The government has this week published the long-awaited results of its special educational needs and disabilities (SEND) review along with a green paper setting out a vision for a single, national SEND and alternative provision system.
The SEND review was launched in 2019 and was commissioned to improve an inconsistent, process-heavy and increasingly adversarial system that too often leaves parents facing difficulties and delays in accessing the right educational support for their child.
There will now be a 13-week public consultation on the green paper – Right support, right place, right time – giving families the opportunity to shape how a new system will work in the future.
The aim of the proposals, according to the green paper, are to raise standards all over the country and change the culture of mainstream education by putting it on a par with specialist settings. It also looks to ensure the SEND system is financially sustainable by making sure funding is targeted where it makes the most difference.
Although charities and parent groups have welcomed the framework for change and say it is an “important first step in terms of providing much needed funding stability for the sector”, concerns have been raised about some elements of the proposals.
Here are the main aspects open for consultation and initial responses from those who advocate and work with the SEND sector:
The green paper proposes to establish a new national SEND and alternative provision system that will set new standards for how needs are identified and met across education, health and care. This will include standards on what support should be made available universally in mainstream settings, as well as guidance on when an Education, Health and Care Plan (EHCP) is required, and when specialist provision, including alternative provision, is most appropriate for meeting a child or young person’s needs.
This would include a standardised and digitised EHCP process and template to minimise bureaucracy and deliver consistency.
It also proposes to change the timescale for the issuing of draft plans following annual reviews. In light of a recent High Court judgment, local authorities must now issue proposed amendments to the plan within four weeks of a review meeting. The government is concerned that this deadline does not strike a balance between timeliness and certainty for families and enabling local authorities to gather and consider all the information and advice they need to draft quality amendments to an EHCP.
It will therefore consult shortly on a proposal for a timescale that will enable a quality EHCP to be produced.
IPSEA, which offers independent legally based advice, support and training to help get the right education for children and young people with SEND, says that it doesn’t share the government’s view that new standards and structures are needed.
CEO Ali Fiddy says: “What we need is for the existing law to be followed in every area for every child. It’s very clear that the proposals are motivated by a desire to reduce the number of EHC plans, reduce the number of children in special schools, reduce the number of appeals to the SEND Tribunal and most significantly reduce cost.”
It also proposes to support parents and carers to express an informed preference for a suitable placement by providing a tailored list of settings, drawn from the local inclusion plan, including mainstream, specialist and independent, that are appropriate to meet the child or young person’s needs.
It says that the appropriate provision should be made available for different types of need and the national standards will set out the full range of appropriate types of support and placements for meeting different needs. This will include setting out when needs can and should be met effectively in mainstream provision, and the support that should be made to facilitate this.
It will also bring clarity to the circumstances in which a child or young person needs an EHCP, and additionally whether their needs should be met in a specialist setting (including alternative provision). For those parents and carers with children with complex needs, there will be greater clarity too in when a special school is appropriate. There will also be greater clarity about which partners should fund specific forms of support and provision.
Tania Tirraoro, co-founder of Special Needs Jungle which has been leading the debate on the SEND review and green paper, said this appropriate provision proposal is far from a needs-led system and this proposal makes it diagnosis-led and not at all holistic.
She added: “It fundamentally misunderstands the intentions of the 2014 Children and Families Act.”
Mandatory mediation could also be introduced to streamline the redress process, making it easier to resolve disputes earlier whilst retaining the tribunal for the most challenging cases.
The green paper says cases would need to go through mediation first and then be reviewed by the independent local panel prior to a tribunal appeal being registered. The government would need to consider whether this panel could make the binding legal judgements required to overturn previous local authority decisions and how this would apply across education, health and care.
Steve Broach, a public law barrister from 39 Essex Chambers and a disability and children’s rights advocate, says that this is proposing not just one but two compulsory stages before families can even lodge a tribunal appeal – mediation, then local review.
He asks: can this level of bureaucracy be in the best interests of children? What is the benefit of local review? Also how can a local panel issue “binding legal judgements”?
Ali Fiddy from IPSEA says that the proposal to reform the redress process by introducing mandatory mediation is a particular concern. Currently it is compulsory to consider mediation in most cases before appealing to the SEND Tribunal, but local authorities frequently fail to send someone with decision-making power, and cases often require judicial scrutiny.
She adds: “Making mediation compulsory will create a significant barrier to parents, carers and young people appealing to the SEND Tribunal and it is contrary to the spirit of mediation. It also fails to recognise the inherent inequality that exists in SEND disputes, which involve individual parents, carers and young people challenging the decisions of local authorities. The way to reduce the number of appeals to the SEND Tribunal is to make sure the law is complied with in the first place, not to restrict routes of redress.”
