July 25, 2024, Special Needs Jungle: SEND is an existential threat to LAs’ financial sustainability; junking the SEND Tribunal is part of the answer, claims new report
Relax everyone, ISOS Partnership, the research darlings of local government, have fixed SEND for us all with a new offering, and what a behemoth of unwanted change it is. Junk the SEND Tribunal, cut legal rights, and make all but the most “profound” and “exceptional” of disabled children attend mainstream school, where provision will be wonderful. But never mind about alternative provision or pupil referral units, because they aren’t bothering with a plan for them.
When new research about SEND is published, funded by the Local Government Association (LGA) and County Councils Network (CCN), we at SNJ are immediately sceptical, and understandably so. And when they select ISOS Partnership, a consultancy that produced the LGA-funded hatchet job of a report just before the publication of the SEND Review, our hackles are raised even further.
The research is published today. It’s not so much blue sky thinking as much as imagining a human race where everyone does the right thing, and we all skip around working in perfect harmony, with no need for legal safeguards.
However “independent”, the language uses a “demand” narrative that’s firmly in the realms of local authorities. Bizarrely, it claims all parties in SEND “act perfectly rationally” with how the system is designed and “The challenges in the SEND system are not the result of any group behaving in unreasonable ways, but instead, the result of an incoherent system that inadvertently perpetuates tension, creates adversity, and sets everyone up to fail.”
So, ignoring legal deadlines and compliance is “rational” and reasonable in ISOS’s world. The system is not incoherent, it’s chronically underfunded and the people administering it have little care for legal compliance. What it’s also lacked for the last decade is the will to implement the 2014 reforms fully.
The report does correctly point out that the Children and Families Act was brought in at the same time as other reforms in schools and that played against it. This is something Ed Timpson, the former SEND Minister spoke about in our podcast recently. However, what it fails to recognise is the wider legislative framework that LAs and Schools are subject to - for example, the Equality Act 2010, the Care Act 2014, the Childcare Act 2006, S6(2) and others. These legislative duties also shape the responsibilities of actors within the SEND system.
What is the research based on?
The research is based on the premise that “SEND is broken”. It acknowledges the previous government’s SEND Improvement Plan (SIP), but doesn’t think it will solve the issues. It says national reform is both “essential” and “unavoidable”. Given that ISOS also has its fingers in the funding pot of the SIP via the RISE Consortium, Department for Education civil servants may well take a dim view of ISOS saying the Change Programme won’t work…
It claims to include the views of all stakeholders. However, its list of who’s been consulted is primarily LA staff and other professionals. Young people have been engaged via the Council for Disabled Children’s FLARE, youth group, and parent carers via the the National Network of Parent Carer Forums.
The research focuses itself around three questions and suggests several “root causes”, claiming there’s a “perfect storm” creating ”ever-increasing demand for SEND services.”
1. What are the root causes of the challenges in England’s SEND system preventing it from being effective and sustainable?
The first is “The Volume Challenge” (aka, increasing numbers of children in need of support). This rakes over well-known issues that we have covered in great detail, principally, leaving input so late that children need a greater level of support from an EHCP.
It does single out extending entitlements to age 25 as one of the reasons for increasing “volume and demand pressures” (i.e our young people) but claims this only postponed the cliff edge of support drop-off (wait till you read their solution) . . .
2. Does the previous government’s improvement plan adequately address the challenges?
Under “The decision-making challenge” the report claims there is a “lack of clarity about how SEN and EHCPs are defined.” It points to the legal definition of SEND as being too broad–which is most definitely an LA perspective. LAs want EHCPs to be harder to get and easier to cease, and this report agrees.
Lawyers would argue that the legal definition is very clear- it’s just that LAs don’t like it.
It quotes survey participants as saying that responsibilities for SEND were not equitable across LAs and health services, and had not fostered a more joined-up approach across education, health and care. But this isn’t a problem with the law – it’s a failure of culture and management.
Nevertheless, “system leaders” apparently think it’s the SEND Tribunal’s fault for making legal judgements about the law it’s literally tasked with upholding, because it makes inconvenient directives regardless of available provision. But this report has a plan for that (and it’s a non-starter)
We, however, concur with the findings of the AJC that urges LAs to get decision-making right first time by properly applying the law instead of delaying provision and damaging children’s education. When we worked on the current laws that came in in 2014, support for the child and their family were front and centre. This report places resources and systems at the forefront.
Despite its claims to be independent, ISOS is steeped in local authority-think, focusing on finances and balancing the books, rather than what is best for children and young people. It’s taken a complex issue and decided that supporting families comes way down the list. Is this what we want? A system that is there to protect itself instead of supporting vulnerable people? Naturally, a system in financial distress should be avoided, but as it’s clear that funding is the major issue, then perhaps better research would be to ask how much it actually needs to be sustainable.
3. What national policy reform is needed to deliver an effective and sustainable approach to SEND?
The third cause is “The Market Challenge” and we can agree with the concerns relating to profit-making independent special schools. This shouldn’t happen but does because of the need for provision. The previous government earmarked funding for new local state special provision, although this is not yet on stream.
