ED13

Consultation on the Proposed Education (Wales) Measure

The National Deaf Children’s Society Cymru

4 Cathedral Road, Cardiff CF11 9LJ
Tel: 029 20373474
Text: 029 20379800
Email: c

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Introduction

The National Deaf Children’s Society (NDCS) is the national charity dedicated to creating a world without barriers for deaf children and young people. We represent the interests and campaign for the rights of all deaf children and young people from birth until they reach independence. NDCS supports the deaf child through the family as well as directly supporting deaf children and young people themselves. NDCS has a team of legal case workers, who represent and assist families in taking their cases to Tribunal.

This response has been endorsed by RNID Cymru.

Consultation on Proposed Education (Wales) Measure

1. Is there a need for legislation to be made to allow children the right to make appeals and claims to the Special Educational Needs Tribunal for Wales and if so why?

NDCS Cymru welcomes WAG’s move to allow children the right to make appeals and claims to the Special Educational Needs Tribunal for Wales (SENTW). We believe that the right of appeal is that of the child, and has historically been held by parents as proxy for their children. NDCS Cymru believes that children’s rights have generally evolved to the stage where children themselves must be recognised as rights-bearers - as the UN CRC and UN CRDP require - and should be enabled to exercise those rights.

NDCS Cymru believes that children should be supported and encouraged rather than either held-back or inappropriately pushed forward. We also believe that the child should be seen within the context of the family as a whole and that as in any aspect of society, the rights of different individuals and their impact upon others, must be balanced and respected. NDCS believes that the time has come to respect the rights of children and young people by giving them the right to appeal and enabling them to exercise that right.

: In referring to deaf children, NDCS Cymru includes children with profound, severe, moderate and mild hearing loss, as well as children with unilateral hearing loss, or a temporary hearing loss such as glue ear.

2. Are the sections of the proposed Measure appropriate in terms of reforming legislation relating to Special Educational Needs appeals? If not, how does the proposed Measure need to change?

a.) local authorities must inform children of their right to appeal

NDCS Cymru welcomes this aspect of the Measure and would urge that children are informed in a simple, child-friendly approach, as requested in the original proposal from the Children’s Commissioner on 25 November 2005. It is also essential that such information is able to meet different communication needs. For example, services and information should be accessible for sign language users.

NDCS Cymru notes that Local Authorities will now have a duty to write to children to inform them of their right to appeal in addition to writing to the parent. NDCS Cymru assumes that the letter addressed to the child will be made accessible and easy to understand for the child. NDCS Cymru suggests that Local Authorities develop materials which children will find accessible. We recommend that they actively involve organisations such as NDCS who work with and on behalf of children and young people.

NDCS Cymru would also suggest that efforts are made to promote children’s legal rights by working with the specialist support that the child already receives. For example, educational psychologists, speech and language therapy and the common assessment framework. We suggest that WAG ensures that awareness of the right to appeal is built into the practices and reviews which already take place, with specialist trained staff who understand the child’s individual needs.

b.) local authorities must make arrangements for partnership and disagreement resolution services and inform children of their right to access them (Sections 5 and 12)

NDCS Cymru agrees that these arrangements need to be in place. However, efforts must be made to ensure that these services are child-friendly and able to meet differing communication needs. NDCS Cymru would urge WAG to ensure that services are accessible in BSL and Sign Supported English (SSE), and that advocacy staff are trained in deaf awareness.

In order to make a system of independent advocates feasible, the Government must ensure that they are accessible to children with SEN. As such, services must have complete geographic coverage as well as accessibility via telephone, text phone, SMS and internet portals. This is particularly important both for children who may have difficulty communicating directly or in writing and due to geography of Wales where a child may be many miles from the nearest city or town.

NDCS Cymru believes that it is essential that all advocates receive a very good standard of training - including continuing development - and are properly resourced.

The advocates need to understand how to communicate well with children, as well as have an awareness of disability equality and a thorough understanding of the educational law system. NDCS Cymru would like to seek assurance that WAG will consult on the minimum standards for partnership and disagreement resolution services.

c.) local authorities must provide access to independent advocacy services for children. Advocates will be expected to be able to assist children in resolution processes, appeal/claim case preparation and support or represent them at hearings.

NDCS Cymru would like to highlight the difficulty in the advocate fulfilling both advocacy and representative roles. Representatives have to balance all of the evidence in putting forward a case. With an adult it is usually possible to outline the role of the representative and explain the aspects of evidence that will make a strong case. By having a separate representative and advocate, the advocate could explain to the child that their views are being taken onboard while the representative focuses on the best way to present the case.

In addition, NDCS Cymru would like to point out that advocates and representatives require specific skill sets. Advocates will need to be able to work well with children and draw out their opinions, whereas representatives will need to have the specific skills required in order to articulate a case at Tribunal. Although possible, it may be difficult to recruit personnel who possess both of these essential skill sets. Therefore, NDCS Cymru would question whether it will always be appropriate for the same person to perform both advocacy and representative roles.

