Autonomy, Rights and Children with Special Educational Needs: Understanding Capacity across Contexts [1st ed.] 9783030558246, 9783030558253

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Autonomy, Rights and Children with Special Educational Needs Understanding Capacity across Contexts Sheila Riddell

Autonomy, Rights and Children with Special Educational Needs

Sheila Riddell

Autonomy, Rights and Children with Special Educational Needs Understanding Capacity across Contexts

Sheila Riddell Moray House School of Education University of Edinburgh Edinburgh, UK

ISBN 978-3-030-55824-6    ISBN 978-3-030-55825-3 (eBook) https://doi.org/10.1007/978-3-030-55825-3 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgements

This book is based on findings from an ESRC-funded research project entitled Autonomy, Rights and Children with Special Needs: A New Paradigm? (Ref. ES/P002641/1). This project was conducted by researchers at the Universities of Edinburgh and Manchester between 2017 and 2019, under the joint directorship of Professor Neville Harris and myself. I am very grateful to the ESRC for their support of this work. I would like to express my deep gratitude to Neville Harris, Emeritus Professor of Law in the Department of Law, University of Manchester, who provided endless insights into the intricacies of the legal framework surrounding children’s rights across the UK. Thanks are also due to Dr James MacAllister, Edinburgh University, who worked as Co-Investigator throughout the project and Dr Amanda Gillooly, University of Glasgow, who worked on the later stages of the project and produced the figures and tables which feature in Chap. 4. Dr Gail Davidge, University of Manchester, undertook the bulk of the fieldwork in England, forging strong relationships with students, parents and teachers. Thanks are also due to Dr Duncan Carmichael and Dr Lucy Dix, who contributed to the early development of the work.

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Major thanks are due to Dr Grace Kong, who provided technical support throughout the project and formatted this book through its various iterations. Finally, this book is dedicated to my granddaughters, Sylvie and Cora Jessop, who are already knowledgeable experts on children’s human rights—as well as being fairly tough negotiators.

Contents

1 Children’s Independent Rights in Education: Setting the Scene  1 2 Research Methods 15 3 Special and Additional Support Needs Policy and the Rights of Children and Young People 31 4 Children’s Rights, Categorisation and Disproportionality 49 5 Translating Grand Designs into Grassroots Policy and Practice 73 6 Children and Young People’s Participation Rights in Schools and Classrooms 95 7 Participation by Children and Young People in Representative Bodies113 8 Children and Young People’s Involvement in Formal Educational Planning133 vii

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9 School Choice and the Rights of Children, Young People and Their Families161 10 Participation in Dispute Resolution by Children, Young People and Their Families189 11 Conclusion215 Appendix A: Glossary and Explanation of Key Terms229 Appendix B: Profiles of Children and Young People233 Index247

List of Figures

Fig. 4.1

Fig. 4.2

Fig. 4.3

Fig. 4.4

Fig. 4.5

Children with SEN/ASN as a percentage of the total school population in England and Scotland (Source: Department for Education. Special educational needs in England: January 2019. National Tables: Table 1; Scottish Government, Pupil Census 2019, Table 1.6.) Percentage of whole school population with a statutory support plan in England and Scotland (Source: Department for Education. Special educational needs in England: January 2019. National Tables: Table 1; Scottish Government, Pupil Census 2019, Table 1.7.) ASN pupils by type of need, Scotland, 2019 (rate per thousand pupils) (Source: Scottish Government, Pupil Census 2019, Table 1.8. Note: Entries per category are not discrete; a child may be recorded in multiple categories) SEN pupils by type of need, England, 2019 (rate per thousand pupils) (Source: Department for Education. Special educational needs in England: January 2019. National Tables: Table 8. Note: The DfE records primary need only) Percentage of pupils with SEN/ASN by gender in England and Scotland, 2019 (Source: Department for Education. Special educational needs in England: January 2019. National Tables: Table 3.)

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List of Figures

Fig. 4.6 Fig. 4.7 Fig. 4.8

Fig. 4.9

Fig. 4.10

Fig. 4.11 Fig. 4.12 Fig. 4.13 Fig. 4.14 Fig. 4.15

Fig. 4.16

Pupils with SEN by type of need and gender, England 2019 (Source: Department for Education. Special educational needs in England: January 2019. Additional Tables: Table A) 59 ASN identification by type of need and gender, Scotland 2019 (Source: Scottish Government, Pupil Census 2019, Table 1.8)60 Percentage of pupils within each ethnic group identified with SEN in England, 2019 (Source: Department for Education. Special educational needs in England: January 2019. National Tables: Table 6) 61 Percentage of pupils within each ethnic group identified with ASN including English as an Additional Language in Scotland, 2019 (Source: Scottish Government. Pupil Census 2019: special request data.) 62 Percentage of pupils within each ethnic group identified with ASN excluding English as an Additional Language in Scotland, 2019 (Source: Scottish Government. Pupil Census 2019: special request data.) 63 Pupils with ASN by SIMD decile, 2019 (Source: Scottish Government, Pupil Census 2019, Table 1.16) 64 Percentage of ASN pupils per category of need in the most and least deprived areas, 2019 (Source: Scottish Government. Pupil Census 2019: special request data.) 65 Percentage of ASN pupils with a CSP per SIMD decile, 2019 (Source: Scottish Government, Pupil Census 2019, Table 1.16) 66 Percentage of children with a CSP by type of difficulty, 2019 (Source: Scottish Government, Pupil Census 2019: special request data) 67 Registered appeals in England 2018–2019 (type of appeal by percentage of total) (Source: Ministry of Justice. Tribunals and Gender Recognition Statistics Quarterly, July to September 2019. SEND tribunal tables 2018–2019) 68 Registered appeals in Scotland 2018–2019, (type of appeal by percentage of total) (Source: Tribunal Additional Support Needs Forum, 8 May 2019: 13th Annual Report 2018) 69

List of Tables

Table 2.1 Table 2.2 Table 2.3 Table 2.4 Table 3.1

Scottish Key Informants English Key Informants Scottish local authority socio-economic and education profiles English local authority socio-economic and education profiles Summary of new rights accorded to children (C) and young people (YP) with special educational needs in England (post Children and Families Act 2014) Table 3.2 Summary of new rights accorded to children aged 12–15 (C) and young people (YP) with additional support needs in Scotland (post Education (Scotland) Act 2016)

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1 Children’s Independent Rights in Education: Setting the Scene

Introduction Traditionally, little attention has been paid to the independent educational rights of children and young people, with parental rights being seen as paramount. Recently, however, the focus has shifted, with children’s rights moving to centre stage. Policy and legislative changes have been driven in part by international treaties such as the United Nations Convention on the Rights of the Child (UNCRC), which was ratified by the UK in 1991, and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), ratified in 2009. Children and young people are no longer seen as passive recipients of education, but as central to decision-making processes. In both England and Scotland, those with special and additional support needs have been prioritised and now enjoy enhanced and legally enforceable rights under the terms of the Children and Families Act 2014 and the Education (Scotland) Act 2016. The new legislation is of major significance because of the size of the population currently identified as having special educational needs (SEN) and additional support needs (ASN). Data from the Department for Education for 2019 show that in England, 15% of the school population © The Author(s) 2020 S. Riddell, Autonomy, Rights and Children with Special Educational Needs, https://doi.org/10.1007/978-3-030-55825-3_1

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was identified as having SEN, while Scottish Government data for the same year show that 31% of children were identified as having ASN (see Chap. 4 for further discussion). The central question considered in this book is whether these changes indicate a great leap forward in terms of realising children’s rights in practice, or whether they are merely cosmetic and aspirational. Additional issues arise in relation to accessing the views of children and young people with little or no speech, and those lacking information and advocacy. Furthermore, given that parents have traditionally taken on the role of principal advocate for their child, questions arise about the relationship between the wishes of the child and those of their parent, particularly where these may be at variance with each other. Finally, prioritising the wishes of children and young people throws into question the role of local authority officers and school staff, given their responsibility to ensure fairness in resource distribution. This chapter begins with an overview of recent thinking about children’s rights in education, including the upsides and downsides of the focus on children as autonomous rights bearers. This is followed by a brief overview of the legislation and of the empirical work informing the later chapters and finally, a summary of each chapter is provided.

Children’s Autonomy: Possibilities and Pitfalls As reflected in the English SEN and Scottish ASN Codes of Practice, most education experts assume that taking account of children’s wishes and views will lead to better decision-making. However, the idea of children’s autonomy as the over-riding principle is contested in areas such as medical and family law (Freeman 2007; Taylor 2005; Rutter 1989). In the following sections, I provide a brief overview of current debates around the primacy of autonomy in legal and administrative decision-­ making concerning children and young people. At the heart of the discussion is the extent to which children should be allowed to make independent decisions and whether, in deciding whether to act on children’s preferred course of action, account should be taken of any potentially negative consequences on their future life chances. Onora O’Neill (1988), for example, has argued that although children

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should be seen as rights-bearers, their vulnerability and need of protection makes them inherently different from adults. Whereas adults with capacity are expected to make choices and accept the consequences, O’Neill suggests that children may be unable to understand the future implications of choices made at an early stage in their lives, and therefore adults must always mediate children’s expressed wishes with a view to determining what is in their best interests. In addition, children generally lack the power to use formal mechanisms to enforce their rights, and as a result, they should not be expected to act as fully autonomous rights-­ holders. O’Neill does not seek to undermine the importance of children’s rights: We may begin with a reminder of the appeal and importance of thinking in terms of children’s rights. Children easily become victims. If they had rights, redress would be possible. Rather than being powerless in the face of neglect, abuse, molestation and mere ignorance they (like other oppressed groups) would have legitimate and (in principle) enforceable claims against others. (O’Neill 1988, p. 445)

At the same time as arguing for the importance of children’s rights, O’Neill urges pragmatism in recognising the limitations of children’s autonomous decision-making, since, in her view, adults have a duty to ensure that children avoid making life-limiting choices. In addition, responsibility for the institutions and services supporting children lies with adults, not children themselves. These arguments are broadly in line with Article 12 of the UNCRC, which suggests that the rights enjoyed by children should gradually increase in relation to their age and maturity. Rather than arguing that all children of a particular age should have exactly the same rights, the UNCRC reflects the view that rights should increase in line with the individual child’s growing maturity and ‘evolving capacities’ (Lansdown 2005). Post-Gillick1 case law in the UK confirms the principle that deci The Gillick case arose as a result of a health department circular which stated that a doctor could prescribe contraception to a minor without parental consent. In 1985, Victoria Gillick mounted a legal challenge against West Norfolk and Wisbech Area Health Authority on the grounds that parents retained the right to determine what was in the best interests of a child under the age of 16. 1

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sions on a child’s capacity hinge on an assessment of his or her maturity and understanding. However, as noted by Archard (2004, 2015), there is an unfair asymmetry in the treatment of children and adults. All adults, other than those who are deemed incapable, are permitted to exercise autonomous choices irrespective of whether these are objectively wise or not. By way of contrast, children are required to demonstrate capacity in order to have their views taken into account, and in some areas (for example, voting) are judged as a group to be ineligible. By virtue of their age, adults are always in a position to make judgements about whether children’s views are in accordance with their ‘best interests’, even if the adult’s beliefs and judgements may objectively be against a child’s interests. With reference to legal decision-making in health in the UK and child protection in Norway, Archard and Skivenes (2009) argue that the child’s views are not authoritative, but neither should they be treated as merely consultative, as suggested by Brighouse (2003). Criticising these types of approaches on grounds of paternalism, those adopting a children’s liberation perspective, such as Farson (1974), maintain that children should be regarded as fully autonomous rights holders with a similar status to adults. Along similar lines, Holt argues that: The rights, privileges, duties, responsibilities of adult citizens [should] be made available to any young person of whatever age who wants to make use of them. (Holt 1974, p. 15)

At the other end of the spectrum, some writers have questioned the utility of autonomy as an over-arching principle in education, law and medical ethics. In the context of medical rights, Foster (2009) has described autonomy as a ‘tyranny’, which, if applied in an uncritical manner, has the potential to work against service users’ best interests. He suggests that ‘… autonomy flounders when it comes to the question of the treatment of and withdrawal of treatment from children’ (Foster 2009, p. 121). In the use of the best interests test, Foster argues that the law is ‘appropriately paternalistic’. He explains: Lord Scarman determined that ‘As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed’.

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The child’s view of where its best interests lie should of course be ascertained, and the older the child is, the greater the weight they will have, but best interests, say the courts, are an objective matter: the child’s views are pertinent but certainly not determinative. (Foster 2009, p. 123)

Eekelaar (1986) also discusses the tensions between different orders of rights owed to children. He notes that within the broad legal framework, children have basic, development and autonomy rights. Basic rights pertain to ‘general physical, emotional and intellectual care within the social capabilities of his or her immediate caregivers.’ These are linked to the child’s development rights, associated with access to resources in order to maximise future life chances. Duties associated with basic and development rights are held by parents and the state, with the state having powers to assume the role of corporate parent if birth parents fail in their responsibility to ensure that children are adequately cared for and educated. Autonomy rights are understood as the freedom of the child ‘to choose his own lifestyle and to enter social relations according to his own inclinations uncontrolled by the authority of the adult world, whether parents or institutions’ (Eekelaar 1986, p. 171). The problem, however, is that the deployment of autonomy rights by children may rob them of the opportunity to mature into rationally autonomous adults. In Eekelaar’s view, the direction of travel in legal judgements is towards autonomy rights, so that: Children will now have, in wider measure than ever before, that most dangerous but precious of rights: the right to make their own mistakes. (Eekelaar 1986, p. 182)

An ongoing debate across many social policy fields concerns the age at which children and young people should acquire specific rights. The UNCRC suggests that rigid age limits should be avoided, and that decisions should be made based on an individual child’s degree of maturity and understanding. However, chronological age is still used in many areas. For example, in the UK young people normally have the right to vote at the age of 18, but in the Scottish referendum on independence in 2014, the voting age was reduced to 16. In the opposite direction, the age

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of criminal responsibility in Scotland was recently changed from 8 to 12. In other areas, subjective assessments of competence and capacity are used to decide which children can exercise their rights of participation. For example, in medical law, the concept of Gillick competence is used to decide whether a child under 16 years of age is able to consent to his or her own medical treatment, without the need for parental permission. Broadly, if a child is judged to have sufficient understanding and intelligence to fully comprehend the treatment which is proposed, then parental consent may not be required for particular procedures. At the same time, the court may overrule a child’s power to consent to or refuse medical treatment. Overall, it is clear that while there is broad agreement on the need to promote children’s rights in education and other social policy arenas, there is uncertainty about the extent to which autonomy should be the only or the over-riding principle. A major concern of this book is to explore the way in which autonomy rights are reflected in legislation and policy, and subsequently translated into school and classroom practices. Recent developments in children’s rights are placed in the wider context of approaches to educational decision-making and administrative justice in England and Scotland, where the discourse of rights has often been in tension with professional duties to safeguard children’s wellbeing and ensure equity in resource distribution.

Autonomy or Dependence: A False Dichotomy? The sociology of childhood, which emerged in the 1980s, tended to emphasise the separation between the worlds of adults and children, with each group having different and often conflicting interests. More recently, writers such as Oswell (2013) have argued that we need to develop more nuanced ideas about the inter-connections between the lives of adults and children. For example, playgrounds are conceived of and built by adults, but they are transformed by children who shape the physical and social space. ‘The capacities of children’, he argues, ‘are dependent on

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their locally situated interrelations with other children or with adults’ (Oswell 2013, p. 264). Debates about autonomy as opposed to dependency are fundamentally misplaced, since no one lives in a world detached from others. For disabled children, interconnections between children and adults may be particularly important. Ryan and Runswick-Cole (2008) note that the independent living movement has sought to promote disabled people’s autonomy and parents and carers have been seen as unhelpfully exerting control over the lives of their children. However, the danger of insisting on the autonomy of disabled children is that the ‘special competence’ of parents, who are often non-disabled, may be overlooked. In particular, the role of the activist mother may easily be denied, resulting in the side-lining of children’s most determined advocates: Mothers of disabled children have occupied a complex, contradictory and marginal position within both disability studies and the disabled people’s movement. This marginalisation is related to the (often) non-disabled status of the mothers which propels them into the difficult and contentious debates about the role of non-disabled people within the lives of disabled people and within disability studies. This tension is further complicated by the relationship between mothers and their children in which the actions of mothers have been interpreted as constraints within their children’s lives, limiting their opportunities and aspirations. (Ryan and Runswick-Cole 2008)

There is a significant body of literature, they suggest, which ‘interprets the experiences of parents of disabled children as either delusional or is couched in terms of grief, loss or denial (or self-interest)’ (Ryan and Runswick-Cole 2008). They also note that mothers, more than fathers, are the subjects of societal scrutiny and surveillance in relation to their parenting skills, and mothers are often blamed for producing a dysfunctional child. Alliances for change, they suggest, may develop when there is a better understanding of the inter-connectedness of the lives of adults and children, and disabled and non-disabled people, rather than consigning groups of people to separate spheres. Along similar lines, Shakespeare (2000) argues that there is a need to transform the social relations of care,

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so that instead of dividing the population into those who receive or give help, we recognise humanity’s interdependence. To summarise, central to the critique of autonomy is the recognition that the lives of children and adults are deeply intertwined and affected by wider structural inequalities including those based on disability, social class, gender, ethnicity, religion and age. The idea of the autonomous child, like the myth of the autonomous adult, may have dangerous consequences in terms of encouraging the view that individuals are responsible for any adversity they may encounter, rather than recognising the unequal distribution of risk in society. Ignoring the social, economic and cultural factors affecting families may reinforce rather than challenge social injustice. The idea of autonomy rights, taken to an extreme, has the potential to foster dystopic rather than benign societal outcomes. Despite objections to the reification of autonomy in the literature, there is also a recognition that more needs to be done to ensure that children are involved as central actors rather than bit-players in important decisions affecting their lives. As noted above, international treaties have been translated into domestic legislation in order to ensure that this happens. In the paragraphs below, I provide an over-view of the measures which have been put in place in England and Scotland to further the rights of children with SEN and ASN, outlining the rationale for comparing the two jurisdictions.

 xtensions of Children and Young People’s E Rights in Scotland and England The historical background to recent policy on the rights of children and young people with SEN/ASN are discussed further in Chap. 3. In both jurisdictions, international human rights treaties have recently come to the fore, and both the UK and Scottish Governments are broadly committed to ensuring that the principles of the UNCRC and the UNCRPD are reflected in domestic legislation. However, the rights-focused reforms are significantly different north and south of the border.

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The Education (Scotland) Act 2016, commenced in January 2018, made important changes to the 2004 Act in order to advance children and young people’s rights. As explained in the revised Code of Practice (Scottish Government 2017), children aged 12 or over with ASN who are judged to have capacity (‘sufficient maturity and understanding’) now have almost the same rights as those currently held by parents and young people (with the exceptions of requesting mediation and making a school placing request). A child aged 12 or over, with capacity, is able to make a reference to the Additional Support Needs Tribunal (ASN Tribunal2), provided the tribunal is satisfied that the child’s wellbeing would not be adversely affected. Disputes over questions of capacity and wellbeing have been brought within the ASN Tribunal’s jurisdiction.3 In England, there is also a new emphasis on the rights agenda, although young people aged 16–25, rather than children, appear to have been the main beneficiaries. Part 3 of the Children and Families Act 2014 seeks to promote a culture of engagement and ‘co-production’ so that children, young people and their families have a sense of control over local authority provision (Department for Education 2011). The central principles of the legislation summarised in the Code of Practice (Department for Education and Department of Health 2015) state that local authorities must have regard to: • The views, wishes and feelings of the child or young person, and the child’s parents; • The importance of the child or young person, and the child’s parents, participating as fully as possible in decisions, and being provided with the information and support necessary to enable participation in those decisions; • The need to support the child or young person, and the child’s parents, in order to facilitate the development of the child or young person and to help them achieve the best possible educational and other outcomes, preparing them effectively for adulthood.

 Now embedded in the Health and Education Chamber of the First-tier Tribunal for Scotland.  Via amendment of s.18(3).

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Local authorities are required to provide information, advice and support services, publish a local offer indicating various educational options for those with SEN, offer parents and young people a personal budget, and consult with parents and young people over local policy. Education, health and care needs have been linked more formally and systematically than in the past, in particular through Education, Health and Care Plans (EHCPs), which replaced Statements of SEN. While extending rights of appeal to young people, the Act also aims to make the process of resolving disagreements between families and local authorities over SEN matters less adversarial by promoting mediation as an alternative to an appeal to the Special Educational Needs and Disability Tribunal (SEND Tribunal).4 All of these measures are intended to enhance the rights of children and young people with SEN with a view to giving them ‘greater control … to make them authors of their own life stories’ (Department for Education 2012). On the face of it, the Scottish legislation appears to go much further than its English counterpart in recognising children’s autonomy. However, in Scotland the new rights may not be quite as far reaching as they initially appear since tests of capacity and impact on wellbeing are applied by the local authority before any right may be exercised. In England, there is also a threshold of capacity as determined by the Mental Capacity Act 2005, however, there is no specific requirement for the local authority to be involved in this assessment. Given these differences in the scale of the new rights accorded to children and young people in England and Scotland, a major focus of the book is to explore whether these national differences are evident on the ground. In engaging with the conceptual issues outlined above, the book draws on findings from an ESRC funded research project entitled Autonomy, Rights and Children with Special Needs: A New Paradigm?(Ref. ES/ P002641/1), which was conducted by researchers at the Universities of Edinburgh and Manchester between 2017 and 2019. The study used a mixed-methods approach to examine the implementation of the new legislation in English and Scottish schools and classrooms in order to investigate:  Now embedded in the Health, Education and Social Care Chamber of the First-tier Tribunal.

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• The extent to which children (defined here as those of aged under 16) and young people (those aged 16–24 inclusive) with SEN/ASN are able to realise their participation rights effectively • The degree to which the autonomy rights of children and young people intersect with those of parents/carers and are driven by, or influence, the decision-making of schools and local authorities • The way in which capacity for autonomous decision-making is understood and acted upon in different social contexts • The factors which promote or inhibit the realisation of autonomy rights by children and young people with SEN/ASN, including those who are looked after by the local authority • The impact of a children’s rights-based approach on the broader education and social policy landscape

Structure of the Book Throughout the book, children’s rights and social justice provide the central analytical focus. Having outlined the background to the study in Chaps. 1 and 2 explains the nature of the research methods and the type of data used. Chapter 3 then traces the historical development of approaches to protecting the rights of children, young people and their parents in England and Scotland, drawing out some important differences between the jurisdictions. This is followed, in Chap. 4, by a review of administrative data, focusing on which groups of children and young people are identified as having special and additional support needs, which children receive a statutory support plan and which groups use formal dispute resolution mechanisms. Patterns emerging from the data are analysed by key social variables including type of difficulty, gender, ethnicity and social deprivation. Informed by the analysis of official statistics, Chap. 5 draws on key informant interviews to analyse, at mesolevel, the way in which the grand designs of policy and legislation are understood and enacted by central actors including local authority officers, educational psychologists, children’s rights officers and those responsible for information, advice and dispute resolution procedures.

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Subsequent chapters use in-depth case studies of children, young people and their families to explore the implementation of policy and practice at grass roots level. Chapter 6 looks at the nature of children and young people’s participation in everyday decision-making in schools and classrooms, while Chap. 7 investigates their engagement in school and local authority representative bodies, questioning the extent to which the envisaged co-production of policy and practice is actually taking place. The participation of children, young people and their parents in educational planning processes, including decisions around statutory support plans, is the subject of Chap. 8. In Chaps. 9 and 10, the focus shifts to children, young people’s and parents’ involvement in major education decisions, including school choice and dispute resolution. Finally, Chap. 11 draws together the central themes of the book, returning to the central question of whether the new legislation on the rights of children with special and additional support needs may be regarded as a great leap forward, a reinforcement of existing practice, or a dangerous move at a time of economic retrenchment to shift responsibility for service provision from the state to children, young people and their parents.

References Archard, D. (2004). Children, rights and childhood. London: Routledge. Archard, D. (2015). Children, adults, autonomy and well-being. In A. Baggatini & C. Macleod (Eds.), The nature of children’s well-being: Theory and practice (pp. 3–14). Dordrecht: Springer. Archard, D., & Skivenes, M. (2009). Balancing a child’s best interests and a child’s views. International Journal of Children’s Rights, 17(1), 1–21. Brighouse, H. (2003). How should children be heard? Arizona Law Review, 45(3), 691–711. Department for Education (DfE). (2011). Support and aspiration: A new approach to special educational needs and disability (Cm 8027). London: DfE. Department for Education (DfE). (2012). Support and aspiration: A new approach to special educational needs and disability: Progress and next steps. London: DfE.

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Department for Education, & Department of Health (DfE & DoH). (2015). Special educational needs and disability code of practice: 0–25 years. London: DfE&DoH. Eekelaar, J. (1986). Emergence of children’s rights. Oxford Journal of Legal Studies, 6(2), 161–182. Farson, R. (1974). Birthrights. London: Macmillan. Foster, C. (2009). Choosing life, choosing death: The tyranny of autonomy in medical law and ethics. Oxford: Hart Publishing. Freeman, M. (2007). A commentary on the United Nations Convention on the Rights of the Child Article 3: The best interests of the child. Leiden: Martinus Nijhoff. Holt, J. (1974). Escape from childhood: The needs and rights of children. New York: E.P. Dutton & Co.. Lansdown, G. (2005). The evolving capacities of the child. Florence: UNICEF. O’Neill, O. (1988). Children’s rights and children’s lives. Ethics, 98(3), 445–463. Oswell, D. (2013). The agency of children: From family to global human rights. Cambridge: Cambridge University Press. Rutter, M. (1989). Pathways from childhood to adult life. Journal of Child Psychology and Psychiatry, 30(1), 23–51. Ryan, S., & Runswick-Cole, K. (2008). Repositioning mothers: Mothers, disabled children and disability studies. Disability & Society, 32(3), 199–210. Scottish Government. (2017). Supporting children’s learning: Statutory guidance on the Education (Additional Support For Learning) Scotland Act 2004 (as amended). Edinburgh: Scottish Government. Shakespeare, T. (2000). Help. London: Verso. Taylor, J. (Ed.). (2005). Personal autonomy: New essays on personal autonomy and its role in contemporary moral philosophy. Cambridge: Cambridge University Press.

2 Research Methods

Introduction This book draws on empirical data gathered as part of an ESRC-funded project exploring the independent rights of children with special and additional support needs. The research used a mixed-­methods and crossborder comparative approach, which I discuss below before turning to a more detailed description of the specific elements of the research and their links to the central theoretical focus of the study.

 he Rationale for Adopting a Mixed-Methods T Approach As noted by Ritchie and Ormston (2014), the paradigm wars between quantitative and qualitative social researchers have largely abated, with general agreement that different methods may be usefully combined to provide depth and breadth of understanding of social phenomena. However, some methodologists, such as Creswell (2011), continue to argue that the epistemologies underpinning each approach are © The Author(s) 2020 S. Riddell, Autonomy, Rights and Children with Special Educational Needs, https://doi.org/10.1007/978-3-030-55825-3_2

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fundamentally incompatible. Ritchie and Ormston (2014) are broadly supportive of mixed-methods research but argue that there needs to be a clear rationale for adopting this approach. In this research, the quantitative methods (analysis of administrative data and local authority survey) were used to explore the associations between key social variables in relation to the identification of different types of difficulties, use of statutory support plans and rates of tribunal appeal. These data provide a sense of the over-arching influence of a range of social and economic factors shaping the material reality in which individuals live their lives. At the same time, the qualitative methods (key informant interviews and case studies of children, young people and their families) remind us that structural factors, though powerful, are not entirely deterministic and that individual actors are able to exercise a degree of freedom in constructing their biographies. For example, the administrative data show clearly that social deprivation and sex are strongly associated with the identification of certain types of difficulty—boys from socially disadvantaged backgrounds are much more likely to be identified with social, emotional and behavioural difficulties compared with other pupils. However, the case studies reveal that some children from less deprived backgrounds, for example, Claire and Aiden, may be categorised as having behavioural difficulties and, in their struggle for respect and recognition, may experience broadly similar struggles to those living with social disadvantage. In this way, the qualitative data constantly remind the reader that while broad patterns in human behaviour may be shaped by wider structural factors, there are always exceptions whose experiences must be taken into account in interpreting the bigger picture. While social research is about identifying broad patterns in experience and behaviour, the exceptional cases act as a reminder that individual lives are not determined by immutable universal laws and that neat moulds and models cannot capture the full complexity of social reality. An obvious danger in using mixed methods is that different types of data are analysed separately and never fully synthesised. In this study, the researchers began the process of data analysis by writing up a series of working papers providing a discrete account of each element of the research. The project final report (Riddell et al. 2019) was the first attempt at data synthesis and this book represents a further step in the process of

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triangulation and synthesis. In terms of timing, the survey and analysis of administrative data preceded the qualitative elements, and contributed to the case study sampling framework. Central themes emerging from the quantitative data were used to interrogate the qualitative data, helping the researchers to identify typical and atypical cases and make sense of apparently conflicting experiences. The chapters which follow deliberately draw on different types of data, for example, Chap. 10, addressing the rights of children and young people in dispute resolution, begins with an overview of local authority survey findings to remind the reader of the context in which families are seeking to resolve disagreements.

Opportunities and Challenges of Comparative Research A further central element of the research was to use the opportunities for policy learning provided by England and Scotland. The education systems of the two nations clearly have certain commonalities, but there are marked differences in their respective approaches to the promotion of children’s educational rights. Following administrative and political devolution in the UK from the 1990s onwards, a growing body of work has explored the nature and extent of policy convergence and/or divergence across different UK jurisdictions and policy areas (Greer 2009). In the field of special and additional support needs, this comparative work has included studies of educational decision-making (Riddell et  al. 2000) and of dispute resolution (Harris and Riddell 2011). Despite growing differences in education policy between Scotland and England, for example, academisation in England compared with comprehensive schooling in Scotland, there are also strong similarities, including the extent of inequalities in educational experiences and outcomes (Wyness  2013; National Equality Panel 2010). Within the field of SEN/ASN, there are both parallels and contrasts between the systems of the home nations (Beaton and Black-Hawkins 2014), but there is broad commonality in recent policy rhetoric in relation to the extension of children’s rights. This book explores the way in

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which these rights are realised within increasingly divergent school systems, drawing on sociological perspectives on the social construction of choice and the impact of individual choices on education systems (Vincent et al. 2013; Vincent and Ball 2006). Different educational governance regimes in England and Scotland therefore provide the backcloth for a natural experiment, allowing an exploration of the type of educational governance arrangements which are more or less conducive to the realisation of children’s rights in SEN/ASN. Despite the opportunities afforded by comparative studies of educational policy, there are also pitfalls. These pertain to different understandings of central concepts, reflected in the use of different terminology and categorisation systems. As argued in Chap. 3, SEN policy and practice in the post-Warnock era of the 1980s developed along broadly parallel lines. However, from the mid-1990s onwards, the promotion of parents as educational consumers advanced more quickly in England, reflected, for example, in the establishment of the SEN tribunal, a modified version of which was instituted in Scotland a decade later. As noted in the following section, fundamental definitions of special and additional support needs have diverged between the two nations, calling into question the reliability and validity of cross-country comparisons. This book reflects the view that, despite the undeniable differences in policy and practice, cross-­ border comparisons are still interesting and relevant, as long as the reader bears in mind the growing divergence across UK jurisdictions.

Definitions of Key Terms In order to illustrate the complexity of cross-border comparisons, I briefly review fundamental differences in definitions of SEN and ASN and categories of difficulty in England and Scotland. The Education (Additional Support for Learning) (Scotland) Act 2004 (amended in 2009 and 2016) includes the legal definition of ASN. In Scotland, a child is said to have ASN if they need more, or different support to that which is normally provided in schools or pre-schools to children of the same age. This broad definition includes difficulties associated with linguistic, social, physical or cognitive factors. Children with English as an additional language are

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counted as having ASN, and make up an increasingly large proportion of the ASN population. Since 2004, there has been an increase in the types of difficulty recognised, and 25 categories are now used. About 31% of children in Scottish schools are identified as having ASN, an eightfold increase in the proportion identified as having SEN prior to 2004. Under the additional support for learning legislation, local authorities have a duty to assess the requirements of any child needing extra help to benefit from education. Pupils with multiple, complex and ongoing needs requiring significant input from more than one external agency may be eligible for a Coordinated Support Plan (CSP), a statutory document prepared by the education authority summarising the nature of the child’s difficulties, measures proposed by the local authority to meet the child’s needs and the name of the proposed institution for the child’s education. Children who have additional support needs but who do not meet the criteria for a CSP may be provided with a different type of plan by the local authority, such as an Individualised Education Programme (IEP). An IEP is a written plan setting short-term and long-term targets which the child is expected to achieve. These plans are solely advisory and carry no legal status. An IEP should contain details of the child’s additional needs, learning objectives and information regarding resources and support. A pupil with a CSP and/or an IEP may also have a Child’s Plan, developed as part of the Scottish Government’s Getting it Right for Every Child (GIRFEC) programme, which focuses on child wellbeing. In addition, Scottish local authorities also use a range of local plans, including Multi-agency Support Plans, Education Support Plans, Behaviour Support Plans and Looked After Children Support Plans. As with IEPs, none of these plans has a standardised format or legal status. In England, the most recent special educational needs and disability (SEND) provisions are defined in the Children and Families Act 2014, introduced on 1 September 2014. From this date, newly assessed children with special educational needs are categorised as requiring within-­ school SEN support or an Education, Health and Care (EHC) Plan, encapsulating the support to be provided by a range of agencies. SEN support replaced the previous categories of School Action and School Action Plus and is defined as support provided to the child that is

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additional to the school’s usual curriculum. SEN support is advisory and is not legally binding. Under the terms of the 2014 legislation, Education, Health and Care Plans (EHCPs) replaced the previous Statement of Needs. EHCPs are documents which describe the child’s needs and additional help they require. By law, a formal assessment must be carried out by the local authority if the child has, or may have, special educational needs and if it may be necessary for provision to be made for that child in accordance with an EHCP. However, the local authority may decide to refuse an assessment request. If a decision is made to assess, the local authority is required to seek advice and information from a range of appropriate sources (e.g. the child and their parent, as well as obtaining educational, medical and psychological advice). Based on this advice, the local authority can decide to issue an EHCP or not. EHCPs are legally binding and subject to ongoing monitoring and assessment. In general, children with Statements issued prior to 2014 were moved on to EHCPs. As discussed in Chap. 4, these definitions have resulted in radically different rates of SEN/ASN identification, with roughly twice as many children in Scotland as in England being viewed as requiring extra support compared with normal educational provision. However, compared with Scotland, ten times as many children in England are given statutory support plans. These definitional differences must constantly be borne in mind when cross-county comparisons are made. In addition, the aim of this book is not to argue that one system is fundamentally better than the other, but rather to explore the implications of these differences in terms of the realisation of children’s rights.

Analysis of Administrative Data Scottish statistics discussed in Chap. 4 are derived from the annual school census conducted by the Scottish Government and the UK Department for Education, and cover the academic year 2018–2019. The broad aim of the analysis of administrative data was to explore the relationship between being identified as having SEN/ASN and a range of social variables, including type of difficulty, gender, ethnicity and social deprivation. As noted above, the complexity of cross-border comparisons are

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immediately evident in the analysis of official statistics reported in Chap. 4, for example, in the much longer list of categories used in Scotland (25) compared with England (12). As a result, separate figures are generally presented for the two jurisdictions, with the narrative drawing attention to the limits of the inferences which may be drawn.

Local Authority Surveys In order to obtain a broad overview of officers’ perceptions of recent legislative changes in SEN/ASN and their impact, an online survey was used with all local authorities in England and Scotland (152 in England and 32 in Scotland). An early version of the questionnaire was piloted with two local authority contacts in both jurisdictions. After revisions, an electronic link to the final version of the questionnaire was emailed to the named person with overall responsibility for ASN/SEN in the two jurisdictions. Two email reminders were sent out and the remaining non-­ responses were followed up by telephone calls. In England, 56 people responded (a 37% response rate) and in Scotland 18 responded (a 56% response rate). Survey findings are referred to at various points in the book, including Chap. 5 which focuses on policy development with regard to children’s rights, and Chap. 6, which deals with children’s participation rights in schools and classrooms.

Key Informant Interviews In order to understand the way in which children’s rights policies are understood and mediated by different social actors, interviews were conducted with key informants in Scotland and England (21 in both jurisdictions). Interviewees were from a range of professional backgrounds with experience in the field of SEN/ASN, including central government officers, teachers, educational psychologists, local authority managers, school governors, tribunal judiciary, an ombudsman, lawyers, voluntary sector representatives and parents. In terms of their roles, a slightly different range of individuals were interviewed in England and Scotland, as shown in Tables 2.1 and 2.2.

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Table 2.1  Scottish Key Informants Commissioner, Children and Young People’s Commission for Scotland Officer, Equality and Human Rights Commission Education law consultant President, First-tier Tribunal for Scotland, Health and Education Chamber Practitioner Royal College Speech and Language Therapists Consultant, Independent special schools Head teacher, Special Unit, Council 6 Head teacher, Independent Special School Director, Voluntary organisation: parents Officer, Voluntary organisation: children with learning disabilities Officer, Voluntary organisation: looked after children Manager, Mediation Service Manager, Advice and Information Service Principal Educational Psychologist, Council 1 Principal Educational Psychologist, Council 2 Principal Educational Psychologist, Council 3 Principal Educational Psychologist, Council 4 Principal Educational Psychologist, Council 5 Senior Officer, Scottish Government School Improvement Officer, Education Scotland Senior Inspector, Education Scotland Table 2.2  English Key Informants Local Authority Senior Officer Mediator Local Authority SEND Strategic Lead Local Authority Parent Engagement Officer Local Authority Service Manager Vulnerable Learners Local Authority SEND Development Manager Voluntary Sector, Independent Support Services Provider Further Education and Sixth Form College, Post-16 Head of SEND Voluntary Sector, Ambassador for Children with SEN Inclusion Manager Primary School Chair of Governors of Primary School Deputy President, First-tier Tribunal, Health Education and Social Care Chamber Barrister Voluntary Sector Organiser Parent 1 Parent 2 Primary School Special Educational Needs Coordinator (SENCO) Primary School Governor (SEN) DfE Policy Officer LA Principal Educational Psychologist Ofsted Adviser

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The semi-structured interviews, which lasted between 60 and 90 minutes, were generally conducted face to face, with a small number carried out by telephone. They were digitally recorded and transcribed, with attention being paid to capturing local accents. Children and young people were not interviewed as key informants, since their accounts were gathered in the case study phase of the research. The same broad ground was covered in all the interviews, but the precise framing of the questions varied in relation to the role of the interviewee. Questions covered the individual’s perceptions of recent policy and legislative developments in children’s rights, including the policy impetus behind the reforms; the likely impact on the realisation of participation rights in schools and classrooms; possible tensions between children’s and parents’ rights and local authority duties; children and young people’s involvement in judicial processes; issues around the assessment of capacity; and general views of children’s autonomy rights. Central findings from the local authority survey are used to contextualise the analysis of key informant interviews reported in Chap. 5.

Local Authority Overviews As a prelude to identifying case studies of children, young people and their families, six local authorities were selected, three in England and three in Scotland. The aim of this stage of the research was to understand the way in which local SEN/ASN policy impacted on the experiences and outcomes of children, young people and their families. In terms of demographics, the local authorities were selected to reflect socio-economic and geographical differences across the two jurisdictions, as well as varying in their approach to SEN/ASN identification, use of statutory support plans and rates of tribunal appeal. Further insights were obtained by examining their SEN/ASN policies and interviewing key personnel. In Scotland, Sea City and Eastshire emerged as the most advantaged with regard to employment rates, proportion of the workforce in higher level roles and educational attainment. Sea City also had the highest proportion of pupils identified as having ASN and the highest rates of tribunal appeals (Tables 2.3 and 2.4).

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Table 2.3  Scottish local authority socio-economic and education profiles Sea City Total population Type of LA Workforce Economically active In employment 1–3: Professional/managerial 4–5: Admin/skilled trade 6–7: Sales/service 8–9: Manual Education NVQ4 and above No qualifications School population with ASN School population with CSP Tribunal cases 2018 (rate/10,000 school population)

Coalshire

Scotland

513,000 104,100 Urban Accessible rural

Eastshire

371,400 Accessible rural

5,425,000 N/A

72.9% 76.6% 57.1% 16.3% 14.6% 12.1%

81.3% 78.6% 43% 21.9% 20.9% 14.2%

78.1% 75.8% 42.1% 17.6% 21% 19.4%

77.3% 73.9% 42.8% 21.2% 18.4% 17.7%

57.8% 3.2% 26.2% 0.26% 12

46.1% 6.3% 21.5% 0.26% 4

45% 7.3% 21.1% 0.35% 1

43.9% 8.7% 27% 0.3% 2.47

Sources: Office for National Statistics, Scottish Government, First-tier Tribunal for Scotland, Health and Education Chamber

In England, Greenshire had the highest rate of employment, but Bigtown had the highest level of educational attainment and at the same time the highest rates of SEN identification and tribunal appeals.

 ase Studies of Children and Young People C with SEN/ASN and Their Families Within each of the local authorities, six case studies of children and young people with SEN/ASN were conducted (36 in total). Case studies were selected to reflect differences in age, type of difficulty, sex and socio-­ economic background. In order to ensure that the case studies broadly reflected the characteristics of the wider SEN/ASN populations, case study pupils were selected in relation to the largest categories of SEN/ ASN (autistic spectrum disorder; social emotional and mental health

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Table 2.4  English local authority socio-economic and education profiles Bigtown Northshire

Great Greenshire Britain

545,500 1,201,900 Urban Urban/Rural/ Coastal

317,500 Urban/ Rural

64,169,400 N/A

Workforce Economically active In employment 1–3: Professional/managerial 4–5: Admin/skilled trade 6–7: Sales/service 8–9: Manual

72.9% 69.1% 44.1% 18.7% 18.3% 18.9%

79.6% 76.5% 40.2% 22.0% 21.0% 16.8%

81.0% 77.7% 41.8% 23.2% 16.4% 18.5%

78.4% 75.0% 45.9% 20.4% 16.7% 17.0%

Education NVQ4 and above No qualifications

39.9% 11.1%

33.2% 6.7%

31.9% 6.6%

38.6% 7.7%

15.9% 3.1%

12.9% 3.0%

14.5% 3.5%

England 14.6% 2.9%

12.9%

9.8%

11.0%

11.7%

44(4.9)

60 (3.4)

2 (0.5)

4725 (5.5)

Total population Type of LA

SEN School population with SEN School population with EHCP School population on SEN Support SEND appeals registered 2018 (rate/10,000 school pop.)

Sources: Office for National Statistics, Department for Education and First-tier Tribunal, Health Education and Social Care Chamber

difficulties1; moderate learning difficulties; speech language and communication difficulties). In each authority, case studies included primary and secondary aged children as well as those in the post-compulsory school age group. In England the sample was deliberately selected to include a slightly greater number of young people aged 18–24 in order to reflect the extension of education rights to this group. Most of the Scottish sample were in the 12–15 age group, reflecting the fact that these children were the major beneficiaries of the new rights. In addition to these variables, children

 In Scotland, referred to as Social, Emotional and Behavioural Difficulties.

1

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and young people were drawn from different deprivation quintiles,2 although those from more affluent areas were slightly over-represented. Cases were drawn from different types of school (local authority maintained mainstream and special; academies (England only); and other special schools). Short vignettes of each of the case study children and young people, providing a summary of their social characteristics and biographies, are included in Appendix 2. In each of the 36 case studies, a member of the research team interviewed the child or young person where this was possible and observed them for at least a day in their education and home setting. In three cases in Scotland, observation rather than interview was used to access the views of children with little or no speech. Documents relevant to each case were also gathered, such as statutory support plans and care plans. Parents were interviewed in their preferred setting, generally at home or in a social setting such as a café, but sometimes at school. Two or more of the adults involved in supporting the child or young person were interviewed, such as the class teacher, special needs coordinator or social worker. These interviews were digitally recorded and transcribed. During the period of observation, the researcher focused on how the child or young person engaged in decisions and processes related to school and classroom life, curriculum and planning and the support they needed to enable them to participate effectively. The researchers also probed the nature of children and young people’s involvement in major educational decisions such as choice of school. Where relevant, questions were also asked about the nature of the child or young person’s involvement in dispute resolution processes. Contrasts between different social actors’ perspectives were identified in areas such as understanding of capacity, the relationship between children’s and parents’ rights, and the degree of autonomy which children should be allowed to experience. Knowledge and awareness of the new legislation in both jurisdictions was considered, as well as assessments of its potential longer term impact.  The Scottish Index of Multiple Deprivation (SIMD) and the English Index of Multiple Deprivation (IMD) are neighbourhood measures of deprivation based on seven domains: income, employment, education, health, access to services, crime and housing. SIMD1/IMD1 refers to the 20% of areas with the highest levels of deprivation, and SIMD5/IMD5 refers to the 20% of areas with the lowest levels of deprivation. 2

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Throughout this stage of the research, the research team adopted a nested case study approach (Chong and Graham 2013), based on an understanding of children as actors located within specific families, schools, local authorities and national jurisdictions. The aim was to understand the way in which policy on children’s rights was understood at each level and in the context of a particular set of social circumstances. The thematic data analysis contrasted the views of children and young people with those of adults, as well as examining adults’ views of children and young people’s capacity to exercise choice, the ways in which disagreements between adults and children/young people are resolved and how children and young people’s rights shape, and are shaped by, educational environments. For each case study, a pen portrait was written drawing on semi-structured interviews and observations with children and young people and significant others. The headings were common across the case studies, reflecting the policy and theoretical concerns of the research in relation to children’s rights and social justice. Each pen portrait began with a brief biographical overview of the child or young person, followed by an overview of the extent to which they were able to use their rights across a range of domains, including participation in schools, classrooms and representative bodies,educational planning, school choice and dispute resolution. This approach allowed the research team to make both vertical and horizontal comparisons across and between case studies. Methods adopted throughout the research were participatory and responsive to the particular child or young person’s age, type of difficulty and learning environment. The central aim was to develop insight into children and young people’s understanding of their new rights and their sense of whether these rights made any material difference to their lives. At the same time, simplistic ideas of capturing the child’s voice were avoided, recognising that inevitably the researcher mediates and interprets the voice of research participants, and multiple versions of an individual’s voice may be possible (Mazzei and Jackson 2009). This is particularly likely to be the case where children and young people have little or no speech, and adults are involved in mediating their views. These case studies provide the main source of data in Chaps. 6, 7, 8, 9 and 10. In each of these chapters, we focus on those children, young

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people and families whose experiences best illuminate the particular aspect of rights of participation and redress under discussion. Twenty seven out of our 36 case studies appear at some stage in the book and three appear in more than one chapter. The form of the data reported in these chapters also varies: some data are transcripts from interviews while other data are excerpts from researcher field notes describing events where the use of an audio recorder would have been either impossible or inappropriate.

