA or school when setting its general policies.
The provisions of the 1981 Act (as continued in the 1993 Act) do not represent a risk to SEN pupils, although they may often prove inadequate to secure integration. The real risk to SEN pupils comes from the Education Reform Act, 1988. As stated above, schools are now under pressure to attract pupils, and the funding arrangements encourage them to see each pupil as a factor in a 'cost-benefit' equation. If a child demands more in resources than the standard grant for a pupil, the child represents a 'loss'. One would hope that schools would take a broad view, and assume that the 'loss' from one child would be offset by the 'profit' from another child. However, the Education Reform Act 1988's trend to the 'free market' mechanisms threatens this. The 'free market' approach requires that those who make choices have sufficient information to enable them to make their choices. (Harris 1993, ch 5) Hence, the movement to parental choice has been accompanied by regulations intended to require schools to produce information for parents (Education (School Information) (England) Regulations 1993 (SI 1993 No 1502)). Some of this information seems perfectly reasonable - for example, schools are required to produce a statement on their policy on special educational needs. Some of it, however, has led to controversy. In particular, each school is required to produce a table of the grades achieved by their pupils. The DFE then compiles these grades, and produces a 'league table' of schools, ranking the schools in terms of the performance of their pupils. There has been an immense amount of criticism of the tables, because they are 'raw' tables which do not take into account the school's resources, catchment area, staff-student ratio, the previous achievement of its pupils, and the like. (See generally Harris 1993, pp 161-166.) The DFE has announced that it is planning to develop more sophisticated, "value-added" tables, but it is not yet clear that these will give credit to schools for fulfilling their duties to SEN pupils (DFE 1994; Harris 1993, p 235). In any case, it appears that the DFE intends the value added measures to be published alongside the existing information. Hence, a school may still feel that the academic performance of SEN pupils will reflect badly on its ability to produce good results. (DFE 1994). Thus, in an indirect manner, the system of open enrolment has created a real incentive for schools to decline to accept SEN pupils. Furthermore, it appears that parents generally do not regard SEN provision as a material factor in selecting a school; hence, there is little incentive to provide adequately for those SEN pupils who are accepted (Copeland 1994, p 77). For this reason, the 1988 Act is widely seen as putting SEN children at risk (see eg Russell 1990; Copeland 1991; Brown 1994)
Evidence is emerging that the threat to the integration of SEN pupils has materialised. For example, the rate of exclusions has shot up over the last few years (DFE 1993; see also OFSTED 1993; Allen 1994). In an indirect manner, this confirms that schools are indirectly encouraged to minimise the expenditure on integration, as exclusions provide a cheap method of dealing with pupils who demand more in terms of resources than the DFE is willing to provide (cf Copeland 1991, p 200). There is also evidence that schools are using other indirect means of reducing their commitment to integrating and providing for special needs pupils. For example, Ian Copeland's study of sixty secondary school prospectuses issued for the 1992-3 school year revealed that half of them made no statement regarding special educational needs (Copeland 1994, p 77). This can create the false impression that the school does not provide for special needs and, as a result, parents of SEN pupils tend to turn to other schools for admission (author's personal discussions with Fiona Coleman, a special educational needs co-ordinator in Newcastle Upon Tyne, England.)
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If the Secretary of State refuses to act, the parents or child may have grounds for an application for judicial review. However, the courts are unlikely to interfere with the decisions of the LEA or Secretary of State. They have decided that LEAs are only required to make reasonable efforts to satisfy their obligation to make sufficient provision (R v Inner London Education Authority, ex p. Ali and Murshid, The Times, 21 February 1990, explaining Meade v Haringay Council  1 WLR 637) Similarly, the Secretary of State is not under an absolute or strict duty to see to it that the LEA complies with its duty; again, it is sufficient if the Secretary reasonably believes that the LEA is satisfying its duty. (See Bradbury v London Borough of Enfield  3 All ER 434; Harris 1993, pp 31-37; cf Feldman 1993). In the light of this interpretation of the statutory provisions, the courts are only likely to interfere if there is a blatant disregard of the statutory provisions or an outright refusal to make any provision at all. A rare example of where this occurred is R v Secretary of State for Education and Science ex p Chance (26 July 1982 (unreported)). Due to a misinterpretation of the statutory provisions, the LEA refused to make any provision for a dyslexic boy, and the Secretary of State refused to direct it to do so. The court therefore upheld the parents' challenge to the Secretary's decision.
