Mixed Reaction

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Douglas Silas summarises the responses to the SEND Review consultation.

Where are we now with the SEND Review?
The SEND Review was a ‘Green Paper’ issued for consultation and, now that the consultation is closed, the government needs to consider its response and issue a ‘White Paper’, which is then issued as a ‘Bill’ and will then formally go through the parliamentary system and amended before being laid before the Queen for Royal Assent, after which it will be published as an ‘Act’.

What was the response?
Overall, the response from parental and professional education and disability organisations (not including local authorities) has been quite critical. These criticisms are best summarised in the submission from the widely respected Education Select Committee, who previously conducted an 18-month enquiry on SEND in 2019, after which they said that the SEND system needs to be more accountable, easier to navigate and less adversarial for parents. Their subsequent submission can be summarised as follows:

  1. The Committee welcomed some of the SEND Review’s proposals, such as standardising Education, Health and Care Plans (EHCPs) and the provision of more Education Psychologists (EPs), but expressed concerns about whether the Review proposals would actually address concerns.
  2. They pointed to the need for early intervention for children with SEND, which they said could help save money in the long run, compared to only spending later, when issues are more entrenched, more difficult and more expensive to resolve.
  3. They also referred to the lack of accountability in the proposed SEND system and the lack of incentives for schools and local authorities (LAs) to fulfill their legal obligations.
  4. They said that Ofsted should play a bigger role in monitoring and reporting on schools/LAs and that nobody should be judged ‘Outstanding’ if they were not also rated ‘Good’ or ‘Outstanding’ with respect to SEND and this would require changes to the framework in which they operate.
  5. The Committee pointed to the fact that the LGSCO (Local Government and Social Care Ombudsman) still did not have powers to investigate concerns within schools (only within LAs) and suggested (again) that the LGSCO now be allowed to look at things ‘beyond the school gate’.
  6. They expressed concern that the SEND Review was proposing to now only let LAs let parents choose an education setting for their child from a pre-tailored list, arguing that there were potential risks in a ‘one-size fits all’ system.
  7. They also expressed concern that EHCPs were still not always being issued within the 20-week legal time limit (which only happened in 59% of cases).
  8. The Committee’s submission drew major attention to the fact that there was insufficient funding within the SEND system, which was a key issue, and they said that too much was actually being spent only when families get into crisis. They pointed out that they had heard evidence from the Public Accounts Committee that some proposals (such as digitising EHCPS) would need to be funded from existing LA SEND budgets and so the Department for Education (DfE) have not properly costed and worked out the net cost of its package of proposals in the SEND Review.
  9. They also discussed the need for there to be a ‘neutral advocate’ to help parents and carers with less access to financial and social resources to try to navigate the SEND system, which was ‘bureaucratic and adversarial’, to ensure that no children and young people would be disadvantaged.
  10. Finally, the Committee expressed concerns about how the SEND Review was not necessary and also emphasising the importance of getting children and young people with SEND ready for employment.

What did other organisations say?
One other major response to the SEND Review Green Paper came from IPSEA (Independent Provider of Special Educational Advice), which is the largest charity representing parents/carers and young people. The main points they raised were:

  1. The Green Paper was based on the mistaken premise that there was a lack of clarity in the SEND system and there was too much discretion. They pointed out that this was false, as the law was already clear and specific. They added that the Green Paper should not be diluting children and young people’s rights, rather than proposing a solution where the law is now not upheld.
  2. They said that the current SEND system is ‘broken’, because it lacks local accountability with no negative consequences for unlawful decision making by local decision makers, but there is no need to legislatively reform everything, because the requirements are already there in the existing SEND legal framework.
  3. They expressed concern about the lack of enforceability of ‘SEN support’ and suggested that this could be done by putting ‘SEN support’ on a statutory footing. They added that making schools more inclusive requires upholding and enforcing the existing equality legislation in mainstream settings and that will require a change in the culture that prevails in schools, not a change in the law.
  4. IPSEA also pointed out that, if a system is based on national bands and tariffs, children and young people will be less likely to be considered individual and get the support they need.
  5. Finally, IPSEA said that there needs to be a less adversarial system, but what is being proposed will make the SEND system less accountable and more adversarial. They also said that the new proposed term of ‘Alternative Provision’ should not be conflated with the phrase ‘Special Educational Provision’, as it risks children/young people with SEND being stuck in unsuitable settings that did not meet their needs.

Weren’t there some positives as well?
Yes, it was not all bad. Apart from those referred to above, some of the other SEND proposals were welcomed:

  1. Providing a national template for EHCPs.
  2. The continuation of extended powers for the SEND Tribunal to make recommendations on health and social care needs (although these would be better if the Tribunal was able to make funding orders).
  3. The proposal to put ‘SEN support’ in schools on a statutory footing for children who do not need an EHCP but still need extra provision or support.

    In the last issue of SEN Magazine I wrote that the proposals were generally met with a warm reception from LAs. They pointed out that the previous SEND reforms from the Children and Families Act 2014 had failed to improve the system as hoped and, although placing children/young people at the centre of the SEND system was right, the reforms were not supported by sufficient funding to allow them to succeed. The Local Government Association (LGA) also points out the following:
  1. There are not sufficient powers of funding in the current SEND legal framework to allow LAs to meet the needs of children and young people with SEND, or hold health and education partners to account for their contributions to local SEND systems. There should also now be a more contractual relationship between LAs and schools in the provision of high needs funding (especially with multi-academy trusts), to clarify roles.
  2. Mental health issues should not be seen solely as an NHS issue and LAs should be treated as an equal partner and adequately resourced to be able to support all children/young people with these difficulties.
  3. The government should provide additional high needs funding to LAs whilst the Green Paper proposals go through the system and come to law over several years and help them eliminate their financial deficits for SEND.

    Since then, though, the LGA has also issued data which says that it shows that the number of children approaching councils in England for SEN support has increased by a quarter in a year with nearly half a million children now on EHCPs. They point out that this will continue to rise and add significant pressures to their high needs budgets and that the new national standards being proposed could provide the clarity required for both LAs and parents/carers alike, as well as for other public sector partners that they have, such as schools and health organisations, who together share the responsibility of tackling these challenges.

What’s the prevailing view?
Overall, the view seems to be that there does not need to be a significant overhaul of the existing law in relation to SEND and that, rather than lacking clarity, the current SEND legal framework is clear about what children and young people are entitled to and where responsibility lies. There is concern that the government’s current proposals and reforms, if implemented, may have an overwhelmingly negative impact on children and young people with SEND, as it would become harder for them to access support that they need and harder to also seek redress when these needs are not met.  Another concern is that the proposals may actually make it harder or ‘raise the bar’ for parents/carers/children/young people to get what they are entitled to.  

Finally, there has also been concern that, rather than helping parents/carers/children/young people navigate the system, the government proposals are now trying to help LAs and schools avoid their current legal duties.  There is also a worry that the idea of standardised provision for SEND is problematic as each child’s needs are unique, that creating a less adversarial system without an appropriate route of redress which is accessible and transparent could lead to unlawful decision making. Reducing the number of available schools may leave children and young people with unmet needs and undermine parental confidence in the SEND system, as a lot of potential settings will be taken ‘off the table’ for children and young people, and decisions about which schools to include on lists are likely to be ‘costs-led’, with LAs only listing the cheapest options. 

Douglas Silas
Author: Douglas Silas

Douglas Silas
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Specialist SEN solicitor Douglas Silas is the Managing Director of Douglas Silas Solicitors.
W: SpecialEducationalNeeds.co.uk
T: @douglassilas
F: @douglassilas

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