Official Report: Minutes of Evidence

The Chairperson (Mr Weir): I welcome Alan Sheeran, the director of the National Deaf Children's Society (NDCS); Rachel Hogan, the Special Educational Needs and Disability Tribunal (SENDIST) representative of the Children's Law Centre; Heather Larkin, the education and policy officer of the Special Educational Needs Advice Centre; and Kathryn Stevenson, the head of legal services at the Children's Law Centre. Maybe you will make an opening statement of a maximum of 10 minutes. We are running a little late, but we are keen to hear your evidence.

Mr Alan Sheeran (National Deaf Children's Society): No problem at all. We are here collectively representing the Children with Disabilities Strategic Alliance (CDSA). We welcome the opportunity to present to the Committee. We have been working on the special educational needs (SEN) review for quite some time.

CDSA brings together around 33 organisations from across the children's sector and the disability sector. It is co-chaired by Children in Northern Ireland and Disability Action. Essentially, we want to ensure that policy that impacts the lives of disabled children is informed by the children's rights, needs and circumstances.

The SEN review commenced in 2006, and proposals were produced in 2009. CDSA commented on the proposals and supported the Education Committee's consultation with parents in the Great Hall some years ago. In the intervening period, CDSA produced an education manifesto that suggested changes to the original proposals. Thereafter, we eventually arrived at a memorandum, which was presented to the Minister. Following increased concern about the implementation of the existing SEN system, CDSA produced 'The State of SEN Statements' just over a year ago, which looked at problems in the existing system. We are a bit concerned about the length of time that the process has taken. Children entering P1 in 2006, when the process started, are now heading towards their 14-plus transition meetings in the next year. We need to think about the children whom they were working for, who are constantly moving up through the system. We need to get this system up and running as soon as possible. I will make a number of points, and then I will pass on to my colleagues.

CDSA is concerned that we work towards outcomes for children with SEN, and we welcome the fact that the legislation is moving towards that. Children should be at the centre of SEN, and CDSA welcomes the new focus on learning and outcomes. The importance of outcomes-based accountability has been recognised by the Children and Young People's Strategic Partnership. Cross-agency training on outcomes-based accountability has already been initiated across a range of organisations. We think that that fits in very well.

CDSA hopes to see an increase in the accountability of schools and education providers to young people with disabilities and their parents. CDSA also believes that there should be a review of assessments of the needs of children with disabilities. Currently, assessments of children's needs are problematic. We need to strengthen the influence of expert assessment in the SEN system, which should be very much part of this. We also need to look at the appropriateness of assessments. At the minute, there are 23 assessments for deaf children, when, in the majority of cases, only one is being used, so we need to look at the appropriateness of that. There is also a very limited understanding of the impact of assessments across education and in health. The NDCS, for instance, has undertaken training with social work staff who are asked to provide assessments for statements and so forth. A lot of social workers were not aware of the impact that their assessments would have.

I will hand over to Heather.

Ms Heather Larkin (Special Educational Needs Advice Centre): I will comment on personal learning plans (PLP), which are under clause 3. Personal learning plans will replace the current individual education plans (IEP). Under the Bill, all children with special educational needs, regardless of whether they have a statement of SEN, will be entitled to a PLP. We welcome the reference to personal learning plans in the Bill. There is a very important aspect to personal learning plans, which is the need to focus on outcomes. There is also a need for a regular review of personal learning plans to make sure that children's progress is being monitored consistently and regularly.

The information on the format, content and review of the PLPs will be in the code of practice when it is produced. At this stage, without seeing the code of practice, any informed assessment of the PLP is difficult. The personal learning plan is an opportunity to provide a statutory safeguard for those children whose progress in educational provision is dependent solely on their PLP. That will be the 74,000 children with SEN, a number of whom do not have statements. The personal learning plan is very important for them, their educational progress and the provision that they receive.

We have a concern about clause 3, in that consideration could be given to a time frame for the personal learning plan and certainly for a review of the PLP. That review could be termly, for instance. Consideration should also be given to how long a child stays on a particular level, which will be one of the new levels of support in the new framework. Personal learning plans should be reviewed to ensure that they are on the appropriate level, according to their need. Such a statutory safeguard would mean that the progress of those children would be regularly and, importantly, consistently reviewed and monitored.