Conclusion The use of quantitative and qualitative data provides a rich pool of evidence, allowing the research team to develop an in-depth understanding of the experiences of particular children and young people and their families, while at the same time recognising how each case fits into the bigger picture provided by the administrative and survey data. The analysis is informed by a desire to understand the nature of the barriers to participation faced by children with different types of difficulty (Franklin and Sloper 2009; Callus and Farrugia 2016) and from different socio-­ economic backgrounds. Overall, data presented in the following chapters illuminate the extent to which children and young people’s educational rights are realised in practice, and what needs to change to translate policy rhetoric on children’s rights to action on the ground.

References Beaton, M. C., & Black-Hawkins, K. (2014). Editorial: Changing policy and legislation and its effects on inclusive and special education. Special issue. British Journal of Special Education, 41(1), 340–343. Callus, A.-M., & Farrugia, R. (2016). Disabled child’s participation rights. London: Routledge. Chong, P. W., & Graham, L. J. (2013). The ‘Russian doll’ approach: Developing nested case-studies to support international comparative research in education. International Journal of Research & Method in Education, 36(1), 23–32.

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Creswell, J. W. (2011). Controversies in mixed methods research. In N. K. Denzin & Y.  S. Lincoln (Eds.), Sage handbook of qualitative research (4th ed., pp. 269–284). London: Sage. Franklin, A., & Sloper, P. (2009). Supporting the participation of disabled children and young people in decision-making. Children and Society, 23, 3–15. Greer, S. (2009). Devolution and social citizenship in the UK. Bristol: Policy Press. Harris, N., & Riddell, S. (2011). Resolving disputes about educational provision: A comparative perspective on special educational needs. Aldershot: Ashgate. Mazzei, L.  I., & Jackson, A.  Y. (2009). Introduction: The limit of voice. In A. Y. Jackson & L. I. Mazzei (Eds.), Voice in qualitative inquiry: Challenging conventional, interpretive, and critical conceptions in qualitative research (pp. 1–13). Abingdon: Routledge. National Equality Panel. (2010). An anatomy of economic inequality in the UK. London: LSE.  Retrieved from https://eprints.lse.ac.uk/28344/1/ CASEreport60.pdf. Riddell, S., Adler, M., Farmakopoulou, N., & Mordaunt, E. (2000). Special educational needs and competing policy frameworks in England and Scotland. Journal of Education Policy, 15(6), 621–635. Riddell, S., Gillooly, A., Harris, N., & Davidge, G. (2019). The rights of children with special and additional support needs in England and Scotland. Edinburgh: Centre for Research in Education, Inclusion and Diversity (CREID), University of Edinburgh. Ritchie, J., & Ormston, R. (2014). The applications of qualitative methods to social research. In J.  Ritchie, J.  Ormston, C.  McNaughton Nicholls, & R. Ormston (Eds.), Qualitative research practice: A guide for social science students and researchers (pp. 27–46). London: Sage. Vincent, C., & Ball, S. J. (2006). Childcare, choice and class practices: Middle-­ class parents and their children. London: Routledge. Vincent, C., Rollock, N., Ball, S., & Gillborn, D. (2013). Raising middle class black children: Parenting priorities, actions and strategies. Sociology, 47(3), 427–442. Wyness, G. (2013). Educational attainment and inequality in Scotland: How does Scotland compare to the rest of the UK? Edinburgh: Centre for Research in Education, Inclusion and Diversity (CREID), University of Edinburgh. Retrieved from http://www.docs.hss.ed.ac.uk/education/creid/Projects/34ivf_ ESRCF_Seminar_PPT_Wyness.pdf.

3 Special and Additional Support Needs Policy and the Rights of Children and Young People

Introduction In this chapter, recent policy developments on children’s rights in the field of special and additional support needs are placed within a wider historical context. I begin by providing an overview of the discourses informing the development of UK special education policy and practice, initially focusing on early developments in the eighteenth and nineteenth centuries, when medical and education officers decided which children should be separated from the rest of the population for special educational treatment. Subsequently, I provide an overview of the complex forms of administrative justice emerging in the late twentieth and early twenty-first centuries, as the traditional frameworks of professionalisation and bureaucracy were joined by legality, managerialism, consumerism and marketisation. Finally, the impact of recent international human rights treaties on administrative justice in SEN/ASN, and the implications for the rights of children, young people and their families, are discussed.

© The Author(s) 2020 S. Riddell, Autonomy, Rights and Children with Special Educational Needs, https://doi.org/10.1007/978-3-030-55825-3_3

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 rovision for Children with Special Educational P Needs: Early Developments Educational provision for disabled children in the UK emerged in the eighteenth-century, often funded by wealthy philanthropists. Early provision focused on children with sensory impairments. For example, in 1791, the Liverpool School for the Indigent Blind was founded, followed in 1793 by the Asylum for the Industrious Blind in Edinburgh. These schools aimed to provide vocational training for future employment and relied upon profits from workshops to cover running costs. Mr Braidwood’s Academy for the Deaf and Dumb in Edinburgh, established in 1760, was the first school for the deaf in Great Britain, catering for a small number of fee-paying pupils and pioneering the use of British Sign Language. In 1792, the first English school for the deaf opened in London and other Braidwood schools subsequently opened in major cities. Education for children with learning difficulties was slower to emerge, and the terminology of the time focuses on individual deficit and deviance. A school for the education of ‘imbeciles’ was established in Dundee in 1852, followed shortly afterwards by the foundation of an institution for ‘defectives’ in Edinburgh. In the mid-nineteenth century, legislation was passed recognising the educational needs of the ‘mentally handicapped’. Charitable institutions were granted licenses to provide care and training of ‘imbecile’ children. The 1886 Idiots Act made provision for the education of ‘idiots’ and ‘imbeciles’. Early provision was justified in terms of protecting the state from the burden of supporting disabled people, rather than a concern for the educational rights of disabled children. In 1886, the Royal Commission on the Blind and Deaf was set up, chaired by Lord Egerton, an aristocrat with interests in the West Indian sugar business. The Commission report of 1889 argued that: The blind, deaf, dumb and the educable class of imbecile … if left uneducated, become not only a burden to themselves but a weighty burden on the state. It is in the interests of the state to educate them, so as to dry up, as far as possible, the minor streams which must ultimately swell to a great torrent of pauperism. (Egerton Commission 1889, para. 7, p. xii)

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Mental deficiency legislation passed in England and Scotland in 1913 required school boards to identify ‘defective’ children in their area who were classified as idiots, imbeciles, feeble-minded persons or moral imbeciles. Those who were considered capable of benefiting from education were placed in special schools, while the incapable received minimal vocational training often in residential institutions. For example, in the north of England, the Starnthwaite Colony and Epileptic Boys’ Home was established in 1906 at a bobbin mill in order to ‘save youths and men from the listless apathy of workhouse life’. Following the passage of legislation in 1918, which made basic education compulsory for all children, parents were often coerced into submitting their children for disability assessments, and a cadre of professionals and officials began to emerge in order to facilitate categorisation and segregation of disabled children. Unsurprisingly, a growing number of parents refused to present their children for assessment, fearing that they would be removed from the family home and incarcerated. The rights of children to have some involvement in educational decision-making was not on the agenda at this point in time.

Developments Between 1945 and 1978 During the post-war period, educational decision-making continued to be rooted in the assumptions of bureaucracy and professionalisation, with little focus on legality and rights (Riddell et al. 2000). Legislation in the early years of the welfare state placed a general duty on local authorities to provide education for children in accordance with their age, aptitude and ability. Local authorities were placed under a specific duty to establish which children, as a result of disability of mind or body, might require special educational treatment at school, and which children were too handicapped to benefit from any form of education or training. Parents of disabled children were required to submit their children for a medical examination, and from 1969, a psychological assessment, but they had little input into the process. In theory, they could appeal to the sheriff court against the imposition of a medical certificate stating the

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need for a special school placement, but in practice very few parents were able to do this. Alongside these developments, the bureaucratic processes of assessment, categorisation and segregation continued. For example, Scottish regulations issued in 1954 defined the following nine legal categories of handicap for which special educational provision should be made: deafness, partial deafness, blindness, partial sightedness, mental handicap, epilepsy, speech defects, maladjustment and physical handicap. The categories did not include children with milder learning difficulties, nor those whose difficulties stemmed from such factors as absenteeism or frequent change of school. There continued to be uncertainty about how best to educate children regarded as disruptive and challenging. From the 1930s onwards, approved schools, providing basic education and training, were established catering for children and young people with a court order. These were in effect a type of junior prison. Children with profound and complex learning difficulties were also segregated from their peers. From 1947, children described as uneducable but trainable were placed in junior occupational centres, whereas those deemed untrainable were consigned to long stay hospitals. It was not until the late 1970s that all children were recognised as capable of benefiting from education, irrespective of their degree of disability. Overall, during the post-war period, the lives of disabled children were increasingly subject to state regulation. Local authorities were expected to provide some sort of educational provision for all children, but parents and children had little involvement in decision-making. The overall objective was to produce ‘docile bodies and minds’ (Foucault 1991), with little focus on rights.

The Warnock Watershed The Warnock report (Department of Education & Science 1978) was seen as a watershed in thinking about provision for children with learning difficulties. As described above, before 1978, children were ascertained by medical officers as in need of special educational treatment and were allocated to one of the legal categories of handicap. There was growing

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dissatisfaction with the medical view of a fixed disability of mind and body and the Warnock report argued that an all-embracing category of special educational needs should replace the former statutory categories. Warnock suggested that about 20% of children were likely to experience learning difficulties at some time during their education, and for about 2% of children these difficulties would be significant and enduring. For children in the latter group, the local authority should arrange a multi-­ disciplinary assessment and a legally binding statement should indicate how the authority intended to address these needs. The main recommendations of the Warnock report were enacted in England and Scotland in the early 1980s. A key theme of the Warnock Report was the need for greater partnership with parents, and both policy and legislation were infused with a discourse of needs rather than rights (Tisdall and Riddell 2006). However, major criticisms of the Warnock report and the post-Warnock legislation centred on the vagueness of the idea of partnership, and the absence of a rights perspective. Professional and bureaucratic power continued to expand, while parents and children were afforded few opportunities for equal participation in decision-making and legal redress in the case of disagreements. Kirp, for example, noted that members of the Warnock committee were highly critical of the US system, particularly its perceived over-reliance on administrative hearings and litigation. According to Kirp, the committee felt that legal processes would: … breed controversy when consensus was the objective. In the framework of the Warnock report, the idea of rights would war with the idea of efficient service provided by professionals acting to the best of their abilities; hence it was pernicious. As committee chairwoman Mary Warnock declared: ‘There is something deeply unattractive about the spectacle of someone demanding their rights’. (Kirp 1982, p. 160)

Despite its focus on children’s needs rather than deficits, the Warnock report reflected many of the traditional values of the post-war welfare state, with the emphasis on local authorities making key decisions on resource allocation, with little regard for the rights of children, young people and their families.

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 ducational Reforms and the Emergence E of the Citizen-Consumer The election of a Conservative government in 1979 led to a gradual erosion of local authority power, with a growing tendency to see parents as consumers of educational services whose choices could be harnessed to drive the education market. The publication of performance information was seen as an essential component in the creation of the ‘citizen-­ consumer’ (Clarke et al. 2007) and local authorities were obliged to provide information on school and individual pupil performance. Although there were broad commonalities in education policy north and south of the Border, marketisation was pursued more enthusiastically in England than Scotland. The Education Act 1993 enhanced the rights of parents of children with SEN and disabilities, instituting a Code of Practice on SEN, extending school choice to the independent school sector and introducing a new dispute resolution mechanism in the form of the Special Educational Needs Tribunal. Subsequently, under the Special Educational Needs and Disability Act 2001, local authorities were obliged to arrange and fund independent mediation and the tribunal’s jurisdiction was extended to include disability discrimination claims. In Scotland, reforms strengthening parental rights were instituted a decade later by the Education (Additional Support for Learning) (Scotland) Act 2004. This wide-ranging legislation replaced the category of special educational needs with the much wider concept of additional support needs, replaced Records of Need with Coordinated Support Plans (CSPs) and instituted independent mediation, adjudication and a tribunal as additional forms of dispute resolution. However, Scottish local authorities were resistant to the growth in parental rights, responding to consultations on the 2004 legislation by lobbying for the removal of statutory support plans and opposing the establishment of the ASN tribunal (Riddell and Weedon 2010). Earlier work on dispute resolution in England and Scotland showed that the growing emphasis on parents’ rights was not extended to a discussion of the rights of children (Riddell et al. 2010; Harris and Riddell 2011), although the English and Scottish Codes of Practice referred to the need for pupil participation in

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decision-making. As discussed further below, children’s rights have recently risen up the political agenda, partly as a result of a desire to comply with the principles of the United Nations Convention on the Rights of the Child (UNCRC) and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).

 ducation Policy and the International Human E Rights Agenda As argued by Harris (2018), international treaties, including the UNCRC and the UNCRPD, have had a significant impact on policy and legislation in the field of special and additional support needs. Across the UK, there is an expressed policy intention to ensure that domestic legislation reflects the key principles of the UNCRC. Of particular importance to education is Article 12, which notes that: States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

The General Comment on Article 12 explains: ‘Respect for right of the child to be heard within education is fundamental to the realization of the right to education’ (Committee on the Rights of the Child 2009, para. 105). As Lundy argues in relation to education, when Article 12 is properly implemented, ‘other rights fall into place naturally’ (Lundy 2007, p. 940).The reference to ‘age and maturity’ in Article1 2.2 reflects the idea of children’s ‘evolving capacities’ reflected in the UNCRC (Lansdown 2005). Yet where children with special educational needs and disability are concerned, their capacity to form and communicate a viewpoint may not always be dependent on age and maturity alone. The

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General Comment on Article 12 advises that ‘maturity’ here refers, in the Article 12 context, to the ‘capacity of a child to express her or his views on issues in a reasonable and independent manner’ (UN Committee on the Rights of the Child 2009, para. 30). The General Comment also states that a child should be assumed to be capable of forming his or her own view but that the state would nevertheless have an obligation ‘to assess the capacity of the child to form an autonomous opinion to the greatest extent possible’ (ibid.). It also addresses briefly the issue of children with disabilities, indicating States Parties’ obligation to ensure that such children are ‘equipped with, and enabled to use, any mode of communication necessary to facilitate the expression of their views’ (ibid., para. 21). The General Comment on Article 12 emphasises the importance of providing feedback to children, who should be told the outcome of the relevant decision-making process and informed about how their views were considered. This important issue is only partly addressed in the English and Scottish legislation. In the case of young people in England and children aged 12 or over with capacity in Scotland, there is a duty to inform them of the relevant decision and the reasons for it, which ought to address the particular views expressed. In the case of children, however, there is no specific provision for direct feedback. However, English local authorities are obliged to publish any comments by children and young people with SEN about the local offer and the authority’s response to those comments. In a series of monitoring reports, the UN Committee on the Rights of the Child noted that the UK had made little progress in enshrining Article 12 in education law and policy and was particularly concerned about the rights of disabled children. In its 2016 report, it reiterated the concern that, ‘Many children with disabilities do not see that their views are given due weight in making personal decisions in their life, including choice of support and future’ (UN Committee on the Rights of the Child 2016, para. 56). The Committee has also been critical of a failure to ensure children and young people’s participation in exclusion appeals and those relating to special and additional support needs. The UNCRPD has also been influential. Article 24 of the CRPD requires states to ensure ‘an inclusive education system at all levels’ which

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is directed to ‘enabling persons with disabilities to participate in a free society’ and that disabled children and young people should have access to primary and secondary education ‘on an equal basis with others in the communities in which they live’. However, the UK entered a reservation to the effect that children with disabilities could be educated outside their local community if ‘more appropriate education provision is available elsewhere’. Article 24 of the UNCRPD also stipulates the need for disabled students to ‘feel valued, respected, included and listened to’. Within the UNCRPD there is an expectation that domestic legislation will: guarantee to all persons with disabilities, including children with disabilities, the right to be heard and to have their opinion be given due consideration within the education system, including through school councils, governing bodies, local and national governments, and mechanisms through which to challenge and appeal decisions concerning education. (UN Committee on the Rights of Persons with Disabilities 2016, para. 63(l))

The following section discusses the way in which aspects of the international human rights framework is reflected in domestic legislation in England and Scotland.

 ranslating International Treaties on Children’s T Rights into Domestic Legislation In its periodic report to the Committee on the Rights of the Child in 2014, the UK confirmed that it ‘fully endorses and promotes the principle that children and young people should have opportunities to express their opinion in matters that affect their lives’ (UN Committee on the Rights of the Child 2015, para. 53). International treaties provide a strong underpinning for recent legislative measure in England and Scotland which have attempted to enforce the human rights of children and young people.

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In England, Part 3 of the Children and Families Act (CFA) 2014 set out a new framework for SEN and disability (SEND) based on the need for engagement and co-production by parents, young people and children, supported by advice and information services. Local authorities were obliged to publish information on available services, known as the local offer, and to consult parents, children and young people about these services. Drawing on the social care repertoire of personalised services (Priestley et  al. 2006), provision was also made for parents and young people to have a personal budget to purchase bespoke services if standard provision did not meet their needs. Disrupting established local authority practice, Statements of Need were abolished and Education Health and Care Plans (EHCPs) instituted in their place, aiming to integrate provision by different agencies including health, education and social work. Despite promises of complete systemic overhaul, many of the central pillars of the previous system were retained, including a presumption of mainstream placement, a right to express a preference for a school to be named in an EHCP and a right to participate in the assessment process. In relation to disputes, there continued to be a right to access disagreement resolution, to appeal and/or to opt for mediation. However, young people now held such rights in place of their parents, while there was a greater opportunity for children themselves to participate. On dispute resolution, reasonable steps had to be taken to obtain children’s views and they were allowed to attend mediation meetings with the agreement of parents and the mediator. Children’s attendance and participation in appeal hearings were governed by the First-tier Tribunal’s rules and procedures which pre-date the CFA 2014. The rules gave the child a right to attend the hearing and the tribunal may permit the child to give evidence. A child could be excluded if there was a risk of disruption, if their presence might prejudice proper presentation of evidence or inhibit oral submissions or if they were judged to lack capacity, defined under the Mental Capacity Act 2005 as an ‘incapacity to make a decision for oneself due to an impairment of, or a disturbance in the functioning of, the mind or brain’. If excluded due to incapacity, a representative might exercise the rights of the parent or young person. In Scotland as in England, there has been a growing emphasis on children’s rights. Following a review of the 2004 legislation by the education

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inspectorate (HMIE), the Additional Support for Learning (Scotland) Act 2009 enabled a young person to request an educational, psychological or medical assessment or examination, which the local authority was bound to act on unless the request was considered unreasonable. The Scottish Government was placed under a duty to ensure the availability to parents and young people of an advocacy service, on request and free of charge, for tribunal appeals. In addition, the 2009 reforms categorised looked after children as having ASN and required the local authority to consider whether a CSP was required. Following on from this, the Children and Young People (Scotland) Act 2014 gave statutory underpinning to the Getting it Right for Every Child (‘GIRFEC’) programme. Section 1 of the 2014 Act required the Scottish Government to ensure that the key principles of the UNCRC, particularly concerning children’s participation rights, are reflected in all relevant legislation. The 2014 legislation also made provision for a Child’s Plan setting out the additional support that a child might need. In addition, the 2014 legislation stipulated that every child in Scotland should have a named person to ensure the child’s wellbeing. The named person was intended to ensure that information relating to the child’s wellbeing was passed between agencies. However, there was a postponement following the UK Supreme Court’s ruling in The Christian Institute and others v Lord Advocate which found that the information-sharing elements, central to the role of the named person, were unlawful.1 In 2019, the Scottish Government agreed that it would drop the sections of the legislation relating to the named person and child’s plans (parts 4 and 5). Disputes around the implementation of the 2014 legislation have centred on professional child protection duties pitted against children’s and parents’ right to privacy, including the right to determine who has access to sensitive information. Subsequently, the Education (Scotland) Act 2016 extended children’s and young people’s rights in a number of important ways. Children aged 12 or over with ASN, provided they are judged to have ‘sufficient maturity and understanding’, were given the same rights as parents and  [2016] UKSC 51. This case arose out of concern about the role of the ‘named person’ and the provision for information sharing under Part 4 of the 2014 Act. 1

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young people, with the exception of requesting mediation and making a placing request (and appealing the placing decision) (Scottish Government 2017a). Placing requests were excluded on the grounds that the child might select a school outside the area or even abroad and that could be disruptive to family life and conflict with the parent’s duty to ensure their child’s education (Scottish Government 2015, para. 66). The age threshold of 12 was intended to align with Age of Legal Capacity (Scotland) Act 1991. Parents are empowered to exercise a right on the child’s behalf if the child does not wish to do so. In order to exercise a right, the child must first inform the local authority in writing, and the authority must then assess and confirm that exercising the right would not ‘adversely affect the wellbeing of the child’. Disputes over questions of capacity and wellbeing have been brought within the tribunal’s jurisdiction. Rights of redress via independent adjudication and tribunal, already held by parents and young people, were extended to children aged 12 or over who have been assessed as having capacity. When a local authority receives a request for independent adjudication on an ASN dispute, it must ask the Scottish Government to appoint an adjudicator drawn from a central panel. On the basis of papers submitted, the adjudicator makes recommendations which the local authority is expected to implement, although these are not legally binding. Children aged 12–15 have not, however, been given a right to opt for mediation due to concerns expressed by mediation providers that the process might place children under undue pressure. The child’s views, however, must be taken into account throughout the mediation process. The 2016 Act also allows children to make a reference to the tribunal on matters pertaining to CSPs, including the information contained in a CSP, a failure by the local authority to prepare a plan where one is needed, to complete CSP reviews or to make the arrangements proposed in a CSP. As noted above, tribunal references may also concern education authority decisions on a child’s capacity. The rationale for extending a right of appeal to children aged 12 plus was based on the need to correct an anomaly whereby a child of this age could bring a complaint of disability discrimination under the Equality Act 2010 but could not pursue a reference to the tribunal (Scottish Government 2015, paras. 46–48). Furthermore the Scottish Government wished to conform with a

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recommendation of the UN Committee on the Rights of the Child concerning children’s right to involvement in redress. In 2017 a new set of tribunal regulations was produced prior to the transfer of the Additional Support Needs Tribunal into the First-tier Tribunal for Scotland Health and Education Chamber in January 2018. Under the 2017 Regulations, the child or young person who is a party to the reference is entitled to attend the hearing unless ‘in respect of the whole or any part of the proceedings the welfare, wellbeing, or interests of that child would be prejudiced by being present’. He or she may be accompanied by a ‘supporter’. A child over 12 has the right to give evidence, and those under 12 may also give evidence as long as the tribunal is satisfied that the child’s wellbeing and interests would ‘not be prejudiced by doing so’. If the under-12 child is permitted to give evidence, the tribunal may appoint a person with appropriate skills to act as independent advocate, speaking for the child at the hearing. Where the parent is making the reference, the tribunal will nevertheless have a duty to seek the views of the child. Rules on children’s rights to participate in tribunal procedures also apply to disability claims under the Equality Act 2010.

 omparing the New Rights in England C and Scotland The rights of children and young people resulting from the Children and Families Act 2014 and the Education (Scotland) Act 2016 are summarised in Tables 3.1 and 3.2. As these summaries show, in both nations children and young people have the right to information, advice and support, to have their voice heard in decisions on assessment and support and to be involved in resolving disagreements. On the face of it, the Scottish legislation appears to be more progressive than its English counterpart, giving children with ASN aged 12–15 who are deemed to have capacity effectively the same rights as parents and young people. For example, children in this age group in Scotland have the right to request a particular type of assessment, to request a statutory support plan and to make a reference to the

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Table 3.1  Summary of new rights accorded to children (C) and young people (YP) with special educational needs in England (post Children and Families Act 2014) Right to get information and Right to ask local authority to: • Carry out an assessment or reassessment advice or for information to be shared: of their needs (YP) • Access to advice and information •  Name a specific school in an EHCP (YP) on SEND, arranged by local • Prepare a personal budget if there is an authority (C and YP) EHCP (YP) • Information on right to give views to assessment (YP) • Entitlement to copy of finalised EHCP (YP) • Information on appeal and other redress rights (YP) • Non-disclosure of EHCP without subject’s consent save in some circumstances (C and YP) Right to be involved in resolving Right to have their views heard and disagreements and disputes: considered: • Their views, wishes and feelings and the • May select and participate in mediation (YP) importance of their participation to be •  Attend mediation (YP) taken into account by local authority • Attend mediation, provided (C and YP) parent and mediator consent (C) • Tribunal to take account of views, •  Right to appeal (YP) wishes and feelings (C and YP) • Attendance at appeal hearing (C •  Mediator to ascertain child’s views (C) and YP) • To be consulted over local provision and • Access to disagreement the local offer (C and YP) resolution services (YP) • Input into decisions about assessment (YP) • Comments on content of draft EHCP (YP) •  Inclusion of views in EHCP (C and YP)

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Table 3.2  Summary of new rights accorded to children aged 12–15 (C) and young people (YP) with additional support needs in Scotland (post Education (Scotland) Act 2016) Right regarding information and advice: •  About their ASN (C) •  Receive a copy of the CSP (C) • Be told about decisions about their rights(C) • Be asked if they are happy for information to be shared when they leave school (C) Right to be involved in resolving Right to have their views heard and disagreements and disputes: considered: • Be involved in decisions about their •  Ask for independent adjudication(C) • Make a reference to the First tier support(C) Tribunal(C) • Access to support and advocacy to • Attend tribunal and have views heard have their views heard (My Rights and considered (C) My Say) (C) •  Opt for mediation (YP only) • Be asked for their views during mediation (C) Right to ask local authority to: •  Find out if they have ASN (C) •  Request a specific assessment (C) • Find out if they need a Co-ordinated Support Plan (CSP) (C) •  Ask for a CSP to be reviewed (C)

First-tier Tribunal. In England, equivalent rights are accorded to young people and the rights conferred on children are more limited. However, in Scotland the new rights are limited by caveats associated with assessments of capacity and wellbeing, although in England, there is also a threshold of capacity in that regulations provide for the rights of young people to be exercised on their behalf where they lack capacity as determined by the Mental Capacity Act 2005. In Scotland, each time a child with ASN wishes to exercise a right under the 2016 legislation, they must first inform the local authority, which then informs the parents of the child’s intention. The local authority assesses whether the child has capacity to exercise this right and whether using the right might have an adverse impact on the child’s wellbeing. The tests of capacity and wellbeing (Scottish Government 2017b) were described by the Scottish Commissioner for Children and Young People as paternalistic, restrictive and at variance with the fundamental principles of the UNCRC (Riddell 2018). A key informant from the Equality and Human Rights Commission suggested:

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The … Government are saying that the Act is giving children the right to challenge decisions and actions under the additional support needs framework. But I don’t think they’re actually giving children that right. What they’re doing is saying, ‘the education authority whose decision you’re challenging will decide whether you’ve got capacity and whether it’s good for you to exercise that right’. I think that’s quite fundamental. (EHRC respondent)

Conclusion I have argued that since its inception in the eighteenth century, educational provision for children and young people with special needs has been driven by both humanitarian and economic imperatives. Throughout its development, it is possible to trace the influence of different models of administrative justice, with bureaucracy and professionalisation dominating the social welfare landscape until recently. The rise of neo-­liberalism in the 1980s was accompanied by a new emphasis on managerialism, consumerism and marketisation in education and other social policy spheres. Legality and rights also attained a higher profile at this point in time, but service users were increasingly cast as citizen-consumers, with the focus on individual rather than collective rights. Recent legislation, underpinned by international treaties, has shifted the focus from parents’ to children’s rights, without necessarily considering issues of inter-­ dependency. In the following chapter, I analyse administrative data through children’s rights and social justice lenses. Subsequent chapters draw on research findings to consider the extent to which the legislation has achieved its stated objectives in terms of ensuring the full participation of disabled children and young people in educational decision-­ making. Clearly, what is happening in practice is the true test of the relationship between policy rhetoric on the one hand and lived experience on the other.

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References Clarke, J., Newman, J., Smith, N., Vidler, E., & Westmoreland, L. (2007). Creating consumer-citizens: Changing identities in the making of public services. London: Sage. Department of Education & Science (DES). (1978). Special Educational Needs (The Warnock Report). London: HMSO. Egerton Commission. (1889). Report of the Royal Commission on the blind, the deaf, the dumb and others of the United Kingdom. London: HMSO. Foucault, M. (1991). Discipline and punish. Harmondsworth: Penguin. Harris, N. (2018). Legislative and policy developments in special educational needs in England and additional support needs in Scotland: Advancing children’s and young people’s rights. Working Paper 2. Edinburgh, Centre for Research in Education, Inclusion and Diversity (CREID) University of Edinburgh. Harris, N., & Riddell, S. (Eds.). (2011). Resolving disputes about educational provision: A comparative perspective on special educational needs. Farnham: Ashgate. Kirp, D. (1982). Professionalisation as policy choice: British special education in comparative perspective. World Politics, XXXIV(2), 137–174. Lansdown, G. (2005). Evolving capacities of the child. Florence: UNICEF. Lundy, L. (2007). ‘Voice’ is not enough: Conceptualising Article 12 of the United Nations Convention on the Rights of the Child. British Educational Research Journal, 33(6), 927–942. Priestley, M., Jolly, D., Pearson, C., Riddell, S., Barnes, C., & Mercer, G. (2006). Direct payments and disabled people in the UK: Supply, demand and devolution. British Journal of Social Work, 37(7), 1189–1204. Riddell, S. (2018). Autonomy, rights and children with special educational needs: Analysis of key informant interviews, Scotland. Working Paper 5. Edinburgh, Centre for Research in Education, Inclusion and Diversity (CREID) University of Edinburgh. Riddell, S., Adler, M., Mordaunt, E., & Farmakopoulou, N. (2000). Special needs and competing policy frameworks in England and Scotland. Journal of Education Policy, 15(6), 621–635. Riddell, S., Harris, N., Smith, E., & Weedon, E. (2010). Dispute resolution in additional and special educational needs: Local authority perspectives. Journal of Education Policy, 25(1), 55–73.

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Riddell, S., & Weedon, E. (2010). Reforming special education in Scotland: Tensions between discourses of professionalism and rights. Cambridge Journal of Education, 40(2), 113–130. Scottish Government. (2015). Education (Scotland) bill. Policy memorandum. Edinburgh: Scottish Government. Scottish Government. (2017a). Supporting children’s learning: Statutory guidance on the Education (Additional Support for Learning) Scotland Act 2004 (as amended). Edinburgh: Scottish Government. Scottish Government. (2017b). Additional support for learning: Guidance on assessing capacity and considering wellbeing. Edinburgh: Scottish Government. Tisdall, E. K. M., & Riddell, S. (2006). Policies on school inclusion: Competing strategies and discourses. European Journal of Special Needs Education, 21(4), 363–381. UN Committee on the Rights of the Child. (2009). General comment no.12 (2009) on the right of the child to be heard(CRC/C/GC/12). Geneva, Switzerland: Centre for Human Rights. UN Committee on the Rights of the Child. (2015). Fifth periodic reports of states parties due in 2014. United Kingdom (CRC/C/GBR/5). Geneva: UN. UN Committee on the Rights of the Child. (2016). Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland (CRC/C/GBR/CO/5). Geneva: UN.

4 Children’s Rights, Categorisation and Disproportionality

Introduction In this chapter, I examine administrative data published by the Scottish Government and the Department for Education to examine the social characteristics of children identified as having special and additional support needs (SEN)/(ASN), the nature of the categorisation systems, the use of statutory support plans to underpin the new rights and access to dispute resolution mechanisms to challenge local authority decisions. The central question in this chapter is whether current SEN/ASN systems are likely to promote or inhibit the realisation of the rights of children and young people. I also consider the human rights implications of attaching a special needs label to an individual child. Hjörne (2016) has drawn attention to the danger that labelling may be associated with stigmatisation and exclusion, rather than additional protection. Earlier studies point to a strong association between the identification of SEN/ASN and social deprivation (Riddell et al. 2010), particularly for some types of difficulty such as social, emotional and behavioural difficulties. This label is rarely sought by parents and is often applied by schools to children they find difficult © The Author(s) 2020 S. Riddell, Autonomy, Rights and Children with Special Educational Needs, https://doi.org/10.1007/978-3-030-55825-3_4

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to include. There is a large literature on the problem of over-­identification of children from minority ethnic groups and socially deprived backgrounds in US schools (Harry 2014), and in England (Armstrong 2003; Dyson and Gallannaugh 2008). Rather than guaranteeing children’s rights, special needs labelling may be a powerful means of ensuring their social marginalisation. Before discussing recent administrative data from the two jurisdictions, I first summarise some of the key ideas from critical sociology on the underlying ideological, social and economic causes of special education expansion over the past 40 years.

 he SEN Industry and the Identification T of Difference As discussed in Chap. 3, the growing field of special education was initially dominated by medicine and later by psychology. Influenced by nineteenth and twentieth-century eugenicists, professionals working in these areas often adopted an essentialist view of dis/ability, focusing on the identification of defects within the individual child rather than the interaction between the child and his or her environment. Although there have been ongoing efforts to debunk the ideas of genetically determined intelligence (Gould 1981; Rose and Rose 2012), there has recently been something of a resurgence in the field of ‘progressive eugenics’ (Plomin 2018). Tomlinson (1982) traced the links between early eugenic social theories and the categorisation systems used in special education in the US and Europe. As noted in Chap. 3, the rise of special education led to the emergence of a cadre of professionals seeking to identify deficits among children in order to develop appropriate forms of provision. Tomlinson’s analysis cast doubt on the predominant belief that the provision of special education from the eighteenth century onwards should be seen simply in terms of a manifestation of philanthropy and enlightenment. Her scepticism extended to the post-Warnock adoption of inclusive education as the dominant paradigm, accompanied by a rapid expansion of the numbers of children deemed to have special educational needs. This

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expansion, she maintained, was probably of greater benefit to the growing army of SEN professionals than to children so identified (Tomlinson 1985). Drawing a distinction between normative difficulties (measured against some objective standard) and non-normative difficulties (based on professionals’ subjective judgements), Tomlinson drew attention to the increase in non-normative categories, such as moderate learning difficulties and social, emotional and behavioural difficulties, which coincided with the collapse of the youth labour market in the late 1970s and early 1980s. Rather than providing access to additional educational support, these labels were used as a means of explaining and legitimising the exclusion of growing numbers of working-class and minority ethnic groups from the labour market (Tomlinson 2016, 2017). Writing from a similar perspective, Armstrong (2003) argued that ‘…special educational needs is a convenient tool for legitimising discrimination, racism and the lack of opportunities generally for young people’ (Armstrong 2003, p. 121). A central tenet of Tomlinson’s argument is that the stigmatisation and social exclusion associated with SEN identification, particularly in the case of high incidence non-normative categories, generally reinforces unequal power relations. In the context of the recent expansion of special education, I now discuss the proportion of children identified with SEN/ASN and the types of categories used. This is followed by an analysis of disproportional identification of children by gender, ethnicity and social disadvantage. Finally, the use of dispute resolution mechanisms in England and Scotland is explored. In conclusion, I discuss the implications of the patterns identified for the realisation of children’s human rights.

The Proportion of Pupils with SEN/ASN Over the past decade there has been a decline in the rate of SEN identification in England, but a large increase in ASN identification in Scotland (see Fig. 4.1). In 2007, about 20% of English children were identified as

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35 30

ASN/SEN (%)

25 20 15 10 5 0

2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 Year ENGLAND

SCOTLAND

Fig. 4.1  Children with SEN/ASN as a percentage of the total school population in England and Scotland (Source: Department for Education. Special educational needs in England: January 2019. National Tables: Table 1; Scottish Government, Pupil Census 2019, Table 1.6.)

having SEN, but by 2019 this had fallen to 15%. In Scotland, the opposite trend was apparent, with around 5% of children identified as having ASN in 2007, rising to 31% in 2019. These patterns are attributable to different policies in the two jurisdictions in relation to categorisation and planning. In Scotland over the past decade, there has been an increase in the number of categories and plans counted, with the growing use of non-normative categories and non-statutory plans. In 2007, only children with Individualised Education Programmes (IEPs) and/or Coordinated Support Plans (CSPs) were included in official ASN statistics. Since then, there has been a proliferation in the types of non-­statutory plan included under the ASN umbrella, including Multi-Agency Support Plans, Additional Support Plans, Behaviour Support Plans and Looked After Child Plans. Non-statutory Child’s Plans are also being used more extensively, whereas IEPs are diminishing. The least commonly used plan is the CSP, which is the only one entailing clearly defined additional

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rights for children with ASN along with corresponding duties for local authorities. By way of contrast, the downward trend in SEN identification in England may be attributed to concerns about rising expenditure, leading to deliberate efforts to reduce the size of the SEN population. In a report titled A Statement Is Not Enough (Ofsted 2010) it was argued that too many children were being identified as having special needs, and that learning difficulties could often be tackled through improved teaching rather than additional bureaucratic procedures. The revised Code of Practice (Department for Education and Department of Health 2015) combined the categories School Action Plus (receiving help from professionals outside education) and School Action (receiving help from school-­ based practitioners such as teaching assistants, the class teacher and the learning support teacher) into one overarching category, School Support. The government also stipulated that local authorities were only expected to contribute to the funding of additional provision if this exceeded £6000, with schools meeting costs up to £6000 from existing resources. This represented a clear disincentive for schools to identify ‘low level’ difficulties, and identification rates duly fell, although there has recently been a small increase.

 he Use of Statutory Support Plans in England T and Scotland From the post-Warnock period onwards, Scotland made less use of statutory support plans than England. In the 1980s, for example, about 2% of children had a Record of Needs in Scotland compared with 3% of children with a statement of needs in England. Recently, as shown in Fig. 4.2, this historical difference has intensified, with a fall in the proportion of Scottish pupils with a CSP from 0.5% of all eligible children in 2010 to 0.2% in 2019. In England, the percentage of pupils with an Education, Health and Care Plan (EHCP) remained stable at 2.8% between 2010 and 2017 but has recently increased to 3.1% in 2019. There is a particularly marked difference in the use of statutory support plans for children

54 

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3.5

Statutory plans (%)

3 2.5 2 1.5 1 0.5 0

2010

2011

2012

2013

2014 2015 Year

ENGLAND

2016

2017

2018

2019

SCOTLAND

Fig. 4.2  Percentage of whole school population with a statutory support plan in England and Scotland (Source: Department for Education. Special educational needs in England: January 2019. National Tables: Table 1; Scottish Government, Pupil Census 2019, Table 1.7.)

in special schools. In England, 98% of children in special settings have EHCPs, whereas in Scotland only 8.2% of this group have CSPs, a 12% decline since 2010 when 20% of Scottish children in special schools had CSPs. Government data show that in 2019, 1.6% of primary and secondary school children in England had an EHCP, while 0.2% of the equivalent group in Scotland had a CSP.

 ategories of Difficulty in England C and Scotland Because of the historical association between categorisation and social exclusion (Florian and McLaughlin 2008), the attachment of specific SEN/ASN labels to individual children is highly contested. In the UK and Nordic countries, efforts have been made periodically to replace

55

4  Children’s Rights, Categorisation and Disproportionality 

individual categories of difficulty with one over-arching category of SEN or ASN, but this has proved difficult not least because of lobbying by parents and voluntary organisations. Figures 4.3 and 4.4 show the categories currently used in England (13 in total) and Scotland (24 in total). In Scotland, social, emotional and behavioural difficulties is the largest category, followed by English as an additional language and moderate learning difficulties. Sensory and physical difficulties, described as normative because they are measured against an objective standard, are low incidence in both jurisdictions. In England, speech, language and communication needs is the largest category, followed by moderate learning Learning disability Dyslexia Other specific learning difficulty Other moderate learning difficulty Visual impairment Hearing impairment Deafblind Physical or motor impairment Language or speech disorder Autistic spectrum disorder

Type of need

Social, emotional and behavioural difficulty Physical health problem Mental health problem Interrupted learning English as an additional language Looked after More able pupil Communication Support Needs Young Carer Bereavement Substance Misuse Family Issues Risk of Exclusion Other 0

10

20

30

40

50

60

70

80

ASN rate per 1000 pupils

Fig. 4.3  ASN pupils by type of need, Scotland, 2019 (rate per thousand pupils) (Source: Scottish Government, Pupil Census 2019, Table 1.8. Note: Entries per category are not discrete; a child may be recorded in multiple categories)

56 

S. Riddell Specific Learning Difficulty Moderate Learning Difficulty Severe Learning Difficulty Profound & Multiple Learning Difficulty

Type of need

Social, Emotional and Mental Health Speech, Language and Communications Needs Hearing Impairment Visual Impairment Multi- Sensory Impairment Physical Disability Autistic Spectrum Disorder Other Difficulty/Disability SEN support but no specialist assessment 0

5

10

15

20

25

30

35

SEN rate per 1000 pupils

Fig. 4.4  SEN pupils by type of need, England, 2019 (rate per thousand pupils) (Source: Department for Education. Special educational needs in England: January 2019. National Tables: Table 8. Note: The DfE records primary need only)

difficulties and social, emotional and mental health needs. It is noticeable that recently adopted categories in Scotland, such as looked after children, family issues, interrupted learning and substance abuse, refer to wider societal issues, although some of these account for relatively small numbers of children.

4  Children’s Rights, Categorisation and Disproportionality 

57

 isproportionalities Relating to Gender, D Ethnicity and Social Deprivation As argued throughout this book, the categorisation of children as having SEN/ASN may have both positive and negative effects. On the one hand, receiving a particular diagnosis may be helpful in terms of indicating the need for a specific type of school or teaching method, and releasing resources to fund reasonable adjustments. On the other hand, particular labels may involve a self-fulfilling prophecy, so that being identified as having social, emotional and behavioural difficulties may increase the risk of exclusion without leading to much in the way of additional support. In this section, I provide an overview of identifiable disproportionalities and consider their significance.

Gender Figure 4.5 shows that in both jurisdictions, boys make up around two-­ thirds of the SEN/ASN population (66.7% of the SEN population in England and 59% of the ASN population in Scotland). This imbalance is a well-known phenomenon which is evident in most developed countries (Riddell 2014), but the relative causal effects of germs, genes, trauma and culture continue to be debated. This gender imbalance is also evident with regard to the use of statutory support plans. In England, 4.4% of all boys compared to 1.7% of girls have an EHCP, while in Scotland, 0.3% of boys and 0.2% of girls have a CSP. This gender disparity has implications for the implementation of the new rights agenda, with more boys than girls entitled to an enhanced assessment, regular review and access to various forms of redress. Across jurisdictions, the magnitude of this gender difference in SEN/ ASN identification varies by category of need. As shown in Fig. 4.6, boys outnumber girls in every category of SEN, with the exception of hearing impairment, where identification rates are very similar. For non-­normative categories, such as visual impairment, multi-sensory impairment and severe/profound learning difficulties, the difference in rates of identification between boys and girls is relatively small. By way of contrast, boys

58 

S. Riddell

70

SEN/ASN pupils (%)

60 50 40 30 20 10 0

England

Scotland Males

Females

Fig. 4.5  Percentage of pupils with SEN/ASN by gender in England and Scotland, 2019 (Source: Department for Education. Special educational needs in England: January 2019. National Tables: Table 3.)

are four times more likely than girls to be identified with an autistic spectrum disorder. There are also big gender disparities in the area of social, emotional and mental health difficulties, where there are 2.5 times more boys than girls, and speech, language and communication difficulties, where boys outnumber girls by two to one. Similar trends are evident in Scotland as illustrated in Fig. 4.7. The largest gender discrepancy occurs in the category of autistic spectrum disorder, with 3.7 times as many boys as girls. More than twice as many boys are identified as having language or speech disorder and social, emotional and behavioural difficulties. As in England, there are only small gender differences in low incidence normative categories such as hearing impairment and visual impairment.

4  Children’s Rights, Categorisation and Disproportionality 

lty Di le f l, E fic Le ch ul m ar ty ot ,L ni io an ng n gu Di al ag ffi an cu e d an lty M d en Co t al m He m un al th ica tio ns He Ne ar ed in s gI m pa irm Vi su en al M t Im ul tip ai Se rm ns en or yI t m pa i rm Ph en ys Au t ica tis lD tic isa Sp bi ec lit y tru Ot m he Di rD s or iff de icu r lty /D isa bi lit y

icu

ng

Di ff

ni

ng

ar Le

ve

d of ou n

Sp

ee

Pr

So cia

&

M

ul

Se

tip

re

Le te ra

od e

ec ifi

cL

ea

ar

rn

ni

in

gD iff

icu

lty

Rate per 1000 school population

50 45 40 35 30 25 20 15 10 5 0

M

Sp

59

Type of need Male

Female

Fig. 4.6  Pupils with SEN by type of need and gender, England 2019 (Source: Department for Education. Special educational needs in England: January 2019. Additional Tables: Table A)

Ethnicity As noted earlier, for some time, particularly in the US, there have been concerns that children from minority ethnic backgrounds are more likely to be identified as having special needs compared with their white counterparts. In both England and Scotland, the data show that some groups are particularly at risk of SEN identification, while others may be under-­ identified. We begin by outlining the broad patterns emerging from the data, before discussing their significance. It should be noted that categories of ethnicity are based on those used in the relevant national census, and parents are invited to self-disclose ethnicity when they enrol their child in school. The overall rate of SEN in English pupils is currently just under 15%. As shown in Fig. 4.8, more than a quarter of all pupils identified as travellers of Irish heritage and Gypsy/Roma are considered to have SEN

S. Riddell

100 90 80 70 60 50 40 30 20 10 0

Ri sk of Ot Ex he c r F Su am lus bs ily ion ta Is nc su Co e m Be M es m un re isu av se ica tio Yo em un en n Su gc t En p gli M por arer sh t o re Ne as ab ed an ad Lo le p s di ok up So t cia In ion ed il l, e M terr al la afte m e ot n up n r io Ph tal ted gua na y h g l a sic eal lea e nd al th rn he pr ing b Au eh al ob a t La tisti vio h pr lem ng c s ur ob p u le Ph a e al ys ge ctr diff m ica or um icu l o sp lt r m ee diso y ot ch rde or dis r im or pa de ot H irm r he ea rm rin De en t a g ot ode Vi im fbl he ra su p ind r s te al air pe le im me cif ar pa nt ic nin irm le g ar di ent ni ffi ng cu di lty ffi Le cu ar l ni Dy ty ng sle di xia sa bi lit y

Rate per 1,000 school population

60 

Type of need Male

Female

Fig. 4.7  ASN identification by type of need and gender, Scotland 2019 (Source: Scottish Government, Pupil Census 2019, Table 1.8)

(30.2% and 25.9%, respectively). Pupils identified as Black Caribbean (20.2%), White/Black Caribbean (18.6%) and other black background (16.2%) also have higher than average levels of SEN identification. By way of contrast, some groups have lower than average rates of identification (for example, only 8% of Chinese pupils, 8.4% of Indian pupils and 10.2% of ‘other Asian’ pupils are regarded as having SEN). Those identified as mixed heritage, Pakistani, Bangladeshi and Black African children all have SEN rates slightly below the national average of 15%. There is also variance in ASN identification rates across ethnic groups in Scotland (Fig. 4.9). As noted earlier, at nearly 30%, the average rate of ASN identification is nearly twice as high as the English comparative figure, but there is a certain degree of circularity since travellers and those with English as an additional language are included as ASN categories. When all categories are included, the proportion of pupils identified as having ASN across several minority ethnic groups is higher than the national average. For example, two-thirds of Polish pupils (66.1%) and

School population with SEN (%)

4  Children’s Rights, Categorisation and Disproportionality 

61

35 30

National average level of SEN

25 20 15 10 5 0

Ethnic group

Fig. 4.8  Percentage of pupils within each ethnic group identified with SEN in England, 2019 (Source: Department for Education. Special educational needs in England: January 2019. National Tables: Table 6)

60.8% of Gypsy/Traveller pupils in Scotland are identified as having ASN, which is more than twice the national average. However, as shown in Fig. 4.10, when English as an additional language is removed from the analysis, the proportion of Polish pupils with an identification of ASN decreases from 66% to 16%, which is about half the national average. All pupils of Asian heritage, as well as pupils of African Caribbean and African heritage also have below-average rates of identification.

