SEND: Protecting children’s rights and stopping unlawful practice

Catriona Moore, Policy Manager at IPSEA, discusses whether there are ‘magic’ solutions to the special education needs and disabilities (SEND) crisis or whether we should focus on ensuring compliance with the current legal framework.

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We have heard a lot about the SEND crisis in recent years. What are the main issues, and can we fix them?

IPSEA recently submitted evidence to the House of Commons Education Committee inquiry called ‘Solving the SEND crisis’.¹ The inquiry focuses on achieving short-term stability and long-term sustainability for the SEND system to improve experiences and outcomes for children and young people.

All children and young people with SEND have a legal right to an education that meets their needs. But many tens of thousands of children and young people with SEND are not getting the support they are legally entitled to. We told the committee there wasn’t a magic solution—just two choices. One is to ensure compliance with the current legal framework, which offers legal rights and protections to children and young people, and the other is to change it.

Yet, if we change the law, how will the situation improve with so many already struggling to get the special educational provision they need within the current rights-based framework? Diluting legal rights and entitlements would reduce the services that schools and local authorities are required to provide for children and young people with SEND, but would not reduce their needs. The current framework has all the components that should support children if appropriately implemented.

IPSEA recently celebrated its 40th anniversary. How much has changed since the charity started?

To celebrate the anniversary, we went back through our archives to find what was written about SEND in the past, and we found that the same issues keep recurring. We came across a transcript of evidence that John Wright, the first director of IPSEA, had given to an Education Select Committee in the 1990s. As a charity, we were saying the same things we find ourselves saying now, which is frustrating and alarming. It also indicates that some problems are not specific to the 2014 Children and Families Act.² Getting children assessed and supported in the education setting they need has always been challenging. It has always required parents to be well-informed about how the system should work.

You went through the system yourself with your daughter Amy. What was your experience?

My daughter Amy was diagnosed with Rett Syndrome shortly before her second birthday. She had some health issues from birth, and it was very clear that she was going to have significant special education needs. When she got her diagnosis, I thought it would make the process easier, even though I know that the system isn’t diagnosis-based. I was, therefore, shocked when I applied for a statutory assessment for her (as it was then), and we were turned down.

So, even with Amy’s serious diagnosis of Rett Syndrome, my very early impression of our local authority was that they weren’t very interested. I reapplied six months later and got a statement so she could start at a special school at the age of three.

How necessary is this early intervention?

It is essential and means two things. The first is addressing a child’s identified needs as early as possible in their life. The second is intervening promptly when an issue is picked up, at whatever age this might be.

Too often, support is only given when things have become urgent and bad experiences have already occurred. Early intervention is right there in the current SEND code of practice.³ It’s how the system is supposed to work.

There are rumours about a new SEND White Paper. What things would you like to see in it?

It is not so much what I want to see as what I don’t want to see in this White Paper. I would like to see no watering down of existing rights, changing thresholds, or restricted support. I would also like to see the existing legal framework maintained.

We had the Green Paper three years ago, which contained many proposals.⁴ The previous government received thousands of responses and detailed analyses of what was proposed. If these proposals had been implemented, they would have represented a significant overhaul of the system, but they weren’t implemented. It would also have required legislative change, and the previous government didn’t bring that forward. A White Paper suggests the government plans to introduce reform actions without consulting similarly.

At IPSEA, we want to see more accountability in making the current legal framework work for children and young people. I can’t imagine any other area of life where following the law is seen as an optional activity. It’s hard to understand how local authorities can get away with it so consistently.

The Department for Education recently announced it will invest more in inclusion in mainstream schools. Do you think that is a good idea?

Inclusive mainstream education is an important principle, and it’s one of the principles that underpins the current SEND code of practice,³ so it’s not something that’s just been thought of. The law is clear that children are entitled to an education that meets their needs, whether in a mainstream school or a specialist setting.

In addition, sending children to mainstream settings to reduce spending and hoping for the best is inadequate. To make it work, school staff in mainstream settings must undergo extensive training and have much more SEND expertise than currently exists.

This will also require mainstream schools to be much more willing and open to being genuinely inclusive. They must follow the Equality Act and make reasonable adjustments to ensure that all children are included in all aspects of school life. This frequently does not happen for children with SEND in mainstream schools. One of the reasons why I am so enthusiastic about a good special school is the expectation that every child will be involved in everything.