One of the most common concerns that we hear as advice agencies is about the quality of the current individual education plans. That was recognised in the consultation, which is why there is an attempt to make improvements with the personal learning plans. Another concern that we hear from the parents and families who come to us relates to the level of independent redress available when they are dissatisfied or concerned about the progress of and provision for the children and young people. Any change to the framework must explore further how that situation can be improved, particularly with the PLPs. There could be an exploration of the role of the Education and Training Inspectorate (ETI) to focus on the PLPs, and the form of access to independent redress could also be examined. It is uncertain whether the dispute avoidance and resolution service (DARS) would have a relevant role in that or whether that would have the required impact.

A greater input into PLPs is needed from others who are involved with children and young people — educational psychologists, specialist teachers, children and young people themselves and support services — so that they can all work together to produce a good, effective personal learning plan. A statutory duty to review and monitor personal learning plans needs to be considered, perhaps under clause 3.

The personal learning plan plays a key part in evidencing progress by identifying the need for any further assessment or educational provision, as well as recording outcomes and progress. It is particularly important in reviewing a statement of special educational needs, as the personal learning plan provides evidence of how that statement is being effective.

Ms Rachel Hogan (Children's Law Centre): I will speak on behalf of CDSA in relation to children who have the statutory protection of a statement under articles 15 and 16 of the Education (Northern Ireland) Order 1996. There is a difference between children with statements and those without statements, and children with statements number around 16,000. As well as there being problems for children without statutory protection, there are also problems for children who have statements. We want the SEN review and its outworkings to address those problems.

To be clear: a statement is a legal document that affords legal protection to children with special educational needs and disability. The way that that document is drafted and set out is absolutely critical to the enforceability of provision for those children. Particularly in current times when budgets are very tight, it is important to make sure that a statement is properly written and enforceable by the parent and, possibly, by the child.

As an umbrella organisation for all those children with disabilities, we have two concerns about statemented children. The first concern is that access thresholds for children to receive a statement are not known and are under the code of practice. We do not know how many children will have a statement or whether there will be a reduction in the number of statements. The second issue, which comes up time and time again in all our practice, is the enforceability of the statement. What is in it, and how is it written?

We do not know what format a coordinated support plan (CSP) is going to take. All we know is that it is proposed, under article 16(2) of the 1996 Order, to use an amending power to bring the CSP into the regulations. We ask the Committee to look at what is in the regulations on the form and content of the CSP. That should be subject to scrutiny to ensure that the inputs — the provisions going into the statement — and the outputs — the results of the provision — are measurable — in other words, that there are SMART targets.

Who gets a statement, and what do they look like? At the moment, a statement has six parts. We are concerned about part 2, which refers to the special educational needs of the child, and part 3, the provision to meet those special educational needs. To make a statement enforceable, it has to be specific. Specific and quantified provision is lawful and enforceable provision. Our Education Authority is engaged in a practice of drafting statements that our members see regularly, which are vague and, therefore, virtually unenforceable.

I will give you an example. Instead of a child having 25 hours of one-to-one adult assistance in his statement, which the parent can see and be consulted about it when the statement is being drafted, it might say, "John will have access to a level of adult assistance determined by the board at a future date", so the statement is not specific. In article 16, the legal framework states that the statement should specify the provision, and we feel that the Education Authority should be brought to the Committee to account for the fact that statements are not being drafted in accordance with that legislation.

The regulations also state that in the format of a statement in part 3 "here specify" the provision to be made to meet the special educational needs of a child. Vague and woolly statements are not meeting the requirement that is already in the regulations. We ask the Committee to consider whether it should be clarified in the regulations that specification also includes quantification. That phrase is frequently used by practitioners: specification and quantification. On an interpretation of the word "specific", you would expect it to be quantified, but, because that is not happening, we want the Committee to look at whether the word "quantified" could be inserted into article 16 or into the form of the statement under the regulations in schedule 1.

