Michaela Stevenson. PhD student. NottinghamUniversity. Post. Grad. Dept SoN.
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Funding body: ESRC
The Special Educational Needs(SEN) Appeal Process: Call this justice and equality?
Michaela Stevenson
Paper presented at the British Educational Research Association New Researchers/Student Conference, Wednesday 14th September 2005
Introduction
Prior to 1998, parents had very little influence over education decisions affecting their disabled children. Only the most determined parents ever managed to overcome theirlocal education authority (LEA)in order to win any concessions. Post 1998 however, a series of Acts of Parliament purporting to secure the rights of disabled children to ‘equality of educational opportunity’ led to changes within the education system in England. Disabled children were afforded the right to have their needs properly assessed by the LEA and have the level and type of support stipulated in a ‘statement of special educational needs’. The local education authoritiesthen had a statutory duty to provide the supportas stipulated.In addition, parents who disagreed with decisions made by LEAshad the right to appeal and their appeal would be heard by an independent panel of ‘experts’; the Special Educational Needs andDisability Tribunal (SENDIST). The ‘new’ tribunal systembeing independent and enshrined in legislation purported to give parents a greater voice.
The introduction of the tribunal system should have weakened the LEA’s monopoly over decisions by providing parents with a legal means with which to challenge those decisions. However research indicates that the introduction of SENDISTinstead made life more rather than less difficult for all concerned.
The question of justice arises regarding the appeal process as a result of conflicts of interest between the local education authorities and parents. Many parents of severely disabled children will have been fighting for resources and providing for their therapeutic, educational and social needs often single handed since their birth. They are therefore very experienced and knowledgeable regarding their children’s needs. Clearly parents would want the level of provision available at school to be as good if not better than the pre-school provision they already have experience of. Morally we must agree that it would be an injustice if the child failed to continue to receive the services he or she needed; but what about politically? Can the provision of extra resources to one child with the inevitable reduction in the already scarce resources available to others constitute justice from a political perspective? LEA officers being government agents are charged with balancing out this equation. They are required to provide an ‘objective’ assessment of ‘need’ and to provide an apparently ‘needs led’ service whilst at the same time controlling public expenditure and distribution of scarce resources. It is of little wonder therefore, that there is conflict. The action most beneficial to the state would be to provide for some measure of the child’s ‘basic need’. Parents on the other hand would wish to optimise need satisfaction. Where such a dispute cannot be resolved, the responsibility for a decision regarding the child’s needs and the level of provision required transfers, on appeal, to the tribunal panel.
This paper discusses the findings from a research study in progress that explores the issues of justice and equality within the special educational needs appeal system, including the tribunal hearing and in particular, places under scrutiny twoassumptions: Firstly that the proceedings of the appeal and tribunal hearing will be fair to parents, allowing themopportunity to influence decisions made regarding their child’s SEN provision and secondly that decisions made within the hearing will be based upon neutrality and accurate, objective definition of the child’s needs.
What is justice?
In order for the reader to reach their own conclusions about justice and equality in the SEN appeal and tribunal system, it is necessary to have some awareness of the underlying theories of social justice. Social justice is a complex concept and the number of conflicting theories is perplexing. One’s definition of social justice depends on one’s ideological and moral outlook; although it isgenerally taken to be about treating everyone fairly and not discriminating on grounds that are irrelevant to the equation. In addition it is conceptualised as ‘rational, impartial and consistent treatment’ (Stowell 2004 p496). These two definitions however are too simplistic to assist in any analysis.
Goodwin (2003 p390) gives a useful account of social justice as both a ‘moral and political concept that can be applied to three stages of an action; to the intention, the procedure and the outcome’. In my view, for the SEN appeal process to be deemed socially just, would require justice at all three stages. Others would not agree; maybe because as Goodwin argues, justice at one stage rarely guarantees justice at another. In addition, some ideologies are concerned only with just outcomes irrespective of the procedures and others believe in procedural justice regardless of the outcome (Rawls 1971). Orthodox utilitarians for example, would take account primarily of the outcome of actions; provided it maximised social utility they would considerit just, regardless of the procedure or action.Goodwin (2003) illustrates this with the case of Robin Hood; the outcome of whose actions could by utilitarians, be deemed just and benevolent regardless of the procedure. To a moralist however, Robin Hood’s actions were undoubtedly unjust; as a moralist is content as long as the intention and procedures are fair, not concerning themselves with the outcomes which they believe are unpredictable anyway. The idea of ‘due process’ or procedural justice also underlies contemporary liberal thinking, however unlike utilitarians, procedures are considered fair provided they advance the goals of the individual.
Establishing whether procedures and outcomes are just is difficult enough, however true intention is even more difficult to establish especially in political spheres.One assumes that the SEN tribunal system was set up to give parents a voice and to secure children’s rights to appropriate education, as it purports to do, however we cannot be certain that the intention was benevolent.
In political terms, justice can be said to be the property of a distribution of something, namely goods, rights, opportunity, privileges, liberty and punishment and in this case, educational provision. Some form of social justice is the ultimate aim of political life (Goodwin 2003 p375) and who has access to what and with what outcomes have been principle concerns shaping society and therefore educational policy in recent decades (Dawtry et al 1995). Unfortunately however, it is easier to identify and deplore injustice than to accurately define what is lacking and then rectify it (Goodwin 2003). To be considered just, distribution must accord with appropriate criteria. However different ideologies produce different theories of justice and therefore different criteria; examples areequality, desert and hierarchy.
Egalitarians advocate equal distribution of the same level of goods and services, justified on the grounds that people are owed equal respect. Egalitarianism is one of the simplest ideas in principle yet is elusive in practice: Firstlybecause of the difficulty in finding suitable tools with which to accurately measure the value of different goods; a difficulty that becomes more problematic once the goods include something less tangible such as ‘educational opportunities’, and secondly, equality of distribution still does not guarantee equality of outcome;if given the same rights and resources, some people will do well and others will not.
If everyone has entitlement to an equal claim as egalitarians suggest, how are scarce goods to be distributed? According to Goodwin (2003), if scarce goods are not appropriately distributed, there can be no claim to social justice. So do we give more to those who ‘deserve’ more or to those who ‘need’ more? Any distribution criteria will produce some inequality but when isinequalityjustified?
‘Priority view’ justifies inequality by operating in favour of people who are disadvantaged by what Mason (1998) terms ‘naturally occurring inequalities’ such as differences in intelligence, capacity and motivation. Children with complex disabilities are, in today’s politically liberal-individualist climate ‘promised’ differential treatment; not just because they are disadvantaged but because one of the primary liberal values is having the means to pursue ones own interests.To a liberal-individualist, unequal distribution that benefits the individual rather than society as a wholeis acceptable.Therefore, disabled children as individuals are entitled to the extra resources required to achieve their potential. In Britain we imbibe liberal ideas effortlessly from such an early age that the liberalist view appears to be unquestionable.
The above ideologies have in common the fact that any distribution according to their various criteria will produce some inequality but whether one considers the resultant inequality unjust and in addition, whether one considers the intention, procedures and outcomes unjust, depends on the moral and political perspective adopted. In any analysis therefore, it is vital to be clear about which definition of social justice and which form of ‘equality’ are being advocated.
The establishment of SENDIST as a liberal individualist social construct aims to afford individuals with special needs the opportunity to secure scarce resources for themselves, but has the systemproduced more, or less, justice?
Do parents’ experience procedural justice?
The appeal process including the tribunal hearing isfraught with difficulties for all stakeholders including LEA officers, teachers and other professionals. However, it is clearly more fraught for parents whose motivation is the welfare of their child. Research indicates that parents not only struggle to cope with the amount of work involved in preparing for a hearing, they also suffer great financial hardship and emotional trauma; bringing them to the ‘brink of financial ruin and despair’ (IPSEA 2003 p1). When parent first embark upon an appeal they are neither aware of the enormity of their task nor how much it will cost them. SEN appeals rarely attract legal aid and it can cost parents an average of £25,000 to reach a single tribunal hearing and over £40,000 if their case goes to High Court. Some parents have had to settle for what they consider to be inadequate provision because they can no longer afford to continue. In addition some have found the process so traumatic that they regard being interviewed about their experiences too much to bear. However, the trauma parents are suffering whilst trying to secure educational provision for their children washighlighted by Lord Astor in the House of Lords recently, who stated; “Parents should not have to battle with LEAs and battle with tribunals in the way that they have done” (2005).
Being a judicial process makes preparation for a tribunal hearing complex and difficult. Parents complain about the legal documentation and procedure that requires them to understand and recognise the implications of various Acts of Parliament and codes of practice. Their task involves the reading and analysis of independent professional reports, preparation of case statements and the collection of ‘water-tight’ evidence in support of their arguments.Parents with higher educational qualificationshave stated that preparation for a hearing is so complex and costly that they do not know how others, less affluent or with a poorer comprehension of the English language, could survive the proceedings. Neither are those who instruct a solicitor relieved of the burden; as the system still depends upon the parents to provide the knowledge and insight into the needs of their child, to organise professional assessments (at a cost of between £500 and £800 each), to supply the evidence, to act as co-ordinator and to maintain an overview of the case. The system therefore disadvantages those who are less well educated and less resourceful. If the criterion for justice is as Goldberg & Kuriloff (1991) suggested, the ability of all parents to have the opportunity to influence decisions,can this system be considered just?
When parents discuss their experiences, local education authorities frequently come under fire. Parents describe their LEAs as being ‘the enemy’ from the outset rather than there being a sense of partnership. In recent studies conducted by the charitable organisations, PACE (2003) and PEACH (2005), and in a Sunday Times report by Caroline Scott (2003), parents accused LEAs of evasion, misrepresentation and of using the tribunal as a means to postpone funding. These findings are in accordance with my own; at interview parents frequently accused LEAs of ‘using dirty tricks’; of being untruthful and of misleading the tribunal panel during hearings; also of misleading the parents themselves at mediation meetings. They describe how LEAs would procrastinate and delay proceedings in order to save money and how LEA officers learn to identify and use caveats and loopholes to win their case or to avoid compliance with decision orders. Parents report that LEAs are disinterested in their children’s welfare; being interested only in the avoidance of public expenditure.In the LEAs defence however, special educational needs provision for children with severe and complex disabilities is clearly very expensive and LEA officials, charged with ensuring efficient use of public money, need to avoid overspend on their budgets or face severe sanctions from the Government.
Although many parents regard the LEA as their enemy, most recognise the difficulty the LEAs have as a result of their duel role; they feel that the requirement to determine need andappropriate provision is incompatible with their budget-management responsibilities and should therefore be separated. This fact was recognised and discussed in the House of Lords as recently as July this year, when Baroness Sharp of Guildford stated, “Provision was driven by local authority financing of education at the moment…we should try to separate out the financing…..financing for those who are highly expensive should be carried out at national level” (2005.Col.1303). Whether a change to the financing would have the desired effect could be debated however; their proposed centralising of financing may help by removing the LEAs duel role of needs assessment and budget management but it is unlikely to wholly rectify the situation whilst resources remain scarce.
A tribunal hearing is in many ways similar to a court hearing; the role of the tribunal being to balance the evidence and decide either against the parents or in their favour. Although the tribunal purports to be ‘user friendly’ so that parents may attend and put forward their own case without legal representation, should they attempt do so without trying to match LEA legal expertise and by presenting their case effectively and thoroughly, their chances of winning are slim; with success becoming increasingly unlikely as LEA officers ‘raise their game’ by attending training on case law and ‘how to win at tribunal hearings’.
Because the tribunal hearing is a judicial process, the tribunal panel demand evidence to ‘prove’ the facts of the case; in the form of written reports from professionals or from ‘experts’ as witnesses. Parents complain that procedures are unfair in that LEA representatives at the hearing are rarely asked for evidence to back up their claims, however if parents do not provide such evidence, it appears they are not taken seriously and their opinion will not be considered. A report published by Peach (2005) states that the perceived need for evidence and expert witnesses has risen steadily over the last three years. In my own research, one parent was told by the tribunal chairman during the proceedings, that they cannot make statements that are not backed up with acceptable evidence as the panel is unable make decisions based on ‘mere opinion.’ One mother informed me that she presented the tribunal chair with reports from five different professionals in support of her case whilst the LEA failed to present any evidence at all in their defence and yet the parents still lost. She stated that they simply ‘took the authorities word for it’.
The tribunal is purported to operate in the way it does, with less formality than a court in order to be ‘user friendly’ to parents. However, despite the fact that parents find hearings intimidating, they argue that the tribunal hearing would be fairer if it were more rather than less formal. Their concerns are twofold; firstly for the LEA to speak under oath to avoid misrepresentation of the facts, and secondly for it to be made clear where the burden of proof lies; as this appears to differ from one hearing to the next making it difficult to predict the course of events and to prepare and plan effectively.
Although tribunal decisions are meant to be legally binding and final, unfortunately the battle does not always end there. Despite the fact that LEAs have a statutory duty to provide the services and resources agreed in the tribunal hearing and recorded in the written decision,parents report that LEAs are able to disregard tribunal rulings without sanctions. Many parents who won at tribunal stated that they still had cause to be unhappy with the level of provision; complaining that many school terms later provision was still not in place. What they find frustrating is that there is no means of redress because no system was ever put in place to ensure that the LEA complied with tribunal orders. Parents argue that it is difficult to force LEA compliance even when they take the case to high court for a judicial review. Even where there is clear infringement of the law, the only course of action open to parents is to instigate High Court proceedings, at great expense, to prove LEA negligent. What parents call for is an accessible tribunal system where outcomes could be reviewed and orders enforced without resorting to High Court proceedings.