SEND Reform - Areas of Concern

Why is it a good idea to take away the Tribunal’s power to name a school in an EHCP?
The Department for Education’s answer:

Possibly the most controversial and worrying of the proposals contained in the government’s White Paper is the proposal that, when a parent, carer or young person appeals against the placement named in section I of an EHC Plan, the tribunal can find that the local authority acted unreasonably in naming the placement in question, but cannot substitute the name of another setting. Instead, the child or young person in question will be left in limbo, quite possibly without educational provision at all, whilst the local authority reconsiders the question – after which it can name the same placement again.

The rationale behind this proposal, which potentially breaches the right to education and the right to a fair hearing, has been a mystery for some time. However, at a recent online meeting, Georgia Gould, Minister of State of Schools, responded to a direct question on this. She said that it was based on discussions with special schools who had told the DfE that they had had children placed with them against their will when in their view the placement was unsafe, and that this had caused serious problems.

Whilst giving the Minister credit for at least answering the question, those listening were left extremely puzzled by this. If a tribunal has ordered a school placement despite representations that the placement would be unsafe, it can only be because the school and/or LA has failed to provide evidence to that effect, or else that such evidence as it did provide failed to convince them.

So, put yourself in the shoes of the Minister faced with this serious problem. You have two possible remedies: Do you:

• (a) Provide training to schools and LA tribunal representatives in how to present their evidence and argue their cases effectively; or
• (b) Change the law to take away the rights of parents, carers and young people to ask the tribunal to name the school of their choice, also dealing with any legal challenges that may arise as a result?

On the face of it the answer seems obvious, but apparently that isn’t the case for the DfE.

We have to question seriously whether this is the major problem depicted by the Minister. If it were, it would have received considerable publicity, and as a charity we feel sure we would have come across it – not least because, if those placements really were unsafe, surely the schools in question would have used their right to exclude the pupils in question, given their safeguarding duty to other students, and we would have heard about a stream of cases of children left without placements directly as a result?

If this really is the major motivation claimed, we challenge the Minister to provide chapter and verse in terms of the numbers and types of schools concerned and the statistics over, say, the last five years of failed placements resulting from this problem and no other. We are sure this won’t be difficult, as we are confident that the Ministry has not put forward a major controversial policy initiative without thoroughly researching its evidence base and checking the claims apparently made by the schools in question.

Assessments – A hidden threat?

Before the White Paper came out, it was widely rumoured that the Government proposed to make it more difficult to obtain an EHCP for a child by making the criteria for assessment tougher. In the event, there is nothing in the White Paper putting this forward as a proposal, although it does appear that the intention is to limit EHCPs to children with the most complex needs.

However, an apparently incidental comment on page 105 of the White Paper does give some cause for concern. This is in the section relating to appeals, where it is stated that there will still be a right of appeal against a decision not to carry out a needs assessment. However, the paper then states:

We will set a clearer threshold for assessment

And that is all it says about it.

So, what is the current threshold? The Act says that local authorities must assess if they are of the opinion that –

• The child or young person has or may have special educational needs, and
•  It may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

We have to admit that we have never come across any suggestion that that is unclear. Indeed, it is a refreshingly clear and straightforward test. It sets a relatively low bar for assessment, but it is still necessary to demonstrate that the child’s needs cannot be met via the support normally available in mainstream schools. Given that at this point the child has not been assessed, it would be unreasonable to require parents and young people to satisfy a more stringent test and, given that agreeing to assessment does not commit an LA to issuing an EHCP, it is hardly burdensome.

So three major questions arise:

• What does the government claim is unclear about the current test?
• What does it propose the new test should be?
• Why is it not including the new proposed test in the consultation document?

We would invite the DfE to answer, without delay.

Individual Support Plans – Help or hindrance? (Part 1)

One of the central planks of the DfE’s White Paper on SEND is the proposal that all children with SEND, whether they have an EHCP or not, will have an Individual Support Plan (ISP). This will be a flexible digitised document, drawn up by schools in collaboration with parents, young people and children, which will deal with day to day provision for the child’s needs. It will be reviewed at least once a year. Schools will receive funding to help them deliver special educational provision, and will have a statutory duty to do so.

One of the main advantages of this is said to be that it will mean pupils get support without having to go through the assessment process currently needed for EHCPs. This is put forward as an advantage because that process has been shown to result in significant delays: however, that happens in our experience mainly because there are not enough experts available to give the professional advice required for this purpose, local authorities are understaffed and underfunded, and because some local authorities themselves feel no need to hurry up a process which may lead to their having much more expensive obligations to the child in terms of support. This and previous governments have long been advised that there is a fairly easy and obvious remedy for this which does not require changing the law or the entire SEND system, namely providing adequate funding and ensuring that LAs are incentivised to comply with the law, but apparently the DfE does not hear or does not accept that advice.

We question in particular the assumption that it is necessarily helpful to try to put support in place without ensuring that the relevant child’s needs are thoroughly assessed. With every respect, teachers and SENCos cannot be experts in all types and degrees of learning and physical disability and how to provide for them, and it really is not appropriate to leave decisions about what the child’s difficulties are and how to provide for them solely to them. All too often we have come across cases where schools simply fail to recognise or accept that a child has difficulties because the child masks too successfully; or they are unaware that, for example, a child who appears to be articulate may have a significant communication and neurodevelopmental difficulty if they struggle to understand figurative speech (i.e. metaphor, jokes, irony etc); or they are unaware of the serious effects sensory difficulties may have on children’s wellbeing, mental health and ability to learn. In that situation schools may well put in place, for instance, 1-1 support or small group work which is of little or no help, when the same funds spent on speech and language or occupational therapy would be much more useful.

