Introduction
Peach recently conducted an in-depth telephone survey of 41 families about their experiences of SENDIST looking at:-
· The sources of help and advice that parents found effective
· Equality issues (cost and access)
· Stress levels
Findings
Advice Sources and Legal Representation
Our survey found
· 88% of respondents were represented by at least one solicitor
· 17% represented by a solicitor also had a barrister
· 12% did not have legal representation
· 5% applied for legal aid
· 63% felt their solicitor/barrister made a good case
· 27% felt the solicitor / barrister made quite a good case
· 10% felt their solicitor/barrister did not make a good case
When asked to rank the effectiveness of their solicitor / barrister on a scale of 1-10, (10 being the highest), 77% gave a rating of 7 or above. In most instances there was a correlation between making a good case and effectiveness. There were however 3 instances where parents felt their solicitor / barrister had not made a good case but had still been effective. The general feeling was that the LEA automatically respected the solicitor. Comments from parents clearly illustrate that they felt they are taken more seriously once a solicitor is involved.
Once I got a solicitor everything changed, their attitude changed.
I thought I could do it, I have a degree but we needed a solicitor, we didn’t know the legal technicalities.
Everything you want you have to fight for, as if it isn’t enough being the parent of a child with a disability. The biggest thing was turning into a legal beagle. It was mind blowing. If I was less intelligent I would not have been able to do it.
Parents did not seem to know legal aid was available for preparatory work. Those who did access it did so on the advice of their solicitor.
Most respondents had contacted and sought advice from a variety of other sources: -
· 68% of respondents contacted another parent
· 61% contacted Peach
· 48% contacted IPSEA
· 24% contacted NAS (help-line*)
* Only existed for part of the period reviewed
The general view was that organisations could give advice on the process but they were not able to give the level of legal advice that was needed to compete on equal terms with LEA solicitors. There was also concern that arguing for ABA is significantly different from arguing for other provisions and needed specialist help.
Parents undoubtedly feel a solicitor is necessary. Peach believes the ‘legal culture’ is fostered by the approach of some LEAs. Peach is aware that some parents are now employing solicitors during the initial statementing process. The culture needs to change and this must start with the LEAs.
Cost and Access
The cost of legal representation varied from £600 to £15,000.
The average cost of legal representation was
· £2,907 when settling prior to tribunal
· £5,235 for all going to tribunal
· £4,975 for those who won
· £5,625 for those who lost
· The average overall cost £4,276
32% paid legal costs of £6,000 or more. Parents had attended tribunals between 1997 and 2003. Legal costs had clearly risen significantly in that period with costs of £6,000 or more being common by 2002/3 compared with £2,000 in 1997/8. Peach interviewed two families who had paid more than £10,000 in costs for cases they had lost.
Peach does not feel it appropriate that families of children with disabilities should be faced with this level of cost to secure provision for their children. Inconsistencies between LEAs mean some parents are offered this provision automatically while others have to spend extortionate sums in an effort to obtain it.
Our survey revealed that 95% of respondents paid for their chosen provision while they went to tribunal. Cost varied from £2,000 – £45,000.
· 55% paid between £2,000 – £10,000
· 30% paid between £10,000 - £20,000
· 15% paid over £20,000
Some parents paid for provision for three months, others paid for provision for 12 to 18 months. Any delays to the process impacts on the amount parents have to pay, it is very difficult for them to plan for this in advance.
The 5% of respondents who did not have provision in place at the time of the tribunal all lost their cases or withdrew.
Peach believes that those who cannot afford provision are not applying to tribunal because they believe this is a pre-requisite for success. The majority of parents in our survey wanted funding for ABA programmes. LEAs and tribunals have authority to authorise these programmes. The onus at tribunal is to show the progress made on a programme. This is extremely unfair and inequitable.
It is clear that some parents are settling and accepting provision which only partially meets their needs because of fear of escalating costs.
Of those that settled 48% were not happy with the settlement but did so for the following reasons.
· 11% did not feel they would win
· 23% were glad to have something
· 22% were too worn down to continue
· 44% were concerned about the cost of continuing
We settled, we were really skint and couldn’t go on any more.
The cost was high, it was gambling to go for higher stakes.
Peach is concerned that parents are settling because they cannot afford to continue fighting. In some instances LEAs offer an inappropriate financial settlement. This is accepted by parents who then “top up” the difference. This sets a precedent, which disadvantages those who come later and cannot afford to “top up”.
19% of respondents felt they belonged to ethnic minority groups. Whilst all of our respondents spoke good English, when English was not their first language, they found the tribunal process very difficult.
The tribunal affected me mentally and physically, I had dizziness and was treated for stress. I found it hard to speak in English, which is not my first language. I couldn’t think of the words to say.
I was very nervous, they (the tribunal) stopped me when I was talking and made me lose my track.
Peach is concerned that those from ethnic minority groups are more dissatisfied with the system than others
Parental stress
Engaging in the tribunal process is very stressful for most families. This is exasperated by worries about money and delays. In our survey 78% of respondents rated their own stress levels at 8 or above (where 10 represents the highest). 31% rated their stress level at a maximum 10. Some parents talked of feeling bereaved when it was all over.
During this period I would bump into people and not know who they were and forget I spoke to them. I could not remember anything outside the process. My mind was so tied up with this. This level of stress is inconceivable.
The stress goes on after it is over, I suffered from depression. I had been so focused I could not cope with ordinary life when it was all over.
The process also put stress on relationships. Around 40% of respondents reported stress levels of 6 or above with their partner.
63% of respondents felt the process caused them financial hardship.
· 19% re-mortgaged (sometimes more than once)
· 19% took out bank loans
· 14% borrowed from their families
· 4% used their savings
Our parents paid for this out of their pension fund. There is a big hole in it now.
It is appalling we had to fight for provision and pay so much (re-mortgaged twice).
My husband gave up his own business so he could earn more, doing a job he hated.
Peach feels that it is morally wrong that parents with a child with a disability should be disadvantaged in this way. The impact is not just on the immediate family but on the extended family too. Many cannot get bank loans or re-mortgage and therefore are disadvantaged, or worse, not able to access the system.
Despite the problems parents clearly value the tribunal process. Of the 12% who wished they had not gone through the process, all except one considered themselves to belong to an ethnic minority group. There is clearly a disparity of experience between groups, which is an issue of real concern.
Recommendations
The trend which sees parents and LEAs increasingly using solicitors and barristers makes the process less accessible. Guidelines should be issued to LEAs on the appropriate use of legal representation.
LEAs need to speed up the process . There is a perception that they deliberately delay. The involvement of solicitors stops this time wasting which is one of the main reasons why parents feel they need solicitors.
Delays and other transgressions should be monitored externally by an independent body.
Although legal aid is mentioned in the SENDIST guidance, few people know they can apply for it. Awareness needs to be raised. Legal aid provisions should be extended to cover representation at tribunal.
Peach feels that some types of provision are quite complex and specialist SENDIST panel members may be required.
The allocation of provision is a lottery with some LEAs meeting parental choice while others force parents into a fight which drains them emotionally and financially. There should be more research into outcomes so the value of different provisions is established.
LEAs and Tribunals should be more aware of the needs of ethnic minorities and those who do not speak English as a first language, this should be reflected in Race Equality Action Plans.
Peach feels that SENDIST is not meeting the needs of the many because it is only accessible to the few. Work needs to be done to identify and reduce levels of unmet need. LEAs and SENDIST should regularly monitor access issues to ensure SENDIST represents an opportunity and not a challenge to parents.
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