Parents threaten to take council to High Court over SEND

EXCLUSIVE: Officials in Sutton have suppressed a report that slams council leadership over its failing services for special needs and disabled children, as a campaign group threatens a Judicial Review with angry parents maintaining that the council’s private service provider is not fit for purpose

Ruth Dombey: leader of LibDem Sutton council, has another crisis to deal with

There’s mounting anger among parents of children in Sutton with SEND – special educational needs and disabilities – because of the council’s inability to deliver the services that they are required by law to provide.

Parents are furious that a council-owned company is turning down the vast majority of requests for assessments for education health care plan, or EHCPs, which all SEND children, teens and young adults are supposed to have provided by their local authority.

Since 2016, Sutton Council has spun out its responsibility for EHCPs to Cognus, a company which it established to run the SEND service. Families accuse Cognus of rejecting requests for EHCP assessments, often for spurious reasons, leading to accusations that the council has a blanket policy of refusal.

Without an assessment for an EHCP, and a subsequent plan being agreed, parents and their children cannot access services such as special schools and one-to-one teaching.

Sutton’s SEND service failed an Ofsted inspection last year, and Inside Sutton has received a copy of a confidential internal report, commissioned by the council, that highlights the lack of progress made since the devastating Ofsted judgement last March.

Sutton Council’s children’s services were spun out to Cognus, a local authority trading company, three years ago. At the time, the council said the reason for the spin-out was that as it now had little to do with education, due to government policies, and that by doing this it would achieve savings as core grants were reduced. More recently, the LibDem-controlled council, led by Ruth Dombey, has taken to blaming “austerity”.

Last March’s Ofsted report identified serious issues with leadership, communications and cohesive working, poor oversight of EHCPs in meeting the needs of children and young people, and serious inequalities for families as the council ran down its advice service.

Following the inspection, and under instruction from Ofsted, the council, together with Sutton CCG and Cognus, was forced to produce a written statement of action. This outlined the steps that would be taken, with a set of deadlines, to improve the failing service. The written statement of action was published last July.

But the council is already behind on its Ofsted promises.

The council said it would “have reviewed and expanded the SEND strategy by April 2019 in line with the work required by the Written Statement of Action”. Yet, by this week – two months after its deadline – the council had still not published a SEND strategy, as is required by law.

The embarrassment for Sutton began at a meeting of the full Council on April 29. Tom Drummond, a Conservative councillor for Worcester Park ward, asked the chair of the council’s “people committee”, Marian James, whether she believed Cognus was fit for purpose.

Marian James: LibDem councillor who says Cognus is fit for purpose

In response, James acknowledged problems with Cognus, but stated that the company was fit for purpose.

James had walked straight into a trap: Drummond had managed to obtain a bunch of secret council documents, including the Cognus guidance for EHCPs, as well as the council’s strategy document. Waving the paperwork, Drummond revealed that Cognus’s guidance and the council SEND strategy contained guidance which was unlawful.

James, clearly flustered, claimed that the documents were “out of date”, and that they had been removed that day from the council and Cognus websites. She apologised to parents who had been misled by the documents.

More than six weeks later, and despite James’s public assurances at the council meeting, no revised documents have been published online by the council or Cognus. Drummond’s assertions that their operations were being based on seriously flawed guidance appears to have caught them out.

And evidence seen by Inside Sutton shows that Cognus has indeed been continuing to base many decisions regarding EHCP assessments on this unlawful information.

The Children and Families Act 2014 is clear on how all local authorities must deal with EHCP assessment requests. The act states that:

The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted under subsection 7, the authority is of the opinion that –
(a) the child or young person has or may have special educational needs, and
(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

Campaigners are claiming Sutton Council is acting unlawfully by failing to follow these clear requirements, and instead piles on a number of additional and hard-to-prove criteria of its own, with the intention of minimising the number of assessments carried out.

Cognus’s guidance on EHCP, with its unlawful advice

In fact, until recently, Sutton Council and Cognus issued a standard response letter to all requests for EHCP assessments with a stern warning that the local authority would only recommend undertaking an assessment if the council’s published criteria were met.

Another method allegedly being employed by Sutton Council and Cognus is to refuse an EHCP assessment on vague grounds, then wait to see if parents choose to appeal against that decision by taking their case to tribunal. This can be a costly process, with parents often employing the help of a lawyer.