Even if judicial review is available, it is highly unlikely that the courts would order an LEA to pay damages for failing to provide for a child. This is illustrated by E (a Minor) v Dorset County Council; Christmas v Hampshire County Council; Keating v London Borough of Bromley, three cases recently heard together by the Court of Appeal ( 3 WLR 853). In all three cases, the plaintiffs had been SEN pupils, and the defendants were LEAs. The plaintiffs argued that the defendants failed to make adequate provision for them. Their claims included claims for fees paid to private schools, lost future earnings for failing to receive a proper education, and for emotional distress. They framed their claims as (i) a breach of statutory duties in the Education Act, 1944 and the Education Act, 1981, and (ii) common law negligence. The claims based on the statutory duties were struck out prior to trial, on the basis that the statutory language did not disclose an intention to confer a private right of action on an individual (see also R v. Inner London Education Authority, ex p Ali and Murshid, The Times, 21 February 1990.) However, the alternative claims based on the common law of negligence were permitted to proceed. These claims argued, in essence, that the LEA officers who were responsible for identifying their special needs had been negligent, and that the LEA was therefore vicariously liable for the damage suffered. The Court of Appeal permitted these claims to proceed because they were analogous to claims brought against medical doctors employed by the state.
Thus, the statutory duties to provide for SEN pupils, and to integrate them, are unlikely to be enforceable by individual parents or pupils, except if there is an outright refusal to make any effort to provide or integrate. In legal and financial terms, however, the introduction of 'statementing' is far more important. It was first introduced in the Education Act 1981, and it has carried through to the 1993 Act. LEAs must identify the children in their area who may have special educational needs and arrange to have those needs professionally assessed (Education Act 1993 s 167). After receiving professional advice (and any other relevant evidence), the LEA decides whether it is necessary to determine the child's special educational provision (Education Act 1993 s 168; Sched 10). This provision might consist of special facilities or teaching in a ordinary school or payment of fees at a private school, or attendance at a state- funded special school. If it believes that an ordinary school already makes adequate provision for the pupil, there is no need to determine special provision. But if not, the LEA must produce a formal statement of the provision required for the child (Education Act 1993 s 168(1)).
Once the LEA issues the statement, it is under a duty to ensure that the child receives the special educational provision set out in the statement. This is of tremendous financial significance, because it means that accepting a statemented pupil should have no financial repercussions on the school. In practice, however, several factors operate against this. To begin with, the statement does not relieve the school from the duty of including the SEN pupil in its tables of pupil achievement. That is, the school may not face an immediate financial cost in taking on the pupil, but it may still feel that there is an intangible cost to its reputation if it believes that the SEN pupil will adversely affect its results. Equally important, statements often fail to provide the full amount of funds that a school actually needs for a statemented pupil. Again, the effect is to discourage the school from taking on the pupil. As a result, the parents of statemented pupils often find it difficult to find a place in ordinary schools for their children, despite the 'guarantee' from the LEA.
The statement is the closest that the English system comes to guaranteeing educational provision for any child. For example, R v Inner London Education Authority, ex p Ali and Murshid (ante) states that a pupil does not have the right to attend any specific school; however, a statement may require a specific school to admit the child. The Ali case also establishes that there is no minimum level of provision for children in the English system; however, a statement may require that the LEA and school provide certain equipment and types of instruction for the child. In other respects, however, the statement may legitimise the provision of an inadequate education. In particular, there has always been the danger that a school would respond to a child's special needs by simplifying or modifying the subjects, with the result that the child is not educated to his or her full potential. Prior to the Education Reform Act 1988, this could be done informally, and possibly without the parents being aware of the extent to which their child did not receive sufficiently challenging instruction. The 1988 Act now sets out a core curriculum for all schools in the state sector which applies to all pupils, including SEN pupils. There are, however, two significant exceptions. Firstly, a statement can provide that the National Curriculum should be modified for the pupil (Education Reform Act 1988 s 18). The statement therefore may provide a means of denying children the education which would enable them to achieve in later life. As put by one commentator, "rather than devices for gaining access to mainstream education, statements may now be regarded as the very reverse." (Copeland 1991, p 194). Secondly, the head teacher of a school may exempt a pupil from the National Curriculum for a period of up to six months. There is little check on the exercise of this power, with the result that the lack of resources in a school may cause a pupil to fall behind and, by itself, disadvantage the pupil (Education (National Curriculum) (Temporary Exceptions for Individual Pupils) Regulations 1989, made under s 19 of the Education Reform Act 1988. See also Russell 1990, pp 212-213).