There is a duty to consult parents when a statement is being drafted. If it is not clear in the statement what a child is being offered, how can a parent possibly be lawfully consulted? We have been successful in challenging such a case in LC's application, which the Committee has. Specific and quantified provision is lawful and enforceable, and that is what CDSA is seeking to achieve by coming to the Committee.

The legal definition of special educational provision includes education provision and health provision. There is no doubt about that, and it is established in statute and in case law that interprets the statute. We have a difficulty with article 14 of the 1996 Order, in that there is not a mandatory duty on the Health Department to cooperate with the Education Department; there is merely a qualified duty, which is subject to resources. The Committee has access to a link to one of our cases in which a young person speaks about her experience. It is on the home page of the Children's Law Centre's website. In Carla's case, she was unable to get physiotherapy in a mainstream school. She has cerebral palsy and was being asked to sit in her wheelchair all day, every day, and she became stiff, sore and uncomfortable. All she needed was some physiotherapy to loosen up her muscles. We had a two-year battle involving two tribunals and a disability discrimination case. We almost had to go to judicial review (JR) to get health provision for that young girl in a mainstream grammar school. We think that that should not be the case, so we call on the Committee to strengthen the duty on the Health Department, perhaps by engaging with colleagues.

The Chairperson (Mr Weir): Thank you, Rachel. We received your very detailed submission. I will move on to questions. Kathryn, do you want to give us a briefing?

Mrs Kathryn Stevenson (Children's Law Centre): May I give you a short briefing?

The Chairperson (Mr Weir): Yes. I am conscious of the fact that we were looking for a presentation of about 10 minutes. We have gone well over that and are running a little late. Some issues will come out in questions.

Mrs Stevenson: I have maybe a couple of asks. I am coming from the perspective of general resourcing. The Committee will be well briefed on the challenges with resources, in that there has been such a huge increase in the number of children who have been diagnosed with SEN. I will not labour that point, other than to say that there has been an increase from 16% to 22% of the whole school population over the last 10 years. You have to couple that growth in demand with the impact on the budget. In that context, and with reference to what Rachel said about the interface between the Education Department and the Health Department, CDSA asks the Committee, when it is looking at statutory assessments, to consider the introduction of time-based targets for the provision of health services in the SEN regulations. We also strongly support the introduction of a statutory duty to cooperate across Departments, and that would include Health and Education and a pooling of resources.

I will make a second point very briefly. CDSA would like to call for a unified systematic approach to the allocation of SEN resources by the Education Authority. There is a need for greater transparency on the allocation of resources, policies and threshold criteria that are being used for the allocation of those finite resources. We recommend that clause 2 be amended to include an additional statutory requirement to publish all resource allocation guidance and threshold criteria. In times of deepening austerity, it will become even more incumbent on the Education Authority and schools to ensure that fair and lawful decisions are taken on the allocation of those finite resources.

We also ask, in a review of those policies, that the SEND Bill be amended to introduce a clause extending the existing statutory requirement on education boards under article 6 of the 1996 Order to "determine and keep under review" policy. We ask for an extension of that to include all resource allocation processes that are coming through with the new Education Authority so that it would be an extension to cover not only policy but guidance and allocation criteria. Obviously, with the Education Authority coming into play, we will have a harmonisation of policy, and it must be ensured that, when we have such a harmonisation of policy, those policies are fair and legally compliant.

My final point is on the role of the ETI and improved inspections and quality assurance of SEN provision. We see a good role for the ETI in monitoring and reviewing pupil performance not only at Education Authority level but at school level. That could be linked in with reviews of PLPs and the annual review process. If you look at the most cost-effective models of education, it could also assist with the better utilisation of finite resources.

The Chairperson (Mr Weir): Thank you for the oral evidence and the detailed paper that you submitted. As we work through the issues and get to a later stage when we look at each clause, we will examine the issues that you raise.

The nature of the legislation is a constraint on you and on the Committee. To be fair, the approach taken is not unreasonable. The Bill is pitched at a certain high level, but, proportionately, the level of work in the regulations and the code of practice, compared with most legislation, are heavily weighted in that direction. Obviously, as a Committee, we raised the need for the Department to indicate what is intended in the regulations because we do not want to sign off a blank cheque.