A new legal requirement is proposed for councils to introduce ‘local inclusion plans’ that bring together early years, schools and post-16 education with health and care services.
Improving oversight and transparency through the publication of new ‘local inclusion dashboards’ aims to make roles and responsibilities of all partners within the system clearer for parents and young people, helping to drive better outcomes.
There will be a new national framework for councils for banding and tariffs of high needs.
According to the green paper, the high needs budget has risen by more than 40% over three years. The high needs budget, which will total £9.1 billion in 2022-23 (over £8 billion in 2021-22), enables local authorities and institutions to better meet their statutory duties for those with SEND, including children and young people in alternative provision.
Charities such as Ambitious about Autism say that this proposal will need to be closely examined as autistic young people and their needs do not easily fit into a neat box or band. Their needs may change over time for all sorts of reasons.
According to the Disabled Children’s Partnership, this proposal also raises questions about whether these bands have the flexibility to meet individual children’s needs and, worryingly, could they be used to ration support?
It adds: “More optimistically, however, alongside the ‘local inclusion dashboards’ we hope they might clarify financial responsibilities between different agencies.”
The green paper proposes to change the culture and practice in mainstream education to be more inclusive and better at identifying and supporting needs, including through earlier intervention and improved targeted support.
Tim Nicholls, Head of Policy, Public Affairs and Research Partnerships at the National Autistic Society, says: “We hear awful stories of autistic children who spend months, even years, shut out of education because there’s no school or support to meet their needs. This isn’t new, it’s been happening for years.
“We’re pleased to see long-awaited plans from the government to improve the SEND system. Commitments to make mainstream schools more inclusive could make a world of difference to the more than 70% of autistic children who go to those schools.
“Changes to make the process of getting Education, Health and Care Plans simpler could help families who are too often pushed to breaking point, but parents of autistic children across England will know that the detail of these proposals will be crucial. Our recent research report found that a quarter of parents had to wait over three years to receive support for their child. This is unacceptable.”
The aim is to improve workforce training through the introduction of a new SENCo NPQ for school SENCos and increasing the number of staff with an accredited level 3 qualification in early years settings.
The National Autistic Society says that while it welcomed promises to improve training, it was disappointed that the government hasn’t taken the opportunity to set a clear target for all teachers to have autism training.
According to the green paper there are three key challenges facing the SEND system.
The first is that outcomes for children and young people with SEN or in alternative provision are poor. Children and young people with SEN have consistently worse outcomes than their peers across every measure. They have poorer attendance, make up over 80% of children and young people in state place-funded alternative provision and just 22% reach the expected standard in reading, writing and maths.
Young people with SEN often have fewer opportunities in later life: by age 27 they are less likely than their peers to be in sustained employment and are at greater risk of exposure to a number of harms, including becoming a victim of crime.
The second challenge is that navigating the SEND system and alternative provision is not a positive experience for children, young people and their families. Too many parents and carers do not feel confident that local mainstream schools can meet their child’s needs.
The system also relies on families engaging with multiple services and assessments, making it difficult to navigate, especially for the families of children and young people with the most complex needs. Some families with disabled children told the SEND review they were put off seeking support from children’s social care because of fear they will be blamed for challenges their children face and treated as a safeguarding concern rather than receive the support they need.
The third challenge is that despite unprecedented investment, the system is not delivering value for money for children, young people and families.
The green paper says that the government is making an unprecedented level of investment in high needs, with revenue funding increasing by more than 40% between 2019-20 and 2022-23. However, spending is still outstripping funding. Two thirds of local authorities have deficits in their dedicated schools grant (DSG) budgets as a result of high needs cost pressures.
It added: “Whilst future funding will need to take account of the increasing prevalence of children and young people with the most complex needs, this needs to be balanced with targeting spending more at strengthening early intervention. Investment cannot continue to rise at the current rate, particularly since this is not matched by improved outcomes or experiences for children, young people and their families.”
Education Secretary, Nadhim Zahawi, said that every child has the right to excellent education – particularly those with special educational needs and disabilities, who often need the most support.
He added: “We are launching this consultation because too often this isn’t the case. We want to end the postcode lottery of uncertainty and poor accountability that exists for too many families, boost confidence in the system across the board and increase local mainstream and specialist education to give parents better choice.
“I want to make sure everyone knows what to expect, when to expect it and where the support should come from. I know there are strongly held views and I want to hear from as many parents, teachers and children with experience of the system so they can help shape a future policy that works for them.”
The government say that the proposals are backed by new funding to implement them, worth £70 million, and that this will build on the £9 billion government investment in local authority high needs budgets next year and £2.6 billion for new places for children with SEND over the next three years.
The consultation runs until 1 July and you can take part here.