But parents in Sutton report that when an application to tribunal has been made, the council frequently approaches the family in the days before the tribunal hearing, offering to reach a settlement.

“It’s like they’re playing a game of poker with our children’s lives,” a parent told Inside Sutton. “They know they haven’t got much of a hand, but they wait until they have their bluff called.”

Inside Sutton has been told that one former member of staff at Cognus actually advised parents who were turned down for an EHCP assessment to go to tribunal, as they would almost certainly win an appeal.

Even when an assessment is agreed, parents are finding that the reports are leaving out vital relevant information that would have an impact on the level of support a child could receive.

The council has also sent out letters to parents refusing to assess a child that are based on poor-quality templates. These letters repeatedly fail to provide parents with adequate explanations of why children are being refused assessments. When reasons were eventually given, they were unlawful: Sutton was again imposing its own thresholds.

In one case, seven professionals across various disciplines, such as speech and language and psychology, provided an opinion that an EHCP was needed for a child. Yet Sutton Council refused even to carry out an assessment.

By taking these decisions, the council and Cognus can kick a final decision down the road for many months. Many parents simply give up.

The council had failed to reckon with the founder of a SEND families’ campaign group, Hayley Harding, being a solicitor, and her local councillor, Drummond, also being a lawyer. Both have uncovered a multitude of problems with the council’s guidelines and policies.

The online Facebook campaign group, Sutton EHCP Crisis – SEN Families Fight for Justice, quickly gathered momentum as dozens of families posted their heartbreaking and angry personal stories. Several themes quickly emerged, the most notable being that the council appeared to dismiss requests for EHCP assessments at a very early stage, and that they were doing so in an unlawful manner.

The facts back this up. Sutton Council and Cognus currently reject 64 per cent of all applications for EHCP assessments. The national average is 22 per cent.

What’s worse, Sutton Council has even had a top-secret report which contains damning criticism of its policy on SEND.

Written by respected SEND policy consultant Dr Peter Gray, an honorary research fellow at Exeter University, the report was commissioned by Sutton last autumn, in the wake of the Ofsted failure, at a cost of £20,000. Dr Gray submitted his report in March, but it has never been shared with any councillors outside the LibDem majority group, and it is not clear whether it will be presented to the upcoming Sutton Schools Forum or the next people committee.

Hayley Harding, with her son Matthew: the Worcester Park solicitor has uncovered the council’s unlawful actions

Inside Sutton has, nonetheless, had sight of the report.

The report backs up claims by parents that Cognus has a culture of refusing ECHP assessments in a disproportionate number of cases, as a first response, irrespective of the evidence. The high refusal rate sees many Sutton families taking the decision to a tribunal, where 87 per cent of cases are won by parents.

The report looks at several areas of the Cognus/council/CCG operation. The most damning facts found by Dr Gray concerned budgets and leadership.

Dr Gray acknowledged that in past years Sutton Council may have been disadvantaged by a shortfall in SEND funding. However, he stated that Sutton’s funding streams are now as they should be. Dr Gray also pointed out that Sutton Council had the highest spending per head on SEND in the whole country – £856, compared to the national average of £622.

However, the council was still showing an overspend of £1million on SEND services, with an associated £1.5million overspend on SEND transport services (though while this money is spent by and administered by Cognus, it comes largely from a separate council budget).

Elsewhere in the report, Dr Gray makes clear that there are severe pressures on SEND budgets across the UK, but he is equally clear that in Sutton at least, money is not the issue. The conclusions point to a continuing failure of management and leadership, the very same issues highlighted by the March 2018 Ofsted report.

Dr Gray states that “increasing spend (and overspends) have been reactive to immediate pressures and have not taken sufficient account of system issues. Problems require broader system resolutions rather than continuing to ‘tinker round the edges’.”

He adds: “Given the relative size of Sutton’s allocation, it is somewhat surprising that the authority should have experienced continuing budget pressures.”

Dr Gray then takes aim at the current culture in the council and Cognus being a “market” rather than a system that is professionally-led.

“Parents continue to talk in adversarial terms (‘fight’/‘battle’) – you have to go to tribunal to ensure you get what your child needs.”