NDCS Cymru would also like to seek assurance from WAG that advocates will have training in supporting children with SEN and experience of doing so in relation to a child’s interactions with public services and authority. Advocates should have the child’s best interests as the paramount consideration and be able to act as a sympathetic, yet critical friend to the child, providing a range of support - including emotional support - yet also providing realistic advice.

NDCS Cymru believes that advocates should have a good working knowledge of educational law and the appeals process, but to clearly understand that their role is not to advice and represent if an educational law representative has been instructed. Above all, the advocate must have training and experience in communicating and working with children with a wide variety of special educational needs, and the clear understanding that the best interests of the child are paramount and that the child is a person in his/her own right. The advocate is there to assist and enable - not to make decisions for the child.

NDCS Cymru would urge WAG to ensure that advocacy arrangements are regarded as independent from the local authority itself.

d.) the current regulation making powers to in relation to the Tribunal’s disability discrimination procedures should be transferred from the Secretary of State for Justice to Welsh Ministers; and

e.) the responsibility for considering complaints about non-implementation of Disability Discrimination Orders should be transferred from the secretary of State for Justice to Welsh Ministers

Agree.

NDCS Cymru also notes that in SENTW’s response to this consultation, the following concern is highlighted:

"In situations where decisions are not however implemented the Tribunal does not have any powers of enforcement. Concerns about non implementation are currently dealt with outside of the Tribunal. Welsh Ministers have a power to direct the local authority to implement an order. There is currently no internal formal mechanism for dealing with such issues and the lack of enforcement powers for the Tribunal means that in instances where the Tribunal’s orders are not implemented, resolution is sometimes unlawfully and unduly prolonged. This is very unsatisfactory for all concerned. The Tribunal considers that enforcement powers, which may be made within the Measure or appropriate Regulations, would resolve this problem and improve and strengthen existing provision.”

NDCS Cymru would support SENTW’s wish to have enforcement powers.

f.) There should be an initial pilot and evaluation phase in some local authority areas before the legislation is implemented throughout Wales.

NDCS Cymru supports WAG’s proposal to hold a pilot and evaluation phase. NDCS Cymru would hope that the initial pilot will consider the best ways to ensure that services are child friendly and that they are able to meet differing communication needs and disability requirements. NDCS Cymru would also wish for a consultation to be held following the pilot, prior to implementing the legislation throughout Wales.

3. How will the proposed Measure change what organisations do currently and what impact will such changes have, if any?

At present the NDCS legal casework team respects and values families as a whole, but works very closely with parents/carers, because they have taken the right to appeal forward. Under the proposed Measure, legal caseworkers would need to establish a policy for working with child-led cases. It may be useful for WAG to offer guidance to voluntary organisations on working with children who wish to take their cases forward. For example, would it be necessary to seek the child’s consent before disclosing information about their case to the child’s parent/carer?

4. What are the potential barriers to implementing the provisions of the proposedMeasure (if any) and does the proposed Measure take account of them?

NDCS Cymru believes that the family is essential to a child’s development. As such, we urge WAG to consider how the system will manage family relations in cases where the child has taken a case forward without their parent/carers full support. NDCS Cymru also recommends that the children’s advocacy provision should be independent from the advice and support offered to the parent, to prevent a conflict of interest. We also suggest that WAG considers using peer-support networks to assist children with SEN to deal with the process of an appeal and its aftermath, and strategies established to aid family cohesion.

NDCS Cymru would wish to ensure that staff involved with children’s advocacy and representation will be trained in disability awareness and also have a thorough understanding of learning disabilities. Services need to be accessible to all children and cater to these needs. For example, in the case of some deaf children who use BSL as their first language, a system will need to be in place to ensure that these services are accessible. Indeed BSL is a language in its own right and some BSL users may well have difficulties in following written English or understanding some concepts rooted in written English.

Many children may not feel confident approaching advocacy services, speaking out against their teachers/schools and taking their cases forward. Careful consideration needs to be given to not only raising awareness of a child’s rights, but also empowering children to act when they are dissatisfied. It should also be noted that children and young people may struggle to see themselves as having an independent voice separate from that of their parents. This sense of dependency may be heightened in the case of some deaf children who are often heavily reliant on their parents as their communicators.

5. What are the financial implications of the proposed Measure for organisations, if any? In answering this question you may wish to consider Section 2 of the Explanatory Memorandum (the Regulatory Impact Assessment), which estimates the costs and benefits of implementation of the proposed Measure.

NDCS Cymru considers that training the new advocates and existing LEA and support staff will be key to the success of the implementation of the proposed Measure. Prior to the roll out of the scheme, NDCS Cymru would urge WAG to ensure that there are sufficient funds to fulfil this role thoroughly. NDCS Cymru would also call on WAG to consider how the cost of a sign language interpreter

will be funded if a child should require this service.

NDCS Cymru assumes that the advocacy and representative services will be free for children.

