Making sense of SEN law

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How well do education professionals understand the law around SEN?

Inclusion and positive outcomes are not on the rise, in spite of genuine commitment from a range of professionals to support children and young people with SEN and disabilities. The reasons are not straightforward; the SEN system may not be perfect, but is at least thorough, so why isn’t it doing better? The new SEN Code of Practice (CoP) sets out a variety of improvements but also makes clear that the test for provision of an EHC plan is the same as the test for the provision of a statement. So one reason for the lack of improvement could be connected to the prevailing understanding of what the Children and Families Act is intended to deliver in practice.

But, how fair is it to criticise relatively new legislation for misunderstandings resulting in failures that affect children and young people with SEN and disabilities? The Act  is only four years old – except, of course, that its SEN element is based on the Education Act 1996. Twenty-one years seems quite long enough for these ideas to become familiar. The test of whether a plan or statement must be made hasn’t changed, but has the statutory definition of SEN changed? The answer is not wholly straightforward. If you had SEN under the Education Act, you will still have SEN under the Children and Families Act. However, the pathway to identifying SEN, in law, has changed.

Defining SEN

Under the old law, SEN was identified if a child had learning difficulties which required special educational provision. Learning difficulties were identified if a child had significantly greater difficulty learning (SGDL) than their peers, or they had a disability which prevented or hindered their access to school. Under the Children and Families Act, SEN is identified if the child or young person has learning difficulties or disability which call for special educational provision to be made. Learning difficulties or disability are identified where there is significantly greater difficulty learning than the child or young person’s peers, or there is a disability which prevents or hinders their access to school.

Given the mental contortions required to follow the original test, why was the wording of the legislation changed, but apparently not made simpler? Look closely, and you will note that SEN is now defined by learning difficulties or learning disability and, viewed this way, the new definition is an improvement, bringing education into line with health, who have been using the term “learning disabilities” for some time.

What is unclear is the reason this change is not highlighted in the CoP, though this does explain why local authorities continue to refer to disabilities which also result in SEN and other awkward formulations which hark back to the definition in the Education Act. Today’s definition of SEN originated in the Warnock Report (1978) which coined the term “special educational needs” (SEN), but did not attempt an objective definition; we have Parliament to thank for that. In 2005, Baroness Warnock described the statutory definition of SEN as “the purest vicious circle you will ever know”.

It would be difficult to take issue with that, in spite of the recent improvements, the law still says that a child has SEN if they require special educational provision, and a child requires special educational provision if they have SEN, giving no indication of what either means on its own. For any more clarity on the matter you’d need to look very closely at the CoP. The CoP does attempt to define special educational provision – “education that is additional to or different”. Elsewhere, learning difficulty is defined as “significantly greater difficulty learning”. “Learning” isn’t defined anywhere, but the CoP helpfully adds that “slow progress and low attainment” may or may not mean a child has SEN.

Essentially, the law says a child has SEN if they need additional help, but, to get that additional help the child must have the label “SEN”, so, rather than seeing need and reacting to it, the system withholds help until the complexity of SEN, or need for help, is at such a level it cannot be overlooked, and withholds any useful definition which might otherwise avoid this situation. The law which sits behind the current reforms is about as far from “person-centred” as it is possible to be, but all this certainly explains why people might misunderstand the law around SEN. So, what do they think it says?

The law in practice

In 2016, I set up a survey designed to answer this question. In total, there were 23 questions, relating to SEN, disability and exclusion, and the option for participants to give some information about themselves. Requests for participation were sent to 3,384 schools, local authorities and parent partnerships; 74 people participated. Half of the respondents worked directly or indirectly with children and young people with SEN, including class teachers, SEN teachers, learning support assistants, a SENCO, three assistant headteachers (one with responsibility for inclusion), a school business manager, a SENDIASS advisor and manager, and a senior support officer. Describing their own knowledge:

  • 22 “more or less” understood the special educational needs system
  • 3 said they understood the system “completely”
  • 3 said they “didn’t really” understand the system
  • 1 didn’t understand the system “at all”
  • 12 said they felt that they had received sufficient training on the SEN and disability regime.

The results of the survey suggested that the level of understanding of the law around SEN, disability and exclusion, among professionals working with children and young people with SEN is weak. They also show that although legal principles may be understood, they are not consistently translated into good or lawful practice.

Across all 74 respondents, 20 per cent felt that SEN related to learning difficulties only, with disability being dealt with entirely separately; half of those worked in education. More positively, 95 per cent of people were aware that disability is not only physical, but more than half of these felt, incorrectly, that the impairment must be permanent. More than four in ten participants were able to identify who ought to have an education, health and care (EHC) plan, the same proportion who answered that the level of support made available for a child with SEN, but no EHC plan, is at the school’s discretion. Under six in ten were aware that schools receive funding for children without a plan.

Although 90 pr cent of respondents were able to identify what reasonable adjustments constitute, almost 40 per cent felt that these did not apply to admissions or behaviour policy (including two assistant headteachers). Interestingly, almost all respondents recognised that a child with mobility issues could be excused standing when a teacher entered a room, but only 60 per cent responded that adjustments would be made for a child with emotional difficulties. Most tellingly of all, in response to the question “Can a mainstream school interview the family of a child with SEN to see whether they are able to meet the child’s needs?” 70 per cent responded “yes”; 24 of these people worked with children with SEN.

The results showed that while it is understood that reasonable adjustments might be physical or policy changes, it is not understood that these adjustments are applicable to non-physical impairment. The duties flowing from the Children and Families Act and Equality Act applying to admissions and exclusions are poorly understood. So while the legislative merry-go-round surrounding the definition of SEN has a lot to answer for, it does not really explain poor inclusivity and outcomes; direct duties to meet the needs of children with EHC plans are reasonably well understood, but not the duties to make the adjustments that will be needed to allow these children to access education alongside their peers.

So, it seems clear that it is not the SEN reforms that are failing children, the greatest challenge to inclusivity is in schools’ application of the rights and duties around admissions and exclusions for children with SEN, and the failure (or ability) of local authorities to address this. There is good news: the transition to the Children and Families Act (theoretically) comes to an end in April this year, at the same time as Ofsted is applying pressure on local authorities through Area SEN Inspections. Will local authorities now be better placed to address challenges around inclusion and unlawful exclusion? I certainly hope so.


Further information

Ian Clarke has a masters degree in legal practice and SEND law and currently works as an independent consultant to local authorities, helping them to implement the Children and Families Act.

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