Until now, mainstream inclusion has felt like a government slogan. They have just repeated the same thing about making mainstream schools more inclusive, with special schools for children with the most complex needs. We need more details about how it will work. The problem arises when SEN support can’t be enforced, as this tends to enable non-inclusive practice in mainstream schools. This is at odds with the government’s policy of greater inclusion of children and young people with SEND in mainstream settings.

If funding weren’t an issue, would more local authorities implement the current law?

I’m not an expert in local government finance, as IPSEA’s area of expertise is the law. Local authority budgets are stretched, but they have always been stretched. It comes down to priority setting. It’s not just resources; there is also a cultural issue. Some local authorities feel that if you give families an inch, they will take a mile. There isn’t evidence that they will. Most of us don’t want the local authority endlessly involved in our lives, but parents of children with complex needs are unable to ultimately manage everything ourselves, so we need some help from public services.

At our annual SEN law conference in March, Professor Chris Gill, Lecturer in Public Law at the University of Glasgow, spoke about why the law is often not implemented. He described it as a problem with ‘identification with the law’ and that some decision-makers do not agree with the law as it is written. They are pushing back against individual children having the right to an education that meets their needs, which might be very expensive for the local authority. They might want to prioritise things differently in their local area, but if they don’t apply the law, they will lose if their decision is challenged at a tribunal.

What is the impact of losing these rights on families?

We are seeing an increase in children not in school because their parents have decided to
homeschool them. They feel like they don’t have a choice because the support they need isn’t there. The government presents this a bit too easily as elective home education, but
elective implies deciding when, in fact, it’s often driven by complete desperation. There are also children with Education Health and Care Plans (EHCP) who don’t have a school that meets their needs because the plan might say that they need a special school, but one isn’t available.

One of the things that the media gets very excited about is children being transported in
taxis to schools and the associated costs. But no parent wants to send their child somewhere far away to school.

Local authorities must take their commissioning responsibilities much more seriously. It is their job to understand the needs of the population they serve, including the needs of children and young people now and in the future. They should consider what type of school provision will be needed—how many specialist units will be attached to mainstream schools and how many special schools.

There have recently been some interesting discussions about how public services traumatise the people they should support. Lots of families start their relationship with the local authority in the wrong way. Then, local authorities will say that parents are difficult, and I expect they will have training sessions on managing difficult parents. Nobody starts off being difficult.

How damaging are the ‘pushy’ parent tropes?

The fact is that the system only seems to work when parents make it work. In what other aspect of life do you have to become an expert in the law to make it work how it’s supposed to? So parents are responsible now for enforcing the law. The families enforcing their children’s legal rights are then portrayed as unacceptably pushy.

Our view is that every child who needs an EHCP should have one. The Department for Education has produced no evidence that children are walking around with plans they don’t need. Some media use this terrible ‘golden ticket’ trope, but an EHCP is extremely hard to obtain. Once you’ve received it, ensuring it’s implemented is an ongoing challenge.

As the recent education inquiry suggested, how practical would national standards be instead of EHCPs?

That is an interesting one, as the Children and Families Act did not envisage every child with SEND having an EHCP in the reformed system.

There has been an enormous rise in requests for EHP needs assessment, followed by a massive increase in the number of plans. One reason is that the other half of the system isn’t currently working well enough. This is why all this talk about reducing reliance on statutory support worries me. When it’s this difficult to get it, even when it is statutory, what will happen when it is not?

How can professionals help improve the system from within?

Parents would like to work in partnership with decision-makers and ensure they understand that they will not make endless, unsustainable demands. They want to feel that decision-makers know about their children’s needs now and are prepared for their needs in the future.

Often, panic causes parents to behave in a way that decision-makers think is unreasonable. Decision-makers shouldn’t push parents away, and they should also have some emotional intelligence. They need to understand that nobody has chosen to have a child with complex needs.

They are not trying to bankrupt local authorities or get things they are not entitled to. Parents are doing their best to learn how systems work and navigate them while ensuring that their children have the best lives possible.

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This article is in loving memory of Amy Reyes, who died recently, aged 17. She is greatly missed by her mum, Catriona, her father, Eduardo, and her sister, Abby, as well as all her friends and family

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References

1. https://committees.parliament.uk/work/8684/ solving-the-send-crisis/
2. https://www.legislation.gov.uk/ukpga/2014/6/ contents
3. https://www.gov.uk/government/publications/send-code-of-practice-0-to-25
4. https://www.gov.uk/government/consultations/ send-review-right-support-right-place-right-time