Social Deprivation Another critical factor when evaluating children’s access to and implementation of their rights is the level of social deprivation. In this section, we present data for Scotland only since the Department for Education does not use an equivalent measure to the Scottish Index of Multiple Deprivation (SIMD) in its statistical summaries of SEN data. Data on free school meals entitlement (FSME) are available for both jurisdictions, but for Scotland these data only cover P4–P6. The Scottish Government uses SIMD as its preferred measure of deprivation across many social

te

-

-O

er

th

r h ish lle ris ol ve -I a -P e r t i T e e / t t h hi hi sy W W W yp -G te hi W

sh

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0

10

20

30

40

50

60

70

i

As

an

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-B

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Ethnic group

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National average ASN

w

no n/

lo sc i td

er h Ot

se

d

Fig. 4.9  Percentage of pupils within each ethnic group identified with ASN including English as an Additional Language in Scotland, 2019 (Source: Scottish Government. Pupil Census 2019: special request data.)

W

hi

Pupils with ASN (%)

62  S. Riddell

63

4  Children’s Rights, Categorisation and Disproportionality  60

Pupils with ASN (%)

50 40 30 20 10

d

r

se lo

isc

Ot he

td

n

Ar ab

ca

Af ri

ck

r th e

/B la

an

n/ no

be rib

w No

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tk

no

i

se

-O

n

Ca

As ia

n

-C

hi

ne

sh

i

de

gla

-B an

As ia

n

ist an

-P ak

n

As ia

As ia

n

d

ia

ixe

-I nd

n

M

As ia

-I ris h

ish W

hi

te

r

-P ol

r

le W

hi

te

el

th e

/T ra v

yp

sy

-O

te

hi W

-G hi

te

W

hi

te

-S co

tti sh

0

Ethnic group

Fig. 4.10  Percentage of pupils within each ethnic group identified with ASN excluding English as an Additional Language in Scotland, 2019 (Source: Scottish Government. Pupil Census 2019: special request data.)

policy fields. This is an area-based measure which is calculated using a set of indicators based on factors such as educational level, crime rates, housing and employment in a given postcode. Although SIMD is a useful measure, it has been criticised on the grounds that it does not take account of children living in poverty but in more advantaged neighbourhoods and by the same token some people living in deprived neighbourhoods may be relatively affluent. The measure also tends not to recognise rural poverty. In terms of its use by policymakers for targeting resources, it often leads to the exclusion of those living in deprived neighbourhoods which do not qualify as the most deprived (for a summary of these arguments, see Paterson et al. 2019). The analysis below is based on groupings of neighbourhoods into SIMD deciles, with SIMD 1 being the most deprived and SIMD 10 the least deprived. As shown in Fig. 4.11, pupils identified with ASN tend to live in more deprived parts of Scotland. Figure 4.12 extends the analysis by exploring the association between deprivation and the category of need. In all categories of need, pupils are more likely to live in more deprived neighbourhoods. However, there are two exceptions, notably dyslexia and more able pupils, where pupils with

64 

S. Riddell

35,000

Number of ASN pupils

30,000 25,000 20,000 15,000 10,000 5,000 0

Most deprived 1

2

3

4

5

6

SIMD deciles

7

8

9

Least deprived 10

Fig. 4.11  Pupils with ASN by SIMD decile, 2019 (Source: Scottish Government, Pupil Census 2019, Table 1.16)

these labels are more likely to live in less deprived neighbourhoods. Indeed more able pupils are twice as likely to live in the most advantaged neighbourhoods as opposed to the most deprived. The association between level of deprivation and ASN identification is weakest in relation to low-incidence normative categories, for example, physical and sensory impairments, and is strongest in relation to categories associated with family and social difficulties and English as an additional language. Social, emotional and behavioural difficulties, a high incidence non-normative category, is almost three times as likely to be identified in the most deprived as opposed to the least deprived arts of Scotland. This large and expanding category is frequently associated with social stigma and increased risk of school exclusion and, for these reasons, is often resisted by parents (Riddell 2009). While children living in the most deprived neighbourhoods are more likely than those living in the least deprived to be identified with ASN, the reverse pattern is evident in relation to receiving a statutory support plan. Children with ASN living in the most affluent neighbourhoods are more than a third as likely as those in the most deprived neighbourhoods

4  Children’s Rights, Categorisation and Disproportionality 

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45 40 35 ASN pupils (%)

30 25 20 15 10 5

pe rs he Ot

Pu

pi

ls

fo

rw

cif

ho

m

re

as

on

fo rs ic up le p a Ot rn Le ort he in ar is rm gd ni re ng po od iffic di rte er ul sa d at ty e (e D bili le .g y ty ar . sle Vi ni nu xi He sua ng d me a Ph So ar l im iff ric) y s cia in p icu La ical g i ai lt l, e ng o m rm y m rm u pa e ot A ag o io u e to D irm nt na tis or r e e l a tic sp im afb nt nd sp ee pa lin b e c ir d Ph eha ctru h di me ys vi m so nt M ical our dis rde En en h al or r gli ta ea di de sh as In l he lth fficu r an ter alt pro lty ad rup h p ble di te ro m Co tio d bl m na lea em m l la rn un ica M Loo ng ing tio or ke uag n ea da e su b ft pp le er o p Yo rt n upil u e Su Be ng eds bs rea ca ta ve re nc m r e e Ri Fam mi nt sk il su of y is se ex su clu es sio Ot n he r

0

Type of need Most deprived

Least deprived

Fig. 4.12  Percentage of ASN pupils per category of need in the most and least deprived areas, 2019 (Source: Scottish Government. Pupil Census 2019: special request data.)

to be issued with a statutory support plan as a result of parental lobbying (see Fig. 4.13). There is also a large disparity with regard to the percentage of children with different types of difficulty with a CSP (Fig. 4.14). Less than 1% of children with social, emotional and behavioural difficulties and less than 2% of looked after children have a CSP, categories strongly associated with deprivation, compared with 8% of children with physical or motor impairment and 6% of children with visual impairments, difficulties which are more evenly spread across the social spectrum. To summarise, the analysis suggests that there are marked inequalities in the identification of ASN, the application of specific categories and the use of CSPs in relation to gender, ethnicity and social deprivation. I

66 

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1.00 0.90

ASN pupils with CSP (%)

0.80 0.70 0.60 0.50 0.40 0.30 0.20 0.10 0.00

1 Most Deprived

2

3

4

5

6

7

8

9

SIMD decile

10 Least Deprived

Fig. 4.13  Percentage of ASN pupils with a CSP per SIMD decile, 2019 (Source: Scottish Government, Pupil Census 2019, Table 1.16)

discuss the implications of these disproportionalities in relation to rights in the conclusion.

Rights of Redress in England and Scotland The enhancement of dispute resolution mechanisms is one of the main ways in which parents’, young people’s and children’s rights have been boosted in the field of SEN/ASN. As noted in Chap. 3, England was initially ahead of Scotland in this regard, establishing the Special Educational Needs and Disability (SEND) Tribunal in the mid-1990s, a decade before Scotland. Initially, the right of appeal in England was only granted to parents, while in Scotland both parents and young people were able to make tribunal references (although this right was scarcely used by young people). The English legislation of 2014 allowed young people to access the tribunal, and in Scotland, this right was extended to

4  Children’s Rights, Categorisation and Disproportionality 

67

8

ASN pupils with CSP (%)

7 6 5 4 3 2 1

Type of need

Ot

he

rs

pe

cif ic Le le ar ar ni n ng Ot ing he di di sa r m ffi bi c u od l l t y ( D ity er e. ysl at g e . n exi le um a ar ni er Vi ng di ic) su Ph ys He al i fficu ica ar m lty p i La l or ng airm So ng m im cia pa en ua ot l, e irm t ge or m ot Au or imp en io na tisti spe airm t l a c s ec nd pe h d ent be ctr iso r h u Ph avi m d der ys ou iso ica ra r d M l he l dif er fi en a En ta lth cult lh gli y p ea ro sh as Inte lth blem an rru pr ad pt obl e di ed Co tio le m m na arn m l un la ing ng ica tio Loo uag e ke n su d pp af or ter t Yo Nee un ds Be g ca re re r a Fa vem m e Ri ily nt sk of issu Ex es clu sio n Ot he r

-

Fig. 4.14  Percentage of children with a CSP by type of difficulty, 2019 (Source: Scottish Government, Pupil Census 2019: special request data)

children with ASN aged 12–15 who were deemed to have the capacity. Children are still not able to be the party in an appeal to the English tribunal, although their views should be ascertained and taken into account, as is the case in Scotland if the reference is made by a parent. In both jurisdictions, there has been a significant increase in tribunal use since 2017. In England 7002 appeals were registered by the SEND tribunal between 1st September 2018 and 31st August 2019. This represents 5.3 per 1000 of the total SEN population at that time. In contrast, In Scotland, there were 92 references during the period, representing 0.4 per 1000 of the ASN population. As can be shown in Fig. 4.15, the most common reason for an appeal in England was in connection with the content of the EHCP, which includes the school named. In Scotland (Fig. 4.16), appeals were most common in relation to placing requests. Autistic spectrum disorder was the most common type of difficulty leading to an appeal in both jurisdictions, and very few appeals related to social, emotional and mental health/behavioural difficulties. In Scotland, there were almost no appeals relating to social and family difficulties such as having looked after status or English as an additional language.

68 

S. Riddell 60

50

Total appeals (%)

40

30

20

10

0

Against contents

Refusal to assess Refusal to make EHC Refusal to amend plan after review

Miscellaneous

Reason for appeal

Fig. 4.15  Registered appeals in England 2018–2019 (type of appeal by percentage of total) (Source: Ministry of Justice. Tribunals and Gender Recognition Statistics Quarterly, July to September 2019. SEND tribunal tables 2018–2019)

There have consistently been more appeals to the English tribunal than expected, although few of these have come from areas of social deprivation and minority ethnic groups. In Scotland, tribunal references have been much lower than appeals to the tribunal in England. This is partly because qualification criteria for a CSP are very restrictive, so few parents are in a position to make references relating to, for example, the contents of a CSP. Appeals on placing requests are not contingent on having a CSP, and this is by far the largest reason for appeal. Tribunal data are not disaggregated in relation to the person bringing the appeal, but discussions with tribunal presidents suggest that almost all appeals or references are made by parents rather than children or young people. Independent mediation is also used almost exclusively by parents rather than young people.

4  Children’s Rights, Categorisation and Disproportionality 

69

80 70

Total appeals (%)

60 50 40 30 20 10 0

Placing requests Contents of CSP

CSP not required

Deemed refusal of CSP

Failure to review CSP

Timescale (Issue Transitions CSP)

Reason for appeal

Fig. 4.16  Registered appeals in Scotland 2018–2019, (type of appeal by percentage of total) (Source: Tribunal Additional Support Needs Forum, 8 May 2019: 13th Annual Report 2018)

 onclusion: Children’s Rights, Categorisation C and Disproportionality This chapter began with a discussion of the categorisation systems informing special education from its eighteenth-century origins to its current manifestation in England and Scotland. The expansion of the system has always been justified in terms of benign paternalism, the desire to protect the most vulnerable children in society. For the last half-century, the language of inclusive education has replaced that of special education, but the process of categorisation and separation has continued. However, critical sociologists have always argued that we should not take the expansion of special/inclusive education and its associated systems of labelling as an unalloyed good, but rather ask questions about who benefits from such interventions and what are their material consequences. The analysis presented in this chapter shows that the expansion of the ASN system in Scotland has gone much further than in England, with

70 

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31% of Scottish children now identified as having ASN. According to the Deputy First Minister John Swinney (2019), this expansion is testament to the inclusive nature of Scottish education: The decision to have a broad definition of additional support needs is fundamental to the inclusive approach which we take in Scotland, which is deliberately distinct from that used elsewhere in the UK, and moves away from the “special educational needs” approach. I do not accept that social, emotional and behavioural needs or English as an additional language should be removed from the definition. (Swinney 2019)

While the number of children identified with SEN in England has reduced, the overall proportion still represents 15% of the school population. In both England and Scotland, the expansion of special/inclusive education has been most evident in relation to high incidence non-­ normative categories such as social, emotional and behavioural/mental health difficulties. These are often stigmatised labels applied disproportionately to boys from the most deprived neighbourhoods. With regard to ethnicity, the identification of children from socially marginalised groups, notably travellers and those of Gypsy/Roma heritage, is much higher than for other ethnic groups. In Scotland, the inclusion of children with English as an additional language leads to an apparent over-­ identification of children of Polish heritage. Clearly, these children may need additional language support, but their inclusion within the ASN umbrella may be misleading, suggesting that they should be seen in deficit terms. Particularly at a time where there are social tensions around immigration, the hidden messages implicit in such arrangements need to be carefully considered rather than automatically seen as a manifestation of the principle of inclusion in Scottish education. High rates of special needs identification, particularly in Scotland, means that, on the face of it, a significant proportion of children and young people are now entitled to additional rights under the Children and Families Act 2014 and the Education (Scotland) Act 2016. However, the identification of SEN or ASN does not automatically ensure that the child receives additional resources and enhanced rights to participation and redress. In both England and Scotland, a very low proportion of

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children identified as having additional support needs have the protection of a statutory support plan, which acts as a passport to the realisation of many rights. In Scotland, where 31% of children have ASN, only 0.2% of all pupils currently have a CSP. The reluctance of local authorities to issue CSPs helps to explain why the Scottish tribunal is relatively little used compared with the English equivalent, and why only a handful of children have to date been able to use their new appeal rights. In England, there has been a deliberate squeeze on the number of children identified as having SEN, but a significant increase in the number of children with EHCPs. There has also been an increase in appeals to the tribunal by parents rather than young people, indicating growing stress within the system as a decade of austerity continues to have a negative impact on educational provision.

References Armstrong, D. (2003). Experiences of special education. London: Routledge Falmer. Department for Education & Department of Health (DfE & DoH). (2015). Special educational needs and disability code of practice: 0–25 Years. London: DfE & DoH. Dyson, A., & Gallannaugh, F. (2008). Disproportionality in special school placement in England. Journal of Special Education, 42(1), 36–46. Florian, L., & McLaughlin, M. (Eds.). (2008). Disability classification in education: Issues and perspectives. New York and London: Corwin Sage. Gould, S. J. (1981). Mismeasure of man. New York: W.W. Norton & Co.. Harry, B. (2014). Ethnic minorities in special education. In L. Florian (Ed.), Sage handbook of special education (Vol. 1, 2nd ed.). London: Sage Publications. Hjörne, E. (2016). The narrative of special education in Sweden: History and trends in policy and practice. Discourse: Studies in the Cultural Politics of Education, 37(4), 540–552. Office for Standards in Education, Children’s Services and Skills (Ofsted). (2010). A statement is not enough. London: Ofsted. Paterson, L., Hunter Blackburn, L., & Weedon, E. (2019). The use of the Scottish index of multiple deprivation as an indicator to evaluate the impact of policy on widening access to higher education. Scottish Affairs, 28(4), 414–433.

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Plomin, R. (2018). Blueprint: How DNA makes us who we are. London: Allen Lane. Riddell, S. (2009). Social justice, equality and inclusion in Scottish education. Discourse: Studies in the Cultural Politics of Education, 30(3), 283–296. Riddell, S. (2014). Policies and practices in education, training and employment of disabled people in Europe. Brussels: European Commission. Riddell, S., Harris, N., Smith, E., & Weedon, E. (2010). Dispute resolution in additional and special educational needs: Local authority perspectives. Journal of Education Policy, 25(1), 55–73. Rose, H., & Rose, S. (2012). Genes, cells and brains: The promethean promises of the new biology. London: Verso. Swinney, J. (MSP). (2019, May 15). Letter to the convenor of the Education and Skills Committee. Tomlinson, S. (1982). Sociology of special education. London: Routledge and Kegan Paul. Tomlinson, S. (1985). Expansion of special education. Oxford Review of Education, 11(2), 157–165. Tomlinson, S. (2016). Special education and minority ethnic young people: Continuing issues. Discourse: Studies in the Cultural Politics of Education, 37(4), 513–529. Tomlinson, S. (2017). Sociology of special and inclusive education. London: Routledge.

5 Translating Grand Designs into Grassroots Policy and Practice

Introduction This chapter explores the meta-level of enacting policy on children’s rights in England and Scotland, using the accounts of middle-level policymakers to analyse how international human rights principles are understood and implemented. Despite much evidence to the contrary, politicians often believe that once a law is passed, practice on the ground automatically changes. However, even those involved in drafting policy and legislation may have different ideas about what they want to achieve, and systemic inertia may ensure that some parts of legislation may have little impact on grassroots practice. Newman and Clarke (2009) reflect on the dissonance between policy and practice, commenting: Attention to grand designs—whether class project or new governmentality—tends to presume that such designs are effective. On the contrary, we think it may be important to look at how grand designs get translated into politics, policies and practices. In such processes we may see the contradictory and antagonistic effects of different social forces, different problems to be overcome or accommodated, different national or local contexts that bend strategies into new forms—and even divergent projects that steal

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ideas, images, languages and techniques and put them to other uses. (Newman and Clarke 2009, p. 18)

Key informants in both jurisdictions were asked to comment on issues arising in implementing the relevant legislation, including their understanding of children’s and young people’s capacity and their ability to participate in dispute resolution processes. The 42 key informant interviewees, described in more detail in Chap. 2, were drawn from the following groups: teachers; national and local government; legal bodies; voluntary organisations and parents’ groups. This chapter focuses on central themes arising from interviews, beginning with a discussion of perceptions of the new legislation. This is followed by a summary of adults’ perceptions of the ability of children and young people to use their new rights, including competing understandings of capacity. Finally, interviewees’ views about the relationship between parents’ and children’s rights are considered, along with their thoughts on the future prospects of the children’s rights agenda in education. Throughout, comparisons are drawn between English and Scottish perspectives. As already discussed, children’s educational rights are more extensive in Scotland compared with England, leading to greater concerns among some Scottish interviewees about the danger of over-burdening children with responsibility for major decisions with unforeseen future consequences.

 nglish Key Informants’ Perceptions E of the Children and Families Act 2014 Formal legal recognition of children’s status as independent rights holders has traditionally been somewhat lacking in the UK both in relation to education and more generally. As the UN’s Special Rapporteur on the Right to Education has said, the child has tended to be viewed as ‘the object of a legally recognised relationship between the school and the child’s parents’ rather than as an independent legal party (UN Commission on Human Rights 2000). An interviewee from the voluntary sector

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believed that this characterisation stems from a deeply rooted historical and cultural perception that devalues children’s voice as ‘immature or irrelevant’ (Voluntary Sector Organiser). Despite this history, key informants tended to see the legislative changes as incremental rather than revolutionary, reflecting what was already standard practice in school. Asked whether the new legislation marked a new era of children’s rights, one school governor replied: No, I don’t think so at all … because [we] were already involving the children in decision-making … I’m not conscious of there being a sea change. (Primary School Governor with responsibility for SEN)

A local authority Principal Educational Psychologist saw the Act as opening up communication with parents and reinforcing ‘the need for [the] local authority to respect and engage with parents and young people’. The Department for Education interviewee was asked about the factors promoting children and young people’s participation and engagement as reflected in the 2014 Act. In his view, following the advent of the United Nations Convention on the Rights of the Child (UNCRC), there was a growing recognition of the need to rectify a historical failure to facilitate children and young people’s participation in education and Special Educational Needs (SEN) (Harris 2009). The policy also taps into a general professional perspective that educational decisions are likely to be more effective if children and young people are directly involved. The principle of personalised provision has long been accepted in the field of SEN, providing a good fit with the new focus on individual rights. The personal commitment of the then Minister of State for Education, Sarah Teather, was also recognised as a key influence on the ideas for reform set out in the Green Paper (Department for Education 2011), which formed the basis for the legislation.  To summarise, English key informants were broadly sympathetic to the goals of the legislation in terms of promoting the rights of children and young people. However, while the official policy rhetoric promised major changes in terms of making children and young people ‘authors of their own life stories’ (Department for Education 2012, para. 19), policy

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actors were more sceptical, regarding the legislation as simply underscoring established classroom practice rather than heralding radical change.

 cottish Key Informants’ Perceptions S of the Education (Scotland) Act 2016 As in England, Scottish interviewees were asked to comment on the impetus behind the legislation and the extent to which they supported its objectives. In general, there was a strong endorsement of the intentions behind the legislation, but some doubts about the ability of local authorities and schools to implement it successfully. The Scottish Government interviewee explained that the legislation was a response to a consultation exercise in 2009 which examined ways in which Scottish ASN legislation could be made compliant with the principles of the UNCRC. The support of the then Minister for Education, Adam Ingram, was seen as critical: The consultation was incredibly favourable and we followed that through. The Minister was Adam Ingram who’s a particular champion of children’s rights. Our Ministers are champions of children’s rights. They want to move that agenda forward. The consultation [on the new legislation] said that children should have rights. They said that they should have all of the rights under the [Additional Support for Learning] Act if they can, that they should be supported to do that. And that’s, in effect, what the legislation does. So for me it’s quite a straightforward sequence. (Scottish Government ASN Officer)

She believed that, compared with other European countries, Scotland was leading the way in advancing the children’s rights agenda: It’s the biggest extension of rights in Europe at the moment that we can evidence … So in that sense, in terms of principles, I think it’s massive. And I am pleased that children with additional support needs have gone first because the only other rights that are extended to children in ­education

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at the moment is the right to appeal your exclusion. (Scottish Government ASN Officer)

The ASN Tribunal President shared this enthusiasm for the legislation and also alluded to the influence of the UNCRC: I think there is a genuine commitment at government level towards improving the rights of children in Scotland. And I think this is reflected in recent legislation. The next stage is to make sure the legislation is fully implemented. I think there has been a consistent drive towards improving the rights of children in Scotland, and this government has been very good at focusing on the UNCRC, which reminds us about the importance of children having their views expressed and heard. It appears that the Education (Scotland) Act 2016 has granted the greatest extension of rights to children across Europe. (President, ASN Tribunal)

Principal Educational Psychologists were also in favour of extending children’s rights, but expressed concerns about practical difficulties, such as obtaining the views of children and young people with ASN: I think the … the extension of rights of parents to children and young people is only a good thing, and well within the whole children’s rights agenda that we would absolutely sign up for. We have a bit of work … [to make sure] our policies and procedures are compliant with that, and then we need to look at the practice on the ground. As I say, my experience is that children with additional support needs don’t know their rights, and are rarely in a position to invoke those rights. Whether that’s because of lack of awareness, I think we need to look at addressing. So yeah, I think it’s a good thing. (Principal Educational Psychologist, Council 5)

According to a school inspector, an additional barrier to implementing the new legislation was practitioners’ limited understanding of existing additional support for learning legislation: I do a lot of training with inspectors about helping them to understand legislative duties which, as you know, are becoming increasingly complex. There’s also practitioners’ understanding of legislation. … I think there’s a

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very mixed understanding about the additional support for learning legislation in general. And then this is adding yet another complication. So I think authorities are going to have to … go back to basics and just reinforce. You know, the role of CSPs, for example, we could have a debate around that but it isn’t clear. I don’t personally believe it’s clear. And it’s something that’s often picked up in inspection. (School Inspector)

Often, according to the school inspector, neither parents nor children were closely involved in educational planning because of time constraints: there’s time involved and you have to have time and commitment to be able to allow children to do that meaningfully. But at the moment partly because of time pressures and partly because people are maybe just not very sure of how to do it effectively, then what tends to happen is that schools will write up the plans with teachers, sometimes with parents but whether they’re actively involved [is another thing]. And then children get asked at the end if they’re happy with it and they kind of sign something off. So I think that what really needs to happen is for schools to really invest time … to give children the language to be able to actually participate in how they learn. … There are examples, very good examples, of schools that do that but I don’t think it’s common and consistent across the board. (School inspector)

Interviewees all recognised that children with particular types of difficulty were unlikely to have their voices heard: There will be children with autism where [there will be difficulties], there’ll be non-verbal children where we will have to find a way to … facilitate those views in a visual way or whatever it may be. And children with complex learning needs would be a similar thing, so there will be particular kinds of need. … Behavioural needs, I suppose, it’s about a kind of power imbalance in some ways. You know, they have found a way to express their needs in a way that’s often quite confrontational and difficult for teachers. So we’ve kind of almost tried to suppress their views sometimes and so they will find a way of communicating in a way that’s not always helpful. But there usually will be views there and things that they want to express. (School Improvement Officer)

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The views of care experienced children and those involved in the Children’s Hearing System were particularly likely to be ignored. A Principal Educational Psychologist commented that the Children’s Hearing System sometimes recommended placement in a residential setting against the wishes of the child: So actually, to be removed from your school where your friends are within your community, to a different provision elsewhere, I don’t think we’ve even started to think about how we involve children in that decision-­ making process. And we’ve been in a couple of difficult situations whereby … the child was placed into a residential school outwith the local authority. And the child [voiced the view] very clearly that that was not the right thing for him. But the Children’s Hearing very clearly thought it was. So, we’ve had some situations where the welfare and wellbeing of a child has not always been heard. (Principal Educational Psychologist, Council 5)

A respondent from an organisation advocating for care experienced children noted the potential for the legislation to boost the rights of this group, but also the need for significant investment in support: I don’t think very many care experienced young people will know about these rights at the moment. And for those who do, getting through those capacity tests might be off-putting and confusing and I suspect it will not be done uniformly across the country. Well possibly not even uniformly within one education authority. But nonetheless it is potentially a very exciting development. And young people having that option of being able to assert their rights could lead to a lot of change potentially. And the fact that that wasn’t an option before was always a worry because they don’t have the support of parents to go and do it for them. What they will need are advocates, I think. And … ideally advocates that they have a relationship with already and who they’ve already been working with on other issues. So I think that’s definitely going to be important. (Care Experienced Children’s Advocate)

Interestingly, a number of Scottish key informants expressed the view that the legislation may have gone too far in promoting children’s rights,

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potentially over-burdening children with major decisions which they might not be mature enough to understand: I’m in two minds. I do think children’s … voices should be heard, and their opinions taken into account. But children can’t give consent for lots of things …because their brains are not formed well enough to understand the implications of the decisions that are made, or the effects, or these kind of things. I think that yes, children’s voices should be heard, but I think a responsible adult needs to have a kind of input within that decision. And whether that’s a parent, or whether that’s someone else, I still think there needs to be someone that has some sort of input. (Parent)

Teachers also were wary of the new emphasis on children’s rights because of the undue influence it might confer on children: We’ve got another young girl who is in S2 and I am very concerned about her perception and her thoughts and how she perceives when things are said to her. So, for example, her Mum tried to confiscate her phone due to her behaviour at home or because she was staying up all night. She was coming in and saying, ‘Mum’s hurting me, she’s hurting me.’ I wasn’t happy with what she had chosen to do yesterday but she’s gone away and said she’s now scared of me. But this is a girl who is of an age where she has rights to make decisions about her education. I worry about her cognitive ability and her ability to understand the consequences. She does not want to listen to my advice or to other staff. And I think that’s a worry. … I’m not sitting thinking that that children shouldn’t have a voice or anything, but at what point? I worry that it’s becoming this, ‘We are all equals even if you are a child and you’re an adult’ and it worries me. (Scottish Learning Support Teacher)

To summarise, in both jurisdictions there was a broad endorsement of the legislation and the underlying intention to ensure that the principles of the UNCRC were reflected in grassroots practice. However, questions were raised about whether children and young people, schools and local authorities had sufficient knowledge about children’s rights to ensure that the legislation’s objectives would be realised in practice. Concerns were expressed about children being unduly influenced by parents, but also,

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particularly in Scotland, there were fears that children were being given too much influence over key decisions and that this might work to their detriment.

Assessment of Capacity: England There is clear recognition within the 2014 Act and Special Educational Needs and Disability (SEND) Regulations that the participation of young people is affected by their capacity. The SEN legislation adopts the test of incapacity set out in the Mental Capacity Act 2005 which refers to ‘incapacity to make a decision for oneself due to an impairment of, or a disturbance in the functioning of, the mind or brain’. However, the English local authority survey (Davidge and Harris 2018) revealed that many councils are not always applying this test but rather adopting a looser approach in which officers make their own broader judgments about whether the child or young person is sufficiently competent to participate. The danger, however, is that, rather than working with a presumption of capacity (UN Committee on the Rights of the Child 2009, para. 20), professionals may assume that certain groups of children, such as younger children and those with significant disabilities, lack capacity. Examples were given by one SENCO of children with whom engagement in relation to planning was hindered by their disabilities. In the case of the first of them: There’s a lot of social, emotional and mental health issues with the child, and a lot of family problems … He is seven … And … he’s had a very difficult start in life, this child … I think psychologically, for him, his head’s been all over the place; and I don’t think sometimes he’s really known what he’s wanted or what’s best for him … So actually, I’m not sure it would have been appropriate to involve him … (Primary School Special Educational Needs Coordinator (SENCO))

The other child mentioned by the SENCO was aged 10 and quite severely autistic:

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And actually, he is given input into what he wants to happen, but I think an adult has to take the ultimate control over that. Because … I don’t think he has enough insight into his future. (Primary School SENCO)

A voluntary sector representative nevertheless stressed the importance of involving children and young people in decisions regardless of the extent of their capacity: There is some kind of perhaps underlying belief that some young people may not be able to make decisions for their own future. And my stance would be that everybody, no matter how disabled, no matter what severity of impairment, has feelings, and they know what is good for them. And the question is not, ‘Do we invite the views of all children, and is it sometimes inappropriate for some?’ What is inappropriate is the method of asking… With the right amount of support, it is one hundred percent appropriate to ask everybody to make choices about their own future. (Voluntary Sector Organiser)

Children’s age was identified as another factor influencing their capacity to engage in decision-making. In relation to choice of secondary school, a school governor commented that it tended to be the SENCO and the parent who settled such matters: Because, whilst you want the child to be involved, the child doesn’t know anything about secondary schools, and which one would be the most appropriate really, although ideally, it would be discussed with the child. (Primary School Governor)

An English parent expressed concerns that the emphasis on young people’s independent voice might obscure rather than highlight their wishes. Where a young person had difficulty expressing their views clearly, parents should be encouraged to mediate these views: When we tried to get her into a specialist college this last year, it’s been really hard to have Elizabeth’s voice heard, because socialising and speech is probably the hardest area for her. And a lot of the meetings are held in a room with other people who she’s never met before, and it’s just not going

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to work … She always hates talking about herself … It would have been better … to hold the meeting with us … I don’t think they got the best out of her on her own. (Parent)

Assessment of Capacity: Scotland As noted in Chap. 3, the assessments of capacity and wellbeing associated with the Scottish legislation are one of its more controversial features, since local authorities are positioned as gatekeepers to the new rights, but are also the bodies whose decisions are being challenged. The Scottish Government officer defended the assessments of capacity and wellbeing as essential safeguards and believed that local authorities would be able to follow published guidance on their implementation. In addition, she was uncomfortable with the language of legal tests: The use of the term ‘test’ is not helpful. It’s an assessment and a decision. The reason that it’s an assessment and a decision is because if there is a decision that you don’t have capacity that impedes your right and therefore there must be an appeal attached to that for access to justice. So therefore someone must make a formal decision. And so it’s all technically in terms of law but there are decisions made and then appeals associated with that which allow access to justice. So there shouldn’t be harm caused to an individual because they don’t have capacity. The adverse impact on wellbeing is to capture the [possibility] that something that may come out which would be negative as a result of a child using their rights … It’s there as a safeguard. We also have to respect the fact that parents have responsibility to educate their child. It’s not the child’s responsibility to educate themselves. And again there’s a triangle of responsibility there and it just reflects that. (Scottish Government ASN Officer)

The official did not believe there was a conflict of interest in the role of the local authority as both a party in the appeal and the judge of whether the child should be able to exercise a right:

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So if a child is going to be able to have consent to medical treatment it’s the medical practitioner who decides capacity. If a lawyer is going to take instruction, it’s the lawyer who decides. The education authority is going to be challenged, so it’s the education authority who decides whether the child has capacity. So it’s totally consistent but to be absolutely clear, we went right round to see who is best to make that decision and then concluded it was the education authority. (Scottish Government ASN Officer)

Other interviewees expressed concerns about the powers held by local authorities, for example, the Tribunal President said that she would have preferred a presumption of capacity, which would have been consistent with the Equality Act 2010. Echoing this view, an education law consultant commented: It’s really difficult because there’s a number of obstacles that the legislation puts in the way of [children using their rights]. The Scottish Government described them as safeguards, I described them as obstacles. You know, the very convoluted process of exercising those rights is of no help at all in encouraging people to do so. So I think it is going to come down to how effective the statutory support organisation can be in raising awareness and then assisting children to navigate through that process. And I think that’s really, really important specifically for children who might not have effective parental advocates. So looked after children, young carers and so on. (Education Law Consultant)

An interviewee from the Equality and Human Rights Commission also believed that the Scottish Government had built-in unnecessary obstacles which blunted the impact of the legislation, referring to a ‘procedural miasma’: So there’s a requirement that before you can exercise a right you must notify the authority that you intend to make use of your rights. And the first thing that is then done is that parents are notified of that. So immediately any idea that you’re exercising these rights independently is, in my view, compromised. But the legislation says that you can only exercise those rights if the local authority is of the view that you have legal capacity to do so. And that they are also of the view that it wouldn’t adversely impact

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on your wellbeing to do so. So those two things, together with the procedurally complex or involved way in which those things have to be addressed, I think does represent a substantial obstacle….The Scottish Government takes the view that these are safeguards and that it’s to prevent vulnerable children from being involved in a process that they’re not equipped to deal with, or something like that. So that’s the reason that was given. And I’ve no reason to doubt that that’s the motivation behind it but … I’m opposed to those obstacles. I don’t think that that’s the way that we treat rights holders. Part of the point of having rights is that it’s you that gets to decide when it’s a good idea to use them, and not somebody else. (Equality and Human Rights Commission Officer)

This interviewee was concerned about the inconsistency between the definitions of capacity within the Equality Act 2010 and the Education (Scotland) Act 2016.1 Whereas the Equality Act presumes capacity, the 2016 legislation requires the local authority to ascertain whether the child has the capacity and that exercising a right would not be detrimental to their wellbeing. She also pointed out a lack of clarity with regard to the test of wellbeing: The … legislation requires an assessment about whether the exercising of the right would have an adverse impact on the child. But the code, at times, seems to suggest that the process is about whether the decision being challenged is in the interests of the child. Is it the child’s wellbeing in relation to the decision or action that’s being challenged, or the process of exercising the right which adversely impacts on the child’s wellbeing? And for some children not being able to exercise that right might adversely impact on their wellbeing. (Equality and Human Rights Commission Officer)

Overall, this interviewee believed that the tests of capacity and well­being diluted the impact of the legislation, so that ‘you’re not actually giving children a right to make a reference to the additional support needs tribunal. What you’re saying is that they can ask an education  The Equality Act 2010 extended the jurisdiction of the Additional Support Needs Tribunal for Scotland (ASNTS) to include claims of disability discrimination. Under the terms of the Equality Act, discrimination is defined as the failure to make reasonable adjustments for a disabled person or the provision of less favourable treatment to a disabled person on the grounds of their disability… 1

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authority, or in certain circumstances a tribunal, whether they can exercise the right, setting up an inevitable conflict of interest, ‘and that’s not giving children rights at all’. Local authorities were also concerned about the responsibility placed on them: So when we’re talking about young people asking for their rights for an assessment, you’ve got to assess what impact might that have on their ­wellbeing. I think again you’ve got to think sensitively and carefully when you’re investigating aspects of a complaint, whether it’s related to bullying or anything else. We’ve got to be mindful of what impact this might have on a young person’s wellbeing. So we’ve got a duty to investigate, we’ve got a duty to find out what happened. (Principal Educational Psychologist Council 3)

To summarise, a major objection to the legislation concerned the power invested in the local authority to test the child’s capacity and ­well­being before allowing them to use a particular right. Many interviewees believed that this was an unnecessary constraint on children’s ability to use their new rights, and suggested that the legislation should have been based on the presumption of capacity, as is the case in relation to the Equality Act 2010.

 ensions Between Parents’ and Children’s T Rights: England In both jurisdictions, key informants were aware of fundamental tensions between children and young people’s right to participate in decision-­ making and the position of parents as promoters of their child’s best interests. This may be a particular issue for local authorities when children and parents express conflicting preferences or wishes, for example, around school choice: Sometimes … what the child wants is probably not the same as what the parent wants … Often parents are fighting for a special school place, and

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actually the young person [says], ‘I want to go to school with me mates across the road. And I don’t want to get on that special bus’. (Local Authority SEND Strategic Lead) I could give you a case where … the family wants to go further afield and [it] might be a residential placement. And the young person’s saying, ‘I’m happy to access the college down the road’. (Local Authority SEND Development Manager)

However, at primary school level there seemed to be less likelihood of a divergence between the child’s and the parents’ wishes: Some children have said, the more profoundly disabled, ‘… actually, I don’t want to use a standing frame any more’ … I’ve never known a parent not support the child and say, ‘OK, they really don’t like standing, but yes, I agree, we’ve got to find some other way of doing the stretches’. (Inclusion Manager Primary School)

An educational psychologist reported that different views might emerge at the tribunal: I have been involved in tribunals where there’s been a significant difference between what the child wants and what the parent wants … I think we probably have [had] two or three examples … where the young person’s views have been clear about them not wanting to continue education, and where the parent … has wanted [them] to. (Principal Educational Psychologist)

In such cases, it is up to the tribunal to decide how to resolve any conflict, bearing in mind a range of other factors. However, where there is a conflict of views, there seems to be a tendency to favour the views of the parent over those of the child or young person. In the case of primary-­ school-­age children, schools may consider that ‘the parents’ views are absolutely paramount’ (Primary School SENCO), and even at the secondary level, parents’ wishes may carry greater weight. For example, a local authority officer commented:

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[The boy] was still of school age, so parents’ views trumped his views. But everybody working with him … felt that [what he wanted] was the best course of action. (Local Authority SEN Lead)

However, interviews with English case study parents underlined the sense that some were wary of being labelled as over-influential and modified their behaviour accordingly. Laura’s mother commented: I think there’s still quite a stigma about it, isn’t there? I think you are apologising and justifying what you’re doing all the time. And like I said, people have been quite vocal and critical about what we’ve tried to do with Laura. They haven’t always liked what we’ve done….I think we’re all just trying to do our best for our kids. And if you happen to have a child that… has a particular need in a certain direction, you’re that parent that’s on the phone, aren’t you? (Laura’s mother)

 ensions Between Parents’ and Children’s T Rights: Scotland In Scotland, too, many respondents believed that tensions might arise between parents’ and children’s rights, and parents were concerned that local authorities might use the new emphasis on children’s independent rights to dilute parental requests for greater resources. The Scottish Government official noted that there would now have to be a ‘mature discussion’ about whether a particular right would be used by the child or the parent: The biggest difficulty will be that families have to make a decision about who’s going to use their rights. Now … some families will sit their child down and they’ll have a mature discussion about that. And a consensus will be reached in the best of situations. In others, children whose parents are not available or unable to do that for them will just take the decision to do it themselves. Other parents will just decide that they’re not going to have that discussion and the parent’s just going to do it. There’s a tension in there … and we’ll see how that will play out. (Scottish Government official)

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An inspector suggested that assessment was one area where conflict might arise: I think the challenge always is where you have a conflict between the child or young person exercising that right and leading to conflict with parents. And that may happen. I mean, a typical example would be where parents are seeking some kind of assessment around additional support needs, for example. And then the fifteen year old is clearly saying, ‘I don’t want it’. I think that will be quite difficult and I think the schools will therefore have to marry the tension because parents can get very concerned. … In fact it’s quite hard for parents, I think, as their young people begin to get older to realise that they have less control. And I think probably enshrining it in legislation is emphasising that point increasingly. I could see it particularly around Asperger’s, autism type difficulties, which tend to be identified later. (School Inspector)

A Principal Educational Psychologist noted that, when a decision was made to place a child in a special school, the child’s consent was rarely sought: I’ll be very frank, one area where I think … we don’t seek children’s views as well as we could is when we are looking at placing them in alternative placements. Often, that is done to children by professionals and parents because of their real belief that that’s in the best interests of the child. We have a consent form. So, we’ve got a panel, a placing panel, that parents need to consent for, and if the children are over twelve they also need to consent. Children under twelve we leave it to the parent because that’s the legal position, but we do try on the form to capture the child’s and the parents’ views. That’s been in place since August, and I’ve only ever seen parents commenting on that box. You know, so I myself need to go back to schools and say, ‘Do we need to speak to children about this?’ (Principal Educational Psychologist, Council 5)

A number of Scottish interviewees from local authorities and schools expressed concerns about the motivation of parents who questioned professional decisions. An educational psychologist commented:

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I think, generally, especially for children with additional support needs, it’s not easy in terms of getting the right support at the right time, and I think sometimes [parents] don’t stop to think about their child. (Principal Educational Psychologist, Council 5)

Another psychologist believed that disputes around placing requests often had an unsettling effect: I think that the minute a young person is aware … that there is a dispute, then it has an impact on their wellbeing because they … know that there are questions being asked about whether they are in the right school or not. They know it because, in spite of parents’ best intentions they … become aware of it. (Principal Educational Psychologist, Council 3)

As in England, professionals believed that parents’ views were taken more seriously than those of children, and some felt that, particularly for young people, this bias needed to be corrected: there’s still I think in Scotland a thought that if a child or a young person is a certain age, then it should be the adult making decisions about these things, and I think that’s quite dominant—parents think that as well. … The amount of times you would phone up the parent and [the young person] was 17 years of age, and speak to the parent before you would speak to the actual young person, that still happens relatively consistently. (Principal Educational Psychologist, Council 4)

Somewhat controversially, a school inspector suggested that decisions might be reached more easily if on occasion parents were cut out of the negotiations: I do feel that head teachers take cognisance of children and young people when there is a dispute. I mean they do listen to their views and they’ll try to mediate some difficulties but in my experience the most difficult disputes are when the parents [get involved]. Often [the head teacher] can work round a young person and get some resolution but the parents will come in and they will often … have a very set view. So I think if we could just work with the child, we could resolve the dispute. If we could get that

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out of [the new legislation] that would be powerful, because often [young people] don’t want the fuss the parents are making. (School Inspector)

A representative of a parents’ support organisation questioned the real agenda behind the children’s rights legislation, suggesting that in reality it was driven by a desire to reduce parental influence and power. In her view, excluding parents from discussions about children’s rights would ultimately be detrimental to their interests: There’s that element [in local authorities] where they’re just like, ‘Oh we don’t want to hear from the angry difficult parents’. … You hear from the authority … that if [parents are] articulate then they’ve got a sort of personality disorder or a mental health problem. If they’re not articulate they’ve got a learning disability or a mental health problem, you know. And you meet the people and you sort of think, ‘Well, really … this is a perfectly normal person. They’re just upset and angry and they’re frightened for their child’. And I used to slightly judge people as well but after all these years, all I see is people who are really trying their best for their children. And, you know, just coming up against brick walls and getting hurt and offended. And then trying harder and then being told even more that they’re belligerent. (Parents’ Advocacy Organisation)

In her experience, it was very unusual for a parent to behave in a deliberately obstructive manner: Of the thousand families, in the eight years I’ve been in post I would say there’s been less than a handful who eventually we began to think, ‘Actually are you doing this in the best interest of your child?’ And we have got the experience to pull out of those kind of situations because we cannot support a parent who’s actually undermining. And that’s out of a thousand a year. (Parents’ Advocacy Organisation)

Initially, this interviewee viewed the new legislation as a means of boosting children’s rights, but increasingly believed that it was a tokenistic gesture to shift power away from parents:

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I just thought, ‘Oh it’s just a way of making sure that children’s rights are addressed’. But now, I suppose I feel … annoyed that there’s horrendous lack of attention to some discrimination for children. And that the suggestion is that somehow if their views [are expressed] separately that that’s going to make a significant difference. When actually … there’s a huge lack of provision for children with extremely challenging behaviour. So why don’t they just provide that instead of doing this sort of token gesture? I sense that it is about saying that parents are too powerful … But every time we’ve worked with children’s advocacy organisations, it’s been sort of collaborative. It’s not been they’re saying one thing and we’re saying another. (Parents’ Advocacy Organisation)

Conclusion In both jurisdictions, there was considerable optimism that the new legislation, influenced by the international human rights framework, would play a major role in advancing the children’s rights agenda. At the same time, some English respondents suggested that there was a danger of over-stating the radical nature of the changes, which in many cases simply reinforced what was already everyday school practice. In Scotland, some children’s rights supporters believed that the changes did not go far enough. In particular, they were critical of the fact that in order to exercise their rights, children were obliged to submit to tests of capacity and wellbeing administered by local authorities whose decisions were being challenged. This was likely to lead to a conflict of interest, since the local authority had an interest in preventing its decisions from being challenged, particularly in the area of resource allocation. In both jurisdictions, concerns were raised about the practicalities of assessing children’s capacity, and it was suggested that there was still a tendency to assume that some groups, particularly younger children and those with complex difficulties, automatically lacked capacity. A common theme in the English and Scottish interviews was the potential of the legislation to exacerbate tensions between parents’ and children’s rights. Some local authority staff believed that parents exerted undue influence in areas such as placing requests and disputes, and that

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greater weight should be given to children’s views in order to downplay parental power. In Scotland, an interviewee from a parental advocacy group suggested the possibility that enhancing children’s rights might be used to undermine parents’ rights. Since parents acted as children’s most effective advocates, this would ultimately work against children’s interests. Finally, particularly in Scotland, some practitioners and parents worried that children were being accorded too much decision-making power, which they might experience as a burden or use unwisely. Overall, the new children’s rights legislation in Scotland appeared to evoke a greater range of responses than its English equivalent. This ranged from great enthusiasm on the part of government and local authorities to suspicion from some parents and teachers. By way of contrast, in England, the legislation evoked a more neutral response, with many respondents seeing it as signalling business as usual rather than radical change. The more polarised reaction north of the Border may reflect the fact that the extension of children’s rights goes much further, with children aged 12–15 with capacity now enjoying almost exactly the same rights as parents and young people. In the following chapters, case studies of children, young people and their families are used to explore the way in which the new legislation has worked out in everyday classroom situations, as well as when major decisions are involved in areas such as school choice and dispute resolution.