Independent legislative advice has raised the potential of high-level constraints being put on the legislation for regulatory-making powers. You touched on some of those already, but do you have any particular thoughts on that?

The code of practice will be at a level below the regulations, but it will be important. Do you have any thoughts about additional safeguards in terms of Assembly procedures? There could be, for example, a formal Assembly agreement to a code of practice before it is implemented rather than it simply being produced by the Department. Perhaps you could deal with those points, and I then have a couple of specific issues I want to raise.

Mr Sheeran: I invite my colleagues to come in as and when they feel it necessary.

We have issues about not seeing the regulations or the code of practice, because they are the heart of SEN. Last time, it took two years for the code of practice to come out. There are concerns that we should not take that long to get there this time. We want to see them running in parallel. We are aware that the Department is working on them, but we have concerns because there will be secondary legislation and the code of practice coming in as guidance, which means that there are very limited means to change anything from the Department. For that reason, we are very interested in seeing the development of a co-design process, whereby the Department sits down with people in the sector — teachers' unions, other representatives, CDSA and others — to design that process. That will probably involve the Committee. There are real concerns about that, because we may end up with something that we cannot see at the moment.

The Chairperson (Mr Weir): There are three specific issues that I want to raise. First, you raised concerns about clause 5 and time limits. The Bill seems to put specific time limits on parents. Leaving aside the merits of that, everyone can agree that one concern is the slowness of the process. Quite often, parents are looking for help, but the process is so laborious and lengthy that people are looking to see whether it can move more quickly. One constraint in the legislation is the time limit put on parents, but there do not appear to be any statutory time limits put on other advice givers or on the Department. I would like your views on that.

My second question goes back to Alan's initial point about the need for outcomes and the tangible measurement of outcomes. What is the best way to measure outcomes? It is one thing simply to say outcomes, but they need to be measured.

Finally, you raised issues about the retention of SEN funding centrally, but a lot of people see it as best practice to delegate funding as close to the schools as possible to allow individual decisions. Do you have suggestions on why schools should not be more directly accountable and responsible for SEN funds rather than their being more centrally driven?

Mrs Stevenson: I will deal with time frames. CDSA welcomes a reduction in the time frame for those parents and families who are waiting for their children to be assessed. We were concerned about the time frame for parents being limited in those circumstances in which parents need to seek additional help and support. We also recommend that, in circumstances in which parents have got advice in a timely way, things should skip forward, and we should not be waiting for 22 or 29 days for the statutory assessment process to gain momentum and move forward.

The Department has said that delays in the statutory assessment in 81% of cases are due to there being a delay in receiving health advice. There is a major concern about health time frames. Time-based targets should possibly be placed in the regulations. I know that it would be difficult to have that in legislation, but it would be useful to have clear time-based targets in the regulations. That would incentivise health professionals to feed into the statutory assessment. They are under pressure with their other commitments to patients in the community and health service, but it is about trying to make that join and getting things moving more quickly. We have already mentioned the statutory duty to cooperate, which might be another way to address the issue.

Ms Hogan: I will add another aspect to that point. In many of the cases that we deal with, and in the cases that I am dealing with in my work as a SENDIST representative, it is not the statutory time frame that is the difficulty. Although 26 weeks can seem like a long time, it is not a difficulty if adhered to. The problem is that parents or schools are requesting a statutory assessment and being refused, many times in circumstances in which the statutory assessment should have proceeded. There are blockages to statutory assessments that are caused by a lack of educational psychology slots being available to schools and the use of a time allocation system. At the minute, I have a case in which a parent asked for a statutory assessment a year ago, when her child was about to start primary 1. The board refused that in circumstances in which, I would have said, it should have allowed it. That has delayed the process by at least six months. We now have a statutory assessment and are starting the 26-week time frame. The majority of the delays in the cases that I deal with are to do with blockages to getting the statutory assessment.

