EXCLUSIVE: One of Sutton’s senior councillors is under pressure over continuing failures to provide legally required services for hundreds of vulnerable youngsters. CARL SHILTON reports
LibDem councillor Marian James: she appears to have got herself into a bit of a hole over Sutton’s SEND
It is becoming increasingly apparent that Marian James, one of Sutton Council leader Ruth Dombey’s most senior councillors, has never heard the old adage, “When in a hole, stop digging.”
Despite being subject of questions in the House of Commons in the past fortnight, James’s best efforts over Sutton’s “inadequate” SEND service have made an already bad situation worse. Claims made by James about improving education and health care provision for some of Sutton’s most vulnerable youngsters have been flatly contradicted by parents’ groups. Some have even suggested that the councillor has been lying.
The dispute over the comments made by James, the chair of the council’s “people committee”, has prompted one families’ campaign group to say that she and other senior figures at the civic offices should “consider their positions”.
This comes a fortnight after Theresa Mayhem, at one of her final Prime Minister’s Questions in parliament, promised that Sutton’s SEND service – which failed an Ofsted inspection last year – would be getting an early return visit to check-up on the work James and her colleagues have been making over the provision of from inspectors education, health and care plans – EHCPs.
The tensions between the various organisations that advise on and deliver Sutton’s services to those with SEND – children, teens and young adults with special educational needs and disabilities – reached a new peak this week.
A series of statements and emails has inflamed the situation, while appearing to confirm Ofsted’s damning report conclusion from March 2018 that highlighted the lack of leadership in service provider Cognus, and also among the council’s politicians.
Children and young adults with SEND should receive an EHCP assessment from their local authority by right. 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.
Hundreds of SEND families maintain that Sutton is still failing to deliver the services that are required by law. Cognus, a mainly council-owned spin-out company that is supposed to deliver those statutory services, continues to reject the majority of requests for assessments for EHCPs.
As Inside Sutton reported last month, while the borough has one of the highest levels of SEND funding per capita in the country, it also somehow manages to reject three times the national average of applications. The high refusal rate sees many Sutton families taking the council’s decision to tribunal, where 87 per cent of cases are won by parents.
Parents claim that Cognus has been using unlawful guidelines, and applies unlawful and burdensome thresholds for agreeing an assessment, with the apparent deliberate aim at blocking families’ and children’s access to vital provision. An average EHCP plan, when fully implemented for schooling and health care, is reckoned to cost councils around £10,000 per person, per year.
Following Sutton’s SEND service criticism by Ofsted, the council and Cognus produced a Written Statement of Action (WSOA) last July and agreed a timetable to implement those proposals. In the subsequent 12 months, deadlines have been missed repeatedly, some pushed back six months or more.
Among the targets missed include redesigning the Local Offer website (LocalOffer is another statutory requirement of SEND provision by local authorities); developing a strategy for SEND across the partners; and implementing measures that would help schools to address needs at SEN support and EHC plan levels.
Hayley Harding, with her son: she is campaigning for Sutton to provide legally required services
Sutton EHCP Crisis, a campaign set up by Worcester Park parent Hayley Harding to seek justice for children and families unlawfully refused EHCP assessments by the council, has more than 230 members and is now crowdfunding to take Sutton to the High Court for a judicial review. They broke the initial £2,000 target in just a few days.
It looks increasingly likely that the Liberal Democrat administration at Sutton Council is manoeuvring to set up a sacrificial lamb at Cognus to take the hit for ongoing shambles in the service. Any departures from Cognus might avoid the political difficulties of councillors being forced to resign their committee positions, and going without the often generous “special responsibility allowances” that go with them.
Last year’s Ofsted report specifically blamed the leaderships at Cognus and the council for the problems, saying, for example, they were inaccurately self-evaluating their own work, had not checked the quality of EHC plans and did not have ways of monitoring outcomes for SEND pupils.
“Parents and providers typically told inspectors that they lacked confidence in the local offer because they are not convinced it is up to date,” the report said.
Sutton Parents Forum is a group that represents 900 families in Sutton with a child or young adult with a disability or additional needs. It receives public funding, and a condition of its grant is that it is prevented from campaigning against the council.
Nevertheless, the tensions escalated on in the last week of June when the Forum posted an update on its website, which stated that they were “aware of the current local concerns that are being discussed in the media with the EHCP campaigning group”.
The update continued: “We completely agree that the Educational Health Care Needs Assessment (EHCNA) process must be legally compliant (s.36(8) Children and Families Act 2014) and that local policy that applies a stricter test is not lawful.
“We also completely agree that the Local Authority needs to have a clear and robust process for contract monitoring arrangements with Cognus Ltd, the Local Authority Trading Company commissioned by Sutton Council to deliver education services. There needs to be stricter monitoring of outcomes and key performance indicators to ensure appropriate levels of accountability.
The council-funded Forum’s update went on to explain that they had held meetings with council officials. Among the points arising from these discussions were that the council acknowledged that communication with Cognus needed to improve.
At one of the meetings, the council officer said that they “appreciate” that the EHCP assessment process can be “unnecessarily stressful” for families. They gave an undertaking that “there will be a more person-centred approach for each case and that the process will be lawfully compliant”. Undertakings were given that the Forum would be granted more of a role in the process.