References Davidge, G., & Harris, N. (2018). Autonomy, rights and children with special needs: A new paradigm? Working Paper 4: English local authority survey results, CREID, University of Edinburgh, Edinburgh. Department for Education (DfE). (2011). Support and aspiration: A new approach to special educational needs and disability (Cm 8027). London: DfE. Department for Education (DfE). (2012). Support and aspiration: A new approach to special educational needs and disability: Progress and next steps. London: DfE. Harris, N. (2009). Playing catch-up in the schoolyard? Children and young people’s ‘voice’ and education rights in the UK. International Journal of Law, Policy and the Family, 23(3), 331–366.

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Newman, J., & Clarke, J. (2009). Publics, politics and power: Remaking the public in public services. London: Sage. UN Commission on Human Rights. (2000). Report submitted by Katarina Tomaševski, Special Rapporteur on the right to education, Addendum. Mission to the United Kingdom 18–22 October 1999 (E/CN.4/2000/6/Add 2). Geneva: Centre for Human Rights. UN Committee on the Rights of the Child. (2009). General Comment No. 12 (2009) on the Right of the Child to be Heard (CRC/C/GC/12). Geneva, Switzerland: Centre for Human Rights.

6 Children and Young People’s Participation Rights in Schools and Classrooms

Introduction This chapter begins with a brief overview of the literature on schools as participative institutions, considering the extent to which children’s rights are prioritised in daily routines and activities. Case study data are then used to explore participation by children and young people with special educational needs/additional support needs (SEN/ASN) in the everyday school and classroom life. The case studies enable children and young people’s school experiences to be located within the wider social context of their lives. They illustrate the way in which children’s ability to use their new rights is influenced by their social class background and the nature of their disability.

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 o Schools Encourage Children and Young D People’s Participation in Classrooms? Despite the new focus on children’s rights, it may be argued that childhood remains the most intensely governed sector of personal existence, where social regulation is used to exert control over young bodies and minds. As discussed in Chap. 3, the development of compulsory education has involved growing state regulation of the lives of children with SEN/ASN and their families. Parents have been compelled to enrol their children for testing to identify the existence of deficits and compartmentalise those meriting inclusion or segregation. Much of the literature on children’s educational rights provides a depressing picture of schools as rule-bound institutions, where children are disciplined to accept social and cultural norms. Attitudes towards school are strongly related to social class, with children from poorer backgrounds finding school ‘controlling and boring; somewhere they tried to spend as little time as possible’ (Sutton 2007, p. viii). Wyness (2000) notes that ‘the timetable and the curriculum are overlaid with codes of conduct and modes of self-display, with rules and regulations separating children from decision-making’ (Wyness 2000, p. 90). Mayall (2002, p. 101) describes schools as ‘profoundly undemocratic’. In citizenship education classes, for example, children may be taught that rights are conditional on responsibilities and may therefore be forfeited as a punishment for non-compliance with school norms (Lockyer 2003). On a more positive note, surveys of pupils’ attitudes to education often reveal a rosier picture. For example, a survey of English secondary school pupils suggested an ‘almost universal’ commitment to the value of education, but, for a minority, an ambivalence about the experience and relevance of schooling for them (Croll et al. 2008). Smaller-scale qualitative studies of children’s experience of inclusive primary classrooms (e.g. Adderley et al. 2015) found that most children had positive things to say about their school experience, although negative aspects included perceived unfairness, teachers shouting, rigid seating plans separating pupils from their friends and feelings of loneliness.

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Researchers have noted the particular problems in school and classroom participation experienced by those with complex difficulties. For example, in their study of participation in decision-making by disabled children and young people in Northern Ireland, McNeilly et al. (2015) observed that children and young people with complex needs experienced an environment and daily routines which were tightly controlled by adults, who often lacked the necessary skills to access pupils’ views and wishes. McNeilly and colleagues concluded that the use of more sensitive communication methods and accessible information would ensure greater recognition and respect for children, young people and their families. Also focusing on the experiences of those with complex difficulties, Franklin and Sloper (2006, 2009) conducted research on disabled children and young people’s participation in decisions on social care in six social services departments in England. They noted that the Children Act guidance and regulations state that every child should be assumed to be capable of sharing in decision-making, and arrangements must be made to establish their views. The researchers found that even though authorities had policy documents which emphasised children’s participation, these in themselves did not change practice, and in most cases adults, rather than children, set objectives. The research indicated the need for a broader understanding of participation by disabled children, with professionals recognising that, in addition to speech, disabled children communicate in a variety of ways. Observation, for example, can be a valid means of ascertaining the views of some disabled children. To improve understanding of disabled children’s worlds, adequate resources, time and support must be invested. Where children’s views cannot be acted upon, the researchers suggested that this should be explained to the child and their family. Finally, there is a need to monitor and evaluate children and young people’s participation to feed into the future development of practice. The nature of a child’s disability is clearly not the only factor associated with participation in or exclusion from decision-making processes. Chapter 4 in this book, alongside earlier studies (Riddell 2009; Riddell et al. 2010), illustrates the intersection of a range of social variables in the way in which pupils are categorised, with consequences for access to

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resources and institutional recognition. For example, Scottish Government data show that almost four times as many boys as girls are identified as having social, emotional and behavioural difficulties. In addition, pupils with ASN, living in poverty (indicated by entitlement to free school meals) and looked after by the local authority are 13 times more likely to be excluded from school compared with other pupils (Riddell et  al. 2010). At the other end of the spectrum, compared with other pupils, boys from socially advantaged backgrounds are more likely to be identified as having dyslexia, subsequently benefiting disproportionately from additional support in higher education (Riddell et al. 2005). This illustrates the relative success of middle-class parents in navigating the system, but also the difficulties of parents who struggle with a range of social and economic disadvantage.

The Concept of Pupil Voice and its Limitations Despite its widespread currency, the concept of pupil voice has been criticised on a number of grounds (see, for example, Scanlon et  al. 2016; Lewis and Porter 2007; Howell 2017). Lundy (2007) argues that pupil voice may simply be deployed as a ‘flavour of the month’ concept, rather than being seen as ‘a permanent, non-negotiable human right’. Drawing on research supported by the Northern Ireland Commissioner for Children and Young People on the implementation of Article 12, Lundy suggests that in order to participate effectively in decision-making, children require space, voice, audience and influence. In practice, decisionmakers need to ensure that children have the opportunity to express a view, support to do so, mechanisms to ensure that their views are listened to and processes to ensure that the views expressed are acted upon. McKay (2014) goes even further in questioning the utility of pupil voice as a central goal. She suggests that the requirement for the child to express a view may be experienced as a source of pressure and shame, and that advocacy services may only present views which are deemed to be sensible and acceptable. In addition, some children are likely to be more adept in expressing their opinions than others depending on their social class position, verbal fluency and access to support. Lewis (2010) argues

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that rather than focusing uncritically on the voice of the child, researchers should also pay attention to the child’s silence and its significance.

Children’s Agency in Classrooms In this section, case studies are used to explore the extent to which children are able to exercise agency in everyday school life, and the factors which make this more or less likely to happen. Broadly, the case studies illustrate a complex intersection between individual and social factors, including school and classroom ethos, child’s personality and disposition, type of difficulty and social class position of the family. The first two case studies provide examples of children exercising a relatively high degree of agency in classroom life, while the latter three illustrate the factors contributing to disengagement.

Sally, Eastshire, Scotland Sally, aged six, is of White Scottish heritage and lives in an ex-local authority house in a former mining town in Eastshire with high levels of deprivation (SIMD 2). She has physical difficulties and a diagnosis of cerebral palsy which means that she has difficulty standing and walking unaided, problems with fine motor skills such as cursive handwriting and speech difficulties. She is a quiet but popular girl who is well embedded in her social group. According to her father: Sally’s got cerebral palsy, she’s had that from birth. She’s very mentally capable. She’s quite an intelligent young lassie. Most of her issues are down to her movement and her muscles in her legs. Unfortunately she has to use a walker to get about. She’s … quite a quiet wee lassie when you first meet her. She can be kind of head down and not sure about things but as soon as you get to know her she, she’s quite talkative. Yeah, and she’s a happy wee lassie. (Sally’s father)

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Sally is looked after by her father, a single parent who works as a part-­ time care assistant. The family home has been adapted to make it accessible, with a ramp-up to the front door, handrails and widened doors. At the time of the interview, a smooth wooden floor was being installed in the living room and kitchen to facilitate wheelchair movement throughout the house. Sally’s father explains that he is on very good terms with the school and knows how the system works because his two older sons were pupils there before going on to high school. The school has recently asked him to be on the parent council. He is also familiar with the local authority as a result of his job as a support worker. In her classroom, Sally sits with a group of friends at a table, chatting quietly about work but also about an upcoming birthday party. She has a small wooden wheelchair and her classmates compete for their turn to push her around the school. However, Sally maintains that she does not like to be treated as a class mascot and the other children have been told by the class teacher to ask her permission before she is moved. She explained to the researcher that she did not want to be interviewed individually since this would mark her out as different, but was happy to participate in a group interview with her friends. In terms of her sense of agency in the classroom, Sally believes that the rules are created by adults with little involvement by children: Interviewer:   Do you get asked about the rules? Sally: No, you just get told, ‘These are the rules’. While Sally did not like some of the rules, like sitting quietly in circle time, she generally approves of others such as ‘We’ve tae keep our hands and feet tae ourselves … no hitting or kicking’. She also has a broad idea of children’s human rights: If children don’t have money they can’t buy food, which is not fair. Food helps you be strong and you’ll die if you don’t eat food … Food’s healthy for you. (Sally)

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Sally has a classroom assistant with her in the morning, who takes her to the toilet and helps with physical exercises. However, the arrangement is being reviewed by the local authority on the grounds that this level of individual support may no longer be required. While justified on educational grounds, the decision is clearly influenced by the ongoing need for council and health board spending reductions. Sally’s father is very aware that the successful mainstream placement depends on having the required levels of support in place, and believes that the issue of adequate resources may become more pressing at secondary school. He appears unaware that the lack of a statutory support plan may make it difficult to contest the withdrawal of support in the future, potentially jeopardising Sally’s chances of thriving in a mainstream high school.

Ruth, Coalshire, Scotland Ruth is a 14-year-old high school pupil of White Scottish heritage living in a relatively affluent part of Coalshire (SIMD 4). She is neatly dressed in a white shirt, school tie with enamel badges, skirt and blazer. Ruth’s father is a scientist and her mother has an on-line business which allows her to work from home. Ruth describes herself as having autism, but also has a sense of her strengths and achievements: I have a very ill family. My dad’s autistic, I’m autistic, my brother has been diagnosed with autism. My mum has fibromyalgia. She a network marketer. My dad has a PhD and is a scientist, he studied biology. My brother’s good at sports, he likes to play rugby. I’m good at music and sports and languages. I play basketball, I do dancing, horse riding. (Ruth)

Ruth’s mother describes her daughter as intelligent and idealistic with a strong sense of social justice: Feisty is a good word for Ruth. She’s quite obsessive about certain things which is obviously part of the condition but she’s really obsessed about human rights, gender, you know, gender bias, she gets really annoyed about that. … She’s a very sensible girl, very sensible. (Ruth’s mother)

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Ruth says that although she mainly enjoys school, she sometimes experiences overwhelming anxiety: The school is like at its full capacity. I don’t like other people, other noise. (Ruth)

When she feels that she cannot cope with the noise and tension of classroom life, Ruth explains that she used to run away, either hiding under the stairs or phoning her Mum to come and get her. She sometimes left the school entirely, causing alarm for her family and teachers. Now, she is learning new coping strategies so that if a lesson is too noisy, she uses a classroom pass which allows her to leave. For example, during a noisy music lesson, Ruth shows her pass to the class teacher and subsequently retreats to the Department for Additional Support (DAS). She comments: Some people who go down there are down there because they misbehave and they swear a lot. But then there’s others like me who can’t cope with classes. And then if I’m really upset they have like a tent in one of the DAS classrooms and then I can just sit in there. (Ruth)

Ruth gets on well with most of the young people in the DAS, but adds: ‘… some a’ them I don’t like to talk to because they’re very sweary and sarcastic and I don’t understand’. She participates in most mainstream classes and has a strong sense of her own abilities: In the recent tests I’ve had, I’ve got National 5 in German and an A in biology. In National 4 in Spanish, which is as high as you can get, I got A in Spanish and B in History which was the highest mark in the class. And then English I’m really good, I’m gonna get National 5 in that. And it’s just Maths when I do tests, I kinda black out. But I can do the work, I’m like the head of the class. (Ruth)

In terms of her future, Ruth is ambitious saying she would like to go to university and have a well-paid job:

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I know I want to go to university and I want to earn lots of money but I don’t know what for. Like everyone said I should work with younger children because I’m good with them but I don’t think I should like being a teacher or anything like that. I just have no patience. (Ruth)

Catherine, Sea City, Scotland Catherine is a small seven-year-old with bright red hair attending a special school for children with complex difficulties. Of White Scottish heritage, she has profound learning disabilities, sensory impairments and cerebral palsy. She also has respiratory problems and difficulty swallowing food. She is preverbal and due to her communication difficulties, she sometimes self-harms by scratching, hitting and headbanging. Catherine’s mother describes the way in which her daughter communicates: Catherine’s generally very visually interactive so when you’re in a room she’ll look at you, blow a few raspberries. Probably [she wants] a little bit of sensory stimulation and she’ll blow a kiss which is a really nice gesture that usually shows that she likes someone. She likes the attention. However, she’s not able to respond to sign language. (Catherine’s mother)

Catherine’s middle-class family live in an affluent part of the city (SIMD 5) in a semi-detached house. Her father is a civil servant and her mother does not currently work outside the home, since she is fully occupied looking after Catherine and two younger siblings. Although highly critical of outside school support and wider social exclusion, Catherine’s mother is very positive about the school because of the teachers’ commitment to the children. Catherine has an Individualised Education Programme (IEP) but not a Coordinated Support Plan (CSP), although it would appear that she meets the criteria, receiving services from education, health, social work and two voluntary organisations. Her IEP long-­ term targets focus on basic communication using vocalisation, movement and object signifiers or photos to indicate familiar activities.

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Catherine’s mother explains that her daughter’s agency is limited by her learning difficulties. She is not able to make abstract choices and cannot recall familiar objects and people: Catherine’s not able to project thinking or have a bigger grasp of understanding. So, for example, if you tell her you’re going to the shop, even though you’ve been there thirty thousand times, she will not know it till she sees it. She will not know the faces that she will see in a day until she sees them. If you tell her granny and grandpa, she will not understand that. So she is able to make very straightforward choices but a bigger wider understanding of things is not there. (Catherine’s mother)

Catherine’s teachers are aware of the dilemmas associated with interpreting the preferences of children with complex needs and of over-riding pupil choices if these are deemed to be potentially damaging: I think quite often, you know, adults make decisions for the children. And sometimes we have debates about it in class. You know, one team member will say, ‘No she needs to learn to sit down at a table’. And someone else will say, ‘Well no, she’s not at that stage developmentally. Actually why are we trying to make her sit at a table when she’s clearly not ready for that?’ So there is a lot of discussion. (Catherine’s teacher)

Catherine’s class teacher believes that children participate in classroom decision-making by indicating their likes and dislikes: I think they’re indirectly involved. Well directly and indirectly. So directly by the choices that they make throughout the day and …what we notice that they like … And then indirectly by, when I’m writing the plans or developing the lesson, I have to draw on that so they actually influence everything that we do if I’m being an observant and conscientious teacher. I have to pull all of those factors in. So yeah I think they do, they might not be aware that they’re doing it but they do influence what we’re doing and how we do it. (Catherine’s teacher)

However, the limits to pupil agency also have to be recognised:

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You know, we’re always looking at ways to give pupil voice, but a lot of it’s on a level of [simple] choosing. So, you know, ‘Do you want that for snack or do you want that for snack?’ And then they can choose. (Catherine’s teacher)

Difficulties in understanding the views, wishes and feelings of pupils with complex needs was evident in the IEPs and CSPs produced by the school. In most cases, the pupil’s views section was left blank or the space was filled with the words ‘not applicable’.

Lyron, Bigtown, England Lyron is nine years old and is educated in a special unit, attached to an inner-city mainstream primary school. He is of African Caribbean heritage and lives with his mother, a single parent, in an area of high deprivation (IMD 1). He has a diagnosis of autistic spectrum disorder and experiences difficulties with social interaction. Lyron is aware of his diagnosis and the ways in which this can affect his behaviour: I have autism. Well a spectrum of autism. It means that … I don’t have a lot of autism, but I have a little bit of it. It affects me behaviour-wise, it affects me listening-wise. Affects me kind of a lot. Even sometimes little [things] affect you a lot. (Lyron)

Lyron is described by his mother as a ‘very bubbly, intelligent child who is very shy, but loving’ and by teaching staff as an ‘intelligent, mature young man who struggles to manage his emotions and sometimes exhibits challenging and violent behaviour towards other pupils and staff’. Lyron moved to the special unit after being excluded from his previous school on a number of occasions. He now spends most of the week in the unit alongside seven other pupils who all have a diagnosis of autistic spectrum disorder or speech and language difficulties. For two afternoons a week, he joins the rest of his peers in Year 4 within a mainstream classroom setting, where he receives individual support from a teaching assistant.

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Lyron has one good friend who he plays with at lunchtime club and describes his peers within the special unit as his friends. However, teaching staff point out that other children in the special unit often ‘wind him up’. In the future, he would like to, ‘work in football’ and have ‘my own family and my own house’. Asked what he most dislikes in school, Lyron lists noise, tidying up, stickers and chocolate. At his previous primary school, Lyron was seen as a child who was out of control, and according to current teaching staff, he was frequently subject to restraint. He was only allowed to attend school part-time, and his mother was often called to remove him from the class. He is now attending the special unit on a full-time basis and, in the view of his teacher, he is reaching ‘age-related academic expectations, if not above age-related expectations’. However, despite this improvement, his teachers describe him as ‘still quite aggressive and quite violent’. Lyron has received a fixed-term exclusion for five days and three internal exclusions due to violence and is at risk of permanent exclusion, which the school is trying to prevent by finding news forms of support: We’ve increased his time, gradually and put one-to-one support in place for him so that we can regulate his emotions for him basically. He struggles to regulate his own emotions. He can tell me everything he needs to do when he’s angry, everything that he needs to do when he’s frustrated, but he can’t put them into place at the time … So, his one-to-one support… is more to be an extra pair of eyes for him, help him to try and calm down before something escalates and protect him from being excluded from school. (Lyron’s teacher)

According to Lyron’s teacher, he struggles within the mainstream classroom, possibly because of its strict rules. He is allowed to return to the special unit whenever he feels overwhelmed and, as a result, rarely completes a full afternoon in the mainstream. He is currently not allowed to join other pupils at playtime, which he thinks is unfair: I’m not allowed out for lunchtime. And I’ve never been back out for lunchtime ever since around the start of Year 4 … There was an incident. And I can’t remember what it was about. But I was basically in for playtimes and

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lunchtimes … But then something happened in Year 4 and I’ve not been out for lunchtime ever since that incident … I’m just really annoyed … it’s not fair, because I’ve been doing this for eight months. (Lyron)

He also finds some aspects of school discipline stifling, including the requirement to be quiet at certain times: Lyron:

I find it hard being quiet, because … I wouldn’t classify myself as a chatterbox, but I do talk a lot…That’s why I like playtime and lunchtimes and when you can talk sometimes. Interviewer:  Is that the best bit of the day, when you can talk? How do you find it when you can’t talk? Lyron: It’s just really hard, before you absolutely burst out. You have to like stifle yourself like, have to pinch yourself sometimes…You have to bite your lip, you have to bite your tongue sometimes. But the thing about that, sometimes you do it too hard like, and then you literally just have to go, ‘Ow!’. Lyron feels that he struggles to explain his difficulties and that the school is more likely to pay attention to his mother because of her adult status: Lyron:

You know, she tells them about what I think is unfair about my situation in school. And she really gives them sense; she really knocks sense into them … She talks firmly. Interviewer: What’s different about your mum telling the school, as opposed to you telling them? Lyron: They wouldn’t really listen to me as much as they listen to Mum, because I’m just young—I’m only nine. My mum is an adult; they’ll believe her more than me.

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Charlene, Eastshire, Scotland Charlene is an intelligent, chatty girl of 15 with a diagnosis of autistic spectrum disorder (ASD) and social, emotional and behavioural difficulties (SEBD). She has short, dark ginger hair and at school is dressed in a hoodie and trousers. Charlene is of Irish and Italian-Roma heritage and is currently in kinship care, being looked after by her grandparents. She has a particularly close and supportive relationship with her grandmother and has contact with her father. Charlene lives in a socially deprived area (SIMD 2) in a former mining town. She is a big fan of the Hibernian football club and attends many of their games. She also likes boxing and goes to army cadets. Charlene is aware of human rights in general, making reference to the United Nations Convention on the Rights of the Child (UNCRC). She says: My basic rights are: shelter, food, water, not being sold, looked after, right to a name, a country and a passport. (Charlene)

As a looked after child, Charlene is entitled to a CSP assessment, but this does not appear to have taken place. At secondary school, Charlene was moved from a mainstream class into a special unit as a result of her challenging behaviour. She resents being in a class with less able young people and worries about being seen by her former classmates: I don’t like the fact that I’m in a class with… two very autistic young people. And it gets a bit annoying. And I think I should be in a different class with the higher functioning people. (Charlene)

Charlene appears to have a volatile relationship with the school and is perceived by teachers as a disruptive influence. For example, during the research team’s visit, she locked herself in the toilet and refused to emerge for some time. Later, she attempted to steal a teacher’s car keys and shouted and swore at staff when challenged. Because Charlene’s behaviour often disrupts the smooth running of the school, she is moved from

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one class to another depending on the particular issues of the day. She is closely shadowed by a support worker in the classroom and at lunchtime in the food court area. She often becomes angry and flustered, and on the day of the observation she left the class she was supposed to be in because she was hit by another pupil. Charlene dislikes being moved around, and during the observation, she asked the Depute Head Teacher if she could work in class 1 with the younger children. This was agreed, but Charlene was told that the move was not permanent. The next day, Charlene complains that the teacher has changed her mind and she is now in a different group. Charlene’s behaviour appears to have knock-on effects on other pupils in the school, with the parent of another pupil describing the class as a ‘dumping ground’. The teacher describes the classroom as very challenging due to personality and behaviour clashes between pupils: In the class we have two very high functioning young people doing National 4 and 5 exams. … They’re often very, very reluctant to work alongside the young people who are visibly autistic and have tics … So teaching them in a group has been very challenging. (Charlene’s teacher)

Charlene is ostensibly studying Geography, English and Modern Studies at National 5 level and is frustrated that she cannot do Maths and Physics: Well I only do three lessons. I don’t do Maths cause there’s no Maths teacher… I don’t do Physics cause there’s no Physics teacher. There was but that’s stopped. (Charlene)

Staff explain that Charlene is unable to attend additional lessons in the mainstream school because of her behavioural and anxiety issues, and the fact that she does not want to meet her former classmates. Charlene participates in meetings about her IEP and behaviour plan, but does not believe that any of her wishes will be acted upon: I’ve had meetings with the Educational Psychologist and they just don’t listen to me. Miss P. doesn’t listen… Because I said that I wanted to move

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class and they still didn’t do it…. I’ve said for the full year that I want to be in a different class and nobody’s listened to me… They say that I’m in the senior class but Jim’s older than me and he’s not in my class. Sam’s older than me, she’s not in my class (Charlene)

Charlene also feels that she is not listened to when she tells the staff that she feels unsafe. She has repeatedly complained about being hit by a fellow pupil but she is told to try and avoid him: [The teacher] said it’s my responsibility stay out the way of him. (Charlene)

In summary, Charlene is a young woman with a strong sense of her rights who feels that the education she is receiving is inadequate. She tries to express her wishes but feels that nobody listens, and as a result experiences a lack of agency.

Conclusion The case studies presented here underscore some of the factors associated with pupil participation in schools and classrooms. Pupils with higher levels of classroom participation, such as Ruth, tend to be older, more academically able and have highly supportive parents. For pupils like Ruth, it is important to be able to choose when she needs to move from the mainstream classroom to a less crowded and calm environment. The pupil’s degree of confidence and assertiveness is also an important element in ensuring their rights of participation. For example, 6-year-old Sally, living in an area of deprivation, is able to explain the terms on which she wishes to be included in the classroom, backed up by her supportive father. By way of contrast, Lyron, a boy of African Caribbean heritage living in a socially deprived neighbourhood, has little sense of agency in school. His behaviour is seen as challenging and he has experienced physical restraint as well as within-school exclusion, contributing to pent-up frustration and a sense of injustice. Charlene, a care experienced child, also experiences feelings of resentment because she feels that her views are not

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taken into account when decisions are made. Pupils with challenging behaviour appear to be perceived as requiring punishment and containment rather than sympathy and understanding. Catherine, too, a child with profound difficulties, is effectively excluded from classroom decision-making because staff in her special school struggle to understand her non-verbal forms of communication. This is reflected in the blank section of the IEP where the pupil’s views of their progress and future learning goals were meant to be summarised. Overall, it is clear that major problems persist in accessing the views of those with the most significant difficulties, including those behavioural difficulties and learning difficulties.

References Adderley, R. J., Hope, M. A., Hughes, G. C., Jones, L., Messiou, K., & Shaw, P. A. (2015). Exploring inclusive practices in primary schools: Focusing on children’s voices European. Journal of Special Needs Education, 30(1), 106–121. Croll, P., Attwood, G., Fuller, C., & Last, K. (2008). The structure and implications of children’s attitudes to school. British Journal of Educational Studies, 56(4), 382–399. Franklin, A., & Sloper, P. (2006). Participation of disabled children and young people in decision-making: A survey of current and recent activities in England. British Journal of Social Work, 36(5), 723–741. https://doi. org/10.1093/bjsw/bch306. Franklin, A., & Sloper, P. (2009). Supporting the participation of disabled children and young people in decision-making. Children and Society, 23, 3–15. Howell, A. (2017). Children’s participation in their education, research and society. Discourse: Studies in the Cultural Politics of Education, 39(3), 1–8. Lewis, A., & Porter, J. (2007). Research and pupil voice. In L. Florian (Ed.), Handbook of special education (pp. 222–232). London: Sage. Lewis, L. (2010). Silence in the context of ‘child voice’. Children & Society, 24(1), 14–23. Lockyer, A. (2003). The political status of children and young people. In A. Lockyer, B. Crick, & J. Annette (Eds.), Education for democratic citizenship: Issues of theory and practice (pp. 120–138). Aldershot: Ashgate.

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Lundy, L. (2007). ‘Voice’ is not enough: Conceptualising Article 12 of the United Nations Convention on the Rights of the Child. British Educational Research Journal, 33(6), 927–942. Mayall, B. (2002). Towards a sociology of childhood. Maidenhead: Open University Press. McKay, J. (2014). Young people’s voices: Disciplining young people’s participation in decision-making in special educational needs. Journal of Education Policy, 29(6), 760–773. McNeilly, P., Macdonald, G., & Kelly, B. (2015). The participation of disabled children and young people: A social justice perspective. Child Care in Practice, 21(3), 266–286. Riddell, S. (2009). Social justice, equality and inclusion in Scottish education. Discourse: Studies in the Cultural Politics of Education, 30(3), 283–296. Riddell, S., Harris, N., Smith, E., & Weedon, E. (2010). Dispute resolution in additional and special educational needs: Local authority perspectives. Journal of Education Policy, 25(1), 55–73. Riddell, S., Pearson, C., Jolly, D., Barnes, C., Priestley, M., & Mercer, G. (2005). The development of direct payments in the UK: Implications for social justice. Social Policy & Society, 4(1), 75–85. Scanlon, G., Barnes-Holmes, Y., McEnteggart, C., Desmond, D., & Vahey, N. (2016). The experiences of pupils with SEN and their parents at the stage of pre-transition from primary to post-primary school. European Journal of Special Needs Education, 31(1), 44–58. Sutton, L. (2007). A child’s eye view of social difference. York: Joseph Rowntree Foundation. Wyness, M. (2000). Contesting childhood. Lewes: Falmer.

7 Participation by Children and Young People in Representative Bodies

Introduction Fair representation within public bodies and institutions is seen as an essential element of the equality and human rights agenda (Phillips 1995), reflecting and contributing to the social status of different groups. However, extending the participation rights of children and young people in a meaningful rather than tokenistic manner may require a radical rethinking of school governance. This is particularly the case in relation to disabled children and those from deprived backgrounds, who may have great difficulty in using existing mechanisms of representation. As noted in Chap. 3, since the 1980s, there has been considerable government support for enhanced parental participation in educational decision-­ making, and parents rather than children have often been seen as the principal consumers of education services. More recently, the focus has shifted to participation by children and young people in the governance of education but the balance of power still appears to lie with professionals. Indeed, education may lag behind some other social policy fields in allowing space for children and young people to participate in policy-­ shaping bodies (Harris 2005, 2009, 2020). In this chapter, I analyse © The Author(s) 2020 S. Riddell, Autonomy, Rights and Children with Special Educational Needs, https://doi.org/10.1007/978-3-030-55825-3_7

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children and young people’s involvement in school and local authority representative bodies in the light of new legal requirements to ensure their meaningful input.

 ecasting Children and Young People R as Citizen-Consumers Over the past 40 years, there has been a general move across the UK to recast citizens, including children and young people, as active consumers rather than passive recipients of public services. The rise of the citizen-­ consumer is a central element of the marketisation agenda. Within this consumerist discourse, public services are characterised as intrinsically wasteful and self-serving, and can only be improved through liberalising consumer choice, thus intensifying competition between institutions and, at least in theory, driving up standards (Newman and Clarke 2009). In practice, this is likely to lead to a cherry-picking approach, intensifying efforts by service providers to recruit the most desirable clients. In the school sector, children who are likely to perform well are seen as the most attractive customers, since they are likely to enhance the school’s reputation by boosting its position in league tables. By way of contrast, children with special and additional support needs (SEN/ASN), who are more likely to come from socially disadvantaged backgrounds and be more costly to educate, are likely to be seen as less desirable clients. For many children and young people with SEN/ASN and their families, accessing and understanding information about available services in order to make informed choices is likely to be problematic, and many simply want to have access to reliable, high-quality public services without necessarily having to choose between different options or engage in service co-production. In England, in comparison with Scotland, there appears to be an even greater emphasis on constructing children, young people and their families as citizen-consumers through service engagement and co-production. The Children and Families Act 2014 requires local authorities to publish information on available schools and services, known as the local offer.

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Children and young people have the right to be consulted over the local offer and the local authority is expected to publish outcomes of these consultations and consequent actions. In addition, information about the local offer and advice and information services must be published in a format which is accessible to children and young people with SEN. In Scotland, although local authorities have a duty to ensure that information about services for children with ASN is available in local schools, requirements with regard to the provision of accessible information and service user consultation are less stringent. Overall, it would seem that in England, and to a lesser extent in Scotland, efforts have been made to construct children and young people as autonomous citizen-consumers, reflecting the growing dominance of an individualised rather than collectivist understanding of rights. In the following sections, I first summarise local authority accounts of their attempts to consult with children and young people, before using case studies to illustrate the nature of children and young people’s participation in school councils and local authority consultative bodies.

 eviewing and Consulting with Children R and Young People About ASN/SEN Provision: Local Authority Perspectives As noted earlier, the local authority survey was intended to provide a broad overview of policy and practice with regard to the children’s rights agenda. Just over two-thirds of respondents in both England and Scotland reported that they regularly consulted with children and young people about ASN/SEN provision and a variety of mechanisms were used. Often, children and young people were consulted via a combination of dedicated forums, surveys, youth councils and voluntary organisations. The majority of local authorities felt that consultations were a positive development and that these processes had helped to refine policy and practice, identify gaps in provision, and give children and young people opportunities to influence the agenda for change. In England, some local authorities reported that specific consultations about the local offer had

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enabled them to improve the accessibility, layout, content and functionality of local offer information and pay closer attention to diverse communication needs. Across jurisdictions, the local authorities which did not consult regularly with children and young people identified difficulties in finding sufficient time or resources to fund discussions. Despite the fact that some local authorities acknowledged that this issue needed to be addressed, there is clearly a risk that children and young people’s right to participate in decisions about local provision has been side-lined at a time of significant reductions in  local authority resources. In the following sections, examples are provided of more and less successful approaches to participation in school and local authority consultative bodies.

 xperiences of Participating in School E and College Representative Bodies In both jurisdictions, efforts were made to involve children and young people, including those with special and additional support needs, in collective forms of participation such as school councils. Our case studies suggest that children and young people are more likely to participate in school representative bodies if they are older, have less significant difficulties and are more confident. Of course, questions arise about the extent to which school councils and prefect systems are genuinely focused on enhancing children’s rights, or rather co-opting children into promoting the school’s values and interests (Maitles and Deuchar 2006; Whitty and Wisby 2007; Tisdall et al. 2008; Weller 2009). Nonetheless, participants in student councils and prefect systems were generally positive about their experiences, as illustrated below.

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Alan, Coalshire, Scotland Alan, aged 17, is the middle child of three living in a small town in a relatively affluent part of Coalshire (SIMD 5). Alan is described as having Asperger’s Syndrome and moderate learning difficulties. Alan is based in the school’s Department of Additional Support (DAS) and takes a number of subjects in mainstream classes. He is good at practical subjects and has National 5s in Physical Education, Woodwork and Cookery. He has an Individual Support Plan (ISP), but no Coordinated Support Plan. Alan’s parents have insider knowledge of the education and social care systems as a result of their professional backgrounds. Alan’s mother is a nurture specialist based at a primary school in a deprived area and his father is a nursing assistant in a psychiatric hospital. They have intervened in Alan’s education at critical points and his mother believes that her proactive approach has been a major factor in her children’s success: I do think, hand on heart, there is a part of me that definitely thinks if I had not been an assertive parent, I don’t think the boys would be where they are now. … I made a conscious decision on where they were going to primary, where they were going to high school, knowing what I wanted to ask, what I wanted them to be provided with, knowing what they needed. I will never know, but possibly it made it easier that I was asking the right questions and not taking no for an answer. (Alan’s mother)

On one occasion, Alan was being bullied by another pupil in the taxi taking him to school. His mother contacted the school and the journey was rescheduled to avoid contact with the troublesome pupil. In addition, Alan’s parents have ignored unhelpful school advice. For example, Alan was encouraged by the school to enrol in a special programme for students with additional support needs at a local college. His parents, however, felt that this was not in their son’s best interests, insisting on a mainstream catering course which was far more likely to lead to employment in the open labour market. At school, Alan is well turned out, wearing the school uniform with a blue blazer and tie. He has pinned a number of badges onto his blazer indicating his enthusiasms, including Harry Potter and steam trains. He

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also wears a prefect badge and explains that he is very proud of his achievement as the first DAS pupil to be made a prefect. He was encouraged to put his name forward by his support teacher, and was interviewed by one of the deputy headteachers. The role involves ensuring that younger pupils obey the rules and acting as a school ambassador at public functions: You make sure that everybody’s behaving and eating their lunch and not chucking food around. And it’s basically the same … in the assembly hall … And like we’re always spotted around the school … and we’ll be beside the library corridor, the cafeteria at the front. Like there’s just various different duties on a weekly rota. And like there’s a lot to do and like we get picked for … the events after school. Like on the 7th of November, I’ve been picked and like ten other prefects have been picked to come back for the Advanced Higher parents evening. And so we’ll come in, set up and we’ll stand and help parents and all that. And we always seem to have a good reputation. (Alan)

He believes that the school is good at listening to older pupils, but that the views of younger pupils are often overlooked unless they are on bodies such as the pupil council: I feel that when you’re younger … they always know better. I feel that once you’re younger your ideas are more passed by. It’s only like if you’re in a club or like the eco committee or something like that or the pupil council … that’s the only way you would really be heard. They do listen to you and they do take stuff on board. They’re really good for doing that. I tend to be listened to because I’ve had the DAS backing me. So I’ve never really had a problem of not getting listened to because I’ve had the PSAs [Pupil Support Assistants] there and I’ve had Miss T at the back of me and stuff like that to actually help me go and do it. But as you go up the school and you go up the years and once you mature a lot more and once they sorta start seeing that, and especially if you become a prefect, they start looking at you as humans, not as younger school pupils who they think are annoying. (Alan)

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Overall, Alan speaks very positively about his experiences at the school: It’s been quite an enjoyable experience. Very nice teachers who like generally care about you. They care about your wellbeing and they always ask about how you are, how your holiday’s been. Just actually show an interest. I’m in the DAS Department and I can say for any other people who have disabilities and who want to come here, it’s very well organised up at the DAS. It’s very nice and it’s a very inclusive school. There’s always events happening and it’s just nice overall really. (Alan)

However, he also recognises that DAS pupils may experience subtle forms of exclusion: They’re particularly bad with the DAS department kids cause they tend to forget about us [more than] the mainstream. They always take them as priority for us for some reason. And it always comes down to the point of the DAS teachers or PSAs [Pupil Support Assistants] actually having to go and remind them. But that doesn’t happen all the time. Sometimes they remember but it’s a good chunk of the time and I don’t always get told about meetings and stuff like that, or assemblies. (Alan)

In summary, Alan’s membership of school representative bodies has been very positive, contributing to his sense of inclusion and influence within the school. English case studies also provide illustrations of children and young people’s positive experiences of collective consultation.

Claire, Greenshire, England Claire is 18 years old and has a history of social, emotional and mental health difficulties. She has numerous long scars across both of her forearms which are the result of self-harm. Claire is an only child and lives with her mother in an affluent part of Greenshire (IMD 4). Her mother explains that Claire has struggled with mental health difficulties as a result of witnessing domestic abuse at home. When she was 14, Claire attempted to take her own life following exclusion from high school. Claire’s mother also mentions that education and mental health

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professionals have voiced concerns that her daughter may be autistic although she has no formal diagnosis. Claire herself is sceptical about medical labelling: Claire:

If you complain, they just try and make it out as if it’s all the kid’s fault and then try and get them diagnosed with everything under the sun. Interviewer: OK. And how did you feel about that? Claire: Just annoyed, because I knew nothing was wrong with me. Kept insinuating that I had ADHD, autism, Asperger’s, everything. Like, I know what I’ve got. It’s not that. (Claire) Claire has a long history of being excluded, or being on the verge of exclusion and being asked to move from both primary and secondary schools. She also spent some time at a pupil referral unit before joining North Greenshire College. Claire is currently studying BTEC Level 2 Science at college and hopes to continue her studies on a Level 3 Beauty Therapy course next year. She much prefers college to high school due to the increased level of autonomy that she feels she has there. For example, students are allowed greater freedom to decide when they need to attend and are not required to be on campus when they do not have a timetabled lesson. Claire appears to be fiercely independent and demonstrates her ability to articulate her feelings and views during her interview. The college attempts to include students in decision-making in a range of ways, which include opportunities to be a course representative, participation in learner focus groups, peer mentoring and membership of college committees such as, Health and Safety, Equality and Diversity and the Board of Governors. There is also a college Student Union which is affiliated to the National Union of Students. Claire says that her experiences at college have been much more positive: Interviewer: What do you like about college? Claire: Freedom. A lot different to high school.

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Interviewer: In what way? Claire: If you want to pass the course, then the teachers will help you, but if you don’t want to do anything, they’ll just leave you to it. They don’t care. So it’s literally just up to you… Since all of this nonsense in high school, they’ve literally left me to myself in college. I don’t need support. I don’t need anything. Like, after all this [series of historical exclusions in primary and high school], nothing happened. I just carried on with my life, so I don’t see why they had to make life so hard when they’re not gonna do anything in college. I’ve literally just been left to myself. Interviewer: And how do you feel about being left to yourself at college? Is that what you want? Claire: That’s what I want, yeah. (Claire) Claire also enjoys being her class representative on the student council and is critical of some of her fellow students’ apathy and reluctance to engage. She believes that the college genuinely listens to students’ views on issues such as the standard of catering, leading to some positive changes, although she comments that the food in the canteen is still ‘over-priced’. Claire’s mother also remarks on the positive impact of the school council: She really liked [being a student rep], she loved that … she really seemed to enjoy giving her opinion and, you know, being involved, having a say. (Mother)

Claire feels able to express her views if she is unhappy with anything at college. However, she is also aware that when she expresses her opinion with peers, this is not always well-received: Interviewer: So, if there’s anything going on at college that you’re not happy with, do you feel able to voice that? Claire: Yeah. In some ways, it’s a bad way, but I’m quite, like, strongly opinionated. Interviewer: What makes you think it’s a bad way?

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Because there’s a lot of bitchiness with the girls … I don’t really have a filter to what I say. Like, not nasty, just I say a bit too much sometimes.

For young people like Alan and Claire, participation in school and college councils has given them the opportunity to contribute to institutional decision-making and a sense that their opinions are taken seriously. Peter provides a further example of successful engagement in school representative bodies.

Peter, Bigtown, England Peter is a cheerful and talkative young man who has a diagnosis of Asperger’s Syndrome and ADHD. He is in year 11 studying for his GCSEs at Bigtown High School, a large secondary academy with a high proportion of pupils from minority ethnic and socially disadvantaged backgrounds. Peter lives with his family in a small, relatively affluent village (IMD 4) near to the high school. In his free time, he likes to play on his xbox and he is also a member of his local running club. When Peter leaves school, he would like to pursue a career in computing or gaming. Peter’s mother did not return to work after having Peter because of his behavioural difficulties and problems with childcare. She now spends a significant proportion of her time caring for Peter and has been very proactive in advocating for his educational rights: When Peter was a baby … he wouldn’t settle anywhere, and then no one would look after him after school because he was really hard work when he was little. So I just never went back [to work]. (Peter’s mother)

According to his mother, until recently, Peter had little interest in education but this has changed as he has matured and he has the prospect of attending college. He is developing a growing awareness of his rights and feels that it is important for children to be listened to and treated as equals by adults. He is aware of school rules around pupils not using their mobile phones in class and feels that it is unfair when teachers impose

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this rule while using their own phones in lessons. He also believes in the importance of free speech except when people are ‘being racist’. Even though he is not a member of the school council, Peter is aware of its existence and thinks it is important: …if anyone like needs help, they’re like the voice of the students I think … So if you don’t like something, you can tell one of them and then they’ll report it and then they’ll have like a discussion of how to change it.

The SENCO explains that the school council has a number of representatives who have SEN and that her department has tried to encourage pupils to participate: SENCO:

We’ve got a couple [pupils with SEND], more than a couple, who are form reps. Interviewer: Is that by chance? SENCO: It’s kind of encouraged, so if we see somebody who’s got the kind of skills where they could use their talking skills, when they perhaps haven’t got the literacy skills, and they’re pretty popular and they’re interested in it, then obviously they have to run the same process as everybody else, but it’s good to see that some of them are being elected. Despite not being a pupil representative, Peter, with some support from his parents and teaching staff, approached the school management team to instigate a change to school uniform rules. He explains that during the summer, he found wearing trousers extremely uncomfortable and felt that this particular rule was, ‘incredibly unfair’: I was, like, this is rubbish because we have to wear trousers, when it’s like 36 degrees outside, which is very unfair … Yeah I just said to my mum like this seems incredibly unfair, I do not feel happy. Then she helped me contact the school.

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His mother contacted his teaching assistant, who helped him create a PowerPoint presentation to argue his case. Peter practised this at home with his parents until he felt confident enough to deliver it. After the case was presented to the senior management team, the school changed the uniform rules and subsequently allowed pupils to wear shorts instead of trousers during the summer. Peter feels that on this occasion the school respected his views and he is proud of the fact that he managed to change the rules for everybody’s benefit. The case studies also point to the emergence of a very engaged group of children and young people who have been encouraged by the new emphasis on student consultation. In England, for example, some local authorities commission charities such as Barnardo’s to develop participatory groups for children and young people with SEN, including those who are looked after by the local authority, to learn about their rights and provide input into local provision. In the following section, I discuss the characteristics and experiences of these activist young people.

Jacob, Bigtown, England Jacob, a 22--year-old care leaver, is actively involved in a range of consultative mechanisms. He is described as very friendly and is able to articulate his views and feelings well. Jacob has a diagnosis of autistic spectrum disorder and significant learning difficulties. He also has social, emotional and mental health difficulties and has periods in which he struggles to manage anxiety and low mood. Jacob considers that people think he is ‘a good person’ and that he is, ‘generally friendly and positive’. Jacob was placed in local authority care at the age of two with his three siblings. He was later adopted. His adoptive mother passed away in 2007 and his adoptive father experienced problems managing the family on his own. Eventually Jacob returned to care in 2010 at the age of 14 and had a number of foster care placements until he was 18. Jacob has no contact with his birth family, and for the last 18 months he has lived on his own in a housing association flat in a deprived area of Bigtown (IMD 1). He is currently supported by his leaving care worker and receives weekly support with his tenancy. Since leaving secondary school, Jacob has

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undertaken a variety of college courses and supported internships. He has recently secured part-time paid employment as a Bigtown Local Authority Business Support Officer within the Directorate for Children and Families. In his free time Jacob enjoys camping, reading and computers, and is very active in  local authority participatory groups and committees for looked after children and care leavers. His ambition is to advocate for care experienced children and young people to ensure that they know their rights and are able to use them. Jacob feels that he is able to get on well with adults but sometimes needs support communicating effectively with his peers. He says: I like to feel valued and appreciated because I have no family. I like to feel that I belong somewhere. I like to be given time to devote to my committee. I like to feel that I have a voice and can make a difference. (Jacob)

When he was in his early teens, Jacob took part in a Barnardo’s participatory group for care experienced children, but at first, he did not have the confidence to speak at meetings. Since then, he has joined many more support and advocacy groups and at college, he was elected onto the student council. He was given the task of consulting students about their college experience and feeding information back to the principal. He could not recall whether any changes were made as a result of student council recommendations but overall he feels it was a positive experience for him. He is currently chair of a young person’s advocacy group and participates in the Local Authority Corporate Parenting Committee, advising on how to improve care experienced children’s experiences and outcomes. Jacob says that, since joining these groups, he has developed his understanding of the Care Leavers’ Local Offer. He was involved in a large conference last year where he was invited to speak to professionals about his experiences and recommend a number of useful sources of support for young people like himself. He is aware of his own rights as a care leaver and often helps other young people access support. In his view, many care leavers have a very hard time, for example, one of his friends had his case closed when he reached the age of 19, receiving no financial help from

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this point. As a result, the friend lacked basic material provisions such as a winter coat. Jacob told his friend of his right to have a personal adviser and to receive financial support from the council. Jacob feels that many young people, not just care leavers, are unaware of their rights and that all young people with SEN should be given a booklet or access to an app explaining their rights very clearly since the local authority website is always out of date and not very accessible. Overall, he feels that access to support and advocacy groups has had a positive impact on his life, in some ways compensating for the lack of a family: I like to feel valued and appreciated because I have no family. I like to feel that I belong somewhere. I like to be given time to devote to my committee. I like to feel that I have a voice and can make a difference. (Jacob)

In terms of his willingness to participate in consultation groups for care experienced young people with SEN, Jacob believes he has made a significant difference to other people’s lives. Similarly James, a young carer, has benefitted from participation in representative bodies.