The report concludes, as do we, that the previous government’s Improvement Plan, which is well underway, won’t solve the challenges in the system.. . .
ISOS’s eight recommendations, and our thoughts on them
ISOS rather grandly calls its eight recommendations a “blueprint for reform”. They group these into three sections: setting the national ambition; putting principles into practice; and underpinning conditions. These again, are system-focused, because protecting the system is what matters über alles.
Recommendation 1:
A new national ambition, based on “two foundational principles” of “promoting inclusion in education and in preparing young people for adult life.” and that all policy should reflect this. This seems a reasonable statement - but of course, the devil is in the detail.
ISOS wants to clarify what “additional needs” means and how different needs are met.
Changing the language from “special” to “additional” won’t bring about a shift from a medical model/deficit/need approach to a ‘social model’ approach with a focus on inclusion. Just ask parents in Wales, where they’ve changed SEN to Additional Learning Needs. They’ll tell you it’s changed nothing but the word.
The report wants “needs” to be categorised on a continuum from universal to exceptional (more on this later). However, this overlooks that children don’t necessarily fit in one level of need; they often have co-morbidities, meaning that each child needs something different. For example, one academically-able autistic child may do well in mainstream with in-class support. Another who also has similar academic potential may also have ADHD and, perhaps Pathological Demand Avoidance (PDA) and they will need something very, very different to meet this spiky profile. A child who has Down’s syndrome can also be autistic, or their learning needs may be more profound than another child with the same overarching diagnosis. This recommendation seems not to understand this.
Recommendation 2:
“Create a National Framework that describes types and levels of needs, and that provides clarity about the levels of need to be met in mainstream education and expectations of ordinarily available provision. “
Arguably, much of this is what is already being tested with the previous government’s ongoing SEND Improvement Plan– except these plans are the SIP on steroids and without compassion (and that’s saying something). It’s seeing children as widgets to be popped into boxes.
Following on from recommendation two, this Framework would be based on “national descriptions of levels of need”, rather than provision. News flash to ISOS, we do already have a system based on need… But ISOS’s needs would be around blunt categories alluded to above (and report p108), of: “universal”, “mild”, “moderate”, “intensive”, “profound” and “exceptional”. And, if you don’t agree, then tough, as there won’t be a SEND Tribunal left to challenge them at (see later for this).
The report suggests creating another new layer of bureaucracy, in the form of an independent “National Institute of Inclusive Education”, as a “custodian of national expectations and evidence-based practice.” Presumably, this wouldn’t be a voluntary enterprise, so would cost a lot of money to create, recruit to and run. It may also come as a surprise to the existing “What Works In SEND” evidence-gathering programme where ISOS is a partner, to see it’s being reinvented.
The report states that “building capacity for inclusion in mainstream education is the necessary condition for reforming support for children and young people with SEND. This must be done in a way that enables and supports mainstream education, rather than adding expectations and requirements.”
Capacity is just one element– children in special provision because they need small class sizes, or a quieter environment, therapies built into their timetable, or closer supervision, may not meet a “profound or exceptional” threshold, but they wouldn’t thrive in a noisy class of 30 sharing a teaching assistant. And while ISOS’s brave new world thinks smaller class sizes might be possible with their plan, we treat this, all of it, with a healthy dose of scepticism.
Recommendation 3
Number three proposes a new “core offer” of targeted, multi-disciplinary support to help inclusion– from therapists, EPs and other services – that all education settings can access without children and young people requiring a statutory plan.
This is how it’s supposed to work now, but the decimation of the specialist workforce means it doesn’t happen very often. Some of the proposals are already part of the current Change Programme.
While the research allows special schools to exist, they would be limited to children with “the top two levels of need as ‘profound’ and ‘exceptional.” This means they’d need to decide what need-level the children with spiky profiles have. Plus, if you’re talking about fewer special schools, they will be further away from a child’s home– meaning long daily journeys or residential provision, and we have seen exactly what can go wrong there.
For some with “lesser” needs the report floats the idea of “'time-limited placements in special schools, to develop particular skills or ways of learning, before moving back into a mainstream school.” This is very similar to the SEND Improvement Plan’s ideas for Alternative Provision which would see children bouncing to AP to be “sorted out” and then back to mainstream. This would be disruptive for all. Children would miss chunks of learning in their mainstream setting, and their friendships would be disrupted, making it even harder for them to achieve. It’s clearly not written by anyone with experience of parenting a child with SEND.
Conveniently, the report hasn’t included AP in its remit– but understanding the reasons children are in alternative provision is crucial to knowing how to make inclusion a reality– these are the children who mainstream have failed. This fact makes the report fail in all its premises. What would happen is that children with SEND would be crammed back into mainstream schools and when they can’t manage, they can be shunted off to alternative provision. Okay then.
“Reform will be unsuccessful if it is perceived as removing support,” says the report, self-evidently. “For that reason, while we think reform of the SEND statutory framework is necessary, this should only be introduced after the enabling building blocks of a more inclusive approach to education have been put in place.”