It should be noted that statementing is not widely available. It was originally predicted that about 2% of all pupils would receive a statement, and this figure has proved generally accurate (Warnock 1978; Audit Commission 1992, p 20). Furthermore, the lack of clarity in the statutory definition means that statements are often not issued to the right pupils. The Audit Commission concluded both that "the likelihood of a child getting a statement depend[ed] more on the LEA's interpretation of the 1981 Act than it does on the proportion of pupils with SEN in the LEA", and that this meant that pupils with lesser needs often received a statement when pupils with greater needs were being denied. (Audit Commission 1992, paras 21-23; see also the House of Commons, Education, Science and Arts Committee).
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The statementing process also carries a coercive element. Parents cannot prevent the LEA from assessing their child, and may be required to bring the child to medical examinations for the purpose of assessment (Education Act 1993 Sched 9 paras 4, 5). A statement may specify a school for the child to attend; if it does so, the parents must cause their child to attend the school. Considering that the statement may name a residential school which may be fairly distant from the family home, this is clearly significant. Parents are entitled to express a preference for the school which their child attends, and the LEA must take this into account when preparing the statement (Education Act 1993 Sched 10 para 3). However, they are only entitled to express a preference; this does not amount to the right to demand that their child attend their preferred school (see eg R v Surrey County Council ex p H (1985) 83 LGR 219).
The Education Act, 1993 also created the Special Educational Needs Tribunal for the hearing of appeals (Education Act 1993 s 177). There is some reason to question whether the Tribunal will prove satisfactory. The experience of parents before the previous tribunal and similarly-constituted tribunals which deal with exclusions has been negative. Various reports indicate that the basic rules of natural justice were often ignored, and the committees frequently gave the appearance of being biased in favour of the LEA (Council on Tribunals 1988 and 1992; see also Allen 1994, pp 149-150). To be sure, the Education Act 1993 does place more emphasis on impartiality, as the President and chairmen and women will be appointed by the Lord Chancellor, rather than the Secretary of State for Education (Education Act 1993 ss 177-178). A greater problem is emerging with respect to representation. The DFE has stated that it would encourage informality at the appeal hearings, but given the technical nature of the law and the importance of the testimony of expert witnesses, it would seem that many parents would find it difficult to present a persuasive case in favour of their child. This is one area where parents are in need of expert assistance in preparing their case, whether from lawyers, medical advisors, or educational psychologists. This has been dealt with, to a limited extent, by the Code of Practice issued under section 157 of the 1993 Act. Sections 4/70-73 of the Code provide that parents should be given the name of an independent person who can advise them and attend meetings with them. This is certainly a welcome step, but it must be set against the Tribunal Chairman's statement that legal aid would not be available to parents who bring appeals (Abrams 1994; cf Russell 1994). This seems particularly harsh, given the seriousness of the outcome on the parents, child and the child's family (eg Robinson 1994, p 11, notes that the Tribunal has the power to award costs against the parents).
Not surprisingly, parents frequently resort to the courts for redress. However, judicial review tends to be expensive and of limited value to parents. Success tends to be confined to cases where the LEA is clearly guilty of a procedural error or a misreading of the statute. As explained above, courts are very reluctant to quash an LEA's decisions regarding the education of a child. Ultimately, the experience of judicial review is unlikely to be satisfying to most parents; their real concern is often the final decision of the LEA and the content of the statement, rather than the procedure by which the decision was reached.