James, Northshire, England James is 16 years old and is a young carer. James has been diagnosed with Asperger’s Syndrome and specific learning difficulties (dyslexia, dyscalculia and dyspraxia), and he has difficulties maintaining a healthy weight. He has also experienced mental health difficulties at primary and secondary school and was permanently excluded from a number of secondary schools. James lives with his family in a relatively affluent area of Northshire (IMD 4) and supports his disabled mother, helping her with day to day tasks such as shopping and cooking. In his free time, he likes to play video games and enjoys taking care of his three dogs. James appears to be a very confident, articulate young man, although he can also lack confidence in unfamiliar contexts. He does not like to go out because he says he feels unsafe in the neighbourhood and prefers to meet up with his peers online rather than face to face. In the future, he would

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like to be a lawyer or an IT specialist. James’ mother describes her son as, ‘a really good lad. He likes to please and likes to do everything. He does struggle sometimes’. She is also very proud of his involvement with a number of participatory groups aimed at supporting children and young people with SEN. His key worker also describes James as ‘a lovely lad’ who is friendly and quite able. The key worker comments that although James can appear to be quite confident, ‘he tends to mask his insecurities’ and ‘doesn’t give a lot away’. In his free-time James spends a significant amount of time attending a wide range of participatory groups for children and young people with SEN. He attends a Barnardo’s participation group and is also a representative for young people on the Local Authority SEN Board. He explains that involvement with these groups enables him to take part in strategic council decisions and suggest improvements to provision and practice: Interviewer: What kind of discussions do you have? James: One is the media group, so we’ll look over Northshire’s website … We’ll liaise that back to them, saying, ‘It’s not child friendly, can you do this, change this, or make it easier?’ Interviewer: Do they listen to your suggestions? James: Most of the time, yes. Interviewer: So what’s changed? Have they made any changes? James: They’re working on the new local offer. It’s not technically official yet, but I know they’re working on that. They try and improve it, so everyone’s more able to [use it]. The website has been changing over years. As a member of the Local Authority SEN partnership board, James has advised on the group’s logo and has liaised with important decision-­ makers. He speaks about being able to offer candid opinions at these meetings and is keen to ensure that there is always a young person representative at every meeting: James: The group actually now has a logo, finally. Interviewer: Were you involved in choosing that?

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James:

Yeah, that was always a fun one. We get to meet Mr. Smith, who’s the head of SEN, I think. Then you get to meet all the heads, some key people, so it’s pretty fun. Interviewer: Are you able to talk to them quite frankly about how you feel about services? James: Yeah, they’re willing to listen … Personally, I would always try and make it so everyone’s voice is heard at the table, so say if I can’t attend, we have got someone else who can, so there’s always that young person’s voice on the board. For the last five years, James has also been involved with the Family Justice Young People’s Board and is now a lead member. During this time he has taken part in youth consultations about children’s contact centres and court facilities, and has been consulted about how staff can improve children’s experiences in court. James is paid for his contribution and explains that some of his recommendations have subsequently been put into practice and have led to material changes in the facilities available for children who come into contact with the legal system. For example: James: We’ve done court reviews as well. Interviewer: What does that involve? James: Going down to the court see if they have a play room for kids. Some of them you could just be sat in a corridor. They have no other room. Some places I’ve been in, they had that and when I went back another time, not to review it, was going there for something else, they showed us the new play room. It was like, ‘Oh, you made it now!’ Interviewer: How does that feel, then, to know that you’ve recommended something and it’s happened? James: You feel good because then you know that it’s actually going to be there, if some kid needs it, it’s going to be there for them, so they have that little break out point. James has also been an advisory group member on a number of university research projects and was asked to attend a children’s rights conference. He describes the purpose of the conference and his role there:

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[It’s about] the way children are in Europe, they have rights, how they’re meant to be seen and stuff … I’m part of the communications team, so I’m media side of it, so I’ll be going round, taking photos all day, over the four days we’re there, so it’s going to be fun.

As with Jacob, becoming a young disability activist has been a positive experience for James, enabling him to develop new skills and expand his horizons. However, other young people experienced consultative exercises as largely tokenistic. Seventeen-year-old Laura, for example, discussed further in Chap. 10, has dyslexia and was distressed that the local college vetoed her choice of ‘A’ level subjects. Laura sees herself as a confident individual who is able to express her views, but believes that the college has little interest in listening to students’ opinions. Laura deliberately put herself forward as the Geography class representative, but discovered that negative comments were unwelcome: Interviewer: Does the school or college ever ask you about your rights? Whether you want some help, accessing your rights or anything like that? Laura: We fill in a form once a year that says, ‘Do you feel happy at college?’ And most people say, ‘Yes’. And I wrote them a short essay about why I said, ‘No’. And I was never asked any questions on it afterwards. Interviewer: Do any changes ever happen when you tell people how you feel? Laura: I offered to be the Geography representative, because I wanted to go and pick my bone with the Head of Geography about why I was having to do this by myself. And it was met with a, ‘Well we’ll talk about this another time, Laura’. He sat in my lesson and asked people to put their hands up if they were leaving the course. And … ignored me when I offered to tell him why. And [he said that] he didn’t want to do it in front of people. I want people to know that this is the way I feel and this is not OK. And he didn’t want to upset me in front of my classmates. I would have quite happily burst into tears and said, ‘Because I [can’t do the course] with the lack of support’.

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Conclusion The case studies presented in this chapter suggest that, particularly for older students, opportunities for institutional representation are greatly appreciated. Students describe their sense of pride when, as a result of their active engagement, visible changes are made to institutional rules and ways of working. It is clear that, as a result of exercising agency, benefits accrue both to the institution and to the individual. In England, new requirements for local authorities to consult with children and young people on the local offer appear to have been successful in empowering consultees, as illustrated by the cases of Jacob and James. In Scotland, children and young people, often from more advantaged backgrounds, were enthusiastic about their involvement in pupil councils. Overall, it would seem that schools and colleges have made progress in terms of recognising the importance of student representation, but young people are critical of cosmetic consultation which does not result in institutional change.

References Harris, N. (2005). Empowerment and state education: Rights of choice and participation. Modern Law Review, 68(6), 925–957. Harris, N. (2009). Playing catch-up in the schoolyard? Children and young people’s ‘voice’ and education rights in the UK. International Journal of Law, Policy and the Family, 23(3), 331–366. Harris, N. (2020). Education, law and diversity: Second edition schooling for one and all. Oxford: Hart Publishing. Maitles, H., & Deuchar, R. (2006). ‘We don’t learn democracy, we live it!’ Consulting the pupil voice in Scottish schools. Education, Citizenship and Social Justice, 1(3), 249–267. Newman, J., & Clarke, J. (2009). Publics, politics and power: Remaking the public in public services. London: Sage. Phillips, A. (1995). Politics of presence: Political representation of gender, ethnicity and race. Oxford: Clarendon Press.

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Tisdall, E. K. M., Davies, J., & Gallagher, M. (2008). Reflecting on children and young people’s participation in the UK. International Journal of Children’s Rights, 16(3), 343–354. Weller, S. (2009). Exploring the spatiality of participation: Teenagers’ experiences in an English secondary school. Youth and Policy, 101, 15–32. Whitty, G., & Wisby, E. (2007). Real decision making? School councils in action (Research Report DCSF-RR001). London: Department for Children, Schools and Families.

8 Children and Young People’s Involvement in Formal Educational Planning

Introduction There has been a growing expectation across the UK that children and parents will participate routinely in statutory and non-statutory educational planning, concerning important decisions on curriculum, pedagogy and resource allocation. Approaches to educational planning in Scotland and England differ markedly, and this affects the nature and extent of involvement by children, young people and their parents/carers. Since the implementation of post-Warnock legislation in the early 1980s, England has adopted a formal approach to educational planning for special educational needs (SEN), consistently identifying between 2% and 3% of children as requiring a statutory support plan. Under the terms of the Children and Families Act 2014, Education, Health and Care Plans (EHCPs) replaced Statements of Need, but the qualification criteria for a statutory support plan before and after 2014 remained essentially the same. Broadly, an EHCP should be made for children and young people up to the age of 25 who need more support than is available through school-based SEN provision. EHCPs identify a child’s education, health and social needs and set out the additional support to meet those needs. © The Author(s) 2020 S. Riddell, Autonomy, Rights and Children with Special Educational Needs, https://doi.org/10.1007/978-3-030-55825-3_8

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Since 2014, there has been a small increase in the use of statutory support plans, and at the time of writing, around 3% of children and young people in England have an EHCP (see Chap. 4). Non-statutory support plans are also used, such as Individual Education Plans, which are intended to specify the curriculum that a child with learning difficulties or disabilities should follow, as well as teaching strategies and long-term and short-term targets. In Scotland, in the wake of post-Warnock legislation, about 2% of children received a Record of Needs. However, since the passage of the Education (Additional Support for Learning) (Scotland) Act 2004, there has been a gradual decline in the use of Coordinated Support Plans (CSPs), the statutory support plan which replaced the Record of Needs. At the time of writing (June 2020), only 0.3% of the Scottish school population has a statutory support plan, compared with 2% in 2004. Over this timeframe, Individualised Educational Programmes have also been in decline, although there has been a rapid expansion of other types of non-statutory support plans, many of which are specific to local areas. As discussed in Chap. 4, Child’s Plans were introduced in 2014 for pupils who need a range of extra support planned, delivered and coordinated. The Child’s Plan is intended to cover provisions to be delivered by a range of agencies, including health, education and social work. However, the Named Person and Child’s Plan provisions of the Children and Young People (Scotland) Act 2014 (Parts 4 and 5) have not been commenced due to a Supreme Court ruling with regard to data sharing and protection (see Chap. 3 for further discussion). As evidenced by the case studies presented below, there is considerable confusion in Scottish schools about the legal and practical status of different types of education support plan, with implications for the rights of children, young people and their families. As I argue in this chapter, the different planning systems north and south of the Border have material consequences in terms of children’s and parents’ rights to participate in educational decision-making and seek redress. The formal planning system in England requires regular meetings to take place at which children’s needs, progress and future educational goals are reviewed, and there is a strong emphasis on participation by pupils and parents. In Scotland, by way of contrast, because of the sparse

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use of statutory support plans, formal meetings are much less common and may not include the child, young person and their parents. Local authorities have delegated responsibility for the orchestration of CSPs to schools, but teachers appear to have neither the time nor knowledge to make them work effectively. Reflecting the greater use of statutory support plans in England, 14 of the 18 English case study children and young people had an EHCP, whereas in Scotland only 2 case study children had a CSP, and 1 of these CSPs might have lapsed.

Research on Participation in Educational Planning As noted above, policy rhetoric in both England and Scotland reinforces the need for maximum involvement of children and young people, as well as their parents, in educational planning. In Scotland, however, there is a history of local authority resistance to the use of statutory support plans because they are perceived as undermining professional discretion over resource allocation (Riddell et al. 2010; Weedon and Riddell 2009; Riddell and Weedon 2010). For example, prior to the introduction of the 2004 legislation, Scottish local authorities lobbied the government to abolish statutory support plans, although parental pressure eventually led to the retention of a legally enforceable support plan in the form of the Coordinated Support Plan. However, the criteria for opening a CSP were very restrictive, inevitably leading to their decline. To be eligible for a CSP in Scotland, a child must meet the following criteria: a local authority must be responsible for their education; they must need support due to ‘complex or multiple factors’ that negatively and significantly affect their education; they must have needs that will, or are likely, to last more than a year; they must need significant additional support from education and another department of the local authority (such as social work) or another agency or agencies1 to reach their educational goals. As  This must be one or more of: NHS board, another local authority, Skills Development Scotland, or a further or higher education institution. 1

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i­llustrated by the cases presented below, these rigid criteria, including long-running disputes over what counts as significant additional support from agencies other than education, make it very difficult for parents to argue that their child requires a CSP. As a result, schools have little experience of using them and often try to persuade parents that the CSP serves no useful function. In England, statutory support plans are used more extensively than in Scotland and appear to be more widely accepted by all parties as a useful means of targeting resources on those with the most significant difficulties (Riddell et  al. 2010). However, there is also evidence of variable involvement by children, young people and their parents. Based on an analysis of Education, Health and Care Plans in the Greater London area, Palikara et  al. (2018) found high levels of variability in the extent to which the plans reflected the views of parents and children. Children with SEN in mainstream schools were more likely than those in special schools to be actively engaged in the process, and there was widespread uncertainty about how to engage children and young people with significant learning difficulties, including those with little or no speech. Overall, the evidence to date on educational planning suggests that in Scotland, teachers and local authority officers are resistant to the use of statutory support plans which are seen as time-consuming, irksome and of questionable value in improving educational outcomes. In England, there is an incentive for schools to encourage the use of statutory support plans since these are perceived as delivering additional resources and local authority funding to support individual pupils with the greatest needs.

L ocal Authority Perspectives on Educational Planning In both England and Scotland, the local authority survey suggested that the majority of officers were supportive of children and young people’s participation in statutory assessments and reviews. However, they reported that children and young people rarely requested a statutory assessment or communicated their views on the contents of statutory

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plans independently of their parents. In the majority of cases, children and young people’s views were mediated by a parent or teacher. All local authorities indicated that it is extremely rare for a child or young person to name their preferred school or alternative setting within a statutory support plan despite their right to do so. The vast majority of authorities said that they always set out the views of the child or young person within statutory support plans unless the parent failed to co-operate or the pupil lacked capacity, had low self-confidence or did not wish to participate. To address these problems, they suggested improving the availability and quality of independent advocacy. In the following sections, case studies are used to illustrate the factors which appear to be most salient in promoting or inhibiting engagement by children, young people and their parents in educational planning.

Maleeha, Bigtown, England Maleeha, aged 12, is a young woman of British Pakistani heritage who has albinism. She lives with her mother, father and two younger sisters in a small village on the outskirts of Bigtown. The neighbourhood in which the family lives is in the middle of the deprivation range (IMD 3). Maleeha has a visual impairment with nystagmus, a constant uncontrolled movement of the eyes which can make reading difficult. The lack of pigment in her skin means that Maleeha has to be careful about exposure to sunlight, but she enjoys being outdoors and participating in ball games, cycling in a controlled environment and Physical Education. Maleeha’s father describes his daughter as caring, responsible and mature beyond her years. He says: ‘She’s my deputy in the house’. According to Maleeha’s Learning Support Assistant, she is ‘a very likeable child’ who is, ‘very easy to get on with’. Maleeha attends Bigtown High School, a large secondary academy with sixth form provision which opened in 2016 as part of a Learning Trust. There are currently almost 2,000 pupils on roll and the school has a high proportion of pupils from minority ethnic backgrounds (40% compared with a national average of 16%). The school also has a high proportion of pupils eligible for the pupil premium (36% compared with a national average of 28.5%).

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According to her father, when Maleeha was born it was immediately apparent that she had albinism, but her visual difficulties were not evident until she was around three years old. She spent the first two and a half years of her life in Pakistan with her mother while her father completed his PhD in England. Subsequently, the family decided to settle in England and Maleeha’s father is now employed as a university lecturer. This decision was partly driven by her parents’ belief that in Pakistan, Maleeha’s pale skin would always attract a lot of unwelcome attention, but in England her skin colour was less of a differentiating feature, enhancing her chances of social inclusion. From pre-school onwards, Maleeha received additional support from the local sensory service team. At the first primary school she attended, support included the provision of visual aids, advice to the school and help from a teaching assistant. Maleeha made excellent progress during the early years of her primary education, but problems emerged when the family relocated to Bigtown, where far less school-level SEN support was available. Despite family requests for help from a teaching assistant, the school believed that Maleeha did not qualify for an EHCP and therefore was ineligible for additional support. Maleeha’s father made further enquiries online and concluded that a statutory support plan was required, but the school insisted that there was little point in pursuing the matter. Disappointed by this reaction, Maleeha’s father continued to make enquiries until a chance discussion with a university colleague alerted him to the fact that as a parent he could request an EHCP assessment. Maleeha’s father then contacted medical professionals and the local sensory support service to confirm his daughter’s diagnosis and support needs. The original EHCP application was rejected because the school failed to supply the relevant documentation, at which point Maleeha’s father initiated an appeal. Finally, Bigtown Primary acknowledged that an EHCP was required to ensure that Maleeha received additional support at the high school and supplied the relevant information. The local authority subsequently changed its initial decision and an EHCP was put in place. Maleeha’s father says that, finally, ‘The school did help to make a good case for Maleeha when she approached transition to high school’ and that ‘this absolutely helped’.

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Maleeha was unaware of her father’s struggle to obtain an EHCP and does not know what type of plan she has. She is, however, able to recall attending meetings to discuss her support in school. She explains that ‘sometimes’ she attends the entire review meeting and that people have asked her: If there’s anything we can improve, or how you’re doing, what lessons don’t you [like], are you struggling with anything, any problems, how’s the iPad working? (Maleeha)

She describes the review meetings as ‘all right’, and explains that her mother and father are also usually present, along with teachers and sensory impairment advisers from a nearby specialist school. Maleeha’s father has been consulted about EHCP reviews and has added his own comments to the forms. He says that Maleeha completes the section of the form independently, only requiring a little help with ‘polishing sentences’. Evidently, Maleeha obtained an EHCP just before transferring to secondary school because of her father’s tenacity and ability to use formal and informal social networks. He continues to act as his daughter’s principal advocate, insisting that she is involved in reviews but taking ultimate responsibility for critical interventions and interactions with professionals.

Ben, Greenshire, England Ben is ten years old and is a slight, slim boy who wears thick glasses and has mid-length brown hair. He is one of the smallest pupils in his class, despite being one of the eldest. Ben has speech, language and communication difficulties and moderate learning difficulties. He also has poor muscle tone which affects his speech and movement. He lives at home in an area at the mid-point of the deprivation range (IMD 3) with his mother, father, older brother, younger sister and family dog. His parents have intermediate level occupations: his father works as a sales representative and his mother is employed as an animal vaccinator. In his free time, Ben likes to play computer games on his tablet and play station. He

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enjoys swimming, horse-riding and football. Ben can enunciate some words and uses assistive technology. He also communicates with his friends and family by writing down words and drawing pictures. When Ben was younger, he used Makaton signing but his speech has improved to a point where he no longer needs to use this form of communication. Ben’s mother describes her son as ‘a happy, lovely little boy’ who is really determined and ‘never ceases to amaze us’. She explains that he is ‘so switched on’ with mathematics and is very active despite having physical and communication difficulties which he sometimes finds frustrating. Greenwall Academy, where Ben is a pupil, is a large special school with sixth form provision. Ben’s mother first realised that her son was not meeting development milestones after concerns were raised at his nursery school. When he was three years old, she began to worry about his speech and says that during this period she relied on nursery staff for advice and support: The school professionals were going into nursery and assessing him quite regularly. I can’t remember when his speech and language therapy started. But it was all sort of lead by the school. (Ben’s mother)

Since primary school, Ben has had a statutory support plan, although he is unsure if he has ever attended any review meetings. Ben’s mother explains that her son has little engagement in the EHCP review process: [There is] just a page where his teacher will say to him, ‘What do you like, what do you dislike? What are your favourite things?’ Other than that, I don’t know, I don’t think maybe he is that involved in it. (Ben’s mother)

Ben’s class teacher explains that in most cases the pupil is asked about their views prior to an EHCP review and the parents receive a copy of the form summarising their child’s input: I will amend [the form] after the review if I don’t like something on there. Or they haven’t got a piece of information right, then I will change that for them so they’re in complete control of it. (Ben’s mother)

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The class teacher explains that the child’s participation in review meetings depends on staff judgement as to whether their presence might be distracting: I can take children in if I want to, but I just know some children will just want to cuddle their parents and when you can’t get the parents [to separate from their child], you can’t get a proper discussion … I have done it before when I’ve done reviews and then the child’s walked past the window and seen the parents. I have said, ‘Oh, you better let them in now’. But they’ve sat on their parent’s knee and then [the parents] have talked to them, and then [the parents] just want to talk about them, and the review isn’t getting done. (Ben’s teacher)

The teacher adds that it is extremely rare for other professionals to attend, although speech and language therapists usually submit reports and occasionally a social worker is present. Ben’s mother explains that she always attends review meetings with the class teacher and occasionally the speech and language therapist. She is concerned about the lack of speech therapy, which she feels is insufficient to have much of an impact on Ben’s progress. She has raised these concerns at his review but feels unable to pursue the matter because she has been told that support depends on the availability of funding, which is in short supply. Ben’s mother explains that she has never come across advocacy services such as SENDIASS: Ben’s mother: The speech therapist actually is the one bugbear of mine. And it’s not her fault, it’s just that she is so stretched. She’s supposed to see Ben four times a term but we’re lucky if she gets to see him once a term. Interviewer: How able do you feel to voice those concerns? Ben’s mother: Well I voice my opinion every time possible and it’s always the same thing, it’s down to funding. And you know, to be fair, she is doing as much as she can but it is a big time constraint with her.

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Ben’s mother believes that it would be helpful to have more advice and guidance on the EHCP process but trusts the professionals to do their best: We get to discuss the Education, Health and Care Plan when we go into school. But maybe there’s a little bit of ignorance on my own behalf by not looking into it further. I tend to let the school lead the way because I think they’re the professionals and they know what they’re doing. But I tend to sit back and agree …

Ben’s class teacher believes that the school does all it can to encourage parent participation, but some may be quite demanding and others are difficult to engage with: You tend to get the same parents that want things changed again and again. Sometimes it’s quite difficult to get a parent in for annual reviews, some parents are not that involved, you know, they might have other children with special needs. One of the children in here has ten or eleven siblings. So obviously, you know, you have to accept that it’s very difficult. (Ben’s teacher)

According to the class teacher, most parents manage to complete the EHCP forms apart from those with limited literacy, but often parents are guided by the teacher’s views. If a parent cannot attend the review on the specified date, it eventually goes ahead without them because of the strict legal timeframe. As Ben’s case demonstrates, teachers’ focus tends to be on managing parental input and although children’s views are captured on the EHCP form, their participation in review meetings tends to be seen as non-­ essential and potentially distracting. Like many parents, Ben’s mother feels ill-informed about the EHCP process and is reluctant to question whether the amount of speech therapy received by her son matches what is specified in the support plan. The next case I consider is that of Alice, whose parents experience considerable difficulties in having their views heard in a respectful manner.

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Alice, Bigtown, England Alice is ten years old, of slim build and average height for her age. She lives with her family on the city outskirts in an area of significant deprivation (IMD 1). She has three siblings and her mother and father are both unemployed. In her free time, Alice likes to play with her doll, watch television and look at videos on YouTube. She also enjoys taking care of her pet cat. Alice has a diagnosis of ADHD and has been excluded on a number of occasions. She takes medication on school days and explains that it helps her in school: It helps me, because when I didn’t have tablets, I used to be really bad. I used to throw stuff at teachers, I used to have to sit in the red spot when it was all different, and not like this. And I used to have to spend time with the old head teacher … I had to stay off for five days, or I had to stay off for four weeks. (Alice)

Alice’s mother says that the school referred her daughter to CAMHS (Child and Adolescent Mental Health Service) at age three but that the educational psychologist was reluctant to offer a diagnosis at such a young age. She was sent on parenting courses and Alice continued to visit CAMHS for yearly assessments until she finally received a diagnosis of ADHD at the age of nine. Alice’s mother describes her daughter as: ‘very, very energetic, bubbly, very well spoken; outspoken most of the time’. She also describes the impact of Alice’s behaviour on family life: Alice’s mother:  When she gets too giddy, she still gets aggressive, especially at home, because she’s on her medication at the moment … So by the time we pick her up, the medication’s wore off … So then, when she’s on her medication, it seems like it suppresses all the behaviours. But then when the medication’s wearing off, they don’t just come back as normal, they seem to come back like times ten. … so you get all that in one big blowout. Interviewer: When you say the behaviours, can you just describe what kind of things?

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Alice’s mother: Not listening, running off into the road, sitting down and she just tends to sit down in the middle of the road in front of cars and … Hitting myself, her brother, just being completely defiant. Interviewer: And how’s that for you as a family? Alice’s mother: It can get very stressful. I think we’re used to it now, because she doesn’t sleep either, even though she’s on a sleeping medication … Two hours a night, three hours a night if we’re lucky. So she’s tired as well, but because of the ADHD, she still can’t sleep. So she’s like … annoyed, because she’s tired and just wants to sleep. So she’s got that annoyance and then she’s also got being hyperactive as well at the same time, so that can be quite, quite tough … I don’t think I’ve slept a full night for ten years. Alice’s mainstream Church of England primary school has adopted a strict traffic light behaviour management system. Pupils start each session on green and are moved to amber and then to red for each behavioural transgression. Fixed penalties are applied, including loss of playtime and ultimately exclusion from the class. This strict regime is difficult for Alice and she says that for months she has not been allowed to mix with other pupils at break and lunchtime, which she resents. However, she is allowed to go to the calm room at times when she struggles to cope: It helps me because I have to sit there and think about what I’ve done. And then it just helps me calm down. And if I’m really mad and I’ve done summat bad, I will go and say sorry. But I don’t like saying sorry in front of people … I can turn the lights off and just sit there and think … I turn the light off and get my pillow and play with this—my fidget keyring.

Alice does not have learning difficulties so the school has taken a view that she does not qualify for an EHCP but her teachers have devised a behaviour plan. Alice’s mother has a sense that her daughter is regarded as troublesome rather than in need of support and talks to the class

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teacher when she feels that her daughter has been treated unfairly. For example: Alice’s mother: One of the teachers stood her up in the middle of the class and called her a thief for stealing blue tac in front of the whole class. But she didn’t steal the blue tac, because it was her fidget toy that she’s been bringing in for weeks … They’d pulled her up in the middle of the class and said ‘Alice is a thief, this is what a thief looks like’. So then she didn’t want to come to school for weeks … I went straight to the teacher and I told her she was out of order. Alice’s mother: And then there’s been other ones. One of the teachers pulled her up and asked her, because she was being a bit giddy, ‘Have you had your ADHD medication today?’ in front of the whole class. So we’ve had dealings with that. Interviewer: And how did you manage to resolve that? Alice’s mother: Same thing, went straight to the teacher and told them that I thought it was out of order … ‘Do you know that’s Alice’s personal information, that shouldn’t be shared’. Interviewer: How did Alice feel about that? Alice’s mother: Oh, she was devastated, she cried for days, absolutely in tears she was because then everyone were asking her about taking tablets and what they were for and she didn’t want to tell people. It went on for weeks. Linked to these experiences, Alice has developed a view of herself as naughty rather than in need of help. Although the tablets have a negative effect, she feels she has to carry on taking them because they stop her from doing ‘bad things’: Alice:

Now I’m on my meds, sometimes I can still be naughty, but not naughty as I was. But I’m better with my tablets. But I don’t really like them …

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Interviewer: How does it make you feel when you’ve had your tablets? Do you feel any different? Alice: It makes you … I shake a lot like I am now, because that’s my tablets. There are major concerns about how Alice is going to be supported at secondary school, but it is unclear whether a referral for a statutory assessment has been made. Nevertheless, everyone agrees that an EHCP might be useful to ensure the availability of additional support to prevent ongoing exclusions: Interviewer:

Do you know if there is any intention to apply for an Education, Health and Care Plan? Alice’s mother: I think she’s already seen the educational psychologist two or three times now, but we’ve got an emergency meeting with her next week, because she’s been struggling with her behaviours quite a lot … I would like something to be put in place. But personally, I don’t think we’re gonna get it because academically she’s not struggling. And this is one of the things I’ve heard about the healthcare plans, that if academically they’re on target, it’s really hard to get one … I think she’s gonna struggle in high school without one, because the high school that they’re going to, they are very strict … I’m very worried about Alice, whereas at least if we can get some sort of plan in place … Because they have to follow it, don’t they, till she’s college age isn’t it, I think? Alice’s mother says that acting as her daughter’s principal advocate has been exhausting, particularly because she does not fully understand how the system operates. Despite her best efforts, Alice does not have an EHCP and her mother explains that she ran out of energy to challenge the school’s decision: I think it was just sheer exhaustion on my side, do you know? Because sometimes people just feel really overwhelmed by the whole system. …I

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always thought CAMHS was the final place, that’s it, do you know? That’s as high as it goes, it’s done then. So I didn’t know it was possible to take it any further than CAMHS. (Alice’s mother)

As a result of the school’s punitive behaviour management regime, Alice has internalised a view of herself as a naughty child. Her mother defends her daughter as best she can, but is clearly exhausted and fails to understand the rules of the game. Despite family requests, the school has decided that Alice does not qualify for an EHCP because her difficulties are behavioural rather than cognitive. However, there is clearly a strong possibility of long-term exclusion unless greater support is provided. In Scotland, confusion around the statutory planning process is even more marked than in England. In the following section, three case studies illustrate difficulties in securing statutory support plans for children who appear to meet the criteria.

David, Sea City, Scotland Thirteen-year-old David and his parents live in an affluent middle-class suburb in Sea City (SIMD 5). David’s father is an engineer and his mother worked as an English teacher before the birth of her son. David has a congenital heart condition, cerebral palsy and epilepsy, leading to problems with memory and learning. He attends a large mainstream secondary school with more than 2,000 pupils on roll, where he spends most of his time in the pupil support unit. Out of school, David likes playing on his iPad and still keeps in touch with some friends from primary school. He goes to swimming and skiing lessons, and an all-abilities cycling club when weather permits. The learning support teacher notes that very few pupils in the school have Individualised Education Programme (IEPs) and believes (incorrectly) that this type of plan is only for pupils who are educated out of mainstream classes entirely. She also believes that generating a CSP is a lot of work and the school is not resourced for this task. In her view, responsibility for administering CSPs rests with the council, although the senior local authority officer explains that this task has been delegated to

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schools. David is the only pupil in the school who has a CSP, although recent reviews have not been conducted. David’s mother explains that she had to take the initiative in finding out about the CSP by searching online for the local authority ASN policy. She believes, however, that it is very difficult to find information and people without her professional background would find this impossible: I did get a copy of [LA policy] and … it’s not what every second parent does. So it’s not something you can go and chat necessarily to people about. I don’t know anybody else who’s done that, and I know several special needs parents. David’s the only one with a CSP. (David’s mother)

With the support of an educational psychologist, a CSP was opened in Primary 5, two years before David transferred to secondary school. The CSP documented the support to be provided by health in the form of occupational therapy, speech and language therapy and physiotherapy. David’s mother says that this support was provided in primary, but since David started high school these services have ceased. Over the past year, neither the CSP nor the IEP has been reviewed and the learning support teacher does not have copies on file. David’s mother is unhappy about this but is reluctant to make a fuss while David is still settling into the new school. She now believes she will have to follow this up, making a complaint if necessary. She says that David has not been involved in educational planning because he does not have the ability to understand what is being discussed and chooses not to engage: I guess that, this comes down to the child’s capacity actually. Certainly at primary, whenever we had child planning meetings, David would complete the My Views sheet with the help of the Support for Learning teacher but he is not keen to be involved in meetings. And whether that’s because he doesn’t have the capacity to understand what the meetings are about and … the relevance of him being there. And I personally don’t think he would have gained much from being involved in something he didn’t want to be involved in. And whenever we have a meeting in school I always give him the option to come. And he’s quite adamant he doesn’t want to come which is him exercising his right, I suppose. (David’s mother)

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In the case study below, Tom’s parents similarly struggled to get a statutory support plan which they believe is essential to safeguard provision.

Tom, Coalshire, Scotland Tom, aged 14, lives in an urban part of Coalshire in a relatively socially advantaged area (SIMD 4), and attends a large high school in a small town. Tom’s father is a self-employed builder and his mother works as a carer for Tom and his younger brother. Tom is a wheelchair user and has a congenital condition affecting his limbs. He has dark brown hair and is physically small. Generally a quiet boy, Tom is friendly and helpful during the observation and interview. He has an active life outside school and enjoys music and playing on his xbox. He has recently begun to play football for a local team and is also a keen player of boccia, a game for disabled players using beanbags instead of bowls. He says he would love to participate in a performance athlete program when he leaves school. At nursery, Tom had a non-statutory education plan but additional resources were not provided, so when he moved to primary school, his parents asked how they could get a more legally binding document. The school suggested a CSP, which was set up by the headteacher, who was responsible for arranging regular review meetings with external agencies. Tom’s parents recall that the CSP was poorly administered, with delays in review meetings. Tom’s mother comments: I always noted it down in my diary, ‘CSP review due’, roughly the time. So we knew that it was the start a’ the year because that’s when we had the first meeting. It was a matter of weeks into the first term. So we knew that it was due again for review around about that time. So I had went to the head at the end of P2. I remember saying, ‘Linda what’s happening with the CSP? When’s the review meeting?’ And she was like, ‘We’ll get it when we come back after the holidays’. So we were like, ‘Right, OK.’ So after the holidays I went to her, ‘Linda when’s the CSP meeting?’ ‘We’ll get it done soon’, and it fell in the November. (Tom’s mother)

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Tom’s parents feel strongly that the primary school did not understand the importance of a CSP: I don’t feel that a CSP to the school is important. They’re not seeing that this is actually an important legal document, this needs to be done. They just go, ‘Oh that’s just another bit a’ paperwork and review meeting’. (Tom’s mother)

Despite having a close working relationship with the occupational therapist, the parents did not know how to take things further when the CSP was not being adhered to: I had raised concerns and so did my OT. We’re really good friends, well not friends, we’ve got a really good working relationship with our OT to the stage that we can now just pick up a phone and go, ‘Jane, we need you’, instead of going through the office … And she’ll help me as much as she can but she obviously has to do it in a professional manner. So she looked into it but she couldn’t really find much information of what the next steps were to proceed because obviously the action hadn’t been taken. Because Tom as well was meant to receive physio from two inputs and that was written into his CSP as well and that never, ever happened. So then we went to the head teacher at that point as well and was like, ‘Look Linda, it’s in the CSP. Tom’s not getting regular physio at school or at home. What now happens?’ And she was like, ‘Oh we’ll call a meeting’. So a meeting was called but nothing was ever really done about it. (Tom’s mother)

Tom’s parents feel that failure by the school and local authority to properly administer and implement the CSP is not being addressed: I personally do feel it is a big problem. I think there needs to be more information to parents about a CSP cause we had to kinda google what a CSP meant and what it was, cause the school never gave us any, really, in-depth information about a CSP. And then if there was any appeals, disagreements with the CSP we were never told any procedures how we would go about that if it got to the stage that things weren’t happening which obviously happened with us. And then I just feel that the schools need to be more aware as well of what a CSP actually is. (Tom’s father)

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Tom’s parents do not feel that having a CSP has been beneficial with respect to the level of care, education or resource that their son receives: Interviewer:

And do you feel you’ve had any benefit from having the CSP at all? Has it been useful in any way? Tom’s mother: I wouldn’t, not particularly … I wouldn’t say the actions really get carried out. Tom’s father: I don’t think the action, anything gets done any more or any less than if we just went into the school, or picked up the phone and says, ‘I need this done’. Interviewer: So it’s more the action of saying that gets things done … Tom’s father: Yeah. That bit a’ paper doesn’t do anything. Tom’s mother:  Personally I don’t think that bit a’ paper really comes out of its packet and gets looked at until the week before the review’s due. Tom’s father: Yeah I think it’s done at the CSP meeting, put in a file and then, as you say … bring it out the week before, or the day before the next meeting. The learning support teacher confirms that Tom is the only child in the school with a CSP and that the document only exists because it was drawn up at primary school and the parents have insisted on annual reviews. She feels that a CSP involves a lot of unnecessary paperwork, and disapproves of parents informing each other that it is an important legal document. At the same time, she acknowledges that the CSP has resulted in health professionals contributing to school-level discussions: [Tom] came up from primary with the CSP. And the impression I get, and this is purely my opinion, is that the parents talk outwith school and people say, ‘Well if you get a CSP you’re gonna get more. Because it is a legal document you’re going to get more because that’ll make the school do what they say they are going to do’. And personally, I mean it’s a piece a’ paper. You’re only required once a year, by law, you know, to review it. Whereas I would be seeing a parent for any pupil in the school. If a parent wanted a monthly meeting or something like that I would do that. It would depend on the parent, and there are parents that need more [support] than other

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parents and so on. So, of course, I mean I would respect their right to want a CSP, and I suppose for Tom it pulls health in and it pulls everybody round the table. (Learning Support Teacher)

As a result of discovering that the school and the local authority did not take the CSP recommendations seriously, Tom’s parents have developed their own more direct means of securing resources for their son, drawing on their networks in the local community: And I think that we are not like parents that’ll just sit back. If Tom’s got a problem we’ll say there’s a problem and we’ll deal with it and basically make sure that we shout loud enough until somebody does something about it … Cause a lot a’ the time we’ve had tae do that throughout Tom’s life. Since Tom was a baby … the council say, ‘Oh we’ve not got the funding, we’ve not got this, we’ve not got that.’ And then all of a sudden if you shout loud enough and speak to the right people it happens. (Tom’s father)

Losing faith in formal mechanisms, Tom’s parents have become adept in using their social networks to resolve problems. For example, Tom’s transport to and from school is no longer being funded by the council because their new home is outside the school catchment area. In order to resolve the issue, Tom’s father telephoned the local authority senior officer for ASN: I had spoke tae a man at the council, I had phoned him directly which I wasn’t meant to do but I did. I was like, ‘Do you know, I’ve had enough of the whole back and forward through different people’. I was like, ‘Like just speak to me yourself, tell me what I need to do’. So he was like, ‘Could you go and visit L Academy’, which is the catchment high school for the area that we stay in. (Tom’s father)

Tom’s parents visited this school and were unimpressed with its facilities, resolving therefore to explore other routes: So if that doesn’t work I’ll be going to see our MP which we’ve had to do a few times in the past to fight for things to be done. After that I don’t know where my next steps would be. So basically Tom had been in an electric

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wheelchair since he was eighteen months old. And when he started nursery at the age of three, he would take his wheelchair from the house to nursery. And we needed a ramp from our front door cause there was two steps, two steps to the front door so we needed to get his wheelchair in and out and the council refused it because he wasn’t at an age to be driving a wheelchair outdoors. And I was like, ‘Well he needs a wheelchair’. So we went down the stage, ‘Well can you provide two?’ ‘No, one’. So we were having to carry the electric wheelchair in and out the house which has not been good for us over the years. So we had to do that for a good maybe six to eight months. And I was like, ‘Do you know something, I’m gonna go to the MP’. And we went to him. Within two weeks of a meeting with him we had a phone call saying the ramp was getting installed. (Tom’s father)

Tom’s mother also assists other parents by supplying information about navigating the system using ‘back channels’: Basically, I think Tom was in Primary 6 and there had been a lot of issues. The school had been restructured, and there was just more issues after more issues. So parents started talking. A lot of the parents had younger children so they were looking for advice. So they knew that Tom was Primary 6. So, parents kinda approached me. (Tom’s mother)

To summarise, Tom’s parents have obtained a CSP for their son, but are frustrated by their suspicion, confirmed by the learning support teacher, that it is regarded as a pointless piece of paperwork by the school and the local authority. They have therefore discovered ways of exerting influence within the system using informal channels based on their local knowledge and contacts. Although they are willing to share this local knowledge with other parents, the time and confidence required to make a success of this approach is unlikely to be available to all. The final Scottish case also highlights parents’ frustration in discovering that statutory support plans appear to be treated as irrelevant documents which, as a result, fail to safeguard the delivery of essential services for those with the most significant additional support needs.

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Nick, Eastshire, Scotland Nick is an 11-year-old Primary 7 pupil attending the ASN hub attached to a mainstream primary school. He is in a class for pupils with severe and complex needs. Nick has a rare genetic condition associated with learning difficulties, hearing impairment and growth problems. He lives with his mother and two brothers in a seaside town with pockets of deprivation. The family home is located in a local authority housing estate which is classified as a highly deprived neighbourhood (SIMD 1). Nick has no contact with his father and his mother is a full-time carer for her children. When Nick’s family moved to the coastal town, Nick’s mother thought she would see whether her son could benefit from being in an inclusive setting for a short period each week in order to make friends locally. However, the experiment was not successful because Nick was not allowed to mix with the other children. At school, Nick interacts affably with staff and peers and is keen to show visitors around his classroom. His mother describes Nick as being very different at home, with major behavioural issues. She ascribes this difference to the fact that school is very structured and the routines are set in stone, whereas domestic life is less regulated: We have major behaviour issues in the house. At school everything’s done by timetables and nothing changes, everything stays the same, accurate, almost to a point. But at home it doesn’t always work like that. We can’t go by timetables all the time, it’s virtually impossible to live a normal family life sticking to a timetable all the time. The other children don’t allow for that and things can get really chaotic and Nick’s not really good at coping with that. (Nick’s mother)

The ASN hub is in the same building as the mainstream school but is separated by secure doors. Nick is in a small class and each child has an individual timetable: My planning [for Nick] is five pages long because we’ve got eight children in the class, every single one is different. And as you see he does his own timetable in the morning. So he comes along and does his own timetable.

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And he’ll be my helper when we do a morning circle. So he introduces everybody and he’ll say who’s here and he’ll take the bits round. So it’s working to Nick’s needs all the time. And learning wise, he’s learning in a total practical hands on way, you know what I mean? He struggles to sit at a table, his concentration’ll go really quickly. So instead a’ sitting him there and trying to say, you know, ‘One and one is two’, we do it in a totally different way. So he’s learning through cafés and things like that. (Nick’s teacher)

Nick currently has an IEP and used to have a CSP but this has recently been closed, a decision which the class teacher does not fully agree with because she feels Nick would still benefit from outside agency support: Like occupational therapy and physio at the moment. I mean when Nick’s walking his feet are actually getting more and more apart cause a’ his syndrome. And every morning I take him and I walk him round the stairs in school, because he really struggles to walk up and down pavements, up and down stairs and you can see he’s holding on wi’ two hands to get up and down a set of stairs. You know, there’s loads a’ things in class that you think tae yourself, ‘You’re scared to do that’. It’s his confidence more than anything. Do you know what I mean? Like when you say to him ‘We’re gonnae do something new’, like we had a walk to the secondary school the other week, and he was terrified because it’s something new. But he needs that support to like help him to walk and he’s now got a wheelchair, so we let him walk for a little bit but we know that his stamina is not there. You know what I mean? So you have to take that wheelchair with you but we don’t get any support or any help wi’ that at all. You know they’ve signed him off and said he doesn’t [need any more support], they can’t do anymore. (Nick’s teacher)

Nick is able to express an opinion on what he would like to do in the classroom, particularly when presented with simple choices: … and then I’ll say, ‘Would you like to do this one or this one?’ And then maybe choose another two, this one or this one? So that he can express what one he wants. And then we’ll break it down again and say, ‘Right you’ve chosen this one how are we gonnae do that? Will we do it by …’ and then he’ll get a choice of what he wants tae do. (Nick’s teacher)

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In this way, the teacher explains that Nick is able to contribute to the discussion about IEP targets: He has had input intae his targets and he will do this time again. And we sat wi’ him last week and did a communication passport for when he goes up tae high school so that they can see exactly what he likes and what he doesn’t like as well. So yeah, I’ve read all his reports and his IEP and ­everything so he has had input before definitely and that’ll continue. (Nick’s teacher)

Nick’s mother is less convinced that her son is making a meaningful contribution to educational decision-making. In her view, although he always attends planning meetings, his interactions are largely pre-scripted, and it is difficult to know what he really feels: Nick always attends his meetings. He comes in and tells you what he’s been doing and tells you what he would like to be doing. But that’s taught. So it’s hard to actually know what Nick really does want … It’s not really spontaneous. There are little elements of spontaneous sort of reactions from Nick about it and stuff but it’s very much what he’s been taught. So this is why I’m always so adamant that you have to be very careful what you teach him and how you teach it to him. Cause if you tell him something the wrong way round, that’s then in his head you can’t alter that. It’s very very difficult. (Nick’s mother)

Nick’s mother also feels that the school takes little account of her views or her son’s needs in some specific areas, particularly to do with his physical wellbeing: At school, they overwalk him. And it comes down to the fact that Nick’s a pleaser. So he’ll do what he can to please you. Not me, he’ll do nothing to please me, I’m his mum and that is the nature of a lot of disabled children. At home they can be an awful lot different than what they are at school. So at school if they try and push him to do something that little bit more he will try. But I’ve had occasions where he came home and there was no report of him being injured or anything but when I went to strip him for bed and he’s covered in blood down his leg and stuff like that. And that

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comes down to, ‘C’mon Nick, you can do a bit more’ and that. And no he can’t. And this is where I’ve had to put my foot down and sort of say to them, ‘Listen, I’m not having it anymore. You will take on board what I’m telling you. I have, you know, on numerous occasions told youse to not overwalk him because it has a knock on effect’. Apart from that if he falls down he will not tell you he’s hurt, he can’t tell you he’s hurt. He can dislocate joints and everything and put them back in. And the swelling comes later, it doesn’t come instantly, it comes later. The bloody knees and stuff and the cuts and the big bruises cause they’re not little bruises and stuff, they’re great big huge black bruises and things like that. So there’s been numerous occasions where I’ve had issues with the school about not using his wheelchair because they like to prove that they can get him to do stuff. And they now listen a bit more about it because, you know at the end of the day when he’s coming home cut like that it’s neglect. So if I was sending him to school and not reporting stuff like that social work would be involved so they can’t think that it’s OK to, you know, push him into something that he doesn’t really want to do but he’ll do it because he doesn’t want to get into trouble or doesn’t want to disappoint you. You have to at some point weigh up what’s real for Nick and what’s not. So I’ve had issues about that with them and the only other issue is toileting. They want independent children, they want to try and get your children as independent as possible. Nick cannot clean himself and that so they don’t go into the toilet with him, nobody’s checking him so he comes home very soiled. And that’s an ongoing issue. Those are my two ongoing issues that I’ve had with the school. (Nick’s mother)

In Nick’s case, there appear to be two competing narratives about the child and parent’s involvement in educational planning. According to the school, great efforts are made to involve Nick in making choices on everyday matters and reviewing long-term targets in planning meetings. However, Nick’s mother has a different perspective, believing that his input is stage managed and that the school ignores pupil and parent wishes regarding basic physical wellbeing. She has complained to the school, but the closing of the CSP means that joint working between education, health and social work has ceased. Nick’s mother is unaware of the significance of the CSP and was not consulted about its discontinuation or the extent to which it might be useful in ensuring ongoing support from agencies other than education.