Mr Sheeran: I will speak on outcomes and measurements. The core of all teaching is to do with progress and achieving progress with children. It should be the same for all children with disabilities. We believe that, when you produce an IEP, statement or whatever, it begins as almost guessing what will be best for a child. It is only after your annual review that you can decide whether progress has been achieved. That is the key role of the classroom teacher and any specialist teacher. We suggest that those teachers set SMART measurable outcomes for the next year for that child and that they are considered at the end of the year, so that the annual review becomes a review of a child's progress. If a child is not progressing, we need to look at what needs to be done to improve that for a child over the next year.

I think that all of us have examples of where children have almost been left to drift. Really, that cannot happen.

In this, we would like to see that we focus on outcomes, that it becomes outcome-driven and that the SEN process constantly moves forward towards that. We do not think that that will be too difficult to achieve. We think that a process needs to be put in. One of the reasons why we had issues with the diminution of the annual review is because it really is the only time during the year when the parent has a sit-down with the child and the school to talk about where the child is going. We are very enthusiastic about a change towards outcomes-based accountability in this.

Ms Hogan: Perhaps I could add to that. We do not yet know the form of a CSP on statemented children and their outcomes. I call on the Department to let us have a copy of a CSP so that we can see what it will look like. My understanding is that an additional box is to be added to that statement, with outcomes being a topic. I think that some sort of framework would need to be developed on how to measure inputs and outcomes. We measure inputs by saying what they are on the statement and by being specific about them. Measuring outcomes will vary in each individual case, but there would have to be some sort of guidance or framework to enable teachers, for example, to know and to report back, maybe through the annual review process, whether the child is meeting those outcomes.

Ms Larkin: Can I just make a wee point as well? You mentioned delay. The current regulations have the information and guidance on the advices from health and education. The educational psychologists factor the reports and advices to inform the authority staff so that they can draft up the statement. Basically, all that information comes through the statutory assessment.

As regards delay, sometimes you find that the educational advices in particular do not actually give any real kind of substance on what level of support the child might need. Those are the practitioners in schools who have an idea of how much support the child might need, whether that be additional learning support or classroom-assistant support. However, that will not come through clearly enough in the draft statement. Rachel referred to the lack of specification.

There is also a delay in that because what happens is that, once you have all that advice and the draft statement has been drawn up, when the parent then names the school that the child will go to, which most often is the school they are attending, you then have a delay when the authority has to go back to the school to discuss how many hours or what level of support might be needed. It seems that it would be much faster to actually have that in the educational psychology advice and to have a more clear idea so that there is not that further delay when a draft statement comes out. Within 15 days, you can turn that draft statement around. If it is clear, quantified and specified, there is probably not any reason to delay any further, but there is an additional delay when they have to go back to the school and agree a number of hours with the school and when that is then taken to a panel in the Education Authority. That is the way it has been happening; whether there will be a new practice, we are unsure. That adds delay between the draft and final stage of the statement.

There are things like that in the actual practical realities. Perhaps, maybe even in the regulations, more specific information could be explored about what those advices should contain to give more information to inform the statement.

Ms Hogan: I think that if there was an obligation within the statute or regulations to quantify properly on statements when the circumstances allow it, there would be less room for reporters not to report on what the child should have. That should speed the process up.

The Chairperson (Mr Weir): The final point is on the balance, if you like, between decisions that are taken at central level and funding being delegated.

Mrs Stevenson: CDSA would have concerns about the duty. We welcome some of the provisions in clause 3 on the duty of the board of governors to have PLPs and to designate a learning support coordinator. We are concerned that the duty upon boards of governors to make provision for children should be further strengthened, because obviously if moneys are to be put to schools, the boards have to be fully accountable for how those moneys are spent. At the moment, there is no formal mechanism for redress for parents if children's PLPs are not being delivered upon and the provision is not being put in place. With the best will in the world, schools are in a position where they are reliant on their own capacity and resources to make provision for children. They are also waiting to identify further needs through the boards. They can use their best endeavourers, but when parents wish to challenge, it is difficult to see whether those best endeavours are, in effect, being realised.

The Chairperson (Mr Weir): A number of members want to ask questions. Seán first of all.