The Forum’s update continued: “However, the Steering Group’s experience of trying to work with Cognus leaders suggests we have some way to go in embedding coproduction working as they do not seem to fully appreciate or recognise this role. Until they do so, it makes it difficult for us to have effective input to improving services and processes in this area.
“For example, we have not yet had any input to the new Cognus guidance document for the EHCP process.” This, remember, is now 15 months since Ofsted inspectors handed down their “inadequate” report on the SEND service in Sutton.
The council was shocked by Sutton Parents’ Forum’s coldly delivered statement.
High-handed: Marian James
LibDem councillor James issued her response on the council’s own website last Tuesday. “We know that for a small number of families we need to improve the support we offer children and young people with special educational needs and disabilities.
“This has been identified by Ofsted and the Care Quality Commission (CQC) and we know parents and carers share their concerns. We responded to the issues they raised, and have a plan in place that is leading to the improvements we need.
“We always value the feedback we receive from Sutton Parents Forum … we welcome the statement and contributions of the Forum and will ensure they have input into any new documents as part of the process.”
James’s statement just poured fuel on the fire. Parents and their campaign groups reacted with a fury at the councillor’s high-handed and dismissive attitude to their struggles with her council’s failing SEND department.
James compounded her misjudgement by sending an email on the same day to Harding, a number of other parents, and the Sutton EHCP Crisis Group. The campaigners maintain that James made several untrue claims about the SEND service.
Harding, who is a qualified solicitor, had previously written to James, pointing out that Sutton Council had since September 2017 used unlawful criteria for EHCP assessments. “This is a matter of grave concern to us and cannot wait months to be dealt with because there are children in Sutton that need the help urgently. We require that immediate steps are put in place to re-assess every decision to reject a child and such re-assessments are completed by an independent lawyer using s. 36(8) of the [Children and Families Act 2014].
“Where it is revealed that a child should have had their assessment approved, such assessment then takes place immediately and a full apology to the family is given.”
Already deep in a hole of her own making, James decided to dig herself even deeper: “Officers and Cognus have confirmed that requests for EHC Needs Assessments have been considered by reference to Section 36 of the Children and Families Act 2014 and the Special Educational Needs and Disability Code of Practice (January 2015) since at least September 2018.
“All recent EHC assessment decisions have been made on the basis of relevant documentation which accords with the current Code of Practice. Parents who requested an assessment will have received information about how to challenge the decision if they wished either through informal routes or through mediation or appeal to the first tier Tribunal.
An object lesson in condescension, and untruth: Marian James’s email sent last week claiming that Sutton SEND has been acting lawfully
“I do not agree therefore that it is appropriate for decisions made some time ago to be reviewed. The information received about the child would now be out of date and if the parent or education setting had been concerned about the decision they received at the time they could have raised those concerns or made a further request for assessment.
“I am satisfied that lawful decisions are being made going forward.”
Effectively, James was claiming that Cognus and the council’s SEND service had been conducting EHCP assessments properly, as laid down by the law, since September 2018.
But Inside Sutton has seen multiple documents, some as recent as May this year, which prove the opposite – Cognus and Sutton Council are still rejecting requests for assessments on unlawful grounds, and have been continuing to use templated letters with unlawful clauses.
Letters sent to parents during 2019 quote a 98 per cent performance threshold for learning difficulties. That is Sutton Council’s own condition, and it is unlawful. Inside Sutton has also seen a council tribunal defence from May 2019 that suggests that a child’s needs “are predictable or exceptional” and therefore the appeal against assessment should be refused. This is again unlawful, providing further proof that Cognus and Sutton continue to apply these unlawful conditions to refuse EHCP assessments.
So while James’s email acknowledges that up to September 2018 the assessments requests were indeed being dealt with unlawfully, her position now suggests that she is not on top of her brief adequately, or she is deliberately sending out untruths.
Harding takes serious issue with James’s casual dismissal of the request to review refused assessments.
“Children’s SEND needs do not simply go away,” she said.
“There could be hundreds of families in Sutton who have simply given up on seeking the help that their child is rightly and lawfully due, because Sutton Council and Cognus used unlawful criteria to refuse an assessment. I am utterly amazed at this total lack of understanding and empathy for parents who have been put in heartbreaking and stressful situations by the incompetence of the administration’s SEND leadership.”
Harding singles out James and her colleague, Councillor Jenny Batt, the people’s committee vice chair and the council’s lead member for SEND, as being responsible for the on-going shambles.
“I think councillors James and Batt should be seriously considering their positions,” she said.
“Councillor James says that she and Cognus are listening to groups like the Sutton Parents Forum. But the Forum stated clearly that it had not yet had any input at all to the vital new Cognus guidance document for the EHCP process. It begs the question of what is actually going on behind the scenes, and why the communications remain so bad, despite the promises of improvements.
“It is issues like this, and the council’s refusal to understand the trail of devastation they have left across families in Sutton, that is driving us to seek a judicial review.”
At Sutton’s Civic Offices this Thursday evening, James and Batt are expected at a people’s committee meeting to discuss the progress on the Written Statement of Action, and the high-needs spending review that slammed the council’s SEND services as “not fit for purpose”, despite Sutton receiving more money per head than any council in the country.
A petition presented by the Sutton EHCP Crisis group that gained more than 700 signatures, and demands an overhaul of Sutton’s SEND provision will also be debated. With a large contingent of aggrieved SEND parents expected, James and Batt might wish they had taken solicitor Harding’s advice and resigned.
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