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Conclusion To summarise, in both England and Scotland policy rhetoric strongly supports participation by children, young people and their parents in educational planning. However, the greater use of statutory support plans in England provides a framework to ensure the routine involvement of service users in monitoring and reviewing educational goals and the input of education and other agencies. Even so, it is clear that in both jurisdictions socio-economic status is an important factor in ensuring that a statutory support plan is opened when required and that its provisions are regularly reviewed. For example, Maleeha’s father was able to draw on his professional networks to find out about statutory support plans and to insist that his daughter had an EHCP before secondary transfer. By way of contrast, David’s mother, despite her middle class social, economic and cultural capital, found the Scottish system of educational planning almost impossible to navigate. Tom’s parents’ experiences of the ineffectiveness of the CSP forced them to use alternative ways of influencing resource allocation decisions, using direct contact with elected officials and sharing their ‘hot knowledge’ with other parents. In these case studies, Scottish teachers’ accounts suggest that parental cynicism is justified. Education professionals tend to believe that CSPs are time-wasting devices and steer parents away from requesting one. Whereas parents with greater resources are sometimes willing to battle with the system, those living with social disadvantages, such as Nick’s mother, are clearly ill-equipped to insist on their child’s right to a statutory support plan. In England, too, social deprivation appears to be a major factor influencing a parent’s ability to argue for statutory support. Alice’s mother, for example, incorrectly believes that her daughter does not qualify for an EHCP because her difficulties concern her mental health rather than her cognitive ability. This is likely to have severe consequences, leading Alice to be labelled as naughty rather than in need of extra help. As a child who has already been excluded from primary school on several occasions, Alice’s prospects at secondary school are unpromising. Although the education planning system is intended to safeguard the

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rights of all children and their families, irrespective of their social background, evidence suggests that in practice those from relatively advantaged backgrounds are in a much better position to insist that their rights are respected.

References Palikara, O., Castro, C., Gaona, C., & Eirinaki, V. (2018). Capturing the voices of children in the education, health and care plans: Are we there yet? Frontiers in Education, 3(24), 1–9. Riddell, S., Harris, N., Smith, E., & Weedon, E. (2010). Dispute resolution in additional and special educational needs: Local authority perspectives. Journal of Education Policy, 25(1), 55–73. Riddell, S., & Weedon, E. (2010). Reforming special education in Scotland: Tensions between discourses of professionalism and rights. Cambridge Journal of Education, 40(2), 113–130. Weedon, E., & Riddell, S. (2009). Additional support needs and approaches to dispute resolution: Perspectives of Scottish parents. Scottish Education Review, 41(2), 62–81.

9 School Choice and the Rights of Children, Young People and Their Families

Introduction The school chosen for a child to attend is critical in terms of their educational experiences and outcomes, and is probably one of the most important decisions that families have to make. School choice has been central to the consumerism and marketisation agenda, with individual parental choices seen as critical drivers of the educational market. In theory, the education market is meant to ensure that popular schools flourish while less popular schools wither on the vine but this, of course, is not how things work in practice. Schools with higher attainment levels, generally serving middle-class communities, are often oversubscribed, while schools with lower levels of attainment, often in poorer neighbourhoods, tend to continue because of the lack of other options. On the face of it, families of children and young people with additional support needs/special educational needs (ASN/SEN) appear to have even great choices than others, since they are permitted to request a place in either an approved independent school or a state school. In Scotland, parents of children with additional support needs may request a place in a local authority school in their own neighbourhood or in © The Author(s) 2020 S. Riddell, Autonomy, Rights and Children with Special Educational Needs, https://doi.org/10.1007/978-3-030-55825-3_9

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another local authority. They may also request a place in a grant-aided special school or an independent special school in either Scotland or the rest of the UK. Where a successful placing request is made to a grant-­ aided or independent special school, the associated costs are paid by the local authority, although transport costs may not be paid. For those with Coordinated Support Plans (CSPs), the school named on the plan should reflect the wishes of the parent or young person and have been discussed with the child, since the 2016 legislation did not extend the right to choice of school to children on the grounds that this might contravene the right to family life. For example, if a child were to choose a school at some distance from the family home, this might involve major transport costs or necessitate the child living away from home. In England, because of the heterogeneity of the education system, the choices available to parents and young people are even more complex. The parent or young person can request that any of the following types of institution is named on an Education, Health and Care Plan (EHCP): a maintained school; a maintained nursery school; an academy or free school; a further education or sixth form college; a non-maintained special school; or an independent special school or college approved under section 41 of the Children and Families Act 2014. However, as in Scotland, children do not have the right to choose their school. In both jurisdictions, school choice is circumscribed by the presumption of mainstreaming, which indicates that a child should be placed in a mainstream setting unless this is against the wishes of the parent or young person, would be incompatible with the efficient education of others or would be incompatible with the efficient use of resources. The Equality Act 2010 also applies in both jurisdictions. Under this legislation, admitting authorities must have due regard to the need to: eliminate discrimination, advance equality of opportunity and foster good relations between disabled pupils and pupils who are not disabled. The Public Sector Equality Duty requires schools in England and local authorities in Scotland to publish data annually to show the progress they are making in complying with these duties. Schools and local authorities are also obliged to publish an Accessibility Plan. Research on the implementation of the Public Sector Equality Duty in Scotland suggested that it was often regarded as a bureaucratic box-ticking exercise by local authorities and

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other public sector bodies, and compliance was often minimal (Arshad and Riddell 2011). In England, school admissions are further regulated by the Schools Admissions Code, which aims to ensure that the practices and criteria used by admissions authorities in the allocation of school places are fair, clear and objective. However, the Equality Act allows academic selection by grammar schools and those with long-standing arrangements allowing them to be partially selective. Schools with a designated religious character are also allowed to reserve places for those of a particular faith where the school is oversubscribed. In England, all schools are expected to have a fair access protocol and the local authority must ensure that no school is required to take more than their fair share of children who have been excluded from other schools or have challenging behaviour, even where places are available. If a child has been excluded permanently from two or more schools, there is no requirement for an admissions authority to comply with a parental preference for a particular school for a period of two years from the last exclusion, although the ‘twice excluded’ rule does not apply to children with an EHCP. If a parent believes that a school’s admissions arrangements are unfair, they may make an objection to the Schools Adjudicator, who may direct the admissions authority to change their admissions arrangements. In both England and Scotland, parents and young people may appeal to the First-tier Tribunal if they wish to challenge the refusal of a placing request and in both jurisdictions, this is one of the major reasons underlying appeals. Following the new legislation on the rights of children and young people in England and Scotland, there is an expectation that parents will involve their child in school choice, although there is a lack of clarity about what should happen if the views of the child are at variance with those of the parents. As was noted earlier, parents’ advocacy organisations in Scotland were concerned that local authorities might invoke the child’s wishes in order to countermand those of the parent. In both jurisdictions, concerns have been voiced about how vulnerable groups of children may have their views reflected in school choice. For example, the local authority acting as a corporate parent is unlikely to challenge the council’s decision on where the child will attend school, and young people are unlikely to be able to make a school or college placing request

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without very strong independent advocacy. In addition, parents living with social disadvantage are unlikely to have the economic, social or cultural resources to challenge local authority decisions. Finally, the families of children who have been excluded from school, or who are at risk of school exclusion, are likely to have very little clout in challenging local authority decisions on access to specific schools or modes of attendance. There are growing concerns about the use of informal exclusion in England and Scotland, when parents may be requested to keep their child at home for periods of time in order to avoid the penalty of official exclusion (Scottish Autism 2018). Flexi-schooling, whereby a child spends part of their time being homeschooled without being removed from the school roll, may have both upsides and downsides for the child and their family (Lawrence and Beardon 2012; Lees 2014). The way in which parents, young people and children use their rights to be involved in school choice is explored through the case studies which follow. The first two case studies, those of Aiden and Laurie, illustrate the efforts of middle-class parents to secure places for their children in independent special schools. However, it would be a mistake to assume that higher socio-economic status automatically results in parents securing the type of education they desire for their child since all parents who question local authority decisions describe their experiences in terms of struggling and battling. It is important to note that some families living with social disadvantage are successful in challenging local authority decisions on school placement. For example, Craig’s case illustrates the way in which a determined parent from a less socially advantaged background may succeed in navigating the school choice system when supported by skilled advocates. The final two cases illustrate the difficulties for care experienced children in having some sort of autonomous input into decisions on school placement, particularly, in the case of Nathalie, where child protection issues are involved.

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Aiden, Northshire, England Aiden is 12 years old and has a diagnosis of autistic spectrum disorder. He is an only child and lives with his mother and father in a small affluent town (IMD 5) on the edges of the countryside in Northshire. Aiden’s mother also has a diagnosis of autism and his father is a naval officer and is away from home for long periods of time. In his free time, Aiden likes playing on his xbox, playing football, swimming, karate and spending time with his dog. Aiden’s mother describes her son as very loving with a great sense of humour. She is able to relate to her son’s difficulties and believes that his experiences of living with autistic spectrum disorder are similar to her own. Teaching staff at the school regard Aiden as a likeable, honest pupil who generally gets on well with his peers. Aiden attends Browndale School, an independent day and residential special school with 72 pupils. The school, located in a remote rural setting, was established in 1989 for students with autistic spectrum disorder associated with social, emotional and mental health difficulties. In addition to its emphasis on life skills and self-regulation, the school has a holistic approach to supporting students’ needs, providing a range of therapies including art psychotherapy, cognitive behavioural therapy and speech and language therapy. Class sizes are small and all pupils have an EHCP. Pupils are funded by the local authority and annual fees for non-boarders range from £33,849–£80,595 and for boarders from £59,925–£112,989. The headteacher argues that this represents good value for money: Because we’re well-established now, local authorities tend to save us for their complex and more challenging young people, when they’ve exhausted all other things. I keep saying to local authorities, ‘It’s a better use of your money to do an early intervention’ and all the research evidence would suggest that with our kind of young people, the sooner they’re in the right provision, the better the outcome. We have always had primary aged pupils as well because my view is if you get them at primary, you make everybody’s job so much easier and it’s more likely that you will get a strong outcome. (Aiden’s head teacher)

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Since pre-school, Aiden has been excluded from many schools and has a history of mental health difficulties and self-harming: I started self-harming and when I kick off, when I think about it later when my parents are shouting at me, I always feel really bad and it makes me want to punish me and I want to punish myself and then I start cutting myself and self-harming … It hurts afterwards, a lot. (Aiden)

Aiden’s mother first became aware of her son’s difficulties when he was ‘on the verge of exclusion’ from nursery school. She requested that the local authority conduct psychological assessments for her son. These were not carried out, but instead she was given leaflets on positive parenting. Shortly after this period, the family relocated to join Aiden’s father at a naval base overseas and Aiden started attending a Service Children’s Education school. He was only allowed to attend for two hours a day and was frequently excluded completely. Aiden’s mother describes how this affected the whole family: It was a dreadful position from start to finish because we were in a very small community, a very small British community. Aiden had been labelled the naughty boy and we were ostracised in the community. (Aiden’s mother)

Subsequently, after the intervention of a social worker, Aiden was diagnosed with attention deficit and hyperactive disorder (ADHD) by a naval doctor and further psychiatric assessments resulted in a diagnosis of autistic spectrum disorder. Aiden’s mother continued to be dissatisfied with the quality of education and successfully appealed an exclusion to the First-tier Tribunal. However, Aiden was so traumatised by the experience that he was unable to return to the school. When the family returned to the UK, Aiden was first placed in a mainstream primary school and later moved to a special primary. The choice of secondary school was the subject of a long and acrimonious dispute between the local authority and Aiden’s parents. Aiden’s mother discovered that the first step was to obtain an EHCP because this would allow the family to name Browndale School as their preferred educational setting, bringing them into conflict with the local authority:

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It took a year fighting the local authority to get him into Browndale. What happened was he was in [the special primary school] … The whole of Year 6 we were fighting for his Education, Health and Care Plan. We couldn’t identify a school until we had the plan. The local authority sent his details to a school, which we knew was not the right school. We hadn’t agreed to that school but when we turned up to view it, they’d already got his details as though he was already going there. The local authority sent his records through and they had him on their roll to start in September. So I spent the year fighting the local authority, saying it’s not the right school for him, I want the assessments done and then the plan writing. And so we had no school for September last year. It was the very last day of the school term so it was in July last year that the local authority telephoned to say it had been to panel and the panel had agreed the place at Browndale School … so we didn’t have to go to tribunal. But he was too late to start at the beginning of September, so his entry into Browndale School was delayed slightly. He knew he was going to that school. He hadn’t been to visit. He didn’t really know anything about the school he was going into other than what we could tell him. Because it was agreed on the very last day of term, he’d not been able to do any transition. (Aiden’s mother)

Aiden’s mother believes that her son is thriving and Aiden also feels that Browndale School is ‘probably the best one for me that I’ve been to’. He recalls that he had minimal involvement in selecting the school, but was aware that his parents and teachers were discussing the options: Interviewer: Did you choose to come here? Aiden: No, I didn’t have a clue what was happening. I might be going to Riverdale High School, I might be going to, what do you call it, Woodcombe High School, something like that. …When the staff heard me say I might go to Browndale School, they were like, ‘You are not going to Browndale’. It didn’t have a very good reputation at all with the staff in my old school. They thought it wouldn’t fit me whatsoever. (Aiden) Later, Aiden discovered that his mother had been ‘battling for about a year’ to secure a place for him at Browndale, making him realise that ‘my

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mum will never stop looking after me’. After the school place was confirmed, Aiden visited the school, recalling that he was initially very anxious, but was reassured by the fact that it was a small school and that this was ‘good because I don’t like too many kids’. He describes his life at the school as relatively insulated from the outside world: I don’t really go out because I barely have any friends outside of school that I could go out with, I never have really. (Aiden)

The headteacher at Browndale recognises that he acts as a powerful gatekeeper with regard to pupil admissions, and sees maintaining ‘the right balance’ as critical to the school’s success: The balance with kids is quite critical. They’ve got to be able to get on and if you’ve got somebody who doesn’t, it makes it very difficult for the others to be successful…you have to make decisions that sometimes people don’t like and say, ‘No, I’m not prepared to take him because he won’t fit in, because he’ll have an adverse impact on the efficient education of the other kids’. (Aiden’s head teacher)

He also acknowledges that the effort of attaining a place at an independent special school is likely to be beyond the capabilities of most parents: When I look at our parent demographic, if they weren’t articulate and assertive and, in most cases, English was their first language, they wouldn’t have been able to make the argument to get their child here because they have to battle and the parental right and the pupil right that was enshrined in the 2014 Act isn’t made known to parents. I understand why, but the law is the law. They are protecting their budgets and certainly some of the northern authorities have had swingeing cuts. Northshire, I think has lost over £180 million over the last five years. Well no authority can withstand that without having an impact on services. The easiest one to hit, that you’ll get no moral argument for, is out of borough placement because we should be educating them ourselves. (Aiden’s head teacher)

To summarise, Aiden’s case provides insight into the struggle of a middle-­class family to secure a place in an independent residential school

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in the face of understandable opposition from a local authority trying to manage a shrinking budget. In Scotland, there were similar stories of struggles by middle-class families to obtain a place in independent special schools. However, Craig’s case, discussed in the following section, reflects the fact that determined families from less advantaged backgrounds may also be successful in obtaining their preferred school placement against the wishes of the local authority, but only when supported by a powerful advocacy group.

Craig, Coalshire, Scotland Craig is a tall and solidly built young man, with sandy, light brown hair. He is 14 years old and has a diagnosis of autistic spectrum disorder (ASD). At his independent special school, Craig is dressed in a simple school uniform of black trousers and blue sweater. He is a keen football fan and has extensive knowledge of the game. Craig is a day pupil at Castle House School and commutes daily from his home in a large Scottish town with high levels of deprivation (SIMD 2). Castle House is an independent special school catering for boys aged 10–18 years with autistic spectrum disorder and social, emotional and behavioural difficulties. About twenty children are enrolled at the school and about a quarter have CSPs. A small number of pupils are 52-week boarders or day pupils, while the majority board for 32 weeks of the year, returning home for the holidays. The school is located within a two-story Jacobean-style house which is part of a rural estate. The curriculum is limited by the specialisms of the teaching staff, although the basic academic subjects are taught, and pupils are expected to sit national exams. There is a major emphasis on independent living skills including cookery, laundry and money management. Care staff organises a range of activities for evenings and weekends including model railway making, listening to music, swimming, visiting the local park, biking and hiking. The social studies teacher believes that the most important challenge for the boys is finding some means of survival in the outside world after they leave since they live a cocooned existence at the school and have limited contact with their parents and home community.

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The school works closely with Who Cares?, a voluntary organisation advocating for care experienced children and young people, and Partners in Advocacy, who are experienced in safeguarding. In terms of his earlier school career, Craig’s mother explains that he coped well at nursery, but began to experience problems at mainstream primary school. He was not able to sit still and his mother recalls him being physically restrained by staff: But then when he went to school he didnae cope wi’ that. So from a very young age they started using all that restraining on him from Primary 1 … Cause he wouldnae sit in his chair and he would just run around and no focus on anything. So they thought the best thing tae do wi’ Craig was restrain him. So then he was put in the nurture room at [another primary school] and they were still restraining him. (Craig’s mother)

Even within the nurture room, staff were unable to cope with Craig: Yeah I think there’s about four in the class. So then he was put down tae half days cause he never really done any full days at primary school. And then it just started getting worse. Every day he would go in, he would come home cause he was getting all these restraints done on him. Sometimes three people would be on top a’ him. (Craig’s mother)

Around the age of seven, Craig received a diagnosis of ADHD from the local Child and Adolescent Mental Health Service (CAMHS). Around this time, Craig was being excluded frequently and the school tried to get him to sign behavior contracts before he could return. Eventually, Craig’s mother decided to remove him from the school: So that was maybe in Primary 2. But he wouldnae sign [the contracts] because he didnae get on wi’ the head teacher because he thought she was evil because she’s telling these people tae do whatever on him. So then we would go tae the meetings and he would maybe take his shoes off. They would say, ‘Oh, just go home, you’re not listening’. … It was a routine, he had to take his shoes and socks off, she was thinking, ‘That’s him not listening tae instructions’. So he’d get put home for a few days and then after a while I said, ‘Oh I cannae do this anymore. He cannae go back tae that

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school’. So then he was out a’ school for months wi’ no education, no nothing. (Craig’s mother)

For the final year of primary school, Craig moved to a special unit, but his mother felt the education he received there was unsatisfactory: The classrooms were too wee. And it would have been OK if Craig was there from the start. He would have fitted in more but … Craig going intae Primary 7 and only being there a year, he was just learning what was what and then he would have tae go tae another school. And that was my worry, well what school is going tae educate him because up tae then he’s no really [had an education]. Before Craig went tae Castle House he couldn’t even write his name. So what were these teachers teaching him? And you would think one tae one wi’ the deputy head he would be quite well educated. But they were just containing him tae make them look good for him tae be in education. They werenae doing anything with him. (Craig’s mother)

Craig’s mother found out about Castle House School via a local ADHD support group and decided to apply for a place for her son. She sought her son’s opinion, but admits that even if he had not agreed, she would still have sent him there: That was just between me and the school probably. I asked Craig, I showed him pictures and that. He did say he wanted tae go but probably, if he’d said he didn’t want tae go, I think I still would have put him. Just because a’ what happened to him through his primary school. It was worrying me Craig going tae another primary school for a short space of time and then going tae a secondary school. That’s what was worrying me because at least I know Craig will be safe getting educated till he’s eighteen at Castle House. Whereas if Craig was at the local authority school he would be put out maybe at fifteen, sixteen. They would encourage Craig tae leave and that’s no in Craig’s best interest. That would be them saying, ‘Well he’s not coping. He doesn’t want tae do this or that’. (Craig’s mother)

Craig says that he was initially uncertain about the move to Castle House:

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Interviewer: Why did you make the move here then? Craig: I dunno, it was just, I guess, behaviour, I guess, or something. I guess my mum and my dad always wanted me to move to like a school like this, I guess. You know, I don’t know. Interviewer: And did they talk about it with you? Did you have a say in that decision would you say? Craig: Yes, definitely. Interviewer: So what happened? Did you come and have a wee look at the school or something? Craig: Yeah came and looked around, you know, saw what it was like. Interviewer: And you quite liked the look of it? Craig: Yeah it was alright. I was a bit sceptical, spectical, whatever the word is. Interviewer: You were sceptical, I think that’s a good word … So you weren’t entirely sure about it but you thought you’d give it a go? Craig: Well it was a big change, you know, moving thirty miles or something away. I still go home every day at least. Craig’s mother emphasises that she knows far more now about how to navigate the education system and, with the benefit of hindsight, believes she should have made a placing request to Castle House much earlier: See that’s the thing, what I know now and what I knew then is two different things. What I know now I wouldn’t sit back and just take no. But back then you think, ‘OK you better just go with it’. Whereas I shouldn’t have went with it for as long as I did. I shouldn’t have allowed him to be out a’ school for a year in Primary 3. But then I thought, ‘Hmm, they know best’. (Craig’s mother)

It seems that Craig was consulted about the move to Castle House, but only after the decision had been made, and his mother believes that the placing request would not have been successful without the intervention of the local support group. The following case studies reflect situations in

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which parents have experienced much greater difficulty in negotiating with schools and local authorities to achieve suitable school placements.

Claire, Greenshire, England Claire’s case illustrates the difficulty of finding a school place for a child with a history of exclusion, along with the importance to the young person of having a sense of agency in relation to the institution attended. Claire is 18 years old and has mental health difficulties. She has been excluded on many occasions and her mother has acted as her permanent advocate, struggling to find a suitable school. Claire’s mother recounts one such incident at a secondary school: I walked into an interview and I was surrounded by an exclusions officer, the head, the deputy head, and they just read me the riot act. They’d already had enough of Claire and said, nothing was put on paper because it was illegal what they were doing, so they were giving me seven days to move her, and ‘If you don’t have somewhere else in seven days we’re going to expel her’. So I rang lots of schools and none of them in the area would speak to me, or give me a place. (Claire’s mother)

At primary school, Claire was frequently excluded and her mother comments: I don’t think they wanted her there, so they were suspending her every other week, and they said, ‘Listen, we’re going to suspend her and suspend her’, and they said, ‘In the end we’re going to suspend your daughter that much that she’s basically just going to be at home all the time’. So at that point I moved her to a performing arts school, the one where she eventually got expelled from just before her GCSEs. (Claire’s mother)

Claire’s mother successfully appealed this exclusion. Claire attended the hearing and describes this as a humiliating experience:

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Claire:

They seemed to enjoy it … The new headmistress. I remember her sat there smiling whilst I was crying my eyes out. I’ll never forget that. Interviewer: And how did you feel people responded to you? Did anyone else listen to you? Did you feel like people took your views on board or your feelings? Claire: No, they were just trying to make out as if I was just this massive monster. Following the appeal, the school was obliged to either take Claire back or pay a fine and they chose the latter course of action. Claire says she was given no choice on whether to return to the school and describes the impact of this as ‘devastating’: Claire:

Yeah, and then we appealed to get back in. I won, and then they got given the choice of taking me back or pay, was it three grand? Three grand. And they chose to pay three grand rather than take me back. Interviewer: How did you feel about that? Claire: Absolutely devastated … They got a new headmistress, and she didn’t like me at all. And since she became head, I got kicked out. After the appeal, Claire had an extended period of non-attendance which affected her mental health: They’re just acting as if I’m, you know, an axe murderer or something. Like, I was only a fourteen year old girl at the time … I’d never felt depression or anything as bad until then. Like, I’ve got an armful of scars from them, and they just get away with it. (Claire)

Claire’s mother describes the challenge of persuading a school to offer her daughter a place because of earlier exclusion: I applied for [name of school]. I rung them up and said, ‘Can you give me a place?’ and they said, ‘Yeah’, and I said, ‘Oh by the way she’s been

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expelled’. In England, if you have been expelled twice you can’t go back into a normal school, so they said, ‘Well she’s been expelled once, we won’t have her’. So I had to go to appeal again, got a place there, but they wouldn’t let her in, she sat at home for another nearly two months, even after she won that appeal. They were told to take Claire the next day. And what they did was, they said, ‘We’re not taking Claire’. I said, ‘What do you mean, you’re not taking Claire?’ ‘We need to advertise for a teaching assistant’. I said, ‘She doesn’t need a teaching assistant’. So they then spent the next two months telling me that she couldn’t go because they needed one-to-one. (Claire’s mother)

Claire was eventually offered a part-time place at a local school combined with a part-time college course in hairdressing. Claire’s mother believed her daughter should be on an academic track but felt that there were few alternatives: When I was completing the paperwork I said, ‘I’m just not getting a good feel about this class’, and she [the parent partnership officer] said, ‘Well to be honest most of them are there because they’ve either been expelled or they’re in care’. I mean there’s a big gypsy community in that area as well so she said, ‘Most of the people in this class are from very troubled backgrounds and they’ve got behavioural problems’. So I said, ‘Well if she’s been expelled what’s the point of putting her in a class with other kids with behavioural problems?’ … I didn’t want her at this college, because it’s just full of kids who have been expelled, or they’re in care, and I just want her back, you know, doing GCSEs. (Claire’s mother)

Claire subsequently moved to a specialised pupil referral unit for students with social, emotional and mental health difficulties before returning to the local college to take a full-time vocational course in Hair and Beauty, insisting on her right to make this decision independently of her mother: Interviewer: So when you were choosing to go to North Greenshire College, was that your choice, or is it the only college in the area? Claire: Yeah, it’s my choice.

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Interviewer: And what made you want to go there? Claire: All my friends were there. Interviewer: OK. And did you visit in advance? Claire: Oh, no, no, no. I used to go there for a little bit when I got kicked out of the school, and I did Hair and Beauty for a bit. I think it was Year 10. Interviewer: OK. Did mum have any say? Claire: She didn’t want me going, but I said, as long as I pass, then it’s fine. To summarise, following years of challenging local authority decisions, Claire independently chose to do a vocational course at the local college, but her mother feels that she is wasting her academic ability and worries for her future. The experiences of Claire and her family illustrate the difficulties in finding suitable educational provision for a child with a history of exclusion, and the likelihood that the child’s views will be ignored in decisions on exclusion. As illustrated below, those living with social disadvantage also experience these difficulties and have fewer resources to draw upon.

Noah, Northshire, England Noah is nine and has lived with his foster family since he was five. Due to his early experiences, he has a diagnosis of post-traumatic stress disorder and social, emotional and mental health difficulties. Noah’s foster mother describes him as a ‘very lively young man who likes to be liked’. He has limited contact with his biological mother and his biological father is in prison. Noah likes to read, watch television and play computer games. Noah is aware of his difficulties and explains that this sometimes causes problems in his relationships with others. Sometimes he gets ‘scared and angry’ and might ‘destroy everything, and hit people’. As a result, he feels that:

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It’s easier for me to make decisions if a grown up helps me and I have limited choices. It’s hard for me to think about the consequences to my choices and I just think about what’s good now. (Extract from Noah’s EHCP)

Noah is also resigned to frequent experiences of restraint, describing these as being necessary to protect himself and others: Interviewer: What happens if someone doesn’t do what they’ve been asked to do? Noah: We have to sit on the bench and if we get really angry, we have to be held but that’s fine. Interviewer: How do you feel about that? Noah: It’s OK because it’s keeping me safe from myself and keeping others safe from me. Interviewer: Right, so what happens when you get held? Noah: Well, we get like this and they pull, push us against the bench and then we go the single elbow and something else. Noah’s foster mother is also aware of the use of restraint in school and does not object to this practice: … So if he’s kicking off and they’re holding him in a certain way or whatever, he will say, ‘I don’t like it when you hold me’. So then the teacher will take that on board and say, ‘But Noah, I’m holding you because you’re not safe and I don’t want you to you hurt yourself and I don’t want you to hurt others because I know that you’d feel really bad about it. If you don’t want to me to hold you, then don’t spit in my face’ or whatever the thing is. They do take on board what he’s saying. (Foster mother)

Noah has moved schools on a number of occasions and it appears that he has had limited involvement in any of these decisions. He initially attended the same primary school as his older siblings which was located close to his biological mother’s home. Following his move to local authority care, a decision was made by social services that it was in his best interests to move to a school closer to his new home:

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It was decided he would move so he could kind of make a fresh start, if you like. We knew it would be hard but he couldn’t move forward, we felt, while they [Noah’s birth siblings] were still there. He was looking for his mum all the time, he was relying on his siblings and it just wasn’t very healthy, so he was moved to our local school…which is a very nice little church school and my children went there, and it was a very nice school for them to go to, but very, very different to what he was used to. We was aware that it would be difficult for him, and a big change, but it was kind of like well we just have to do it and see what happens. If it doesn’t work, it doesn’t work, does it? Well, it didn’t work, let me tell you. (Noah’s foster mother)

Noah struggled to settle into his new primary school and was often sent home early. His foster mother believes that staff provided little support and Noah only attended for approximately three full days before being issued with a final exclusion notice. She did not complain, explaining that she was trying to build up evidence of Noah’s difficulties in order to secure more appropriate provision for him elsewhere: I should have [complained] but there’s a reason why I didn’t, because actually the way the school behaved was pathetic. They should not have treated Noah like that, the unwillingness to think outside the box and try new things, and be open to other help, but that was our local school. We lived in a small village and I didn’t kind of want to rock the boat because I didn’t know when I might need them and I didn’t want to burn my bridges, I’ll be honest. I did need the head teacher to write a report because there was nothing on his record about his time at that school, for whatever reason, and from the school before, there was nothing on there, so I actually asked her to do me a report on how his behaviour was and what she saw. If I’d complained about her, I’m pretty sure she wouldn’t have done that. (Noah’s foster mother)

After being permanently excluded, Noah was eventually offered a place at a pupil referral unit (PRU) in a nearby town. Despite having reservations about the PRU, Noah’s foster mother felt that there were no other options:

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I had a very negative view of it because I didn’t know any different, I’ll be honest, and it were like, well, tough luck, this is the only option that we’ve got. ….By this point, he’d been at home for two weeks with me and we had two weeks of the same kind of behaviour. He did go there and he did really, really well. He did really, really well. (Noah’s foster mother)

According to his foster mother, Noah learnt some essential life skills at the PRU, such as ‘how to go to school … how to sit in a classroom, how to go into assembly, he learned the consequences when you don’t conform, which is what he needed to learn’. In addition, Noah’s foster mother received a great deal of support from the SENCO, which resulted in her making an application for Noah to have an EHCP assessment. This led to him securing a place at his current special school: Foster mother: The SENCO at the PRU got his EHCP through … I do very strongly feel that if he hadn’t have been at the PRU, he would not have got his EHCP because he didn’t have a diagnosis at this point. Interviewer: Did the school apply for the EHCP? Foster mother: Yes, school did it and obviously they had lots of children like Noah and they were very clued up on how to get these EHCPs because she did say to me at a normal school, you probably wouldn’t get one because they don’t know how to do it. They don’t know the key words to write…He was under paediatrics, but no diagnosis had been made and sometimes that makes it really hard, when you don’t have a diagnosis, but I was really lucky that she kind of knew what she was doing. Once the EHCP was all put through, then that’s when he could move on to the special school. Interviewer: It sounds a bit like the EHCP was quite pivotal then in getting some long-term support that suited Noah. Foster mother: Yeah, absolutely. Throughout, Noah had little input into school placement decisions:

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He didn’t have a choice, I’ll be honest with you. He didn’t have a choice on the PRU, and neither did I, because it was a pupil referral unit and we were really lucky to get a place. Nobody would really have had a choice because there’s not a numerous amount of places to choose from, let’s be honest. When it came to the special school, we did go and look round it, me and [foster father] went. If we didn’t like it, we could have looked for somewhere else. We didn’t look for somewhere else because I felt it was right for Noah and the staff at the PRU had even worked there in the past and they were all very positive about it, so I didn’t feel the need to look anywhere else. (Foster mother)

Noah is currently in Year 5 and explains that he has been thinking about which high school he would like to attend, but will leave the ultimate decision to his foster mother: I’m going to see the first one but then I don’t want to see any more, and then she’s going to tell me about them and we’re going to [decide]. Me and her are going to choose about them and then we’re going to make a decision. (Noah)

His foster mother has doubts about Noah’s capacity to understand how the choice of secondary school might impact his long-term future. Noah says that he wants to go to the local mainstream secondary school because he would like to join the football team and his girlfriend is going there. However, his foster mother has explained that he will do better in a special school with small classes. Remembering the conversation, his foster mother says: Then he said something which really surprised me because he got really quite upset and said, ‘But I want to do well in life and I won’t get any GCSEs if I go to a special school’. I did say, ‘Well actually Noah, I won’t let you go to a special school where you can’t do GCSEs because I’d be failing you because you’re a bright lad. You’ve had a tough time and you are exactly where you should be educationally and you’ve got to be commended for that because that’s your hard work that’s done that … I would not let you go to a special school that didn’t push you academically’. So we’ve left it

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that I will look for a special school that can get him through his GCSEs. That’s where I’ve left it at the moment. (Foster mother)

Noah’s foster mother says that she is aware of the existence of independent special schools, but believes that it would be impossible to arrange a visit, let alone a place, at this type of school: Foster mother: I’ve got to say that, as a foster carer, it’s very difficult to look round special schools cause if you ring up and say, ‘I’m a foster carer and I want my child to go to your school’, they won’t let you look. Interviewer: Really, why? Because they think you’re not going to be around or …? Foster mother: Because if it’s a fee-paying school, and they know that it will be a fight to [get the council to] pay and I think they just don’t want to have loads of people look round, but I’ve learned my lesson now … It’s a need to know basis, isn’t it? Clearly there are significant limitations on the choices available to Noah and his foster parents. Noah appears to have had no input into the decision to remove him from the original primary school he attended with his birth siblings and was also excluded from decisions on exclusion and subsequent school placements. According to Noah, he wants to attend a mainstream high school in order to succeed academically, but his foster mother believes he will do better at a special school. Reflecting the experiences of other care experienced children, Noah’s early life has been disrupted by frequent moves and low educational expectations, with potentially long-term social and economic consequences. Although not a care experienced child, Lewis, discussed below, is also from a very disadvantaged background and has behavioural difficulties and a history of exclusion. Like Noah, he and his mother have little choice in relation to the school he attends because of the paucity of available options.

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Lewis, Coalshire, Scotland Lewis is a 14-year-old boy who lives with his large blended family in a very deprived town in Coalshire (SIMD 1). He is currently receiving part-time education in a special unit but does not have a CSP. Lewis has a cheeky and engaging manner, loves talking to people but finds it difficult to sit quietly at a desk. According to his mother, ‘he’s a lovely little boy, very loving. Very kind, helpful, he would dae anything for anybody really’. Lewis enjoys: Right practical stuff like swimming. He’s joined cadets. He was painting the shutters in the community, he got an award for that in the high street. Really anything practical, swimming, anything. (Lewis’ mother)

She also describes her son as ‘easily led’ and Lewis says that there are local gangs in the neighbourhood who threaten him and make him run errands. Lewis was identified as having behavioural difficulties at primary school and was excluded on a number of occasions. In order to get him back into school, his mother agreed to a part-time educational package for six hours a week. When Lewis moved from primary school to the local secondary, the flexible education arrangement continued, but the school felt that his behaviour was still unmanageable. Lewis said that he found that moving from class to class was difficult and agreed to a move to a support unit at a different secondary school: Well I thought the work was much harder [at the original secondary school]. It was mair complicated cause they were moving to class, class, class, class … We thought it would be better if I had a wee change. So they transferred me here. (Lewis)

Despite agreeing to the move, Lewis says he still misses his friends at the original secondary school. At the special unit, Lewis continues to attend part-time and his learning support teacher says that full-time education will not be possible until his behaviour improves. Lewis’ mother

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explains the rationale for retaining the flexible education arrangement following the move to the special unit. The plan was: Just tae try and break him in gently, cause Lewis is kinda funny wi’ change. He doesnae like a lot a’ different change so they’re trying tae add more tae his timetable bit by bit. (Lewis’ mother)

Recently, the flexible placement has been extended and Lewis is ostensibly attending the special unit half time, although he is frequently absent. Initially, the agreement was that he would work at a local hairdressers during the home component, but the placement swiftly broke down. According to Lewis: I did [like it] and then they started being nasty tae me so I left. ‘Cause they kept swearing at me and they kept bullying me. (Lewis)

Lewis says that when he is at home, he spends his time watching television with his mother and tidying up. His learning support teacher believes that there is no requirement for him to do any schoolwork at home and hopes that his class hours will eventually be extended: His behaviour plan was reviewed in October this year. And it’s in consultation with the educational psychologist and with mum. And the aim is to increase his time at school. However, that’s not on the cards at the present moment in time. It will be reviewed in January again and that’s when hopefully we can increase it. (Learning support teacher)

According to his mother, Lewis is currently undergoing a paediatric assessment: Well he’s actually getting tested wi’ the doctor just now for ADHD but they’re also gottae dae a genetic test on him as well tae see if it’s a learning difficulty that way. So we just have tae wait and see how that goes. (Lewis’ mother)

The learning support teacher blames Lewis’ mother for the delayed referral and hopes that he will be prescribed Ritalin to control his

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behaviour, so that his time in the special unit may be increased. However, in just over a year Lewis will leave school, and to date, his education appears to have been about containment rather than support. The legal and policy context surrounding school non-attendance is extremely complicated, reflecting tensions between parents and children’s rights and local authority duties. The Standards in Scotland’s Schools etc. Act 2000, which established a child’s right to education, makes provision for flexible schooling, allowing a child to be home-educated for all or part of the day. During the home education component, responsibility for the child’s schooling passes from the local authority to the parent, and the authority is no longer obliged to provide any curricular materials or additional support. Although flexible educational arrangements are meant to be reviewed annually, there is little scrutiny of what is actually being taught at home. Government policy states that flexible packages may be used to improve outcomes and reduce school exclusions (Scottish Government 2017) and schools are expected to ensure that children and young people receive the recommended amount of full-time education per week (25 hours at primary and 27.5 hours at secondary level). There are concerns that flexible education may be used to mask the failure of schools to provide an adequate education for certain groups of children, particularly those with complex learning disabilities and challenging behaviour (Scottish Autism 2018). Flexible education has implications for children’s and parents’ rights and local authority duties. Parents have a duty to ensure that their child attends school, but there is also a legal requirement that the child is educated in accordance with parental wishes, which may entail home education. According to IPSEA, a voluntary organisation supporting parents of children with SEN, parents may feel pressured into home education to avoid prosecution for non-attendance. The right of parents to choose home education, or be pressurised into this choice, may clash with the independent right of the child to be educated. In Lewis’ case, the learning support teacher explained that the underlying reason for the flexible education package was to avoid formal exclusion. Lewis enjoys spending time at home with his mother, but has missed out on his educational entitlement and is about to leave school with very low levels of literacy and few or no qualifications.

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Nathalie, Sea City, Scotland The final case presented in this chapter is that of Nathalie, illustrating the power of the state to withdraw a range of rights from children, young people and their parents where child protection issues are involved. Nathalie is a ten-year-old chubby girl with freckles and shoulder-length curly hair. She has been placed as a 52-week boarder in a special school for children with social, emotional and behavioural difficulties under a Compulsory Supervision Order as determined in Section 83 of the Children’s Hearing (Scotland) Act 2011. According to the school manager: Nathalie has come from a background where there is … a feeling that there has been some sort of sexual abuse happened. She is a very clever girl, very astute, she makes friendships really easily. In terms of her self-esteem, she finds new stuff difficult, but she will give it a shot, she will try. And she currently is working really hard. She really enjoys swimming. She actually really enjoys any physical activity. It’s been quite tough for her, because for a wee while, in her cottage certainly, she’s been the only girl. (School manager)

She later describes Nathalie as ‘manipulative’: So, I suppose Nathalie struggles with relationships with boys. She’s quite, and I don’t like the word manipulative, but she is. In terms of our risk assessment, she’s not allowed to be left alone with another boy, basically. Because of her background, because of her needs, and just because of the child protection issues as well. … She can orchestrate situations to try and get that situation to happen, but the adults here are very clear, everybody knows about her risk assessment. So, what we’re trying to do with Nathalie, I suppose is trying to increase her opportunities for friendship, so she actually goes to a girls’ club, which she really enjoys. And friendships for the sake of having friendships, rather than trying to manipulate them for another purpose. She still sees her family, they come and visit her here. (School manager)

In place of a CSP, Nathalie has a resilience plan devised by the school. This flags up concerns that she might abscond from the school to find her

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family, and that this would jeopardise her ‘physical, mental and moral welfare’. Nathalie began her education at a primary school in a different city. She does not have fond memories of the school, saying that she wasn’t allowed out to play. She then moved to another primary school where, according to her mother, ‘they handled her a lot better’. Social workers involved with Nathalie’s family decided that she was at risk of sexual abuse, and at age 7, she was placed at her current residential special school as a 52-week boarder. She was initially allowed home every weekend but Nathalie’s school carers were concerned for her safety and the home visits ceased. Nathalie’s resilience plan notes that her mother feels that she was not consulted about this decision and Nathalie is also upset about the lack of family contact, particularly when she was not allowed to go home for Christmas. She has an adult with her at all times, and the social educator at the school notes that this means she is under much greater surveillance than would be normal for any other child of her age, with social work approval needed for many activities: I’m pretty sure Nathalie has a Permanency Order. So things like trampolining, we have to sign off saying that we take full responsibility for anything that was to occur during the trampoline session. So you have to get that kind of approved by social work so there’s these kind of delays. (Social educator)

The school supports children up to the age of 14, and at that point they might move back to their families, into foster care or into a young people’s secure unit, of which there are five in Scotland. The school manager explains that future plans are decided by adults: For some children, the social worker will have deemed that they’re ready for foster care, based on regular review meetings and conversations with staff. It will be that sometimes children are just not ready or there’s no foster place available for them because of their age. It’s quite sad, but it is quite difficult for older children to get a foster placement. So some of those children will either move to another secondary residential provision, or they will go to a young person’s secure unit. It just varies. Some will go back

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to families if that’s deemed the best place for them, if they’ve made progress and the families have made progress, then that’s where they can go. (School manager)

Nathalie’s comments, recorded for her upcoming review, indicate that she is unhappy with the 52-week placement and the restricted contact with her family as a result of the supervision order. Nathalie’s case illustrates the power of the state to restrict the child’s autonomy in order to protect them from harm to themselves or others (Section 83 Compulsory Supervision Order, Children’s Hearing (Scotland) Act 2011). It is not clear whether Nathalie’s views were sought and acted on when the initial supervision order was put in place. Because Nathalie is a ten-year-old child who is looked after by the local authority, she is also unable to challenge educational provision at the grant-aided special school.

Conclusion The case studies in this chapter highlight the extent to which school choice remains an adult preserve, in which children’s agreement is only sought after the main decisions have been made. There are occasional examples of more active involvement in institutional choice, for example, Claire insisted on her right to choose a vocational course at a local college against her mother’s wishes. The cases of Aiden and Craig show the efforts made by some parents, particularly those with greater knowledge and understanding of the system, to secure a place at an independent special school. Such placing requests are generally resisted by local authorities on grounds of cost, so concerted struggles over a long period of time are required to secure the local authority’s agreement. Those with a history of exclusion, such as Claire, experience difficulties in finding a school that is willing to take them, as do care experienced children, since foster carers are generally unwilling or unable to challenge local authority decisions. For example, Noah’s foster mother failed to challenge his permanent exclusion from the church school in order to amass evidence of the extent of his needs. She also appeared to ignore Noah’s preference to attend a

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mainstream secondary school where he would have access to the full range of academic subjects, suggesting that he would do better at a special school. Children from socially deprived backgrounds are also disadvantaged in an education system based on parental choice. Lewis’ mother, for example, was unable to challenge the limited education offered by the local authority because of the threat of exclusion. Overall, the case studies illustrate the pared-down choices available to children and young people with special and additional support needs, who are generally regarded as unattractive customers in the education market.

References Arshad, R., & Riddell, S. (2011). Managing disability equality in Scotland. Social Policy and Society, 10(2), 229–238. Lawrence, C., & Beardon, L. (2012). Autism and flexischooling: A shared classroom and homeschooling approach. London: Jessica Kingsley Publishers. Lees, H. E. (2014). Education without schools: Discovering alternatives. Bristol: Policy Press. Scottish Autism. (2018). Not included, not engaged, not involved. Alloa: Scottish Autism. Scottish Government. (2017). Included, engaged and involved Part 2: A positive approach to preventing and managing school exclusions. Edinburgh: Scottish Government.

10 Participation in Dispute Resolution by Children, Young People and Their Families

Introduction The new legislation and Codes of Practice for England and Scotland (Department for Education and Department of Health 2015; Scottish Government 2017) emphasise the importance of involving children and young people in dispute resolution as far as is practicable. However, understanding different types of redress mechanism is difficult because of their legal complexity. In England, these include informal discussion at school and local authority level, SEND Information Advice and Support Services (SENDIASS) provided by the local authority, school and local authority complaints procedures, the disagreement resolution service (DRS), mediation and the SEN tribunal. In Scotland, redress mechanisms include informal discussion at school and local authority level, mediation, dispute resolution (known as adjudication) and the ASN tribunal. Access to justice is further complicated by the age criteria which apply to different routes of redress. In England, parents and young people over the age of 16 may use the DRS, mediation and the SEN Tribunal. Other dispute resolution mechanisms are available to everyone with no age © The Author(s) 2020 S. Riddell, Autonomy, Rights and Children with Special Educational Needs, https://doi.org/10.1007/978-3-030-55825-3_10

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limits. In Scotland, parents, young people and children aged 12–15 may use generic complaints procedures, the ASN Tribunal and dispute resolution. Parents and young people, but not children, can request mediation, which was not included in the 2016 extension of rights because of mediators’ concerns that children would find the process too stressful (Riddell and Carmichael 2019). Recognising that children are unlikely to be able to participate effectively in dispute resolution without considerable support, services have been put in place to help children and young people access their rights. In England, SENDIASS provides information, advice and support on a local basis to children, young people and their parents. The Special Educational Needs Code of Practice 0–25 (Department for Education and Department of Health 2015) recognises that free, accurate and impartial information is necessary to support partnership working with children, young people and their parents, and requires local authorities and clinical commissioning groups to jointly fund high-quality services. The local authority must ensure that accessible information is provided on a wide range of matters including local policy and practice; personalisation and personal budgets; the law on SEN, disability, health and social care; and means of redress. Since 2017, the Scottish Government has funded the ‘My Rights My Say’ service to provide advice and information, advocacy and legal support to children with the hope of encouraging them to use their rights. These services operate at a national level, whereas councils have a duty to commission mediation services at a local level. To facilitate access, local authorities are required to publish information on ASN policy and provision; arrangements for identifying which children and young people require a Certified Safety Professional (CSP); the role of parents, children and young people; systems for monitoring and reviewing the adequacy of additional support; details of independent mediation services; and officers who may be contacted for advice. The local authority survey provided insights into council officials’ perceptions of their new duties concerning children and young people’s involvement in dispute resolution. Both north and south of the Border, local authorities said that they utilised a range of methods to make young people aware of dispute resolution and advocacy support services. As

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discussed in Chap. 4, the tribunal is used more extensively in England than Scotland, but across jurisdictions local authorities reported that young people very rarely initiated disputes independently. In England, a majority of local authorities said that they experienced difficulties in ensuring that the views of children were placed before the tribunal because parents might refuse consent for the authority to obtain the child’s view. Problems also arose in ascertaining the child’s capacity and establishing whether the view presented to the tribunal was that of the child or the parent. By way of contrast, in Scotland, two-thirds of local authorities reported that there were no problems placing the views of children and young people before the tribunal. However, a third of respondents said that difficulties might arise when the views of children and young people differed from those of their parents, since representing both viewpoints fairly could be difficult. Broadly, English and Scottish local authorities appeared to support the principle of involving children and young people in dispute resolution, but they also drew attention to the problems in doing so. In the following sections, case studies of children and young people illustrate the (often negative) experiences of accessing the tribunal and other types of dispute resolution. I begin with Lizzie, a young woman from a relatively advantaged background, whose parents have succeeded in securing a place at an independent further education (FE) college via a tribunal appeal.