Ms Hogan: Could I just make one further point on this? Sorry, I keep jumping in on the back of all the questions. I think that it is important to make the Committee aware that, when he was doing his common funding formal review, Sir Robert Salisbury noted that it was not yet the time to delegate funds to schools, because they do not have the systems and procedures in place to be accountable to —

The Chairperson (Mr Weir): I understand that. The only thing I would say, Rachel, is that one of the common things that I have seen over a long time by comparing Northern Ireland with almost anywhere else is that, proportionally, so much is held at the centre and so little is directly in the hands of —

Ms Hogan: That is absolutely necessary in Northern Ireland at present, because schools are not properly accountable for that funding. They do not have to spend it on special needs.

The Chairperson (Mr Weir): It is an issue that we can come back to, but I need to bring in Seán.

Mrs Stevenson: There is also the built-in process for the review of PLPs. Once that is honed down and we are able to monitor the progress of children under PLPs, schools can be properly held to account when you are looking at the measurable outcomes for children.

Mr Sheeran: I sat on the LMS steering group within the Department a number of years ago when we were redesigning the whole LMS scheme. The issue is accountability. If there was some kind of accountability at the school level for funding specifically for SEN, there may be a way of doing this. However, the problem is that you would have schools with a lot of SEN underspend at the end of the year and other schools would simply not have sufficient.

The Chairperson (Mr Weir): That is an issue that we will need to consider.

Mr Rogers: I have one quick point. When I was listening to Rachel, the common thing that came out to me is that we need to have SMART targets to measure outcomes. The other thing that came out, particularly with PLPs, the code of practice and so on, is the problematic nature of those being part of secondary legislation. I do not know the logistics of it, but the question is whether the Assembly or the Education Committee can have greater scrutiny of this.

The Chairperson (Mr Weir): Ultimately, I suppose that was more of a comment, but it is something that we would need to consider.

Ms Hogan: We would welcome that.

Mrs Stevenson: It would be wonderful if you could scrutinise the regulations.

The Chairperson (Mr Weir): One of the things that we have said is that we need to try to see it as, hopefully, a reasonably seamless process. When you have the high-level legislation coming up front without really having a great deal of knowledge of the regulations, the problem is that it hampers the opportunities.

Mr Sheeran: Given my background with deaf children, one of the things that I want to absolutely ensure is in the regulations is that specialists are directly involved in the writing of statements. That is in regulations. I have been assured that there will be no change in that, but it is still part of the overall regulations that we are not aware of at the minute.

The Chairperson (Mr Weir): There is an issue with the lack of knowledge in that regard. You mentioned areas where you would see changes being made through legislation. With primary legislation, each clause can be subject to amendment. The major problem with regulations is that you either accept or reject them. In whatever Department, regulations can often do good things. There may be elements in the detail that you do not particularly like, but saying no to that regulation can become a nuclear option. That is something that I think Committees have understandably been reluctant to do. It has happened occasionally, but it is relatively rare.

Robin, I know that you need to head off somewhere else.

Mr Newton: I thank the delegation for coming up. Alan, you partially answered part of my concerns about statements and the annual review of statements. Heather mentioned personal learning plans, the statutory obligation to review them and the connection between the review of the statements and personal learning plans.

How do you see that being addressed?

Ms Larkin: Obviously, every child will have a personal learning plan whether they are statemented or not, so it is important for progress for every child. However, it is particularly important for those children with statements, because, when you come to do an annual review of the statement, you are looking at whether that statement is current and relevant for that child, whether the provision is creating progress and whether they are meeting the objectives on the statement. It is important for you to have a very comprehensive, well-monitored personal learning plan or, currently, the individual education plans, because it allows you to see whether targets have been met. The personal learning plan would almost be the working document for that statement in the classroom, so it is very hard to do a really effective annual review if there is a very poor record of progress in any education plan.

At the minute, once every school year, the education plans might be looked at and reviewed. For some children, that is too long, because you have to make sure that the provision that you are giving them is making a difference, even if you are just checking or monitoring to make sure that everything is on target. It is very inconsistent. Our experience of the practice in schools is that there is a lot of flexibility in individual education plans; there is a core content within the code of practice — core elements that you would expect — but there is no real guidance on how long an education plan currently would be in place. You could have one for one year or two years, with targets being repeated and not being achieved. That means that it is not being effective for the child and is not a working education plan or a strategy for them in their education.

