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Ian Clarke explores how the promises of the Government’s 2014 SEN reforms are working out in practice  

Anyone involved in SEN in any way – parents, schools, advocates, charities and local authority staff alike – will be aware of the huge energy being expended to achieve good things for children and young people with SEN. They may also feel that in spite of this, children and young people with SEN are increasingly marginalised and denied their basic right to an education which meets their needs and gives them a fair chance of a successful life. The introduction of the Children and Families Act 2014 was intended to improve this situation.

Introducing the Act, at speed, in a time of austerity was never likely to go well, but are these factors alone sufficient to explain the increasing failure to meet the needs of children and young people with SEN or is there a more basic issue? Do people really understand the laws that protect this vulnerable group? This involves not only knowing what the laws say, but what they actually mean.

Upheaval or smokescreen?

The SEN regime has undergone considerable upheaval over the last few years, and changes which were intended to improve the landscape for this minority group have been plagued by misinterpretation and failures of implementation. It might be reasonable to assume that this is at least in part connected to a large number of changes having been made to the law. In fact, it doesn’t take long to establish that the volume of change made to SEN law is not actually that great.

In spite of this, the Children and Families Act is widely believed to have transformed the system. This view was (and in many cases still is) damaging the provision that children receive, as schools and professionals in some areas have used the idea of huge change to the system to justify their inability, or mask their unwillingness, to meet a child’s needs. However, this is not to say that the switch to the education, health and care (EHC) plans didn’t seek to introduce important and much needed changes, mainly set out in the SEN Code of Practice (COP).

The positive move away from “behavioural issues" to an emphasis on unmet social, emotional or mental health needs has regrettably fallen flat in many areas, especially as mental health and advisory services come under more and more pressure from cuts and increasing levels of demand. A raft of new buzzwords and phrases – “local offer”, “person-centred”, “aspirations” and “outcomes” – are now on many people’s lips. Perhaps most importantly, education, health and social care are beginning to work together to meet children and young people’s needs.

Where it was previously sufficient to set a series of objectives to be met (arguably by the educator rather than the pupil), a child or young person’s aspirations should now form the backbone of an EHC plan, with outcomes being constantly revised as the child or young person moves closer to their aspirations. In short, it should be a dynamic and transparent system which should empower children, young people and their families to get the support they need to make a real difference to their lives.

The switch from addressing difficulties to achieving outcomes has proved to be easier said than done. The rules identifying a child or young person as having SEN, and the implications of them, are not always fully grasped. On top of this, the many other duties that educational settings have to children and young people with SEN are frequently overlooked. Duties to children and young people with a disability, where it is physical, may be well implemented, but, this begins to tail off where the disability is periodic, and is frequently poor in respect of less visible conditions such as autism or anxiety.

Working together

A child or young person with SEN is theoretically protected on all sides by four key areas of policy and practice:
special educational needs legislation
fair admissions processes
equality legislation and reasonable adjustments
appropriate use of exclusion.

The SEN COP makes it clear that there is a significant overlap between children and young people with SEN and those with disabilities. Many children and young people are covered by both special educational needs and equality legislation. In spite of this, the different pieces of legislation are often viewed as being completely separate, due to the thinking that a child or young person is protected by one or the other, but not both.

The intermediary between the law and its implementation in an educational setting has traditionally been the local education authority (LEA), and, more recently, the local authority (LA). Since the introduction of free schools and academies, many settings no longer look to the local authority for guidance. As a result, differing approaches to SEN can be found across the range of educational settings, with local authorities having limited resources, or suitably placed staff, to challenge this. In the worst cases, schools, concerned about grades, are actively pushing back against the most basic rights – not letting children with SEN in or pushing existing pupils out.

Because of a lack of comprehension of (or care for) the law, and an emphasis placed on protecting schools and not children, bad practice is frequently not given its correct name: discrimination. This discrimination is being perpetrated against one of the least vocal social groups, and one potentially most unable to defend itself. So the question is a straightforward one: do people know the law and ignore it, or simply not know it in the first place?

Is SEN law understood?

In 2016, I decided to use my masters degree dissertation as an opportunity to find out. I set out to measure levels of comprehension of the duties to children and young people with SEN in the four key areas outlined above. I looked at paperwork concerning children identified as having SEN from countries both within the EU and elsewhere in the world. It was clear that although the SEN system in England may not be among the most progressive in the world, it is far from the shameful state found in countries not so very far away. The problem seemed not to be what should be done, but what is done.

To test the idea that the law isn’t properly understood and that, if it were, matters would be improved, I created an online survey. The aim of the survey was simple: to create a picture of the knowledge of the law around SEN and disability, and how it is being implemented. The survey confirmed that the law is not well understood.

In a series of articles in forthcoming issues of SEN Magazine, I will write about what I have learned about practice in SEN, disability, admissions and exclusions, and hopefully add a little clarity to what the duties in these areas are. Better understanding and the confidence to challenge will ultimately disempower those who maintain, deliberately or otherwise, discriminatory practice and see children and young people with SEN getting the support they have a right to.

Further information

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


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