Lizzie, Northshire, England Lizzie is 22 years old and has a diagnosis of autistic spectrum disorder and moderate learning difficulties. She lives in a large detached house in a small village (IMD 5) with her mother, father and younger brother. During term-time, she attends an independent special college and stays with a host family. Lizzie loves animals and enjoys taking care of her many pets when she is at home during the holidays. In the future, she would like to live independently and work in catering or in a library. Lizzie’s mother describes her daughter as ‘fantastic—she’s brilliant. She approaches life so positively. But right from birth, she’s had difficulties’.

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Lizzie was diagnosed with global learning delay at primary school and once she reached secondary school age, her parents felt that a special school education would improve her self-esteem. From a young age, she attended a number of Barnardo’s social groups and currently participates in consultation groups contributing to local authority decision-making around SEN provision. Lizzie’s college, run by an educational charity, offers day and residential placements to young people aged 16 to 25 who have complex learning difficulties, disabilities and mental health issues. In addition to its educational and therapeutic provision, the college runs a market garden and cafe, a metal workshop and a community theatre. Thirty-five students are currently enrolled at the college and the majority of them attend daily. Lizzie’s college fees are £99,000 per annum, and these are paid by the local authority. Prospective students are assessed over three days to ensure that they are able to participate in the college’s educational, craft and therapeutic programme. When Lizzie left school, she attended a local college to follow a life skills course. However, the local authority was reluctant to support any further education after Lizzie’s nineteenth birthday. According to her mother: a local authority officer suggested: ‘Well, rather than looking at another college, have you considered that education might not be the right thing for Lizzie?’ And I think I took that personally. She has a right to education until she’s twenty-five, and she’s still within it. And I felt she was [in danger of ] regressing, whereas she had been achieving at high school. So we’re wondering whether we needed a more specialist support place, whereas I think, probably based on money, the council was looking at: ‘Well, if she’s not succeeding now, is there any point in putting any more money into educating her?’ (Lizzie’s mother)

The local authority eventually agreed to a further college course, but insisted that this should be at a nearby institution, Brookend College. Lizzie’s parents had a long list of reservations about its suitability, noting the college’s poor Ofsted ratings, and decided to do their own research. After looking at the local authority website, Lizzie’s mother was

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disappointed that ‘there didn’t seem to be any information about what the next stage would involve’. However, she picked up ‘a wealth of information’ from the National Autistic Society and eventually came across a database of national specialist college providers. There’s a database out there that you can log into. It lists all the specialist colleges across the country. So you just log in, type your child’s details in what they’re like, and it came back with sixteen or more colleges. So I just rang round the colleges then, to get a feel for what they were like. (Lizzie’s mother)

Northern College was identified by Lizzie’s parents as the most suitable, and a placing request was made to the local authority, which was turned down. Subsequently, Lizzie’s parents decided to appeal to the SEN tribunal. As part of the tribunal submission, a Barnardo’s worker elicited and presented Lizzie’s views. Lizzie felt that: She would like to try a year at Northern College first before she decides if she wants to carry on there. And she would like to do the 30 week course and not the 52 week one as she wants to come home as well as be at Northern College. (Barnardo’s officer)

Lizzie’s mother explains that her daughter was indirectly involved in the decision to appeal but that her participation was limited by a number of factors: Lizzie was involved in the decision, but only in the sense that we asked her which college she’d prefer, we kept her informed of the process but she wouldn’t have known how to appeal. We didn’t either, so we sought information from friends, Barnado’s, Parent Partnership, National Autistic Society, Northern College, a database of independent colleges, solicitors and online parents groups etc. We had tons to learn in a short time, the process would have been too difficult for Lizzie and she hates conflict. She would have also found it difficult to fund. I think she would have been eligible for legal aid, but again I don’t think she could have applied without support and the process would have taken a lot longer, meaning she would

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have been out of education for a longer length of time. So I think without our help she wouldn’t have accepted Northshire’s decision to go to Brookend College, she probably would have stayed out of college. (Lizzie’s mother)

Throughout the appeal process, Lizzie’s family aimed to protect her from unnecessary distress: We assured her that if her wish was to go [to Northern College], we would try and make it happen. We asked her if she was happy for us to appeal on her behalf, which she was. She didn’t like having to be assessed or talked about. (Lizzie’s mother)

Lizzie’s parents describe the evolution of the dispute resolution process and their concerns about the lack of transparency and impartiality on the part of the local authority and associated professionals: Lizzie’s mother:  During the process, they did things like the ed. psych. was at a meeting, and asked if it was OK to try and gauge Lizzie’s level of capacity and have a chat with her about the process, but she didn’t say she was going to do a report … Lizzie’s father: That’s one of the underhand things wasn’t it? We found out early on that we couldn’t really [get a report from the educational psychologists] because, best will in the world, they are working for Northshire County Council, so we had to find our own independents. Lizzie’s mother: So we had to get a speech and language report, we got an ed. psych. report, we got an OT report, we had a report from a counsellor. Interviewer: Did you have to pay for all this? Lizzie’s mother: Yeah. Lizzie’s father: We’d done our homework hadn’t we? Lizzie’s mother: We also had to get Lizzie’s opinions, so we used youth and community because she knew them well,

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Barnardo’s … so she was comfortable there, so we tried to get them to get her opinion, so it’s not just us saying that this is where is best, so we got those workers to write reports, people who knew her. So we were putting all this evidence together now for the trial. [We used] SENDIASS to ask a few questions of what we should be doing, and the process, but I also felt that they were [working for the council], so we wanted some independent advice. So … I think I used them more for the framework of what we should be doing. We also used the National Autistic Society, cause they have a number you can ring, and they will give you say half an hour of free advice, and we went to parents meetings up at Northern College where they had solicitors, letting us know the process and what’s futile, and what’s actually useful. And then we found that a lady called AB, from Better Prospects, who used to be admissions [tutor] at Northern College, but she’d gone on her own. She’s not a solicitor, but she wanted to support parents in the EHCP process. Lizzie’s father: That’s her own business isn’t it? She was invaluable wasn’t she … she knew the system. Lizzie’s mother: And she didn’t take a lot of money from us, she did it for, you know, a very very low sum, but she was at the end of an e-mail, the end of a phone, because over this process I lost all confidence in the council. Lizzie’s father: She told us what we could and couldn’t do. Lizzie’s mother: Yeah, she was the only person we could trust. Lizzie’s father explains that, despite the financial burden, employing an independent supporter enabled them to challenge the local authority effectively: At one point we had to submit all our documents, and so we had a deadline of let’s say 12 o’clock on the Tuesday. Well we started electronically sending our documents at ten o’clock in the morning, and they didn’t finish arriv-

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ing until 12:30. The council got hold of this information and then wrote to the judge asking for all our documentation to be thrown out. So AB [the independent advocate] said, ‘You’re quite within your rights to ask for their documentation to be thrown out as well’. I said, ‘All right then, go for it, can we do that?’ (Lizzie’s father)

The process of preparing the appeal took around a year and this had a devastating effect on the whole family, resulting in Lizzie’s father having a breakdown. Towards the end of the year, an unfavourable Ofsted report on the local FE college came to light. Lizzie’s parents believe that this was the reason that the local authority decided to withdraw from the tribunal process, finally agreeing to Lizzie’s placement at Northern College on the Friday before the hearing. Throughout the run-up to the appeal, Lizzie’s family tried to facilitate her participation in a manner that respected her feelings. Lizzie explained that she had chosen to ‘come to the day’ saying she wanted to visit the city and be with her family in the building but did not want to, ‘go into the court room’. On the day of the hearing, Lizzie accompanied her family to the city but decided to visit the shops with her support worker while her parents attended the tribunal. However, she wrote the following letter to the Children’s Commissioner stating clearly her choice of college, which was presented as evidence at the hearing: My Name is Lizzie, thank you for letting me meet you today. I really like going to Barnado’s and they help me a lot. I am trying to get ready to go to college, but my Council have named a college on my EHC plan that I don’t want to go to and is not suitable, so I have to go to a tribunal court this year and it feels very scary. The college I want to go to and can support my communication needs is residential and out of my local county. I am autistic and like to plan and at the minute I cannot plan my future. This whole appeal process is very stressful. Thank you for reading, Lizzie. (Lizzie’s letter to the Children’s Commissioner)

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The Commissioner responded by writing a letter supporting Lizzie’s, drawing attention to the young person’s right to have their views, wishes and feelings considered in the final decision. Both parents felt that their daughter would not be able to realise her right to appeal against a local authority decision without significant adult support: Lizzie’s mother: She wouldn’t even want to [appeal], because it’s going to argue with someone … I think in the meetings she knows she has a right to contribute, I think a part of her has been put off from meetings by the experience that she’s had. Lizzie’s father: Lizzie could not enact anything with regards to [her rights] … She wouldn’t have been able to find a college. While seeing the merit of supporting young people’s rights, Lizzie’s parents note that they need support to be able to advocate effectively on their child’s behalf. It was worth the fight, but the fight is horrendous. And everything seems to be in law, on Lizzie’s side, you know, her voice should be heard, and she has rights, but enacting those rights is really difficult, and it’s trying to get her opinion and people to see that she can make decisions about things, but is it an informed decision? (Lizzie’s mother)

As ‘two able-bodied’ adults, Lizzie’s parents found the tribunal process incredibly stressful and challenging. They doubted that a young care experienced person would be able to access the tribunal without the support of an independent advocate: Lizzie’s mother: So how people in care [manage], when the council are working for them. Lizzie’s father: I mean you’re up against that, two able bodied people like us. Lizzie’s mother: Well their parent is the council in effect. Lizzie’s father: You get what you’re given.

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Overall, Lizzie’s case illustrates the challenging nature of launching a tribunal appeal to secure a place at a private college, which will inevitably be resisted by a cash-strapped local authority. Clearly, Lizzie has been a secondary party in the appeal, and her parents doubt that most young people with special needs would be able to challenge a local authority decision through formal redress routes without massive support from parents and independent advocates. In Chap. 9, Aiden’s mother also emphasises the stressful nature of making a tribunal appeal, even for relatively advantaged families. Turning now to children and young people’s experiences of redress in Scotland, it is evident from the administrative data presented in Chap. 4, as well as the case studies, that formal dispute resolution procedures are used less frequently than in England, and even the most determined parents are likely to be deterred by the complexity of dispute resolution systems. None of the Scottish case study parents, young people or children had used the tribunal, and only two parents had used independent mediation. The first case, that of Jack, provides an example of a middle-class family withdrawing their son from school for long periods of time because of dissatisfaction with the educational provision on offer but deciding against a formal appeal.

Jack, Eastshire, Scotland The experiences of Jack’s family illustrate the difficulties which middle-­ class parents may experience in accessing appropriate education, as well as the reluctance of Scottish parents to use formal routes of redress. Jack is a 17-year-old young man with a diagnosis of autism. He lives with his mother, father and younger sister in a 1970s-era semi-detached house located on a quiet residential cul-de-sac in an affluent market town (SIMD 5). Jack is a tall, skinny boy with a thick head of dark hair. He has a friendly disposition and is able to make sounds but does not speak. He uses an electronic communication system and some sign language. People who know Jack well are adept at understanding his body language and non-verbal cues. Jack’s gross motor skills are good but he has trouble with

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fine motor control. His hobbies include watching driving clips online and swimming. Jack’s mother is a former school teacher who is not currently working outside the home, having spent the previous few years educating her son at home. For employment-related reasons, the family has moved around a lot, spending time in the south of England and overseas before moving to Scotland. While attending school overseas, Jack lost the limited speech he had and has not spoken since approximately age seven. Jack’s mother attributes this sudden loss of speech to an episode of illness. On returning to the UK, Jack completed the first two years of primary schooling in a mainstream setting. He then moved to a special unit attached to a local primary school and subsequently moved to a special secondary school. His mother believes that the quality of the education here was very poor, and home-schooled her son for two and a half years. Ultimately, a place was found at a special unit, which he attended on a part-time basis, spending the rest of his time at home. Jack’s mother believes that her son’s cognitive ability is under-estimated because of his communication difficulties, and his teacher confirms that it is difficult to assess Jack’s academic potential: His learning profile is very jagged because his mum has taught him a lot at home. He’s mostly been home schooled. She feels very, very let down by the education system. Jack has complex needs and he has been placed in the complex non-verbal group. She feels extremely strongly that she’s been let down and as an educator I find it’s extremely difficult to meet his needs. He’s seventeen and he doesn’t always know what he wants to do. And so he can be quite evasive and want to do things like go on youtube and read comics when he really should be studying at a higher level. And I admit, new to the job in last August, I don’t think I gathered straight away how to really get at his full potential. But certainly, every week, my expectations of him have risen, having close communication with mum. (Jack’s teacher)

Sometimes, his teacher feels that Jack is repeating his mother’s aspirations and believes that she over-estimates his academic potential:

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He told me at the end of last term he wants to study History at university. And I said, ‘Is that because of you wanting to study there or is that someone else?’ ‘It’s someone else’. ‘Is that …?’ ‘It’s mum’. And so it’s a very interesting and quite delicate situation because he again, with the backing of mum, wants something quite vague and unclear which is really linked to a hope that the previous verbal Jack will re-emerge. And suddenly he’ll click and his speech will return to normal. And so there’s a dislocation between where he is and where mum thinks he is. And there’s a dislocation between how other people have perceived him and I feel he’s in the middle. He certainly needs support in every sense, in every respect, unless it’s something completely routine. (Jack’s teacher)

During the course of Jack’s education, there have been ongoing disagreements between home and school. In particular, Jack’s mother is highly critical of the administrative arrangements around her son’s CSP and describes school staff as rude, aggressive and bullying: I worked really hard with the woman at the council to pull apart the previous CSP and really get it how I thought it would be useful. I got the OT to write really specific things about his sensory processing problems, about the seating, how he could do his writing using facilitated communication. I was invited to a review meeting at the secondary school, and when I got there they asked me to read through the draft CSP that they had done. They hadn’t invited us to a CSP meeting. So, instead of giving it to me before, they gave it to me that day. I looked at it and couldn’t get through very much. We had a really long meeting during which the head of the special unit said she didn’t understand CSPs, she didn’t see the point of them. And then when she sent me the draft of this CSP, and I then referred back to the previous CSP, they hadn’t read the previous CSP. The thing that they’d been working on was some sort of hybrid electronic version that had been sent through from the previous school, but it didn’t include any of the important information, the profile. They had distributed to the other people involved something that I’d written for my previous parental comment so it was three years out of date. They had distributed that with no date, as though I’d just written it then without asking me for a new one, so all the information was out of date. (Jack’s mother)

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Jack’s mother feels that having a CSP has made little difference to her son’s education, since teachers ignore it: What I’ve said all along is there is all this stuff, but it is a piece of paper. I’ve read it, the school hasn’t read it, it doesn’t do you any good anyway. You know, you go through all these hoops to get the CSP. The final one at the secondary school, I worked so hard to get it right, and they didn’t even read it. And that didn’t matter. And in fact, the thing that finished me off actually was that at that meeting where they attacked me, several of them, including the OT who I really got on with, said all sorts of things about the state of the school. These people said the CSP doesn’t matter … So, basically, these professionals are saying this document is not worth the paper it’s written on. So, where do you stand then? If that is the only thing that’s legally binding, then they should implement it. I mean lots of it I didn’t agree with, but I had to go along with it. Because I’m wanting to say Jack’s really clever, but we had to make a consensus, it was as good as it could be in the circumstances. (Jack’s mother)

The family entered a process of independent mediation with the local authority to address their failure to implement the CSP. Jack was not involved in the process, but was aware of the discussion: I mean, he knew what was going on at the secondary school because he used to come to the meetings. They used to discuss it all in front of him, and he used to come home and tell me, and he was quite distraught by the whole thing. He was very, very distraught, and actually, I mean, that was interesting as well from the point of view of his difficulties. As soon as he got out of the secondary school he was so much better, because the stress just fell off. (Jack’s mother)

Despite the presence of mediators, the conversations between the family and the school appear to have been adversarial and difficult: The conversation we had was then probably quite different than it would’ve been had I gone straight away. And then people were saying things like, ‘The head of the special unit is a lovely woman’, and so it’s very hard to say, ‘Actually no, she’s a cow. And you’re her boss, so yes, she is lovely to you, I

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find her a bully’. You know, and then, ‘We don’t believe our staff would talk in front of Jack’, then what do you say? You know, are you calling me a liar, are you calling Jack a liar? So, again, there’s no point in having these conversations. And it’s you, one person, against a figure of authority and … where do you go with that? I mean, this is the argument I’ve made all this time over the years, I’m confident, I’m articulate, I know my stuff, and it has got me nowhere. And I find that really quite difficult. I mean, I’ve never been a shouty person, but whether that gets you further if you go in and stamp and shout, I don’t know. (Jack’s mother)

After the unsuccessful mediation, Jack’s mother says that she lost faith in the system completely and did not want to take things further, believing that even if a tribunal found in her favour, she had no faith in the school’s ability to implement its decision. In her view, the whole system of educational planning is largely useless: It was a box-ticking exercise. I feel most of it has been a box ticking exercise. The IEP at the secondary school was one of the first confrontational things. There were no short-term targets. The end of the year report was basically a load of waffle, but as far as I could make out, he hadn’t met any of the targets that they’d given. There were no targets that I would’ve liked to do with communication. And the CSP that they drafted had no targets from the OT, or the speech therapist, so they clearly didn’t understand what it was that they were drawing up. There are instructions on how to draw up a CSP but they haven’t read any of this stuff. (Jack’s mother)

To summarise, Jack has profound communication difficulties, and his mother believes that his education has been limited and unfulfilling. She has drawn on her professional background to advocate for her son and is angry about the failures she has encountered. She feels that Jack’s needs have been misunderstood and that his difficulty in communicating has led to an underestimation of his cognitive ability. In particular, she believes that staff have failed to use the various technologies that would make a real difference to her son’s ability to communicate. Jack currently has an Individualised Education Programme (IEP) and previously had a CSP, but his mother does not believe that educational professionals take these plans seriously.

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In a follow-up phone call at the end of the project, Jack’s mother said that her son did not return to school at the start of the academic year. She was upset because the school had moved him from a class of more able pupils on the grounds that he could not keep up and occasionally made noises that disturbed the other pupils. They also failed to provide any of the promised communication software. Efforts to resolve disagreements with the local authority via mediation were unsuccessful, and Jack’s mother decided not to take the matter further because of her loss of faith in the system. Jack is currently at home, with no plans in place for his future. In the following section, I turn to the case of Laurie, whose middle-­ class family had more success in navigating the system, threatening to make a reference to the tribunal in order to ensure that the local authority agreed to their choice of school.

Laurie, Coalshire, Scotland Laurie is a quiet 15-year-old boy, who is currently attending an independent special school as a 32-week boarder. The family house is in an affluent rural area (SIMD 5) and his parents commute to the city for their work in the financial sector. Laurie has been diagnosed with autistic spectrum disorder and his mother says he has high levels of anxiety, controlled by medication. He has a number of interests, including making model aircraft and model railways. Laurie attended mainstream primary school before moving to a special unit attached to the local high school. He was upset by the noise and unpredictability of the other pupils and increasingly withdrew from social contact, spending all his time in a room by himself at school and his bedroom at home. Laurie’s mother says that staff were reluctant to admit that they were unable to cope: They just werenae geared up tae cope with it, you know. They did try but what was frustrating, if I’m honest, was the fact that they identified a long time ago that they could not meet his needs and yet it took well over a year

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and us fighting wi’ them before they finally agreed tae him being moved. (Laurie’s mother)

Laurie’s parents were aware of their son’s growing distress, culminating in an attempt to take his own life: Laurie threatened to jump out the car. He was in a lot a’ distress. We had a really supportive psychologist who attended the meetings and she was quite vocal in the fact that it was the environment that was making Laurie like that. It was school that was causing him to behave like that, to have that effect. (Laurie’s mother)

At that point, his parents decided that they needed to take action and were prepared to make a placing request and launch a tribunal appeal if necessary: We did some research and we went and visited a couple a’ schools. And we visited Castle House a good couple a’ years ago and then it all kinda went a bit quiet again. And then we sat down one day and said, ‘Look this isn’t working. We’ve got an opportunity now. He’s got no social interaction, he’s not meeting any milestones whatsoever in terms of academia, therefore we need to do something about it. We basically took it into our own hands and said, ‘We need to do something about it.’ And at that point we really really fought wi’ the region for them to accept it. And we thought there was gonna be more of a fight because we thought [the placing request] would be rejected and we’d have to go through the lot, the courts and so on and so forth but actually we didn’t. (Laurie’s father)

The school informed them about making a placing request and appealing if this was refused by the local authority. To their surprise, the local authority agreed that Laurie needed a different school environment. A dispute almost emerged when the high school suggested a different course of action at the last minute: The school … was quite helpful in terms of the information they could give and in terms of how you go about it. But I think what we did is we fought it right at the start. So we had the conversations wi’ the right people at the

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start and had it sanctioned at the start. I think what normally would happen is you would establish what needs to happen for the kid. You would then go and find a school and then you would put a placement request in and then your fight would begin. Well, rightly or wrongly, we did it the other way round. That woman who ultimately signed it off is the person who gave the go-ahead and said, ‘You go and find a school, money doesnae matter. It doesnae matter what it costs. You go and find the right school and we’ll do it’. But even then they did almost try to back out a’ it a little bit. (Laurie’s father) We had quite a contentious meeting wi’ the headmaster of the high school because he tried to suggest that maybe putting Laurie intae a different environment in the high school and getting him some certificates, some qualifications would help him. And he just didn’t get it, it was really, really frustrating. We had gone through years and years of discussions. There was a huge amount a’ evidence that a qualification means nothing. Laurie needed life skills, he needed a pathway, he needed some interaction. And this headmaster was completely left field wi’ his suggestion and we just shot him down. (Laurie’s mother)

Laurie was not involved in choosing the school and was at first against the idea of living away from home. He was eventually persuaded to go for a visit and gradually decided that he would give it a go. Despite his initial uncertainty, Laurie’s mother says he has settled into the school really well and now believes it is a good place for him to be: Well I came here in November. I’d had a pretty tough time in my old school. I wasn’t getting the right education. I didn’t get the education that I needed. And … they just gave me a lot o’ free time so my parents asked me if I’d like it here. And obviously at first I wasn’t really keen but then as time went on I got more used to it. (Laurie)

Although Laurie is aware that his parents made the decision to send him to Castle House, he believes that he was eventually included in the process: In October, my Mum and Dad told me about this school and when I finally agreed to it they told me that they had actually been looking at the

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school for three years. And it was only last October that I found out about it. And yeah they told me that I’m gonna be staying there and that was like a big worry for me. Like I didn’t wanna stay at a different school, like a boarding school. I didn’t wanna wake up in a different building miles away from home. But obviously as time went on I started to think about how well my education would be and how good my future would probably be. So yeah I decided to give it a go … (Laurie)

Laurie’s parents feel that their decision to challenge the local authority, using the threat of the tribunal, was very important because it saved Laurie from the reclusive life he had been living: If we hadn’t been forceful with it, or organised with it, because everything was recorded, then I do think he would still be stuck in his bedroom today. And I do think he would have slipped under the radar. And the point was we had one opportunity to fix it because at the end a’ fourth year the reality is he would have left school and he probably wouldn’t have left his bedroom or very little. And he would have sat in his bedroom and he would have gone onto his iPad or xbox or games or whatever but he wouldn’t have had a future life. And we thought that we needed to change that. So the school was the start a’ that integration intae the next phase of his life, whether that be college or uni or a job or whatever. (Laurie’s mother)

In retrospect, Laurie’s parents are aware that their social and cultural advantages helped them secure a place for their son in the school of their choice and acknowledge that those with fewer resources at their disposal would struggle: So I think when the council looked at our case and when they met with us, we were extremely vocal. And to be honest, it’s a shame because we’re both used to working in an environment where you have meetings and you speak in front of other people so we had the confidence to do that. If they said, ‘Oh well I think we should try that’, we could say, ‘No actually, no, we’ve done that, we’ve been there, we’ve done that’. We weren’t intimidated by them. And we knew what we wanted and we knew that Laurie was entitled tae that. And so Laurie was at a real advantage, the fact that we were knowledgeable, and the fact that we had each other. We both did it, I

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mean I think we were both at every single meeting apart from a handful ever since he was diagnosed. So in the end the council just said to us, ‘Go and find whatever school you want your child to go to and we’ll pay for it’. (Laurie’s mother)

Scottish local authorities have always questioned the need for formal dispute resolution routes, suggesting that most disagreements can be resolved through local complaints procedures. However, the final case discussed in this chapter, that of Colin, underlines the limitations of school and local authority complaints procedures.

Colin, Coalshire, Scotland At thirteen years old, Colin is small for his age and subdued in class, speaking very little to his fellow pupils or the teacher. He has a desk and chair that are significantly smaller than the others in the classroom. At various points during the observation, he appears tired, sitting with his head in his hands and rubbing his eyes. Colin lives in a town with high levels of deprivation (SIMD 2) in Coalshire with his mother and step-father. Colin’s teacher describes him disparagingly as a work avoider who is adept at getting out of things he does not want to do: I think that by observing Colin in the setting for a couple a’ days, you’ll see that … he is a bit of a work avoider. He is showing a lot of classic traits of work avoidance, one of which is going to the toilet. We have seven periods in a day and it can be quite useful for him to go to the toilet or request to go to the toilet twice a period. Ideally we’d like to keep that down to once a period. He does have toileting issues, I’m not sure if that is physically, I don’t believe that’s physically to do with him possibly not being able to make it to the toilet. I feel that his work avoidance issues mean that he often delays on the way to the toilet and sometimes there are toilet accidents. And unfortunately, from what we’ve seen, the pattern we’ve identified is sometimes he will, we believe, deliberately have those accidents because then subsequently the amount of time to change will get him out of work. So I would say that is Colin’s strategy. That is his way of voicing

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his opinion. And we would obviously much rather at the age of thirteen, for himself and his own development and social skills, we would like him to voice his opinion in a different way. (Colin’s teacher)

During the observation, Colin tells the teacher that he has a sore leg and a sore side and the teacher explains that this is an almost daily occurrence and there does not appear to be anything wrong. Colin spends part of the lesson crying and moaning quietly to himself, looking down and appearing unwilling to engage in the lesson. The teacher occasionally speaks to him and tries to get him to stand up, stretch, and drink some water, before turning her attention to other pupils. At primary school, Colin appears to have been absent frequently, and his literacy and numeracy levels are lower than expected for a child of his age: Colin has been off school, as I understand, for quite significant chunks throughout his Primary 1 to Primary 7 years. And I believe that Colin is … I would say globally challenged in both his literacy and his numeracy, but given the amount of time he’s had off school, that’s left significant gaps so we’re dealing with someone that could possibly be working at a P1/2 age possibly because of his learning difficulties, also because he’s missed so much school. And I would say this is possibly to do with the family setting as well because I believe mum doesn’t read herself. So we have children coming from backgrounds where parents might have learning needs themselves which impact on the amount of learning that’s done at home which then, I think, impacts on the whole child. (Colin’s teacher)

Colin’s mother believes that her son’s needs were largely ignored at primary school: To be honest, [the primary school] was no that great. I think they just kinda shoved him in a corner and just left him to get on wi’ it. I mean obviously he did what he could do but just like they didn’t have any time for him without putting something doon in front a’ him and telling him tae get on wi’ it, without even trying tae help him. So no, in that side it wasn’t great. (Colin’s mother)

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Despite numerous meetings, she feels the school has ignored her complaints about the lack of support: Colin’s mother:  I felt that [the primary school] were just shoving him in the corner and leaving him. Interviewer: Did you try and bring that up with them? Colin’s mother: It was like fighting a losing battle. I was sick a’ phoning them up and arguing wi’ them and having meetings. And it just got me absolutely naewhere so I kinda gave up. I thought, ‘I’m wasting my time’. Interviewer: Right. So were you just phoning up the school or were you phoning up the council? Colin’s mother: No it was just with the head teacher. And I think the school psychologist, she was involved a few times as well but it made nae difference. Interviewer: So you feel that the school just didn’t really take your worries on board or anything. They just didn’t really help? Colin’s mother: No, no, they didnae bother. And the thing was that said they had everything in the world for Colin. ‘Oh we’ll give him this, we’ll do this, we’ll do that’. And once he had his two feet in the door it was like, ‘Well we’ve got this kid where we want him so we’ll just leave him’. And they just left him and didnae bother. So I mean dinnae get me wrong, see the support staff, they were absolutely fantastic. And I quite believe if they had half the chance they’d have gave him the support that he needed. But obviously he was only allocated like so many hours a week. And it wasn’t one to one. It was like shared support wi’ another wee boy that was in Colin’s class that Colin gets on really well wi’. But obviously I think if they had half the chance they would have gave him the support but they could only allocate him so many hours a week. Interviewer: So it was a question of not enough hours with the pupil support assistant?

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Colin’s mother: Exactly, exactly. Because I mean, the support workers were brilliant. They had a lot a’ time for Colin. Even the class teachers, I mean I could not fault them but it was just the fact that the amount a’ support they were offering wasn’t enough for what he needed. (Colin’s mother) Local authority staff emphasise that informal complaints procedures at council and school levels should be the first port of call for parents who are worried about their child’s progress. Colin’s case illustrates why this approach may fail, particularly for those living with social disadvantage. Colin appears to be a passive participant in his education, and his mother does not have the resources to advocate on his behalf, despite ongoing dissatisfaction with educational provision. Colin and his mother are pathologised by the class teacher, who describes the child as a ‘work avoider’ and his mother as the cause of her son’s learning difficulties. Neither has access to any effective advocacy to challenge school and local authority provision.

Conclusion A number of broad points may be drawn from the cases presented above. They reflect the greater likelihood of using formal dispute resolution routes in England, particularly the tribunal. At the same time, they illustrate the difficulties experienced by parents in accessing reliable information about how the system operates and finding advocates to work with them. Middle-class parents are far more likely to use formal dispute resolution mechanisms compared with those from less advantaged backgrounds. Central to their success is their ability to speak to communicate effectively with professionals, amass relevant evidence to support their case and understand the way in which a complex legal system operates. As a result, they may get better access to resources in the state system or persuade the local authority to fund a place in an independent special school or college. Having said this, access to middle-class social capital does not guarantee a successful educational outcome for pupils with

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complex learning difficulties or behavioural difficulties. For example, despite her professional background as a teacher, Jack’s mother is unable to persuade staff at his special unit to familiarise themselves with the communication technologies which might transform her son’s life, resorting to home education. The case of Colin and his family epitomise the experiences of those with limited social and economic resources, who often find their attempts to challenge educational provision are ignored. The new legislation in England and Scotland was intended to boost the involvement of children and young people in dispute resolution, but the evidence suggests that this has not been achieved. None of the case study pupils initiated proceedings, and even when they were invited to attend meetings or provide evidence at tribunal hearings, they often declined, finding these situations uncomfortable. This accords with the findings of Cullen et al. (2017) that disputes resolution procedures are poorly understood by parents and scarcely ever used independently by young people. There is clearly a danger that the new rights of redress extended to children and young people may not be used in practice. In 2009, the Welsh Assembly Government introduced a measure to extend children and young people’s right of appeal to the Special Educational Needs Tribunal for Wales, with the objective of achieving parity of appeal rights for parents and their children. Research by Holtom et al. (2014) on the pilot project found that systems and processes for informing children and young people of their rights were well established and professionals in the pilot authorities were enthusiastic about the enhancement of children’s rights. However, a number of unresolved issues were noted including a lack of clarity about how disagreements between parents and children would be resolved. Significantly, only one claim and no appeals were made during the course of the research, indicating that the extension of rights had not been used in practice. As noted by Doyle (2019), young people’s legal capability is critical to their successful participation in dispute resolution. Commentators suggest that children and young people are often unaware of their rights and the legal processes associated with their enforcement (Parle 2009). Pre-hearing advice and support are seen as essential (Drummond 2015, 2016a, b), but such support services are thin on the ground and may be difficult to access.

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Overall, the research discussed here underlines the importance of seeing the interests of parents and children as inter-connected and rooted in material reality. It is unhelpful to see parents’ legal interests as competing with those of children since in the vast majority of cases parents remain the principal advocates of their children’s legal interests. The central unresolved problem is how to safeguard the legal interests of children living with social disadvantage, whose parents may not be able to engage in dispute resolution on their children’s behalf, and those who are looked after by the local authority. I return to these issues in the concluding chapter.

References Cullen, M., Lindsay, G., Totsika, V., Bakopoulou, I., Gray, G., Cullen, S., Thomas, R., Caton, S., & Miller, A. (2017). Review of arrangements for disagreement resolution (SEND). Research report. London: DfE/Ministry of Justice. Retrieved from https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/603487/CEDAR_review.pdf Department for Education & Department of Health (DfE & DoH). (2015). Special educational needs and disability code of practice: 0–25 years. London: DfE & DoH. Doyle, M. (2019). A place at the table: Young people’s participation in resolving disputes about special educational needs and disabilities. Project report. Colchester: UK Administrative Justice Institute. Retrieved from http:// repository.essex.ac.uk/24546/1/A%20Place%20at%20the%20Table%20 final%20report%20March%202019.pdf Drummond, O. (2015). The access to justice barriers for tribunal users: A comparative case study on Special Educational Needs Tribunals. Jordanstown: Ulster University. Drummond, O. (2016a). When the law is not enough: Guaranteeing a child’s right to participate at SEN Tribunals. Education Law Journal, 17(3), 149–163. Drummond, O. (2016b). Potential barriers to the new child’s right to appeal to Special Educational Needs and Disability Tribunals in Northern Ireland. Northern Ireland Legal Quarterly, 67(4), 473–490. Holtom, D., Lloyd-Jones, S., & Watkins, J. (2014). Evaluation of a pilot of young people’s rights to appeal and claim to the special educational needs tribunal for

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Wales. Final report. Llandudno Junction: Welsh Government Social Research. Retrieved from https://dera.ioe.ac.uk/20424/1/140626-pilot-young-peoples-rights-appeal-claim-sen-tribunal-en.pdf Parle, L.  J. (2009). Measuring young people’s legal capability. London: Independent Academic Research Studies (IARS) and the Public Legal Education Network (PLENET). Retrieved from http://www.lawforlife.org. uk/wp-content/uploads/2013/05/measuring-young-peoples-legal-capability-2009-117.pdf Riddell, S., & Carmichael, D. (2019). The biggest extension of rights in Europe? Needs, rights and children with additional support needs in Scotland. International Journal of Inclusive Education, 23(5), 473–490. Scottish Government. (2017). Supporting children’s learning: Statutory guidance on the Education (Additional Support for Learning) Scotland Act 2004 (as amended). Edinburgh: Scottish Government.

11 Conclusion

Introduction As noted throughout this book, professionals and bureaucrats have traditionally held the balance of power in educational decision-making in the field of special and additional support needs. Reforms of the 1990s and 2000s in England and Scotland tilted the balance of power away from local authority officers and professionals, justifying this shift through the rhetoric of parental empowerment. Research at the time showed that the major beneficiaries were families who could mobilise sufficient economic, social and cultural resources to navigate the system successfully (Weedon and Riddell 2009; Riddell et al. 2010). Until recently, little attention has been paid to the rights of children and young people, who have been largely excluded from educational decision-making (Harris 2009). However, over the last few years, the independent rights of children and young people have been boosted significantly by international treaties and domestic legislation, particularly the Children and Families Act 2014 and the Education (Scotland) Act 2016. These measures have ostensibly empowered young people and children as independent actors, with rights

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to participate in all aspects of their education in accordance with their age and maturity. In the sections below, I return to the central question considered in this book concerning the extent to which the foregrounding of children’s human rights has had a positive impact on their experiences and outcomes in the real world of schools and classrooms. As the evidence presented in the preceding chapters suggests, rather than simply relying on the rhetorical flourishes of official policy discourse, it is essential to examine the material consequences of the enacted policy, including its varying impact on different social groups. In this concluding chapter, I begin with a summary of the evidence discussed in different chapters, before considering the wider issues and dilemmas arising from the foregrounding of children’s rights in special and additional support needs.

Overview of the Book’s Central Messages Chapter 1 investigated the emergence of service user autonomy as a central precept within public policy decision-making. The concept of autonomy, when applied to children and young people, has the potential to raise awareness of their unconditional human rights, the first step to ensuring that these rights are enacted in practice. At the same time, the chapter highlighted the dysphoric aspects of focusing on individual autonomy as the overriding principle in decision-making, since this may lead to undue emphasis on the responsibility of the individual child or young person for their own wellbeing, rather than seeing this as a collective societal obligation. At national and local levels, the state clearly has a key role to play as the ultimate arbiter of fairness in resource distribution, and this may be forgotten if individuals are left to fend for themselves, in competition with their neighbours for privileged access to resources. In Chap. 2, an overview was provided of the mixed methods research design adopted in the study, with policy and administrative data providing the backcloth against which the fine-grained qualitative data were placed and interpreted. Chapter 3 summarised the policy discourses informing the development of special and inclusive education, further discussed in Chap. 5 with reference to key informants’ accounts. Early

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developments placed power in the hands of professionals and bureaucrats, with scant regard to the views and wishes of parents and children. The discourses underpinning this division of power were scarcely challenged until the later decades of the twentieth century, when Warnock’s concerns with parental partnership emerged. The growth of neo-­liberalism in the 1980s led to an increased emphasis on consumer empowerment. In the field of education, parental choice was harnessed to drive the development of a marketised system  but  this consumerist version of rights allowed little space for the independent rights of children and young people. It is only very recently that international treaties and domestic legislation have focused attention on the autonomous rights of children and young people. Chapter 3 concluded by considering the opportunities and challenges emerging from the new children’s rights agenda. The quantitative data presented in Chap. 4 provided an overview of the social characteristics of those with special and additional support needs and the categories employed in their identification, focusing on disproportionalities related to social deprivation, gender and ethnicity. In England and Scotland, the new rights regime does not appear to have altered familiar patterns, with stigmatising labels disproportionately applied to boys from socially deprived neighbourhoods. Additional analysis of Scottish data suggested that those with ASN from more deprived neighbourhoods were less likely to receive a statutory support plan compared with those from less deprived areas. Since statutory support plans underpin rights of review and redress, this social inequality in their allocation may have consequences in terms of reinforcing disparities in  resource  distribution. The analysis of administrative data also informed the case study sampling framework. Children and young people were selected to reflect the characteristics of the wider special educational needs/additional support needs (SEN/ASN) population in relation to their principal difficulty, level of social deprivation, gender and ethnicity. The case study data in Chaps. 6, 7, 8, 9 and 10 highlighted the importance of social actors’ perceptions, which both reflect and shape the contours of the material world. Evidence from the case studies illustrates the way in which lives are influenced by powerful structural factors, but these factors are not rigidly deterministic. These chapters address children and

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young people’s involvement in everyday classroom decision-making, as well as their participation in representative bodies, educational planning, school choice and dispute resolution. In all of these areas, clear patterns of inequality emerged. Those with more significant difficulties were less likely to be involved in quotidian decisions on school routines, as well as major decisions with implications for future life changes, such as the handling of disputes and school choice. Across all of these areas, social deprivation played a significant role in limiting opportunities for children and young people to exercise their rights. Parents’ and children’s experiences and opportunities were clearly intertwined, since parents living with social disadvantage frequently experienced stigma and disrespect, limiting their efficacy. By way of contrast, those in more advantaged circumstances were better able to access information about their rights, use an appropriate linguistic register when dealing with professionals and have the financial resources to fund legal support. This, of course, does not mean that middle-class families always succeeded in getting improved provision, and they often had to engage in protracted, expensive and energy-sapping struggles with schools and local authorities. Care experienced children and young people, lacking parental advocacy, were the most disadvantaged in terms of using their rights. Identified by the Scottish Government as the group most likely to benefit from the new children’s rights agenda, the evidence suggests that, despite the funding of additional advocacy services, this group is still disenfranchised.

Cross-cutting Tensions and Dilemmas In this final section, I review some outstanding issues and dilemmas, focusing on central emergent themes.

 utonomy, Capacity and the Conditional Nature A of Children’s Rights There continue to be major debates about whether children should be regarded as autonomous actors with full rights of participation and

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redress. While some sociologists of childhood emphasise children’s right to self-determination (Scott et al. 1998), most of those working in the field of children’s rights suggest there is a need to recognise the ways in which children’s autonomy differs from that of adults. Hollingsworth (2013) points out that legally, children are not considered to be fully autonomous rights holders, because childhood is regarded as a time for gathering and developing the assets necessary for full autonomy. She argues that children should be regarded as having rights of a foundational nature, acknowledging their status as rights bearers, while simultaneously recognising their need to be treated differently from adults. In education, the idea of foundational rights may be used to reinforce arguments for children’s involvement in decision-making, while not expecting them to make the type of decisions which might have long-term adverse consequences, such as deciding to opt out of education altogether. In this study, education professionals revealed their unease about children’s independent rights, suggesting that many children with special and additional support needs may lack the capacity and maturity to make independent decisions. Teachers tended to believe that children and young people may be unduly influenced by their parents, and may often simply repeat their parents’ opinions. Conversely, there were fears that children and young people might exert undue influence over the education system, for example, by abusing their right to make a tribunal reference in Scotland. Both of these views are reflected in the words of this Sea City headteacher: We have an ongoing and live issue with a young person who’s fourteen who has exercised this right [to make a reference to the tribunal]. I’m not so sure that it’s not under the direction of the parent who’s very critical of not just this school but critical of the city, of CAMHS, of Police Scotland, of the Educational Psychology Department. Of basically every professional who doesn’t work the way that he would like them to work. So this system, like any system, is open to abuse. What’s happening here is that we have a young person who doesn’t have the capacity. She is a highly autistic young person. She doesn’t have the capacity to … maybe exercise the degree of skill that’s required to, to do this properly and fairly. And I think it’s been managed by her parent … There have been fifteen different aspects of chal-

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lenge via a lawyer. And the city have addressed these fifteen. One was an exclusion from the school which was a very, very sad episode but entirely necessary at the time for a range of reasons. But that has been contested and overturned. The level of support in the school has been challenged. And I have some sympathy because most of the support was coming from Pupil Support Assistants who I don’t think are necessarily skilled enough to deliver that degree of support. But it’s also, largely I would say, from the young person’s perception. And this is the imponderable and undefinable thing that you could be here forever more. Because this young person believes that we as a school do not act properly on her demands. And often her demands in the view of many adults [are not reasonable]. But when you’ve got a young person who has got significant autism, they have fixations and they are quite clear in their own beliefs. (Head teacher, Sea City High School)

As noted in Chap. 1, the concept of interdependency may be useful in understanding children as social actors rooted within their families and wider social relationships. Cockburn (2013) proposes that the link between rights and autonomy should be severed, with a focus instead on the notion of interdependence, reflecting the reality that at different points in the life cycle, and in different dimensions of life, people both give and receive care. Accordingly, the distinction between autonomous beings and dependent beings is artificial. While individuals need to exercise autonomy as far as they are able, there remains a strong role for the state in ensuring that adequate services are available to all. This conceptualisation avoids setting up a false dichotomy between the child’s views and the parents’ views, recognising parents’ role as children’s principal advocates who gradually move into a supportive but less directive role as the child matures. External advocates clearly have a role to play too in terms of helping the child see themselves as separate from, but connected to their parents and carers. Evidence presented in this book suggests that children and young people who are able to participate effectively in educational decision-making are almost always surrounded by a circle of supporters who have their best interests at heart.

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The Voice of the Child: A Redundant Concept? As noted throughout this book, Article 12 of the UN Convention on the Rights of the Child, replicated in Article 7.3 of the UN Convention on the Rights of Disabled Persons, sets a basic standard for the realisation of children’s rights. Whenever a child is able to express their views, agencies of the state are required to listen and give due weight to these views in accordance with the age and maturity of the individual child. Despite the centrality of the idea of the voice of the child, the utility of the concept is disputed. Some writers suggest that the idea of the voice of the child needs to be understood in a more nuanced fashion, while others regard the concept as vague and possibly meaningless (for example, see the collection of papers edited by Jackson and Mazzei 2009). Commenting on the implementation of Article 12, Lundy (2007) argues that, rather than abandoning the idea of the voice of the child, the concept should be viewed as multi-faceted and context-dependent. For their views to be accessed in a meaningful way, the child must have not only the opportunity to express their views but also access to appropriate support, the certainty that the views expressed will be listened to and ultimately acted upon. Lundy (2018) notes that to date much participation by children has been tokenistic and that this has been generally dismissed by children’s rights advocates as fairly worthless. Revisiting these arguments, she concludes that ‘tokenism is sometimes a start’ and that not listening to children’s voices is always wrong—‘a breach of their human rights’. Lundy suggests that whenever attempts are made to seek children’s views, this should be followed up by feedback which is child-­ friendly, fast and explains how the views expressed will be translated into action. Efforts to capture children’s voices which at first appear to be tokenistic may subsequently result in incremental social change. Tisdall (2008) also commenting on the dangers of tokenism, maintains that there is an urgent need to ensure that the reality of children’s participation in grassroots activities catches up with the rhetoric around the celebration of children’s voices. What does the evidence presented in this book suggest about the extent to which the views of children and young people are being sought

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and implemented? As noted above, professionals were generally enthusiastic about the idea of listening to the voice of the child, but practice on the ground reflected the structural inequalities highlighted throughout the book. More able children with strong parental support were much more likely to have their views taken into account in everyday classroom interactions and welcomed the sense of agency this provided. For example, 14-year-old Ruth, who features in Chap. 6, was able to leave the mainstream class and go to the pupil support base whenever she felt that the noise levels were over-powering, enabling her to participate as fully as possible. Similarly, seven-year-old Sophie enjoyed the freedom to control the way in which she interacted with her classmates, deciding when she wanted help in moving around the school and when she wanted to move her wheelchair independently. By way of contrast, teachers said that they had great difficulty in accessing the views of those with little or no speech, such as Catherine, and had to rely on observing the child’s body language which might be subject to multiple interpretations. Finally, children from socially deprived backgrounds, who were disproportionately identified as having behavioural difficulties, were less likely to have their views listened to or acted upon. Negative labels were readily applied to parents and children in this group. For example, Colin, whose case is discussed in Chap. 10, was characterised as a ‘work avoider’ and his mother’s concerns were dismissed on the grounds that she herself had learning difficulties. Care experienced children, such as Nathalie and Noah, discussed in Chap. 9, were also likely to have their views ignored. Nathalie, removed from an abusive family, was labelled as sexually manipulative and professionals appeared reluctant to listen to her opinions. On a more positive note, Chap. 7 highlights the importance of representative bodies as a means of enhancing children’s human rights. Although questions have been asked about the utility of school councils on the grounds that they provide restricted opportunities for pupil consultation, children in this study were positive about participating in such bodies and did not regard them as merely tokenistic. Young people in England, such as Jacob and James, who participated in local authority representative bodies, were also positive about their experiences, describing the way in which their horizons had widened as a result. They could point to concrete improvements in local authority practice resulting from

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the representation of young people’s views, such as the production of an accessible website. However, the support of voluntary organisations such as Barnardo’s was often crucial to young people’s participation. The damaging consequences of enforced participation were also a prominent theme throughout the book. In Chap. 9, Claire describes her feelings of humiliation at an exclusions appeal hearing, where she felt at the mercy of adults in positions of power: The new headmistress. I remember her sat there smiling whilst I was crying my eyes out. I’ll never forget that. They were just trying to make out as if I was just this massive monster. They’re just acting as if I’m, you know, an axe murderer or something. Like, I was only a fourteen year old girl at the time.