We have been given little information about what extra funds will be given to schools to cover the responsibilities that they will be taking over from local authorities, save for the promise that primary schools will receive £14K per year under the Inclusion Fund and secondary schools £48K – which is hardly generous. It would take a very strong-minded SENCo indeed to include expensive provision in an ISP knowing that the school will have to find the money and it may break the budget. There is a serious risk that provision will be omitted, not because it is not needed. but because schools cannot afford it.

The promised benefit of flexibility has to be viewed in this light also. Whilst on the face of it, flexibility to meet a child’s changing needs sounds good, the other side of the coin is the risk of provision being removed from the ISP simply because the school is struggling to provide it, not because it genuinely believes the child does not need it.

We will consider the issue of dealing with disputes about ISPs and enforcing them in our next post.

Individual Support Plans – Help or hindrance? (Part 2)

As set out in our last post, one of the central planks of the DfE’s White Paper on SEND is the proposal that all children with SEND, whether they have an EHCP or not, will have an Individual Support Plan (ISP) drawn up by schools in collaboration with parents, young people and children, and dealing with day to day provision for the child’s needs. Schools will have a statutory duty to deliver the provision set out in ISPs.

This is touted as an advantage for children who would not qualify for an EHCP, because schools will have a duty to deliver support rather than to use their “best endeavours” to deliver it, as is the case now. It is said that they will be accountable via school’s complaint systems, strengthened by the addition of a “SEND expert” (e.g. a local SENCo or lead teacher with SEND experience), and by virtue of the fact that Ofsted will scrutinise complaints data. However, this seems to be yet another example of the DfE interpreting the word “accountable” to mean something rather different than what everyone else thinks it means. For this to be a useful right, delivery of provision has to be enforceable.

School complaints processes generally involve starting at a low level and working up through the headteacher to a panel of governors. Governors are volunteers from all walks of life bringing wide ranges of valuable expertise – not only in relation to education, but including such areas as finance, commercial, property, social care, medicine, public relations, local knowledge and contacts, and many more. They tend to have little background knowledge of SEN. It is a role which involves a high degree of responsibility for which such wide-ranging expertise is really helpful, and it has become increasingly time-consuming over the years.

We have not heard anything about what discussions, if any, the DfE have had with governors, but we have serious doubts and concerns about the proposal that school complaints panels either can or want to deal with the issues envisaged. The DfE proposes that governors will receive training in SEND and relevant law, but of course they cannot be forced to undergo such training, which would have to be long drawn-out in itself to cover the required information adequately. Are busy people who did not come into the role to deal with SEND issues really going to volunteer for this plus what is likely to be a heavy time commitment dealing with SEND complaints?

Bear in mind also that it is envisaged that governors will also have to adjudicate on the contents of ISPs – a role which is now filled, in relation to EHCPs, by an expert panel of paid lay judges with experience and expertise in education and SEND who receive extra training before they start work and must continue to attend training afterwards, chaired by a legally-trained judge, and who are also regularly monitored and subject to the oversight of the Upper Tribunal and higher courts. Can parents really have faith in the ability of complaints panels to deal with such issues properly?

The DfE proposals rely heavily on the proposed additions of the SEN expert to the panel as a remedy for all problems, although they have not said who will have to pay this person. It is dubious whether a SENCo or teacher could really be described as an “expert”, with the best will in the world – their training on SEND law is limited, and the term “SEND” covers such a wide spectrum that their experience of is is of necessity also limited. If the idea is that governors must always follow and accept the SEN expert’s advice, that effectively gives one person complete decision-making power, which is clearly dangerous. If it is not, then the SEN expert will always be in the minority and their contribution may well make little difference.

Parents have also raised the question of whether they can really regard a governors’ panel as unbiased. Governors have to work with the head and staff regularly, and, not unnaturally, do not want to show the school in a bad light – especially in the knowledge that Ofsted will be looking at complaints data, as a bad Ofsted judgment is going to reflect badly on the entire governing body. This will not necessarily be assisted by the addition of the SEN expert, since schools tend to get together for training and similar events; indeed, the White Paper itself encourages more collaboration between schools. Statistics demonstrate that governors’ panels adjudicating on school suspensions and exclusions uphold the school decision in over 90% of cases.

Finally, what happens if a complaints panel does find against a school? They have literally no power to enforce their decisions. Obviously one would hope that the school would take findings seriously, but there is nothing that requires them to do so. Unfortunately if they are penalised for failing to deliver provision, the much-vaunted flexibility of ISPs will mean that it will be very easy simply to amend the ISP and drop that provision. Whilst the DfE will point to Ofsted’s power to scrutinise complaints, this is of little practical use to a child who needs provision immediately, not a year or two later when Ofsted turns up.

One answer the DfE gives for this is that parents can bring disability discrimination claims through the Special Educational Needs and Disability Tribunal. This is of course true, and undoubtedly such claims will rise. The reason they are relatively little used now is that they involve some very complex law, and the remedies available are quite limited. Any such claim will be brought against the school and, given that a discrimination finding is a very serious matter, is likely to be hard-fought and adversarial. Is that really a desirable outcome of the reforms?

As for children with EHCPs, which is better? The proposed ISP, or an EHCP based on individualised thorough assessments describing the provision they require in detailed and specified terms and with a statutory obligation enforceable by complaints or through judicial review? It’s not a difficult question to answer – except, apparently, at the DfE.

We will be updating this section throughout the consultation to highlight areas of concern. Please check back.