He continues: “Too much time is spent running the day-to-day operation of the system and there is limited capacity for strategic leadership.”

Cllrs Marian James and Jenny Batt: ‘not capable of dealing with the problem effectively’

The most damning conclusion asserts that “the provision system is not coherent/fit for current needs. There are too many gaps which children can fall through”.

Of course, with Dr Gray’s expert report having been with LibDem councillor Marian James for more than a month before that April’s council meeting, it means that her assertion then that Cognus was “fit for purpose” must have been a deliberately misleading, or false one.

The latest, and possibly most devastating development, is a letter sent to Ruth Dombey, the leader of the council, from the Sutton EHCP Crisis group.

The letter alleges that children’s EHCP assessment applications had been considered using unlawful criteria, that EHC plans were poorly drafted and used unlawful language, and that Cognus was attempting to minimise the help given to children.

The letter detailed a series of meetings between campaigners, council and Cognus officers, and the chair and vice-chair of the council’s people committee, councillors Marian James and Jenny Batt.

“A great amount of evidence was put forward to show the unlawful practices … it has become apparent since our last meeting that the current team of Cllrs James and Batt and officers are not capable of dealing with the problem effectively,” the letter states.

The letter also questioned whether senior council officials had reneged on promises made to update online documents and processes, and whether a senior Sutton officer “permanently seconded” to Cognus had an unresolvable conflict of interest as she was effectively marking Cognus’s homework for the council.

Drummond: no confidence in James and Batt

The same council official – who has the final decision on allowing EHCP assessments – is alleged to have blamed tribunal judges for allowing so many EHCP assessments, as “tribunal decisions go against the authority because judges need training in the Children and Families Act 2014”.

The letter demands that Dombey intervenes and instigates a top-to-bottom review of the EHCP process, and threatens taking Sutton Council to the High Court for a Judicial Review if the unlawful practices are not changed and historical decisions are not reviewed.

“Whilst we recognise that you will understandably want to try and protect and defend your officers and council members, we would urge you to remember the children that are suffering here as a result of the lack of and poor action taking place. They are not at fault in this situation yet are the ones who are really being made to suffer,” the campaign group’s letter said..

The best that Dombey could offer was a quickly drafted email to Harding saying, “I am aware of your concerns and have discussed them with the council’s chief executive. Like you, I am keen to find a way forward in the best interests of the children and their families.”

For Dombey, this risks becoming the latest in a string of political crises under her leadership. Jenny Batt is council’s lead member for SEND, whom council insiders believe is being lined up as the prospective LibDem parliamentary candidate for Sutton and Cheam. Her involvement in any Cognus controversy would jeopardise those LibDem plans.

And Dombey knows too well the fate of James’s predecessor as chair of the people committee, Wendy Mathys, who lost her council seat in May 2018 after Inside Sutton revealed the highly critical Ofsted report into Sutton’s high needs sector.

Undaunted by their unlawful guidance document, Cognus offers SEND and the Law courses

Drummond, meanwhile, remains frustrated by the lack of action from the council leadership. “Cognus and the council are clearly failing some of our most vulnerable residents, and the council’s own report has confirmed that money is not the problem. Competency and leadership are the problems, and they remain the same problems identified by Ofsted well over a year ago,” Drummond said.

“The council has a statutory duty to look after these children properly. It cannot foist the blame on Cognus. However, I fear the only solution may be to close Cognus and bring the service back in house, or, in a worst-case scenario, see Ofsted put the service into special measures, as happened with children’s services in Croydon in 2017.

“I no longer have confidence in the chair and vice chair of Sutton’s people committee to lead us through this positively, and I call on them and the leader of the council to publicly condemn the actions of Cognus in the light of Dr Gray’s report.”

You have to admire the shameless chutzpah of Cognus, however.

While effectively blocking EHCP provision for dozens of SEND families seeking support for their children, the company is meanwhile offering its services with a number of lucrative courses and services: SEN Tribunal support? £90 per hour; Autism Parent Programme, a cool £2,250; and the pick of the lot, SEN and the Law, for a cool £300 a pop.

You just couldn’t make it up.

About insidecroydon

News, views and analysis about the people of Croydon, their lives and political times in the diverse and most-populated borough in London. Based in Croydon and edited by Steven Downes. To contact us, please email
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