Here’s the thing–making schools more inclusive is already the goal, but removing legal safeguards is a very backward step. It displays a fundamental misunderstanding of the law; it’s a safety net for individual children and not a way to protect LA resources. In any case, a truly inclusive system wouldn’t need as many parents being forced to secure EHCPs as the only way to get support, but dismantling those legal entitlements is foolhardy.
Recommendation 4
But here we go… recommendation 4, is to “reform elements of the SEND statutory framework so that the state can set out a clear, consistent, equitable and sustainable offer of support for children and young people with additional needs”. ISOS says this would “enshrine the practice behind the original idea of EHCPs, in the form of regular, personalised assessments, planning and reviews of…a new Learner Record.”
‘We do not propose merely to tinker with the statutory definition of SEND, but instead to reframe it completely.’
“‘...in most cases, parents and carers will no longer have to battle to get an assessment or become experts in the law to have their child’s needs recognised.”
Recommendation 6
In other words, disabled children’s rights would be removed from the statute books and parents wouldn’t have to battle because most needs wouldn’t be eligible for an assessment in the first place. Ah, Utopia for local government- no wonder they funded and endorsed this “independent” report.
What would be left of the law? “A reformed SEND statutory framework should maintain a role for parental preference in admissions” No, we’re not making this up. What would “the system” have to fear from strong legal entitlements if they rarely had to be tested because it did everything it was supposed to? If people were angelic enough always to do what they should, and not do what they should not, we might as well dismantle the entire judicial system because there would be no crime.
Instead of a strong SEND statutory framework, ISOS wants “independent, non-judicial mechanisms for dealing with disagreements about decision-making (umm… mediation, anyone?). It graciously allows a role for an Ombudsman, but leaves access to specific provision to the “National Institute” instead of the Tribunal.
But we’ve got news for ISOS— we’re very reliably informed that even if they were successful in getting rid of the SEND Tribunal, there would always be a means of legal redress through judicial review—and that’s way more expensive for LA’s.
And another thing. Since at least 1996 we’ve had a rights-based system to protect individual children, not based on the resources (LA, NHS, Gov) available but the needs of an individual child. This report is arguing this needs to change and individual rights need to now be removed so provision can be restricted according to the resources available. And then not challenged. It’s a debate successive governments have a brushed under the carpet as “too hard”. I cannot imagine this Labour Government removing rights.
Recommendation 5
As young people reach adulthood, ISOS recommends greater joint working across services and better “tracking of progression and long-term outcomes.” with yet another new body: a new local Destinations and Progression Service”. This idea actually has some merit, overseeing young people with additional needs as they approach the transition from children’s to adult services, which would be aligned across education, health and care at age 18.
But, given that it’s just for two years, that means a reduction in entitlements to the age of 20, not 25, and only for those with the statutory document. Those who are at SEN Support level with the new Learner Record will need to leave state education at 18 as all other mainstream pupils do, (unless their needs suddenly increase). A massive saving perhaps, but an even bigger loss of legal entitlements for disabled young people.
This recommendation is for joint working “with responsibilities aligned with powers and accountabilities.” Obviously, with fewer entitlements, the things they are accountable for are much reduced…
It seems to be pushing more responsibility for the identifying of need and the provision needed to mainstream education settings, without recourse to a statutory assessment process. Of course, in this world, the practitioners would have all the time and expertise they need, and clearly, parental input would be superfluous.
Recommendation 7
This is around working with the independent sector, involving them in local strategic planning and “used strategically for highly specialist provision and expertise that complements, rather than replaces, local state-funded provision”. Really not sure independent special schools would want to be part of an LA’s strategy, although obviously, they already complement local provision. Two points we do agree with here: banning shareholders profiting from state-funded placements and independent schools being subject to the same Inspection regime as all other education providers.
Recommendation 8
The last (thank the Lord) recommendation is a system-wide workforce strategy, something that the current Change Programme does not go far enough with.
Our trusty new National Institute will step in here, specifying who is needed to deliver provision and the skills they need to have. And, as if by magic, they shall appear….
What do we agree with?
We’ve been quite harsh in places about this report– as we should when anyone suggests radically reforming SEND by trashing legal entitlements for vulnerable children. We don’t want any current legal entitlements to be diluted, trashed, reduced or otherwise removed.
But there are things we agree with
That the education system should be tackled as a whole, not just SEND.
A greater focus on inclusive practice and more families having meaningful choice of a local mainstream school.
Accountability for SEN Support, cementing and making statutory new definitions of Ordinarily Available Provision that should be provided in every mainstream setting
The need for better workforce development and training
LAs being able to open new schools to respond to local need
A greater focus and planning for young people approaching adulthood
Better planning/commissioning of local provision
We agree that the current SEND & AP Improvement Plan is not going to improve things in the way that is needed
Independent schools shouldn’t be able to profit from state-funded provision
Independent schools should be under the same inspection regime
Our view on this is that this report has been created specifically for the new Labour government, in case it isn’t sure what to do with the existing SEND Improvement Plan. As with the previous SEND Review, the LGA and the CCN want to get in first with its agenda to reduce children’s rights to save money.
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