A further ground of attack has opened with the development of the Ombudsman's jurisdiction. The Ombudsman has the power to investigate complaints of maladministration by organs of local government. Upon finding maladministration, the Ombudsman may make recommendations, including a recommendation that compensation be paid to the complainant. These recommendations are not binding, but in general they are followed. On a number of occasions, the Ombudsman has been able to secure compensation for parents from LEAs for failing to make a statement, or failing to make the provision specified in a statement (see Harris 1993, p 243n; Hinds 1994). The role of the Ombudsman is quite significant, because the parent or child is unlikely to have a tort action against the LEA (see above). Furthermore, the Ombudsman shoulders the expense of the investigation.
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There are several possible responses to the threats to SEN pupils. One is simply to police the schools and LEAs more closely. The DFE might be given more power to ensure that LEAs issue statements properly, and that they satisfy their general duty to provide for SEN pupils. To some extent, this would fit with the general trend across the education system: it has been said that the Education Reform Act 1988 and the Education Act 1993 conferred a total of about 240 new powers on the Secretary of State to oversee LEAs and schools (Harris 1993). Similarly, LEAs might be given additional powers to supervise schools more closely on the implementation of statements and the integration of pupils within the ordinary classes. This is a possibility, but it does conflict with the current emphasis on the independence of individual schools. Furthermore, increasing the reliance on centralised policing of SEN provision contradicts the DFE's commitment to the idea of the market-driven allocation of resources. The DFE is going out of its way to increase the decision-making power of individual schools; turning around and confining the same power by directing their expenditure on SEN threatens to compromise this. If the DFE does perceive a conflict between the protection of SEN children and the development of a free market in education, it is likely that the free market would win: Conservative ideology has consistently put the development of an educational 'market' ahead of all other considerations (Maclure 1989, p 21).
A second response would maintain fidelity to the market philosophy, but protect SEN pupils by increasing the value to the school of educating each SEN pupil, so that the school earns a 'profit' by accepting and educating them. This could be done by ensuring that the allocation for a SEN pupil exceeds substantially that of an ordinary pupil, so that schools would see a tangible benefit from taking on SEN pupils. To some extent, this is the role of the statement. However, as discussed above, there are indications that statements fail to satisfy schools that accepting SEN pupils is in their interest. Furthermore, it would merely shift the problem of having a pool of pupils who are seen as representing a negative return to a different group. As long as schools are encouraged to adopt a cost-benefit approach to admitting and providing for individual pupils, there will be a significant group of pupils who will be seen as representing a 'loss' to the school and will therefore suffer.
The foregoing concentrates on the competition amongst schools for pupils and funds. There is a second aspect of the competition: parents are also encouraged to compete for scarce educational resources. Giving parents the right to express a preference for their child's school does not translate into a choice of the school; that is, not every parent's choice can be satisfied. Those parents with children who are likely to do well, at a minimum cost to the school, are most likely to have their preferences satisfied. In this sense, they have a competitive advantage over parents of SEN pupils in the competition for school places. So, not surprisingly, parents of SEN pupils have often turned to the law to strengthen their competitive position. Accordingly, there has been a growth in the law of special needs, and in the number of parents who are prepared to challenge the decisions of LEAs both before the appeal tribunals and the courts. This, in itself, constitutes a threat to SEN provision and educational provision in general, because it threatens to consume an increasing proportion of educational resources at all levels. The amount of time and effort taken in contesting a statement can easily exceed the provision which the statement ultimately calls for. This is almost to be expected: the entire business is dominated by professional experts, whether psychologists, doctors, lawyers, tribunal members and judges, and the administrative staff of the LEA and the school are often at the more senior level. Furthermore, the emotional cost to the child, parents and family is also likely to be high. Nevertheless, the emphasis on the legality of the process increases steadily and represents its own threat to the provision for SEN pupils.
Finally, it must be said that the development of a legalistic view of SEN provision only benefits a select group of parents of SEN children. As the formality of the procedures increases, those parents who are most familiar with negotiating with bureaucracies, and with questioning the opinions of professionals, are most likely to benefit from the conferral of rights to participate and challenge decisions. These parents are most likely to be those who themselves are managers or professionals. By exercising their rights, they indirectly but effectively secure for their children a larger share of the resources which are devoted to SEN provision and to education in general. To at least some extent, this occurs at the expense of those children whose parents are not as adept at battling a bureaucracy and challenging experts. Hence, we see that the effort to provide justice through the conferral of rights may ultimately result in greater inequality.
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