Giving more guidance to schools or having something even in the primary legislation would ensure that schools had to focus on a particular child and put the spotlight on that child and then say, "Is the education plan — the personal learning plan — right? Are the strategies in place? Are we differentiating our teaching? Is everybody involved for support who can be involved?". That then allows you stay on target with the child, because in some senses, you have a legal duty to make sure that you show that you are reviewing and monitoring that personal learning plan. At the minute, the practice is very broad amongst the schools that we have experience of in when they review it, how they review it and when they move a child forward to the next stage of provision. If there was something within the time frame on that, it would help.

Mr Newton: Would that change the status of the document — the personal learning plan?

Ms Hogan: A personal learning plan is not protected by statute in the same way as a statement. A personal learning plan is, as you said, a working document that you use every day and that has targets to be used on a daily and weekly basis.

Mr Newton: But to be wholly effective and require the statutory option, does that not need to —

Ms Hogan: There is no statutory time limit on how long you should operate a particular PLP, so a child could be sitting on the same PLP for two years. That is a difficulty.

Ms Larkin: It is not an enforceable document like the statement; you cannot enforce a personal learning plan. However, you would certainly want to try to make sure that it is being reviewed consistently and regularly by all schools so that you know that every child who has special educational needs has a good, effective education plan for their individual need and that that is being regularly reviewed. At the minute, there is no time frame given to review education plans; that is decided by the schools themselves.

Mrs Overend: Thank you very much for your presentation. A lot of good points have been raised today. I want to focus on something that Rachel mentioned about blockages. For instance, schools are requesting assessments, but they are being refused. Can you tell me a bit more about that? In the back of my mind somewhere it struck me that parents want to have their child assessed for a statement, but there are only so many in a particular year, and that is so that the Department or the board can reach targets. I am not knowledgeable enough about that, so that is why I am asking. Are they trying to reach all their targets, meaning that you are not allowed to ask for so many more statements?

Ms Hogan: The difficulty arises because a time-allocation system has been imposed upon schools. Schools are told by the Education Authority that they have four slots, or whatever number they are allocated, and that if they have x number of children, they have to prioritise which child should be seen. So, the school is left in the invidious position of when a parent comes to ask for help, it has to decide whether John, Jack or James is going to get the help. One of those children, or more, may have to wait until next term or next year, or the parent may be led to believe that their child's needs are not as important as others and nothing may happen.

Schools and parents often do not realise that the parent has the right to go behind that process and request a statutory assessment and can, therefore, ask the board to make a determination about whether the child needs a statutory assessment. That is outside that system. Very often, the whole process is delayed if a board refuses a statutory assessment. A parent can do one of two things when the statutory assessment is refused: fight it or accept it. I would hazard a guess that many parents accept that decision. Those who have the wherewithal will lodge an appeal to SENDIST, which will decide whether there should be a statutory assessment. I think it is worth mentioning that the legal bar or threshold that one needs to meet to get a statutory assessment is really low. It is simply under article 15 of the 1996 Order that a child probably has special educational needs and probably requires the board to determine the provision to meet those needs. It is actually a really low threshold, so if a parent can bring evidence of their concerns — the school may also have concerns — many children should be reaching that threshold. The code of practice has a set of criteria, and the boards, or the Education Authority as it is now, have developed the five-board provisional criteria, which are 40 pages long. They are a set of other criteria outside this statutory framework, which is inhibiting access to those services. So, there are layers and layers of bureaucracy outside the system, and it is very difficult for parents to navigate it. When they come to any of our organisations looking for advice, we will help them through the process. However, it is not happening automatically that when a child needs help they get it. Children are waiting for years.

Ms Larkin: When you have a legal framework, everything should be contained within it, just as the SEN system is a separate support system within education. You should try as best you can to make sure that guidance on everything that you need to know about the framework and everything you need to do to make a decision on what support a child needs, whether that be in school or by the Education Authority, is within your legal framework, rather than having to look at bringing in additional practices, policies or whatever it might be to make it more manageable with resources or whatever.

