The Government has announced its plans for major SEN reform. How the law is going to change and what it all means for SEN provision
The Government has at last published a “progress and next steps” response to the SEN Green Paper consultation which ended more than a year ago. So, after all this time, what more does it tell us and what questions are still left to be answered? In this article, I will discuss some important themes in the Government’s plans and their implications for the future of SEN.
The continued commitment to a single assessment to assess a child/young person’s needs across education, health and social care which could result in an education, health and care plan (EHCP) is strongly re-emphasised. The fact that such an assessment can be carried out from birth to 25 years old should be welcomed as providing consistency for this vulnerable group of people.
As of yet, we still have no detail as to what alternatives to the existing statutory assessment process are actually being explored by the 31 pathfinder local authorities (LAs) that are piloting potential new ways of assessing.
Crucial questions that have to answered include, who is responsible for triggering such an assessment, on what basis will such an assessment or a re-assessment be made, what happens if there is a disagreement as to whether this assessment or a re-assessment should be carried out, who will be compelled to take part in such an assessment process and to what extent?
Strong emphasis has been placed on the fact that all agencies involved in supporting a child will be compelled to work together. However, under the current educational statutory assessment process, health and social care already have to be consulted on a child’s needs and the necessary provision to be put in place to meet those needs, so what additional duties will they now have to make that advice any different.
The central issue that has not been mentioned yet is how to make the assessment process independent from LAs. I am not aware of any current pathfinder pilots that are looking at someone independent from the LA carrying out assessments of children’s needs. This vital problem in the existing system has been explored and commented upon for many years by many people. Education Select Committee investigations into this separation issue have identified that the fact that an LA is responsible for carrying out assessment and then making the provision identified is a key factor in undermining confidence in the current system.
However, the fundamental issue goes much deeper than just separation of these duties. The current basis of the SEN legal framework outlines a process which is driven by identifying a child’s needs and then an LA making the provision to meet those needs. Unlike in our health care or social care systems, an LA can never make a decision not to make a provision once it has been identified as being needed based on financial resources. However, the reality is that LAs do not have the infinite budgets needed to finance such a system. They cannot afford for children’s needs to be assessed independently and for recommendations about the provision to support those needs to be not resource influenced. An LA can only argue about where, when and how this provision should be made; it cannot say that for reason of the effect on the public purse they will not provide something.
Education, health and care plan
The Government response reconfirmed that the new EHCP will afford parents the same statutory protection in education as the current statement of SEN but did not commit to the same level of protection to the health and social care elements to the plan – just a “commitment” from all parties to provide the services identified.
It is disappointing that the EHCP does not yet have the support of health or social care legislation to ensure that provision identified as being necessary to support a child’s needs is put into place. This issue needs to be addressed if this measure is to be a radical change in supporting children/young people. There is a real danger that the EHCP will be no different from the existing system where a child is entitled only to the educational support identified in a statement and not any non-educational help.
We should be concerned that therapies that have long been regarded, and accepted by courts, as being essential in the education of children with SEN and disabilities, such as speech and language therapy, occupational therapy and physiotherapy, may in an EHCP be regarded as provision for health services to make – so medical rather than educational provision. Children would therefore not have an entitlement to them and parents, on their child’s behalf, would have no remedy if such services were stopped. If adopted, this would be a significant reduction in a child’s entitlement.
The introduction of a local offer document issued by an LA that would make it clear what provision is normally available within education, health and social care services within their area could potentially be radical and promote transparency in a system that builds trust between parents and professionals.
In order to be effective in supporting good partnership working between parents and professionals, the local offer needs to be specific about what can and cannot be provided within an LAs existing SEN resources. However, the need for flexibility in distributing these finite resources should not excuse failing to quantify and qualify what a local offer includes.
It must be recognised that the provision that a local offer outlines is generalised. The law will still entitle a child to an assessment of their special educational needs when there is the probability that his/her needs call for an EHCP. Only statutory assessment can determine the actual provision an LA will be legally obliged to arrange for a child with SEN and this may be in excess and different from what is contained in the local offer.
It is alarming that the Government “… envisage that the local offer will support The First-tier Tribunal (for Special Educational Needs and Disability) and others considering redress when making their decisions since they will be able to see what provision can reasonably be expected in local schools and colleges and from local health and social care services to support children and young people with SEN and their families in each local area.” Under the current legal framework, the Tribunal must have regard only to the child’s needs and whether the special educational provision determined by the LA is adequate in kind and amount to meet those needs. It is currently unlawful for the Tribunal to judge that provision is adequate on the grounds that it is “what can reasonably be expected in local schools and colleges.” The Government is in danger of misunderstanding the function and the legality of the local offer or being accused of weakening the law on SEN so that children’s right to the provision required to meet their individual needs is removed and replaced with a right to what can be “reasonably expected”. There also needs to be an effective means to challenge an LA where the local offer provision is not being made.
Improving parents’ choice of school
The Government’s commitment to ensuring that admission into all state funded schools, including academies and free schools, will be on the same basis for children with statements of SEN as admissions to maintained schools is to be warmly welcomed. This is overdue as parents currently are unable to appeal to the SEND Tribunal for a place in an academy unless the academy agrees to be named in a statement. Many children will be left without a school placement in September because of this disparity in the law so I would urge that the Government should implement this change as soon as possible.
However, it is still a grave concern that there is not direct parity of protection under the SEN legal framework for children in maintained schools and those attending academies, free schools, studio schools and university technical colleges. Children with SEN in academies are only protected by the contractual commitments within an academy’s funding agreement and these will vary greatly between different schools.
Inclusive schooling guidance
The Government seems to have taken note of the evidence it received that there was no bias to inclusive education. It has committed to the incorporation of the current commitment to inclusion into revised statutory guidance – the SEN Code of Practice.
The inclusion of indicators in school performance tables that give parents clear information on the progress of the lowest attaining pupils will at last give recognition to those schools that effectively support pupils with SEN but who even with the best support are never going to meet conventional measures of SATS or GCSE results. It will give parents of children with SEN a real measure of the potential effectiveness of a school for their child.
Developing and introducing new legislation
The Government say that “The lessons learned from the pathfinders will help us to decide how best to change the law and will be reflected in the legislation we aim to introduce to Parliament in the current session…we aim to publish a draft Bill in summer 2012.” But as of June 2012, pathfinders have only just started recruiting families to trial single assessment and planning processes. This summer is clearly far too soon to expect that there will be “lessons learned”.
The Government says that “An interim evaluation of the pathfinders will be published by October 2012, with a final evaluation report following in 2013”. It would be easy to conclude that there is a determination to place on statute the practices piloted through the pathfinder schemes well in advance of knowing whether these practices will bring any actual benefit to children and their parents.
It would seem logical to introduce legislation to support a more extensive and in-depth piloting process and for the results of evaluation to be publically disseminated and discussed before incorporating pathfinder schemes into education law.
Change is never easy but it can be made a lot manageable if introduced in a logical and transparent way. The effect on children and families of getting it wrong will be devastating for the rest of their lives; time spent gathering solid evidence now will build a strong foundation for a better system for all.
Jane McConnell is the parent of a child who happens to have complex SEN. She is legally qualified and is the current Chief Executive of IPSEA (Independent Parental Special Educational Advice), a charity that provides free, independent, legally based support and advice to parents negotiating the SEN system: