Disability discrimination against children is “institutionalised” within NI’s education system

Northern Ireland’s laws around provision for children with special education needs (SEN) are sound – but many children have been failed because those laws are being ignored.

That is what the Children’s Law Centre (CLC) told Stormont’s Education Committee earlier this year, during an evidence session where the organisation also said children with disabilities face institutional discrimination from the local education system.

This might sound like explosive evidence that should rattle Stormont – yet it is not really much of a surprise. And that itself is a scandal.

The failure to provide proper support for children with SEN has been so large, and continuing for so long, that it has become part of the normal policy discourse.

Rachel Hogan, CLC’s SEN expert, told the committee: “In many cases that CLC deal with, disability discrimination is flowing from unmet need which has caused barriers to educational access and inclusion within school. In a proportion of cases the EA will be aware of or complicit in the informal exclusion or other unfavourable treatment suffered by a child.

“CLC has previously obtained a declaration of disability discrimination on the basis of failure to carry out statutory assessment which left the child unsupported and suffering significant school exclusion, both formal and informal…

“In CLC’s view, which we have formed through our legal advice and casework, disability discrimination against children has become institutionalised within our education system.”

The Education Authority (EA) has broadly accepted its operational failures. New CEO Sara Long has said she plans to fix the problems. The scale of that task – in both breadth and depth – is enormous.

Delays and failures

Around 80,000 school-age children in NI have some form of SEN, which is almost a quarter of all pupils. More than 18,000 have a statement of special educational needs – although, between growing waiting lists and an opaque statementing process, it is likely this figure should be much higher.

The number of children with SEN is rising - whether through society’s and educationalists’ greater understanding of special educational needs, through increasing rates of children with those needs, or both.

The Education Committee heard how demand for CLC’s services has risen in recent years.

The Children’s Law Centre is charity that offers a range of services to children in parents including legal advice and legal representation.

Ms Hogan told the committee: “CLC’s legal advice service, which deals with any legal matter at all concerning children, has been dealing with continuously increasing numbers of queries about SEND statutory operations for many years to the point where SEND queries now form the largest proportion of our total workload.”

In the year to 31^st March, 2013, CLC’s legal advice service handled 1,909 queries, of which 384 were SEN issues.

Two years later, those numbers were 2,362 total queries, of which 590 related to SEN. In the year to 31^st March, 2019, they were 3,395 total, with 1,634 relating to SEN. The year after, it was 3,350 and 1,574.

Not only have SEN issues ballooned to the point where they account for almost half of all legal queries faced by CLC, they more or less amount to the entire growth in legal queries full stop over that period (the number of queries each year that did not relate to SEN were, respectively: 1,525; 1,772; 1,761; 1,776).

This rise in demand is a clear indication of the frustrations of parents and children seeking proper SEN support.

For a long time, the EA’s solution to this rising demand was to pretend it didn’t exist.

In the past half decade, parental appeals against EA decisions have had a 97% success rate, a disgracefully high number that indicates a process that is broken.

Parental experience

Ms Hogan said: “This indicates poor first instance decision-making which is not evidence-based.

“It has always been in our experience a regular occurrence that the EA will concede a case at the point where it may be required to defend its decision with evidence (notably in appeals against refusals of statutory assessments). Unlawful failure to specify provision in statements (e.g. adult assistance; specialist teaching hours; therapies) is another common ground of appeal.

“This type of appeal generally results in a redraft of the statement in a legally compliant form which a parent will accept and then withdraw the appeal. Appeals take approximately 14 weeks to get from registration to hearing, followed by about 3 weeks for a written decision and then there are then a series of timescales allowed for compliance with Tribunal Orders.

“This delay in provision for the child will be on top of potentially years of delay in accessing EA services, contributed to significantly by the time-allocation model of Educational Psychology which has become a form of “gate-keeping” of service access. Some families will have had to file two appeals to get to the point of a satisfactory statement of SEN. Some families will have had to do this for several children with SEN in their household.

“Only those with the knowledge, support and resources to avail of appeal rights will have been able to carry out a challenge.

“The EA is aware of and has acknowledged that the facts around SEN appeals raise questions about the validity of the EA’s decision-making processes. The question now is, what steps has the EA taken to address the issue, what improvements are under way, how will these be measured and which external parties have been consulted or will be consulted to identify the solutions?”

Fresh promises

The EA has said it is committed to reform.

An independent review is set to examine SEN provision in NI and, alongside internal examinations and several external reports in recent years, there will be plenty of recommendations for improvements in the authority’s work.

This is a step in the right direction and CLC’s submission to the Education Committee said as much.

However, the children’s rights charity also said it needed to “sound a note of caution.”

“CLC have long been challenging systemic failings of the EA, and previously the five ELBs [Education and Library Boards], in terms of operation of the legal framework which serves children with special educational needs and disabilities (SEND).

“CLC have always taken the view that the SEND legal framework is robust and that the issues experienced by children and their parents and carers and schools have been caused by unlawful operation of that framework and process failings which were essentially allowed to continue and to escalate unchecked, probably driven at least in some part by chronic under-resourcing, relative to growing need…

“The public will not and should not tolerate mere 7 headline “wins” or bare statistics in terms of progress. For example, there has been very significant focus publicly upon the 26-week statutory time limit for production of a statement. CLC is aware that the EA has been making a considerable effort to bring all statements within timeframe. This has been a priority for the EA throughout the pandemic.

“Whilst CLC welcomes all improvement in EA systems and processes, statutory timescale compliance is a very basic mandatory legal requirement which tells us nothing about the timing or quality of special educational provision a child has received before issue of a statement or indeed after that statement becomes operational.”

Moving forward

The broadest concern here is that EA will focus on ramming its processes into a shape that ticks a lot of boxes, when compared with the calamitous efforts of recent years, but that focuses on fixing indicative statistics rather than creating a system centred on the needs of the children it is supposed to serve.

“Delays in access to early intervention and in access to appropriately specialist placements, caused by shortcomings in EA planning and operations (and formerly by ELB operations) are responsible in some cases for blocking access to education for disabled children and young people.

“We see this when children with SEND are sent home early from school or placed on part-time timetables for prolonged periods; when they are isolated or segregated from peers; when their school-work or physical environment is not adapted appropriately; when they are subject to unregulated restraint; when they are not allowed to be in the school play or go on the school trip and when they are excluded from the class photo; when they are so anxious and unwell that they cannot tolerate the thought of putting on a uniform or getting into or out of the car to go into school; when they are formally suspended or expelled for behaviour arising from disability in the absence of special educational provision.

“For every improvement that is proposed and carried out, CLC would like to see the question asked – what will be the impact upon equality, participation and inclusion for children and young people with SEND? It is primarily the affected parties who hold this information and require to be consulted about potential impacts.”

The scale of the reform required is immense. Even if the EA is committed to a positive transformation, several clear challenges remain.

One of the reasons behind the poor services of recent years is under-resourcing. If this had been easy to address two or five or ten years ago, it probably would have been.

Now, however, not only does a resourcing gap need to be filled, this must happen amidst the economic wounds caused by the pandemic.

Scope wrote recently about the need for autism services to be prioritised as part of the recovery from Covid-19.

Provision for children and young people with autism is a subset of the more general SEN system. It is hard to imagine how one could be fixed without the other.

As Northern Ireland chooses its priorities for the difficult post-pandemic years, the special educational needs of children and young people should be near the top of the list.