Ms Hogan: It is also fair to say that it is all in the framework, but it is not being adhered to. Other criteria have been invented.

Mrs Stevenson: I will make a few short points on the back of that. Previously, we provided the Committee with the case of LC, which involved a statutory assessment request. The parent had been refused the statutory assessment process, but the outcome of the judgement was that parental representation should be given proper consideration by the Education Authority. Another feature in that case was that, in many circumstances, where statutory assessments are refused and appeals filed by parents they were conceded, because there was no lawful ground for the board to refuse the statutory assessment in the first place. So, we are seeing patterns, in that where there are refusals and they are queried and go to appeal, they are conceded. That is evidence of situations where we are holding back the fort for children accessing statutory provision, and we are very concerned about that pattern.

The other point relates to what I said at the beginning about the five-board criteria, which Rachel mentioned. We see many resource-allocation guidance models, or resource-allocation threshold criteria, coming through within the five boards. There are disparate policies. As I said in the introduction, there needs to be transparency about that. Under article 6 of the 1996 Order, if there is any review for arrangements for SEN allocation or SEN policy, that should be consulted upon. We are saying that all that guidance and all those hidden policies on how the resources are allocated should be on show, and parents should know what those criteria are. In times of austerity, those things are not being put on the table. So, it is very difficult for parents, and it is very difficult for anybody advocating on behalf of parents, to weigh up whether in fact a child should access provision under those thresholds or policies. It is about strengthening that responsibility to ensure that all those things come under those auspices.

The Chairperson (Mr Weir): In thinking about the Committee stage, from the Committee's point of view, I am not making any commitment about what is in and what will not be in. In addition to consideration through the formal clause-by-clause process and, indeed, in any action taken, there is also the potential for the Committee to make recommendations on particular actions that may lie outside what is directly in the legislation. That is obviously something that we will have to consider from all witnesses.

Mrs Stevenson: With the harmonisation of policies within the single Education Authority, there is now an opportunity for full transparency, consultation, section 75 proofing and equality proofing of the impact of those policies on children. Children with SEN may have other protections under section 75.

Mr Craig: Rachel, I was listening to what you were saying about the length of time that was taken for a lot of parents to get the statement. Was a lot of that down to the lack of resources that there was in the boards? I know that one of the biggest issues is with child psychology and access to it. I got an interesting answer back when I asked that question. They are now trying to create a regional unit to try to do away with the postcode lottery. Is that something that you feel might help? There seems to be a real bottleneck there.

Ms Hogan: There is an opportunity with the harmonisation of policies, as long as those policies are open to scrutiny. Our concern is that it could be a mechanism to further restrict opportunities for parents and children. That is our real concern, and that is why we want an open and transparent process that stakeholders can engage in when regional policies are being brought in. The five-board criteria that I just referred to were in a regional document, which, for example, restricts access to the bottom 2% of performers, when in fact 5% of children have statements.

It seems from the work that we all do in CDSA that the system is chronically under-resourced. Pressure on the system is growing because there are more children with special needs, yet the budget has been cut for five years. I think that there is another 1% cut planned. So, there is less money. There probably needs to be an injection of resources to solve this. The absolute distress and heartache of parents and children that we see on a daily basis is unconscionable and inhuman. It needs to be addressed, and if that means looking at the resources and allocating them in a more fair way with a more transparent process, that is a good process. Trying to keep running with what we have at the minute would be to me unlawful and immoral.

The Chairperson (Mr Weir): Thank you for your written and oral evidence. I will maybe make one final request to you. I appreciate one thing was perhaps thrown at you a little bit unfairly. We mentioned the potential high-level constraints in the legislation on the regulations. I know that you responded to that question. If you have any further thoughts that you would like to submit in writing, that might be useful. You maybe want to give that a bit of consideration.

Ms Hogan: I appreciate the opportunity to do that. That is quite a difficult question, so that is very considerate.

The Chairperson (Mr Weir): I appreciate that. To some extent, we are all trying to pin the tail on the invisible donkey. I appreciate the limitations, but any thoughts that you have on that would be helpful. Thank you very much for your evidence today.

Ms Hogan: Thank you for the opportunity.