6. What are your views on powers in section 18 for Welsh Ministers to amend existing, primary legislation, by secondary legislation (by order) such as Education Act 1996 and Disability Discrimination Act 1995?

NDCS Cymru notes that Welsh Ministers are bound to observe the report published under section 17(5) when amending such legislation. However, given the significance of such legislation, NDCS Cymru strongly urges that Welsh Ministers are also bound to publicly consult on proposed changes and pays regard to the responses prior to implementing any amendment.

7. Are there any other comments you wish to make about specific sections of the proposed Measure?

At present, families can only take their SEN case to Tribunal for the following reasons:

• refusal to provide a statutory assessment

• refusal to reassess a statement

• refusal to provide a statement following an assessment

• disagreement with content of the statement

• failure of LA to name a school in a statement

• disagreement with name of school where the parent wants another maintained

• mainstream school

• decision to cease to maintain a statement

NDCS Cymru would urge WAG to consider the fact that child/parent/carer who has not requested or received a statutory assessment (i.e. a child who is on school action) cannot lodge an appeal. NDCS Cymru believes that there should be a clear pathway for individuals to take their case forward (albeit to a different pathway from SENTW) regardless of whether a statement/statutory assessment has been produced/requested. NDCS Cymru assumes that the proposed review of Tribunal regulations will coincide with the WAG revision of the Statementing system and any changes that are made as a result of this.

NDCS Cymru is aware that many parents are cautious of losing the right to appeal to tribunal under a revised Statementing system and we would therefore urge WAG to consider whether children under both the proposed "most complex” and "less complex” models should be allowed to take their cases to Tribunal. NDCS Cymru would like to seek assurance that WAG will consult on this review.

NDCS Cymru would also like to make the following points:

• NDCS Cymru would like to seek assurance from WAG that the child advocacy and partnership and disagreement resolution services will be independent of the advice and support offered to the parent in order to avoid any conflict of interest.

• NDCS Cymru believes it is important that advocacy and partnership and disagreement resolution services do not have any perceived pressure from the funding LEA.

• NDCS Cymru believes that efforts need to ensure that the Tribunal hearings, as well as the advocacy and partnership and disagreement resolution services, are "child friendly” and accessible to differing communication needs.

• NDCS Cymru would urge WAG to ensure that all staff for advocacy and partnership and disagreement resolution services are trained in disability equality.

• NDCS Cymru would hope that children will be able to change their case friend/representative if they are dissatisfied.

• NDCS Cymru considers that there are four groups that will need to be trained and informed on this new legal right. These groups are; children and young people, parents, advocates, professionals.

• NDCS Cymru would like to seek more information on the proposed "case friends”. For example, would there be a need for "case friends” to be given parental approval.

• NDCS Cymru would wish to be consulted on the following: Tribunal regulations, regulations outlining those who are not able to make representations, a consultation prior to the Wales-wide implementation of the new system, the partial revision of the SEN Code of Practice.

• NDCS Cymru notes the intention to replace Key Stage One with the Foundation Phase throughout Wales by 2011. NDCS Cymru would urge WAG to ensure that the curriculum is accessible to deaf pupils before this roll out is fully implemented.

Summary

• NDCS Cymru welcomes this move to provide children with the right to appeal to SENTW.

• NDCS Cymru welcomes the introduction of a pilot scheme and would wish to be consulted prior to full implementation of this system.

• NDCS Cymru would urge WAG to ensure that Local Authorities adopt a "child-friendly” approach to informing children of their right to appeal.

• NDCS Cymru would urge WAG to ensure that information and services are accessible to all children and able to meet differing communication needs, including BSL and SSE (Sign Supported English) users.

• NDCS Cymru would urge WAG to ensure that all advocates are trained in disability awareness and have the necessary educational law training.

• NDCS Cymru would wish to highlight the difficulty in one professional performing both the advocate and representative roles.

• NDCS Cymru recommends that child advocacy services are made geographically accessible as well as accessible via telephone, text phone, internet portals and SMS.

• NDCS Cymru also recommends that child’s advocacy should be independent from the advice and support offered to the parent.

• NDCS Cymru recommends that children are offered support following the Tribunal.

• NDCS Cymru urges WAG to consider how the system will manage family relations in cases where the child has taken a case forward without their parent/carers full support.

• NDCS Cymru recommends that Welsh Ministers are bound to publically consulting on any proposed amendments under section 18 of the Measure, prior to implementation.

• NDCS Cymru believes that there should be a clear pathway for individuals to take their case forward (albeit to a different pathway from SENTW) regardless of whether a statement/statutory assessment has been produced/requested.

• NDCS Cymru would wish to be consulted on the draft of the revised Tribunal regulations. We would also wish to be consulted prior to the Wales-wide implementation of the new system, and on the partial revision of the SEN Code of Practice.

• It may be useful for WAG to offer guidance to voluntary organisations on working with children who wish to take their cases forward.