Douglas Silas looks at the Government’s current SEND Review.

The Review has been generally warmly received by Local Authorities, but some parent organisations have expressed criticism that it does not make local decision makers more accountable for their decisions, and that it may limit parental rights.

What is the SEND Review?
The SEND Review was finally issued at the end of March 2022. It is properly titled ‘SEND Review: right support, right place, right time’ and opens a consultation on new ‘ambitious’ proposals to deliver greater national consistency in support, access and funding for children and young people with SEND, through an ‘inclusive system’ focusing on improved mainstream provision, improved accountability and improved data collection.

It is hoped that a new SEND system will now resolve inequalities, avoid the need to ‘ration’ services and build parents’ and carers’ confidence. The aim is to make things more ‘joined-up’ again and once more embrace the idea that ‘every teacher is a teacher of SEND’, creating a culture of inclusion and a whole-school approach. 

The Review states that it is the Government’s intention to also ‘level up’ opportunities for children and young people with SEND, as with every other child. Their ambition is to turn hopes into reality and help the currently 1.4 million school-age children and young people with SEND, representing nearly 16% of all pupils, to bridge the gap between themselves and their peers without SEND. 

It also talks about the need to improve parental confidence in the system, and it says that the 2014 SEND reforms (through the Children and Families Act 2014) had the right aspirations but, despite examples of good practice, resulted too often in poor experiences and outcomes for children, young people and their families. 

The Review kicks off a consultation process which ends on 22nd July 2022. Aside from asking for written contributions, there are also a series of live events to gain additional views and contributions.

What does the SEND Review conclude? 
The Government highlights again that parents and carers are frustrated at having an increasingly complex and adversarial system and that growing tension is causing delays across the system in accessing support, and increasing financial challenges for local government.

The Review also refers to a vicious circle of late intervention, low competence and inefficient resource allocation, and it points to significant inconsistencies in how needs are met based on where children and young people live or are educated, rather than on their needs.  

The Review says that it has identified three key challenges facing the SEND and Alternative Provision (AP) system:

  1. Navigating the SEND/AP system is not a positive experience for too many children, young people and their families;
  2. Outcomes for children and young people with SEND/AP are consistently worse than their peers across every measure;
  3. Despite continuing and unprecedented investment, the SEND system is not financially sustainable.

The Review recognises that sometimes the only means of guaranteeing rights and support is by obtaining an Education, Health and Care Plan (EHCP), but it points out how the increasing number of EHCPs and specialist provision mean that children and young people face significant delays in accessing support, including those with more complex needs having to attend schools or placements outside of their local area and community.

Finally, it stresses that financial resource and workforce capacity is poor at the specialist end of the system and that there is less available to mainstream settings, in terms of early intervention and timely support, resulting in this vicious circle.

So what is the Government going to do?
The Government says that it wants to turn this vicious circle into a virtuous one, where the vast majority of children and young people with SEND should be able to ‘thrive’ in local mainstream settings, without bureaucratic processes, and without the need for an EHCP or placement in special or alternative provision. 

The Review acknowledges that special provision may be the most appropriate placement for some children and young people with SEND, but says that they should be able to access this with minimal bureaucracy. 

The Review is really focusing now on trying to set up a single national SEND/AP system, with more consistency across every stage of a child’s or young person’s journey across education, health and care, so that parents and carers will be more confident that their child’s needs will be met in a local setting.  

It also intends to introduce a standardised and digitised EHCP process and template to minimise bureaucracy, develop consistency, and to streamline the redress process to make it easier to resolve disputes earlier, including mandatory mediation, with SEND Tribunal appeals now only for the most challenging cases.

How does it propose to do this?
The Government says that it will:

  • introduce a reformed and integrated role for alternative provision
  • increase the total investment in the schools’ budget, with an additional £1 billion in 2022 to 2023 to support children and young people with the most complex needs
  • improve mainstream provision, through teacher training and development, and a ‘what works’ evidence programme to identify and share best practice including in early intervention
  • build expertise and leadership, through a new SENCo national professional qualification (NPQ) for school SENCos, and increase the number of staff with an accredited SENCo qualification in early years settings
  • invest £2.6 billion over the next 3 years, to deliver new places and improve existing provision for children and young people with SEND or who require Alternative Provision.
  • deliver new special and AP free schools, in addition to 60 already in the pipeline
  • set out a clear timeline, so that by 2030 all children and young people with SEND will benefit from being taught in a family of schools, including special and alternative provision, by sharing expertise and resources to improve outcomes
  • commission analysis to better understand the support that children and young people with SEND need from health 
  • fund more than 10,000 additional respite placements and invest £82 million in a network of family hubs so more children, young people and their families can access wraparound support
  • invest £18 million, over the next 3 years, in the supported internships programme
  • improve transition at further education, including piloting adjustment passports

The Review also proposes to:

  • make AP an integral part of local SEND systems focused on early intervention
  • give AP schools funding stability focused on early intervention, by requiring local authorities (LAs) to create and distribute an AP specific budget
  • develop a performance framework for AP with robust standards on progress, re-integration into mainstream or sustainable post-16 destinations
  • deliver greater oversight and transparency on children and young people’s movements in and out of AP
  • launch a call for evidence on the use of unregistered provision and investigate existing practice
  • reform roles, accountabilities and funding
  • align incentives and accountabilities to reduce perverse behaviours that drive poor outcomes and high costs in the current system
  • clarify roles and responsibilities across education, health, care and local government by means of new national standards and accountabilities
  • introduce a new inclusion dashboard for 0 to 25 provision giving a timely, transparent picture of how the system is performing at a local and national level across education, health and care
  • work with Ofsted and the Care Quality Commission on an updated local area SEND inspection framework with a focus on SEND and AP

How has it been received so far?
Many organisations have already spoken about the Review.  One has called it a ‘pivotal moment’ but also says the ambitions need to become a reality and make a real difference.  

Some also talk about the ‘fragility’ of the current system for years which has been pushed back even further by a long and brutal pandemic that has had a major impact on the mental health of children and young people, including increased absences and a tired, overworked and disenfranchised workforce.  

There have also been a number of criticisms.  The main criticism from parent organisations seems to be that, rather than focusing on improving the 2014 SEND reforms and addressing the failure to make local decision makers accountable for the decisions they make, the Government now seems to be changing things again but limiting parental rights previously given, for example by introducing a new right to request a school only on a pre-approved LA list, or by limiting the right to appeal to the SEND Tribunal by introducing mandatory mediation. 

Some argue that this does not recognise the inherent inequality that exists in SEND disputes, as appeals are used to ensure that the law is complied with in the first place, so the Government shouldn’t restrict the chance of redress. However, the proposals have been met with a generally warm reception from LAs, who point out that the previous reforms from the Children and Families Act 2014 failed to improve the system as hoped and, although placing children and young people at the centre of the SEND system was right, the reforms were not supported by sufficient funding to allow them to succeed.

Local Authorities also welcome the fact that children and young people will now be educated more inclusively in local mainstream provision.

Douglas Silas
Author: Douglas Silas

Douglas Silas
| + posts
Specialist SEN solicitor Douglas Silas is the Managing Director of Douglas Silas Solicitors.
T: @douglassilas
F: @douglassilas


Please enter your comment!
Please enter your name here