Behind Closed Doors
In this post I will talk about the legitimacy of Local Authority decision-making panels. I know that some readers will feel uncomfortable already. Some will wonder why I am apparently defending the behaviour of Local Authorities when so often on Twitter and in person I highlight their failings. SEND panels are not suggested by the Children & Families Act 2014, the SEND Regulations or the Code of Practice. Consequently, they are seen by many critics as an act of their Local Authority's Machiavellian imagination. Panels are variously perceived as a delay tactic, as a way of deflecting evidential arguments, as a means of coercion by which local professionals are kept "in line" and "on message"; and as a tool of ableist hegemony: "Your child has some additional learning needs but is achieving at the level predicted of her ability. Therefore the Panel does not consider her needs significant or complex enough to require a statutory assessment..." In my 27 years of SEND practice I have never seen a 'Panel letter' to parents which set out, point by point, the precise arguments that were voiced in the meeting except those which I wrote myself between 1994 and 1999, which parents (but not my employer) appreciated. Typically, only 'Action Points' are recorded. Either side of lunch, a Panel meeting may consider up to 20 cases (that's 20 children or young people - but I admit that even I say 'cases' in conversation with SEND friends sometimes because I have LA DNA. Sorry... ).
So let me disclose my interest, although most people who read my blog or tweets know this anyway: I have worked for the SEND services of Local Authorities, on and off, since 1991 and I still do, even while I am a SENCO. I do it because, however delusional this may be, I think I add something and because I learn from it. But I don't see it as my job to defend them.
Indeed, at FestABLE in June I called for an end to decisions behind closed doors. I believe that such procedures should be open. I don't believe, however, that Panels can be scrapped and here I will explain why.
EXECUTIVE DECISIONS Most decisions of a local authority are regarded as 'executive decisions'. Under section 101 of the Local Government Act 1972 these are largely delegated to individual officers, to make the basic functions of the Authority manageable and economic. However, since decisions are subject to the Public Sector Equality Duty and, in services such as SEND, involve considerable public expenditure, leaving them to individual officers is problematic. Whilst, in reality, the final decision on a placement into specialist education or care may rest with an individual officer, some scrutiny is required: therefore Local Authorities use panels which, as well as handing decisions to officers to enact, set the parameters for those occasions when an officer has to make a decision alone (for example, when a decision is needed during a holiday period and a panel can't be convened).
KEY DECISIONS More recent regulations* specify that 'key decisions' are those which involve significant cost or savings and affect communities living or working in an area comprising two or more wards or electoral divisions in the area of the local authority (Reg. 8). This could include the opening, expansion or closure of Specially Resourced Provisions ('Units') attached to mainstream schools or the withdrawal of Outreach services. Reg. 9 of the same Statutory Instrument requires that an individual officer empowered to make such decisions must ensure that the relevant background reports are available to the public for at least 3 days prior. However, in the case of SEND 'key decisions', relevant information will often refer to actual children and young people with individual needs rather than a hypothetical group and will therefore be confidential.
REGULATION 21 Reg. 21 provides that such confidential information is exempt from publication and the public may be excluded from meetings where such information will be discussed. But it's a sweeping power. Take a look at Reg. 21(4): "Nothing in these Regulations shall authorise or require a local authority to disclose to the public or make available for public inspection a part of any document if, in the opinion of the proper officer, it is likely that confidential information, exempt information or the advice of a political adviser or assistant would be disclosed." That's a pretty big blanket.
Consequently, Local Authorities and District Councils were caught out in 2012 by a hurried piece of Parliamentary business. The Local Authority regulations were updated in the interests of transparency in council affairs**. At this point, some of my readers are reaching for a bucket. I'm sorry, that word again is... "transparency". Among the changes, Reg. 13(4) stipulates that executive decisions taken by officers are recorded in writing with:
- the decision
- its date
- the reasons for the decision
- any alternative options considered and rejected by the officer
- any declared conflicts of interest.
Here is information which parents of SEND children and young people would welcome with open arms but seldom receive. Unsurprisingly, there has been broad resistance in local government to Reg. 13(4) and its remit has been played down. But here's the reality of what happens:
SEND parents constantly receive this kind of message from their LA: "It's going to Panel next week, and they'll... y'know... have to look at all the evidence and decide what's the best option." Parents have no idea who is sitting on that panel or why. Alongside the LA officers and administration, panels are usually made up of Ed Psychs and advisory teachers, local SENCOs or Heads, sometimes Children's Services and occasionally a Paediatrician. In my experience, there's a confusion between whether these people are there because they're experts or because they have local responsibility. They might say both. I always find there's an awkward moment at the start of panel meetings when introductions glaze over this distinction. I have never heard such expertise or responsibilities clearly defined, other than by people's professional qualifications. It is sometimes suggested that the presence of school representatives on SEND panels gives the local Schools Forum the necessary assurance of 'fair play'. While the role of the Schools Forum in each LA is regulated by Statutory Instrument 2012/2261, this makes no reference to SEND panels.
Instead, here's how I think Reg. 13(4) might and ought to be applied to decisions about children and young people with SEND:
- Parents should be invited to a discussion of the decision which the LA has to make - before it's made - chaired by the officer who will sign off on that decision, because the buck stops with her or him.
- Parents should have sufficient notice of the discussion to prepare questions and to review any evidence on which the LA intends to base its decision.
- Parents should receive an Equality Impact Assessment prepared by the LA in advance of the discussion, to satisfy Reg. 13(4) with regard to conflicts of interest.
- Parents should be able to insist on specific points of their own being included in the record as alternative views if the LA does not accept them, as per Reg. 13(4).
Doubtless, readers will have their own suggestions. At some point, I hope to have this discussion with the Local Government Association. But you can join the discussion on Twitter using the tag #SENDBehindClosedDoors
In my next post, I will defend Local Authorities' use of criteria. Really.
* Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000
** Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012