Lizzie, described in Chap. 10, decided not to use her right to give evidence directly at a tribunal hearing because of the stress involved, and in Chap. 8, David’s mother spoke of her son’s right to opt out of planning meetings: David is not keen to be involved in meetings. And whether that’s because he doesn’t have the capacity to understand what the meetings are about and … the relevance of him being there. And I personally don’t think he would have gained much from being involved in something he didn’t want to be involved in. And whenever we have a meeting in school I always give him the option to come. And he’s quite adamant he doesn’t want to come which is him exercising his right, I suppose. (David’s mother)

To summarise, listening to children’s views and acting on them where appropriate is a cornerstone of children’s human rights. Educational professionals are ostensibly enthusiastic about this agenda, however, the experiences described in this book point to major inequalities associated with social deprivation, looked after status and type of disability. Furthermore, while many children and young people welcome formal and informal opportunities to be involved in decision-making, an expectation that the child will always participate may be oppressive, particularly when the terms of the encounter are determined by adults. Finally,

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children and young people may be involved in everyday classroom decision-­making, where the stakes are relatively low but are generally excluded from major decisions such as whether to make a placing request or use a formal mechanism to challenge a local authority decision. Rather than rejecting the concept of pupil voice altogether, there is clearly a need for further discussion of the use and abuse of pupil voice and the power relations surrounding it.

Tensions Between Equality and Rights As I have indicated throughout the book, there are ongoing debates on the relative emphasis which should be placed on individual and social rights. According to Cockburn (2013), before the advent of the welfare state, the liberal rights agenda focused on ‘the autonomous individual freely operating in the world without constraint’ (Cockburn 2013, p. 14). He maintained that liberal welfare states such as the UK tend to ‘respect the autonomy of individuals contingent on their ability to be self-­ sufficient’ (Cockburn 2013, p. 14). This version of rights and citizenship, he suggests, tends to exclude children, and disabled children in particular, because it ‘places children as an ‘other’ that is defined entirely as linked, dependent, reliant and constantly under the influences of other people’ (Cockburn 2013, p. 14). Children and young have been granted significant additional legal rights to challenge local authority provision, and are no longer entirely dependent on parents acting on their behalf. The critical question is the extent to which all children are able to use these rights, recognising that children are certainly not a homogeneous group. Like adults, children’s ability to access their rights is strongly influenced by a range of variables including social class, disability, gender, ethnicity and age. It is clearly counter-productive to boost children’s legal rights if, at exactly the same time, resources are being withdrawn from education and social welfare. Following the financial crash of 2008, major reductions in welfare have had a particularly adverse effect on families at the social margins reliant on insecure employment and uncertain benefit payments (Toynbee and Walker 2020). Further austerity is likely to follow the 2020 coronavirus

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pandemic. As the evidence presented in this book underlines, the ability to use existing rights is contingent on social class, but unless rights are usable in practice by all social groups, we should question their value. Parents in this study have a strong sense of the social injustices involved in determining which families are able to use their rights in practice. Jeanette’s parents, for example, living in a socially advantaged part of Sea City, believe that the system only works because middle-class families get more than their share of resources, leaving others to manage with what remains: Well I do feel that, yes, we’ve got some advantages. I mean that doesn’t make us any better or worse than anybody else. It’s just that’s been the luck of the draw for us. Christine has done some amazing research and she’s got a network of friends there that help her and she helps them. I’m not wanting to speak out of turn about any other families, but some other families have got a hundred other challenges to deal with at the same time. I mean they might be in the benefit system. They might have physical disabilities in the family and stuff like that. And to be honest, you just think how difficult it is for them. I mean we’ve got a lot of advantages that some other families don’t have. And therefore they don’t get anywhere near the clarity of what’s possible. Or they’ll just take it as being, ‘Oh well that’s what we got told. That’s what we got told so that must be what it is’. The sad fact is that because some families don’t get what they should be getting in terms of rights or in terms of entitlements, that’s how the system balances itself. The sad fact is that if everybody got what they should be getting, the whole thing would just implode. (Jeanette’s father)

In order to address these injustices, there is a need to reconcile individual and collective versions of children’s human rights, so that equalising opportunities to exercise rights is prioritised. This will involve a much greater focus on addressing the disrespect which is felt by many children and parents from socially deprived backgrounds, channelling resources into additional advocacy provision and ensuring that, if some families choose not to engage with the education system or are unable to do so, children do not suffer as a result.

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Devolution and Universalism A major concern of this book is to compare the rights regimes operating in England and Scotland. There is something of a paradox, in that stronger children’s rights legislation in Scotland compared with England has not obviously led to a greater degree of empowerment for children and young people. This is at least in part due to the existence of a more tightly regulated planning system in England leading to greater participation by children and young people in formal processes. Scotland, by way of contrast, has adopted a laissez-faire approach to educational planning and the use of statutory support plans, so that these are only provided if parents are sufficiently insistent. By way of contrast, the increased demand for local authority assessments in England and the growing use of Education, Health and Care Plans means that children and young people are much more likely to be involved in formal planning processes. Furthermore, in England compared with Scotland, much greater use is made of formal dispute resolution routes, calling for the active engagement of schools and local authorities with family concerns. Children’s engagement with these processes may be tokenistic, but systems which require the reporting of the child’s views have the potential to promote positive change. Overall, the growing divergence of education systems in England and Scotland following devolution could lead to the emergence of growing geographical inequalities between the two jurisdictions. At the same time, it opens up opportunities for natural experiments in relation to the efficacy of different approaches to education policy which may be further developed in the future.

Conclusion Attempts to advance the children’s human rights agenda over the past decade have coincided with significant cuts to education budgets. Britton et al. (2019) note that total school spending per pupil fell by 8% in real terms between 2009–2010 and 2019–2020  in England and by 2% in

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Scotland. The average education spend per pupil is more generous in Scotland than in England (£6,600 in Scotland as opposed to £6,000 in England). It is argued by Britton et al. that the harsher cuts to educational spending in England reflect large increases in pupil numbers, compared with a relatively static child population in Scotland. It is clearly very difficult to improve the position of children with special and additional support needs at a time of shrinking resources, and this has led to disputes focusing on resource issues rather than broader issues of principle. Growing public concern about the funding of SEN and ASN systems has been highlighted in recent inquiries conducted by Education Committees at Westminster and Holyrood (Scottish Parliament Education and Skills Committee 2017; House of Commons Education Committee 2019). Despite evidence of the ongoing dissatisfaction of a significant proportion  of parents in both jurisdictions, these inquiries tend to exonerate the SEN/ASN systems, while blaming local authorities for mal-administration. Finally, the Covid-19 pandemic and its aftermath pose significant challenges for children’s human rights. In both England and Scotland, emergency legislation passed in March 2020 effectively suspended local authority duties to educate children and parents’ responsibility to ensure that their children are educated. The full impact of school closures on children’s educational development and wider wellbeing is likely to be severe and enduring, and debates around the epidemic have paid little attention to children’s rights. In the months and years ahead, it will be vital to ensure that attention to children’s rights is not occluded by wider social and economic concerns.

References Britton, J., Farquharson, C., & Sibieta, L. (2019). 2019 Annual report on education spending in England. London: Institute for Fiscal Studies. Retrieved from https://www.ifs.org.uk/publications/14369 Cockburn, T. (2013). Rethinking children’s citizenship. Basingstoke: Palgrave Macmillan.

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Harris, N. (2009). Playing catch-up in the schoolyard? Children and young people’s ‘voice’ and education rights in the UK. International Journal of Law, Policy and the Family, 23(3), 331–366. Hollingsworth, K. (2013). Theorising children’s rights in youth justice: The significance of autonomy and foundational rights. Modern Law Review, 76(6), 1046–1069. House of Commons Education Committee. (2019). Special educational needs and disabilities: First report of session 2019. London: House of Commons. Jackson, A., & Mazzei, L. (Eds.). (2009). Voice in qualitative inquiry: Challenging conventional, interpretive, and critical conceptions in qualitative research. Abingdon: Routledge. Lundy, L. (2007). ‘Voice’ is not enough: Conceptualising Article 12 of the United Nations Convention on the Rights of the Child. British Educational Research Journal, 33(6), 927–942. Lundy, L. (2018). In defence of tokenism: Implementing children’s right to participate in collective decision-making. Childhood, 25(3), 340–354. Riddell, S., Harris, N., Smith, E., & Weedon, E. (2010). Dispute resolution in additional and special educational needs: Local authority perspectives. Journal of Education Policy, 25(1), 55–73. Scott, S., Jackson, S., & Backett-Milburn, K. (1998). Swings and roundabouts: Risk anxiety and the everyday worlds of children. Sociology, 32(4), 689–705. Scottish Parliament Education and Skills Committee. (2017). How is additional support for learning working in practice? SP paper 140 6th report, 2017 (Session 5). Edinburgh: Scottish Parliament. Tisdall, E. K. M. (2008). Is the honeymoon over? Children and young people’s participation in public decision-making. International Journal of Children’s Rights, 16(3), 419–429. Toynbee, P., & Walker, D. (2020). The lost decade: 2010–2020 and what lies ahead for Britain. London: Guardian Books. Weedon, E., & Riddell, S. (2009). Additional support needs and approaches to dispute resolution: The perspectives of Scottish parents. Scottish Educational Review, 41, 62–81.

 Appendix A: Glossary and Explanation of Key Terms

Local Authorities (LAs) There are 32 in Scotland and 150 in England. Each LA is responsible for the state-maintained schools in their area. In Scotland, virtually all state-­ funded schools are managed by the local authority—there are only seven grant-aided special schools and one grant-aided secondary school. In England, school governance is far more diverse. Some schools continue to be managed by the local authority, but a growing number of schools have academy status, particularly at the secondary level. Academies are directly funded by the Department for Education and are independent of local authority control, although the LA retains responsibility for SEN provision.

Additional Support Needs (ASN) In Scotland, a child is said to have additional support needs if they need more, or different support to that which is normally provided in schools or pre-schools to children of the same age. The term additional support © The Author(s) 2020 S. Riddell, Autonomy, Rights and Children with Special Educational Needs, https://doi.org/10.1007/978-3-030-55825-3

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needs replaced the term special educational needs in 2004. Children are counted as having ASN if they have difficulty in learning for whatever reason. Controversially, children with English as an additional language are counted as having ASN, and make up an increasingly large proportion of the ASN population. Since 2004, there has been an increase in the types of difficulty recognised, and 25 categories are now used. Just under 30% of children in Scottish schools are identified as having ASN.

Special Educational Needs (SEN) In England, a child or young person has SEN if they have a learning difficulty or disability which calls for special educational provision to be made for him or her. Following advice from the English inspectorate (OFSTED), there has been a decline in the proportion of children identified as having SEN from a peak of 22% in 2010 to 15% in 2019.

Statutory Support Plans These plans are important documents for children with SEN/ASN because they are associated with significant additional rights of assessment, review and redress. Coordinated Support Plans(CSPs) are statutory support plans which have been used in Scotland since 2004, replacing Records of Need. The CSP includes an assessment of the child’s needs and sets out the support to which the pupil is entitled. CSPs are only available to pupils who require additional educational support plus significant support from agencies other than education such as health or social work. The proportion of children with CSPs has declined from 2.5% in 2004 to 0.3% in 2018. Education, Health and Care Plans (EHCPs) replaced Statements of Need in England in 2014. As with CSPs, they include a detailed assessment of the child’s needs and difficulties and the measures proposed by the LA to meet these needs. Just under 3% of children in England have EHCPs, and the numbers are increasing.

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Individualised Educational Programmes (IEPs) These are non-statutory documents used to plan specific aspects of education for learners who need some or all of their curriculum to be individualised.

Placing Requests In England and Scotland, a parent/carer or a young person over the age of 16 may request a place at any state-maintained school. It is also possible to request a place at an independent special or grant-aided school. There is no guarantee that a placing request will be granted and appeals may be made to the relevant tribunal.

 rincipal SEN/ASN Dispute Resolution P Mechanisms in Scotland and England Tribunals—a ‘court’ but intended to be parent and child focused, tribunals were established in 1995 in England and 2005 in Scotland to deal with disputes in the provision for children with ASN/SEN. In both jurisdictions they are now part of the Education and Health Chamber of the First Tier Tribunal. The tribunal’s judgement is legally binding (although in practice can be difficult to enforce). In Scotland, following the enactment of the 2016 legislation, children aged 12–15 have been able to make a reference to the tribunal, in addition to young people and parents. In England, only young people (aged 16–25) and parents have the right of appeal to the tribunal. Adjudication (Scotland only)—a written submission to the Scottish Government about a dispute by a parent/carer, young person or (from 2018 onwards) a child aged 12–15 who is deemed to have the capacity. Following receipt of a written request for adjudication, an independent adjudicator is appointed to assess and make recommendations for a solution, which are sent to the local authority. Recommendations are not legally binding.

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Independent mediation In England and Scotland, local authorities have a duty to appoint independent mediators whose role, in the event of an SEN/ASN dispute, is to bring together both parties to seek a solution. Participation in mediation is voluntary and recommendations are not legally binding. Young people (over the age of 16), but not children, have the right to request mediation.

International Treaties The United Nations Convention on the Rights of the Child (UNCRC) and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) are legally binding international agreements setting out the civil, political, economic, social and cultural rights of every child and disabled person, regardless of their race, religion or abilities. The UNCRC has 54 articles covering all aspects of a child’s life. Particularly relevant to education is Article 12, which stipulates that: States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Article 7.3 is the UNCRPD’s equivalent provision for those with disabilities but also calls for age-appropriate assistance for the realisation of rights.



Appendix B: Profiles of Children and Young People

Scotland Sea City Jeannette is a young woman of 22 who lives with her parents while attending a post-16 transition unit. She is White British. The family lives in a relatively affluent and recently constructed housing estate (SIMD 3) on the city outskirts. Jeannette’s father is managing director of a business, while her mother is a homemaker. Jeannette has a diagnosis of ASD and learning disabilities. She attended mainstream primary and then moved on to a special school for her secondary education. Subsequently she completed a three-year residential life skills course at college before returning home to begin the four-year lifelong learning programme. Jeannette’s parents are her legal guardians, managing medical and financial matters on her behalf. David is 13 and attends his local secondary school, which is in a largely middle-class neighbourhood. He is White British. The family lives in a large house in an affluent middle-class suburb (SIMD 5) and both parents have professional occupations. David was born with a congenital © The Author(s) 2020 S. Riddell, Autonomy, Rights and Children with Special Educational Needs, https://doi.org/10.1007/978-3-030-55825-3

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heart defect and cerebral palsy and was subsequently diagnosed with epilepsy and learning difficulties. At primary school, David had a good set of friends and was keen to maintain contact with his peer group at secondary school. After looking at some special schools in the city, his mother felt that a mainstream placement was the best option for her son in terms of keeping him in an inclusive environment. David’s mother has used formal dispute resolution procedures such as independent mediation. A CSP was opened for David at primary school, but it has not been reviewed since the start of secondary and provision of external services such as occupational therapy and speech and language therapy has diminished. Catherine is a seven-year-old White British girl with profound and complex difficulties who is described as ‘pre-verbal’. She lives with her mother, father and two siblings in an affluent urban area (SIMD 5). Catherine has an IEP but no CSP. She is educated in a special school which uses intensive communication methods. Catherine has very limited involvement in educational decision-making. Catherine’s mother is positive about educational provision but is concerned about cuts to play scheme provision in the school holidays. She believes that the unpaid labour of parents and carers is not fully recognised. Charlie is an 11-year-old White British boy who lives with his mother, father and three siblings in an affluent urban suburb (SIMD 5). He is at a mainstream primary and has been identified as having dyslexia, although there is no formal diagnosis. He is intelligent, eloquent and capable of participating at school, but has low confidence. He feels passionate about human rights and has contributed to a pupil charter. Nathalie is a ten-year-old girl who is attending a residential special school as a 52-week boarder under the terms of a supervision order. She is regarded as a child at risk of harm and is looked after by the local authority. Nathalie’s resilience plan notes that she is a bright girl who needs a bit of encouragement with self-care tasks. She enjoys writing, maths, cooking and swimming. Nathalie comes from a very disadvantaged background and her mother lives in temporary accommodation with a family member. Martin is a 10-year-old White British boy who lives at a residential special school as a 52-week boarder. He appears quiet and well behaved

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and is generally compliant and helpful in class, obeying instructions and listening. He enjoys having his own bedroom in the residence. His family, from an area of high social deprivation (SIMD 1), is no longer able to care for him. Application for a permanence order by the local authority is currently underway, which would make his looked after status permanent. This is being contested by his mother.

Eastshire Jack is a 17-year-old young man of White British ethnicity. He has a diagnosis of autistic spectrum disorder (ASD) and at the time of the research is being home-educated by his mother. Prior to this, he was educated in a special unit. He lives with his family in a semi-detached house located on a quiet residential cul-de-sac in an affluent market town (SIMD 5). Jack is able to make sounds but not intelligible words. He uses an electronic communication system and some sign language and people who know him are able to interpret his nonverbal cues. Jack’s mother feels that her son has not received an appropriate education at the various schools he has attended and believes that assistive communication technology could have been used more effectively. Because of her disappointment with local authority provision, Jack’s mother has withdrawn her son from school and provided home-education for extensive periods of time. Chloe, a 15-year-old girl of Irish and Italian-Roma heritage, lives in an area of multiple deprivation in a former mining town (SIMD 2). She has been involved in the children’s hearing system and is currently in kinship care with her grandparents. Cloe has been identified with autistic spectrum disorder and social, emotional and behavioural difficulties. Formerly educated in mainstream primary and secondary schools, Chloe was moved to a special unit as a result of her challenging behaviour. Staff observe that Chloe’s moods can be volatile and that she can be loving and caring towards her peers or hostile and aggressive. Chloe feels that her voice is not listened to at school and resents being educated with pre-­ verbal children. Sally (SIMD 2) is a six-year-old girl of White British heritage who lives in a relatively deprived part of Eastshire (SIMD 2). She attends a

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mainstream primary school where she is supported by a teaching assistant. She has physical disabilities and a diagnosis of cerebral palsy which means that she has difficulty standing and walking unaided and often uses a wheelchair. She also has problems with fine motor skills such as cursive handwriting and some speech difficulties. Sally is a confident girl who has been supported by her family to engage in social activities such as Rainbows. Her class mates sometimes seek to be over-protective, but she is independent and capable of drawing boundaries, and is encouraged by her teacher to do so. Leslie is a 13-year-old boy of White British heritage who lives with his mother and two older brothers in a small town (SIMD 3). Identified with multiple additional support needs (autistic spectrum disorder, behavioural difficulties, learning disability and physical/motor impairment), he appears younger than his chronological age. He is educated in a special unit attached to a mainstream high school. Leslie is a very chatty boy who speaks with an American accent, despite having no particular links to the US. He has a good sense of humour and is questioning and inquisitive. Leslie likes recipes and has made his own cookbook, which he is proud of. He enjoys watching TV programmes and cartoons on youtube. Nick is a 12-year-old boy of White British heritage who lives with his mother, a single parent, and two brothers in a socially deprived area (SIMD 1). He has physical and learning difficulties and is educated in a special unit attached to a mainstream school. At primary school, Nick had a Coordinated Support Plan but this was recent discontinued because the local authority felt that outside agency support, such as speech and language therapy, was no longer required, but his mother believes that this type of support is still needed. She is unsure what type of plan her son currently has. Nick attends education planning meetings, but his mother thinks his level of involvement is superficial. She is critical of some aspects of Nick’s treatment in school, believing that staff force him to walk too far and do not take care of his personal care needs. She has not used formal dispute resolution and is trying to resolve issues with the local authority, but has difficulty making contact and finding the right person to speak to. Holly, of White British Heritage, is 14 years old and has a diagnosis of autistic spectrum disorder, behavioural difficulties and learning

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disabilities. Both parents have professional occupations and the family lives in a relatively affluent suburb (SIMD 4). Educated in a special unit attached to a mainstream high school, Holly is a member of the pupil council and is described as active, vocal and engaged in the daily life of the school. She has a personal behaviour plan, but does not have a Coordinated Support Plan. Heather’s mother is actively involved with the school and has been a powerful advocate for her daughter throughout her life, actively cultivating positive relationships with professionals in order to ensure that her daughter is well supported.

Coalshire Of White British heritage, Alan, aged 17 at the time of the research, has a diagnosis of autistic spectrum disorder and learning difficulties. The family lives in a modern house in an affluent suburb (SIMD 5). Alan’s difficulties were evident from birth and, according to his mother, early educational experiences in England were very negative. Since the family arrived in Coalshire, he has been educated in mainstream schools and currently splits his time between the Department for Additional Support and mainstream classes. The goal for his final year at school is to spend increasing amounts of time in mainstream classes without additional support, deciding when he needs to return to the support base. Alan has achieved National 5 passes in Physical Education, Woodwork and Cookery. Alan’s mother is a teacher and has been able to navigate the system effectively to support her son. Lewis is a 14-year-old White British boy attending a Department for Additional Support linked to a high school in an area of multiple deprivation (SIMD 1). He is a member of a large blended family. Lewis was identified as having behavioural difficulties at primary school and, because of frequent exclusion from school, he struggles to read and write. According to his mother, Lewis enjoys practical things such as swimming and he is a member of the local cadets group. Lewis is currently in ‘flexible education’, spending at least half of his time at home, where he spends time with his mother but does not do any formal education. The school is keen to increase the number of hours Lewis spends in school,

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but insists that this cannot happen until he has a formal medical diagnosis and, if necessary, psycho-pharmaceutical treatment. Colin is a 13-year-old boy of White British heritage who is very small for his age. He has physical and learning difficulties and lives is an area of multiple deprivation (SIMD 1) with his mother and step-father. He is quiet and subdued in class and appears to have limited speech. He has a wheelchair allowing him to move round the classroom. At various points during the observation, he appears tired, sitting with his head in his hands and rubbing his eyes. Colin is described as a ‘work avoider’ by a teacher, but his mother is frustrated because she feels that his difficulties have not been properly identified. She has tried to make the school aware of her concerns, but finds that they are reluctant to listen to her. Tom (aged 14, SIMD 3) is a boy with physical disabilities who uses a wheelchair. He is educated in a mainstream high school. His father is a skilled tradesman and the family has just moved to a new bungalow outside the school catchment, leading to a long-running dispute with the local authority about school transport. Because of parental insistence, Tom has a Coordinated Support Plan, but the family believes it is of little use because reviews are not carried out on time and teachers do not appear to have read it. In order to secure support for their son, Tom’s parents have used informal social networks, for example, contacting elected representatives. In their experience, unofficial dispute resolution routes work better than making formal complaints. Ruth, a 14-year-old pupil of White British heritage, attended a mainstream primary school and is currently at a mainstream high school. Her parents have professional occupations and she lives in an affluent area (SIMD 4). Ruth was identified with autistic spectrum disorder at primary school. At high school, she was initially overwhelmed by the noise of classroom life, however, a classroom pass allows her to go the support base when she needs to. Ruth is an intelligent girl who feels passionately about young people’s rights and genderequality. In the future, she hopes to go to university and find a professional job. Laurie (SIMD 5) is a 15-year-old boy of British/Italian heritage who is educated at a residential special school. His family run their own financial services business and live in an affluent area. He has a diagnosis of ASD,

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and his mother describes him as a caring and considerate boy with high levels of anxiety. Laurie had a very unsettled school career during primary and early secondary school, with long periods of non-attendance. His parents identified a residential special school as the best option before broaching the subject with their son, who was at first deeply opposed to the idea of living away from home. He was eventually persuaded to go for a visit, and gradually decided that he would ‘give it a go’. Laurie has a care plan but does not have a Coordinated Support Plan. He is a talented singer and would like to obtain work as an actor when he leaves school. Fourteen-year-old Craig, of White British heritage, has physical and learning difficulties and a diagnosis of autistic spectrum disorder. His mother is a cleaner and the family lives in an area of deprivation (SIMD 1). Craig has a care plan but no Coordinated Support Plan. He experienced a troubled and interrupted primary education, during which long periods of exclusion were interspersed with frequent changes of school. Craig’s mother initially trusted the local authority but gradually lost confidence in the system. Supported by a local advocacy group, she eventually succeeded in securing a place for her son at a special residential school where he appears to have settled down well. She now feels better able to question decisions, but continues to believe that information about services and legal rights is difficult to access.

England Bigtown Alice is ten years old. She is of White British heritage and has behavioural difficulties, leading to a number of exclusions. She lives with her parents in an area of significant deprivation (IMD 1). Alice attends a mainstream primary school which is part of a multi-academy trust and is supported in the classroom by a teaching assistant. Alice does not yet have an Education, Health and Care Plan, but teachers are concerned about her ability to cope at secondary school and an application for a statutory assessment has been made. Neither Alice nor her parents are

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knowledgeable about children’s educational rights. In her free time, Alice likes to play with her doll, watch television and youtube. Maleeha is 12 years old and is of Pakistani heritage. She has albinism leading to visual and physical problems and is also aware of being visibly different from the rest of her family and community. Maleeha lives with her mother, father and two younger sisters on the outskirts of Bigtown (IMD 3). She attends a mainstream high school and has some awareness of her rights but also relies on her parents to support her in decision-­ making. Maleeha’s father had difficulty in obtaining additional support for his daughter at primary school, but just before high school transition he persuaded the local authority to make an Education, Health and Care Plan which included 25 hours of teaching assistant support per week. Maleeha enjoys being outdoors and participating in outdoor activities such as ball games and cycling. Lyron is nine years old and has a diagnosis of autistic spectrum disorder. Of African Caribbean heritage, he is an only child and lives at home with his mother in an area of significant deprivation (IMD 1). Lyron has an Education, Health and Care Plan and moved to special unit after previous exclusions from primary school. Twice a week, Lyron joins the mainstream class where he is supervised by a teaching assistant. However, he is not allowed to mix with other children at lunch or playtime. When Lyron is older, he would like to work in football and have his own house and family. Jacob, of White British heritage, is 22 years old and has a diagnosis of autistic spectrum disorder and behavioural difficulties. He experienced significant trauma in his early life and was taken into care at the age of two, before being adopted. He has no contact with his birth parents or siblings. Jacob has an Education, Health and Care Plan and has recently completed a supported internship. He lives independently in a supported tenancy which is in a deprived area of the city (IMD 1). Jacob is an active member of multiple third sector and local authority participatory groups and is passionate and knowledgeable about children and young people’s rights. Jacob has a close relationship with his leaving care worker and has been supported by her for the last six years. Jacob has recently secured part-time employment working for the local authority and enjoys living independently and spending time with his girlfriend.

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Maria, age nine, has a diagnosis of severe learning difficulties. Of White British heritage, she is the youngest child in her family and has five older brothers and sisters. Maria lives at home with her parents and three of her siblings in an area of significant deprivation. Two of Maria’s siblings also have SEN. Maria has an Education, Health and Care Plan and attends a mainstream primary school where she is supported by a teaching assistant for 25 hours per week. Both Maria and her mother have very little awareness of their rights and have relied heavily upon the school SEN Coordinator to access information and support. In the future, Maria would like to be a police officer during the daytime and a rock star at night. Peter is 16 years old, of White British heritage and has a diagnosis of autistic spectrum disorder. He is a cheerful and talkative young man who is currently studying for his GCSEs at a mainstream secondary school. Peter lives in a small affluent village (IMD 4) with his mother, father and two younger siblings. He has an Education, Health and Care Plan and is supported by a teaching assistant for twenty hours per week. Peter’s mother has been a strong advocate for her son throughout his school career and was involved in an appeal regarding school placement. Peter also understands his rights and has supported other students at his school. When Peter leaves school he would like to pursue a career in computing or gaming.

Northshire Noah, of White British heritage, is nine years old and has lived in foster care since he was five. As a result of adverse early childhood experiences, Noah has post-traumatic stress disorder and behavioural difficulties. He lives with his foster carers in a small town with high levels of social deprivation (IMD 1). Noah’s foster mother describes him as ‘a very lively young man who likes to be liked’. Noah has an Education, Health and Care Plan and attends a state-maintained special school following exclusion from primary school. Noah is a school councillor and has some understandings of his rights but relies on adults to make decisions on

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education and care. When Noah is older, he would like to be a motorbike stunt rider. James, aged 16 and of White British heritage, has been identified as having specific learning difficulties and was frequently excluded from secondary school. He is a young carer and lives with his mother in a relatively affluent small town (IMD 4). James has an Education, Health and Care Plan and attends a special unit within a mainstream FE college. He is an active member of a number of local authority and third sector participatory groups. He has a good understanding of young people’s rights and hopes to pursue a legal career in the future. James’ mother accessed independent advocacy support to assist her with navigating local authorityappeal processes. Aiden is of White British heritage and is 13 years old. He is an only child and lives with his mother and father in an affluent town on the edge of the countryside (IMD 5). Both Aiden and his mother have a diagnosis of autistic spectrum disorder. Aiden has an Education, Health and Care Plan and, as a result of a placing request, attends an independent special secondary school with a high staff pupil ratio and access to a range of therapeutic interventions. Aiden is a school council member but relies upon his parents to argue for his rights. In the future, Aiden would like to follow the family tradition of a having a military career or work as a ‘pro youtuber’. Kei, seventeen years of age and of White British heritage, has severe learning disabilities. He lives with his mother, father and sister in a small town in Northshire (IMD 5). Kei has an Education, Health and Care Plan and attends a special unit at a local FE college, where he is enrolled on the foundation learning course. He has recently joined a third sector participatory group. Kei has some understanding of his rights but relies on his family to promote them. Kei is not sure what kind of job he would like but he hopes to be able to live independently or with a friend in the future. Lizzie, of White British heritage, is 21 years old and has learning disabilities and autistic spectrum disorder. She lives with her family  in a Northshire village (IMD 5). Lizzie has an Education, Health and Care Plan and attends an independent special FE college in a neighbouring local authority. During term-time, she lives with a host family and has

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recently learnt to travel independently. She also attends a third sector participatory group and has a good understanding of her rights. Lizzie is very reliant upon her parents to support her in expressing her views and making decisions. The family was involved in a tribunalappeal regarding a college placing request and has received support from independent advocacy agencies. In the future, Lizzie would like to work in catering or in a library and to live independently. Samuel, aged nine, has social, emotional and mental health difficulties. He is the second eldest of five siblings and is of White British heritage. He and his elder sister were placed in long term foster care two years ago and live in a village with high levels of social deprivation (IMD 1). Samuel does not have an Education, Health and Care Plan and attends a state-­ maintained, mainstream primary school. He is supported by a teaching assistant and accesses a number of therapeutic interventions in the school. Samuel is described as a cheerful, energetic boy who is passionate about football. He is unaware of his rights and depends on the support of his foster carer, social worker and SEN Coordinator to advocate for him.

Greenshire Laura, aged 17, is of White British heritage. She lives with her parents and younger brother on a farm in a small hamlet (IMD 5). Laura has specific learning difficulties and problems with reading and writing have impacted upon her A-Level studies, restricting her choice of subjects. She does not have an Education, Health and Care Plan and is studying at a mainstream FE college. She is described as a very articulate, determined and independent person by her mother and teaching staff. Laura’s mother has been very active in representing her daughter’s interests throughout her education, but has recently experienced a period of ill-health. Laura has some awareness of her rights and as she has matured, she has taken a much more independent role in voicing her opinions on additional support in college. In the future, Laura hopes to pursue a career in illustration. Ben is ten years old, of White British heritage and has learning difficulties. His speech is limited and he uses a range of technologies to facilitate communication. Ben lives with his parents and two siblings in a small

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village (IMD 3). He has an Education, Health and Care Plan and attends a state-maintained special school. Neither Ben nor his mother know about their rights, and his mother relies on the expertise and opinions of education and health professionals concerning her son’s access to SEN support. In his free time, Ben likes to go swimming and horse-riding and he is very keen on football. Of White British heritage, Jack is seven years old and has epilepsy and visual difficulties. He is an only child and lives with his parents in a small village (IMD 3). Jack has an Education, Health and Care Plan and attends a mainstream primary school where he receives fifteen hours of support from a dedicated teaching assistant. Jack is described as very confident and cheerful. He has little awareness of his rights and his parents advocate for him. They have also accessed support from independent advocates and health professionals. In his free time, Jack enjoys swimming, writing stories and watching youtube on his tablet. Frank is aged nine, of White British heritage and has a diagnosis of autistic spectrum disorder and learning difficulties. He lives with his mother and two older siblings in a small town (IMD 4). Frank has an Education, Health and Care Plan and attends a state-maintained special school. He is in a small class with a high ratio of adults to pupils. Frank’s mother describes her son as a ‘sensitive and intelligent boy’ and explains that routine is very important to him. Frank and his mother have little awareness of their rights and are reliant upon education and health professionals for advice. In his free time Frank enjoys playing video games and spending time with his friends. Claire is of White British heritage and is 18 years of age. She is an only child and lives with her mother in a small town (IMD 4). Claire has social, emotional and behavioural difficulties and a long history of exclusion. She has spent some time at a pupil referral unit before joining her current FE College, where she is studying BTEC Level 2 Science. Claire does not have an Education, Health and Care Plan and both she and her mother have refused to grant permission for a statutory assessment. Claire’s mother supports her daughter in times of crisis and has accessed independent advocacy when she was in dispute with the local authority over Claire’s exclusions. Claire has some understanding of her rights and

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is able to articulate her feelings and views. She hopes to study for a Level 3 Beauty Therapy course next year. Christine is eight years old, of White British heritage and has autistic spectrum disorder and learning difficulties. She lives with her parents and older brother, who is also autistic, in a small town (IMD 3). Christine has an Education, Health and Care Plan and attends a state-maintained special school. Christine is described as very talkative, cheerful and bright. She is very articulate and able to understand some of her rights. Christine’s mother has very little awareness of her rights and is heavily reliant upon the class teacher for information and support regarding her daughter’s education and SEN provision. Christine would like to learn to sing and be a teacher or work in computing when she is older.

Index1

A

Ability, 33, 35, 50, 74, 76, 80, 86, 95, 120, 139, 148, 158, 176, 202, 210, 224, 225, 232, 239 Academy, 26, 122, 137, 162, 229 Additional support needs (ASN), 1, 2, 8, 9, 11, 12, 15, 17–21, 23–28, 31–46, 49, 51–55, 57, 58, 60–67, 69–71, 76, 77, 85, 89, 90, 95, 96, 98, 114–117, 152–155, 161, 188–190, 215–217, 219, 227, 229–232, 236 Adjudication, 36, 42, 189, 231 Administrative data, 11, 16, 17, 20–21, 46, 49, 50, 198, 216, 217 Administrative justice, 6, 31, 46

Admissions, 163, 168 Advocacy, 2, 41, 92, 93, 98, 125, 126, 137, 141, 163, 164, 170, 190, 218, 225, 239, 242–244 Appeal, 3, 10, 16, 23, 24, 33, 38–42, 66–69, 71, 77, 83, 138, 163, 174, 175, 191, 196–198, 204, 211, 223, 231, 241–243 Attention deficit and hyperactive disorder (ADHD), 120, 122, 143–145, 166, 170, 171, 183 Autistic spectrum disorder (ASD), 24, 58, 67, 105, 108, 124, 165, 166, 169, 191, 203, 233, 235–242, 244, 245 Autonomy, 2–8, 10, 11, 23, 26, 38, 115, 120, 164, 187, 216–220, 224

 Note: Page numbers followed by ‘n’ refer to notes.

1

© The Author(s) 2020 S. Riddell, Autonomy, Rights and Children with Special Educational Needs, https://doi.org/10.1007/978-3-030-55825-3

247

248 Index B

Barnardo’s, 124, 125, 127, 223 Best interests, 3–5, 3n1, 86, 89, 91, 117, 171, 177, 220 Bureaucratic, 34, 35, 53, 162 C

Capacity, 3, 4, 6, 9–11, 23, 26, 27, 37, 38, 40, 42, 43, 45, 46, 67, 74, 79, 81–86, 92, 93, 137, 148, 180, 218–220, 223, 231 Care experienced, 79, 110, 125, 126, 164, 170, 181, 187, 197, 218, 222 Case study, 12, 16, 17, 23–28, 88, 93, 95, 99, 110, 115, 116, 119, 124, 130, 134, 135, 137, 147, 149, 158, 164, 172, 187, 188, 191, 198, 211, 217, 239–245 Categorisation, 18, 33, 34, 49–71 Children and Families Act 2014, 1, 9, 19, 40, 43, 44, 70, 74–76, 114, 133, 162, 215 Children and Young People (Scotland) Act 2014, 41, 134 Children and Young People’s Commissioner Scotland, 45, 98 Children’s Commissioner for England, 196 Children’s Hearing (Scotland) Act 2011, 185, 187 Child’s Plan Citizenship, 19, 41, 134 Citizen-consumers, 36–37, 114–115 Citizenship, 96, 224 Civil rights, 232

Code of Practice, 9, 36, 53, 190 Committee on the Rights of the Child, 37–39, 43, 81 Complex learning difficulties, 34, 192, 211 Consumerism, 31, 46, 161 Coordinated Support Plan (CSP), 19, 36, 41, 42, 52–54, 57, 65–68, 71, 78, 103, 105, 108, 117, 134–136, 147–153, 155, 157, 158, 162, 169, 182, 185, 200–202, 230, 234, 236–239 D

Decision-making, 1–4, 6, 11, 12, 17, 33–35, 37, 38, 46, 75, 79, 82, 86, 93, 96–98, 104, 113, 120, 122, 134, 215, 216, 218–220, 223, 224, 234, 240 Department for Education (DfE), 1, 9, 10, 20, 49, 53, 61, 75, 189, 190, 229 Department of Health (DoH), 9, 53, 190 Devolution, 17, 226 Disability, 7, 8, 33–39, 42, 43, 81, 85n1, 91, 95, 97, 103, 119, 129, 134, 184, 190, 192, 223–225, 230, 232, 233, 236–238, 242 Disproportionality, 49–71, 217 Dispute resolution, 11, 12, 17, 26, 27, 36, 40, 49, 51, 66, 74, 93, 189–212, 218, 226, 231–232, 234, 236, 238 Dispute resolution service (DRS), 189 Dyslexia, 63, 98, 126, 129, 234

 Index 

249

E

G

Education (Additional Support for Learning) (Scotland) Act 2004, 36, 41, 134 Education (Scotland) Act 2016, 1, 9, 41, 43, 45, 70, 76–81, 85, 215 Educational planning, 12, 78, 133–159, 218, 226 Education and Health Chamber of the First Tier Tribunal, 231 Education, Health and Care Plan (EHCP), 10, 20, 40, 53, 54, 57, 67, 71, 133–136, 138–140, 142, 144, 146, 147, 158, 162, 163, 165–167, 177, 179, 226, 230, 239–245 Egerton Commission, 32 Empowerment, 215, 217, 226 Enquiries, 138 Equality, 113, 162, 224–225, 238 Ethnicity, 8, 11, 20, 51, 57–66, 70, 217, 224, 235 Eugenics, 50 Exclusion, 38, 49, 51, 54, 57, 63, 64, 77, 97, 103, 106, 110, 119, 120, 144, 146, 147, 163, 164, 166, 173, 174, 176, 178, 181, 184, 187, 188, 220, 223, 237, 239–241, 244

Gender, 8, 11, 20, 51, 57–66, 101, 217, 224, 238 Getting it Right for Every Child (GIRFEC), 19, 41 Gillick case law, 3, 3n1, 6 Grant aided school, 231 Gypsy/Roma, 59, 70

F

Flexible education, 182–184, 237 Further education (FE), 162, 191, 196, 242–244

H

Hearing impairment, 57, 58, 154 Higher education, 98, 135n1 Human rights, 8, 31, 37–39, 49, 51, 73, 92, 98, 100, 101, 108, 113, 216, 221–223, 225–227, 234 I

Inclusion, 70, 96, 119, 138 Independent special school, 162, 164, 168, 169, 181, 187, 203, 210 Index of Multiple Deprivation (IMD), 26n2, 105, 119, 122, 124, 126, 137, 139, 143, 165, 191, 239–244 Individualised Educational Programmes (IEPs), 19, 52, 103, 105, 109, 111, 134, 147, 148, 155, 156, 202, 231, 234 Inter-dependency, 46, 220 International treaty, 1, 8, 37, 39–43, 46, 215, 217, 232 Interrupted learning, 56

250 Index L

Labelling, 49, 50, 69, 120 Learning difficulties/disabilities, 25, 32, 34, 35, 51, 53, 55–57, 91, 103, 111, 117, 124, 126, 134, 136, 139, 144, 154, 183, 184, 191, 192, 211, 222, 230, 233, 234, 236–239, 241–245 Legality, 31, 33, 46 Local authorities (LAs), 2, 9–12, 16, 17, 19–21, 23–27, 33–36, 38, 40–42, 45, 53, 71, 75, 76, 79–81, 83–89, 91–93, 98–101, 114–116, 124–126, 130, 135–138, 135n1, 147, 148, 152–154, 161–167, 169, 171, 173, 176, 177, 184, 187–192, 194, 195, 197, 198, 201, 203, 204, 207, 210, 215, 218, 222, 224, 226, 227, 229–232, 234–236, 238–240, 242 Looked after, 11, 41, 56, 65, 67, 84, 98, 100, 108, 124, 125, 187, 223, 234, 235 M

Mainstream school, 109, 136, 154–155, 236 Managerialism, 31, 46 Marketisation, 31, 36, 46, 114, 161 Mediation, 9, 10, 36, 40, 42, 68, 189, 190, 198, 201, 203, 232, 234 Mental Capacity Act 2005, 10, 40, 45, 81

Mental health difficulties, 58, 70, 124, 126, 165, 166, 173, 175, 176, 243 Middle class, 98, 103, 147, 158, 161, 164, 168, 169, 198, 203, 210, 225, 233 Moderate learning difficulties, 25, 51, 55, 56, 117, 139, 191 Multi-sensory impairment, 57 N

Named person, 21, 41, 41n1 Neo-liberalism, 46, 217 O

Occupational therapy, 148, 155, 234 P

Participation, 6, 9, 11, 12, 21, 23, 28, 35, 36, 38, 40, 41, 46, 70, 75, 81, 95–111, 113–130, 134–136, 141, 142, 158, 189–212, 218, 221, 223, 226, 232 Partnership, 35, 127, 175, 190, 217 Personalised services, 40 Physical difficulties, 55, 99 Placing requests, 9, 42, 67, 68, 90, 92, 162, 163, 172, 187, 204, 224, 231, 242, 243 Political rights, 232 Primary school, 87, 105, 106, 117, 138, 140, 144, 147, 149, 151, 154, 158, 166, 167, 170, 171,

 Index 

173, 177, 178, 181, 182, 186, 192, 199, 203, 208, 234, 236–241, 243, 244 Professionalisation, 31, 33, 46 Psychologist, 11, 21, 89, 90, 143, 146, 148, 183, 194 Public Sector Equality Duty, 162 R

Race, 232 Record of Needs, 53, 134 Redress, 3, 28, 35, 42, 43, 57, 66–68, 70, 134, 189, 190, 198, 211, 219 Reference, 4, 9, 37, 42, 43, 66–68, 85, 108, 203, 216, 219, 231 Regulation, 34, 43, 45, 96, 97 Representative body, 12, 113–130, 218, 222 Rights, 1–12, 15, 17, 18, 20, 21, 23, 25–28, 31–46, 49–71, 73–93, 95–111, 113, 115–117, 122, 125, 126, 128, 129, 134, 137, 140, 148, 152, 155, 158, 159, 161–188, 190, 191, 197, 211, 215–227, 230–232, 234, 236, 238–245 S

School choice, 12, 27, 36, 86, 93, 161–188, 218 Scottish Government, 2, 8, 9, 19, 20, 41, 42, 45, 49, 61, 76, 77, 83–85, 88, 98, 184, 189, 190, 218, 231 Scottish Index of Multiple Deprivation (SIMD), 26n2,

251

61, 63, 64, 66, 99, 101, 103, 108, 117, 147, 149, 154, 169, 182, 198, 203, 207, 233–239 Secondary school, 54, 82, 96, 101, 108, 120, 124, 126, 139, 146–148, 155, 158, 166, 171, 173, 180, 182, 187, 192, 199–202, 229, 233–235, 239, 241, 242 Segregation, 33, 34, 96 Sensory impairments, 32, 64, 103, 139 Severe/profound learning difficulties, 34, 57, 103, 111, 202, 234, 241, 242 Social class, 8, 95, 96, 98, 99, 224, 225 Social deprivation, 11, 16, 20, 49, 57–66, 68, 158, 217, 218, 223, 235, 241, 243 Social disadvantage, 16, 51, 158, 164, 176, 210, 212, 218 Social, emotional and behavioural difficulties (SEBD), 16, 24, 49, 51, 55–58, 64, 65, 67, 70, 98, 108, 119, 124, 165, 169, 175, 176, 185, 235, 243, 244 Social justice, 11, 27, 46, 101 Social rights, 224, 232 Social work, 40, 103, 134, 135, 157, 186, 230 Special educational needs (SEN), 1, 2, 8, 10, 11, 17–21, 23–28, 31–33, 35–38, 40, 44, 49–61, 66, 67, 70, 71, 75, 81, 95, 96, 114–116, 123, 124, 126, 127, 133, 136, 138, 161, 184, 189, 190, 192, 193, 217, 227, 229–232, 241, 244, 245

252 Index

Special educational needs and disability information advice and support services (SENDIASS), 141, 189, 190, 195 Special school, 26, 33, 34, 54, 86, 89, 103, 111, 136, 140, 162, 164, 165, 168, 169, 179–181, 185–188, 192, 203, 210, 229, 233, 234, 238, 239, 241, 244, 245 Speech and language therapist, 141 Standards in Scotland’s Schools etc. Act 2000, 184 Statement of needs, 53 Statutory support plan, 11, 12, 16, 20, 23, 26, 36, 43, 49, 53–54, 57, 64, 65, 71, 101, 133–138, 140, 147, 149, 153, 158, 217, 226, 230 Stigmatisation, 49, 51 Substance abuse, 56

202–204, 206, 210, 211, 219, 223, 231, 243 Tribunal President, 68, 77, 84 U

United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), 1, 8, 37–39, 232 United Nations Convention on the Rights of the Child (UNCRC), 1, 3, 5, 8, 37, 41, 45, 75–77, 80, 108, 232 Universalism, 226 V

Visual impairment, 57, 58, 65, 137 Voice, 27, 43, 75, 78, 80, 82, 98–99, 105, 123, 126, 197, 221–224, 235 Voluntary organisations, 55, 74, 103, 115, 170, 184, 223

T

Travellers, 59, 60, 70 Tribunal, 9, 16, 18, 21, 23, 24, 36, 40–43, 66–68, 71, 85–87, 167, 189, 191, 193, 196–198,

W

Warnock Report, 34, 35 Welsh Assembly Government, 211 Working-class, 51