CCLC responds to the Government's SEND improvement plan

On 2 March 2023, the Department for Education (DfE), after much anticipation, issued its SEND Improvement Plan: An initial overview. The plan is a follow-up to the March 2022 green paper SEND Review; Right Support, Right Place, Right Time and explains what the Government intends to do to make sure more children and young people with SEND or in alternative provision get the support they need.

The plan boldly states:

It is time to deliver a more dignified experience for children and young people with SEND and to restore families’ confidence in the system.

Below we revisit concerns noted in our previous Children and Young People Now article and consider how these have been addressed in the Improvement Plan as well as outline some other key takeaways.

Change to legislation

There are no planned imminent legislative changes, which means that the current SEND legal framework set out in the Children and Families Act 2014 and the SEND Regulations continues to apply in its entirety. That is welcoming news for many. Commentators have widely expressed that the law is not the issue, it is a failure to adhere to it by many LAs and the impact this has on children and young people with Education Health and Care Plans (EHCPs). It is worth noting however that in the accompanying SEND and alternative provision roadmap there are plans by the end of 2025 to “set out initial plans for our approach to updating the SEND Code of Practice”.

Accountability

Following from the above, the SEND review was widely criticised for not seeking to address accountability and compliance with legal framework and statutory obligations. This was acknowledged in the Improvement Plan:

We heard consistently throughout the consultation that current accountability measures are not effective enough. Many respondents felt that whilst the design of the current system and legal framework is right, more should be done to hold all elements of the system to account.

Much of this will be linked to a new set of ‘National Standards’ which will be developed following “engagement across education, health and care during spring 2023”. Whilst there are other references to some measures to increase accountability, particularly around financial accountability, the Improvement Plan, appears to have fallen short in addressing the persistent non-compliance with the legal and statutory framework by many LA. This continues to leave many children and young people not receiving the support set out in their EHCP vulnerable to regression or as we have seen in our work at CCLC, isolated from school, peers and in some cases now suffering with very serious mental health difficulties.

What about accountability through the courts?

s.42 Children and Families Act (CFA) 2014 places a mandatory duty on local authorities to arrange for all the special educational provisions set out in an EHCPs, without exception. A failure to do this can leave local authorities facing Judicial Review proceedings. Whilst Judicial Review is a very useful mechanism to remedy a LA’s failure to implement provisions set out in EHCPs, it is a very complicated legal process and not recommended to bring without legal representation. Legal costs can run into the thousands and if a parent is unsuccessful, they could be required to pay legal costs incurred by the LA. Whilst Legal Aid can be available for children and young people in their own rights, due to legal aid being poorly remunerated, there are very few firms that take in this sort of work, often leaving parents, children and young people stuck and having to rely on the LA internal complaints process, which quite frankly, can just be a route to further frustrations.

Investment in creating an additional 33 special schools

The DfE hopes to “shortly launch competitions to seek high-quality proposer groups to run these schools. This is in addition to 92 open special free schools and a further 49 which are in the delivery pipeline”. It is hoped with this, more children and young people have timely access to sufficient local special school places. Is this an attempt to redirect children to state special schools who would otherwise attend independent schools which are more costly? In the author’s opinion, albeit speculative, the answer is apparent from the DfE’s statement:

We will invest 2.6 billion between 2022 and 2025 to deliver new places and improve existing provision for children and young people with SEND or who require alternative provision, reducing the need for costly independent provision.

The important consideration for the DfE must be ensuring special schools opened are properly resourced and suitable to meet the needs of children with varying and complex special educational needs. There should be no ‘one size fits all’ approach. Nor should children be shoehorned into schools which are not able to meet their needs or provide an appropriate peer group.

Tailored lists of suitable settings

The ‘Roadmap’ states that by the end of 2023, the DfE will “start testing an approach to improve information available to families by providing them with a tailored list of suitable settings”. As previously discussed, any restriction on parents being able to express a choice would give a very concerning level of control to LAs which would be at odds with the past and present legislation, in particular s.9 Education Act 1996, and statutory guidance. The DfE has said that they remain committed to delivering a tailored list of placements, but this will be tested through the ‘Change Programme’ to ensure there are no unintended consequences for families. The DfE also reassures us that they will “continue to listen to children, young people, families, SEND sector professionals and system leaders”.

It is not yet clear whether, in the long-term, the DfE will seek to amend legislation to restrict a parent’s right to put forward a placement not on a ‘tailored list’. At least in the short-term, this does not appear to be the case as the DfE has said:

In the areas we test this proposal, there will be no change to the existing statutory framework and parents and young people’s existing rights will be unaffected.

Implementing a new standardised and digitised EHCP process and template

The plan outlines that: “we will now start work on a national EHCP template, supported by guidance, in partnership with relevant bodies, including parents, children and young people”. In addition, “we will encourage all local authorities to adopt the template and consider the case for mandating its use through legislation”. Furthermore, the DfE wants to digitise EHCPs to enable “better experiences for both families and professionals and enable them to continuously improve their services – focusing staff time on working with families rather than managing bureaucracy”.

Whilst the DfE says it will consult relevant stakeholders, we suggest this should include LAs, lawyers, advocates, parent support groups and importantly the SEN tribunal. As noted in our previous article, Barrister Alice de Coverley, who advocates regularly in the SEN tribunal, makes the critical important point:

Any blanket digitisation of EHC Plans must come with the necessary resourcing and training for LAs, as well as careful consideration of accessibility for everyone using the Plan (particularly for those with disabilities and those who do not have access to a computer or technological support).

Whether standardised and digitised EHCPs is a positive move, will depend on the final product pushed out by the DfE.

Mandatory mediation

Plans for mandatory mediation appear to be continuing. Whilst acknowledging some of the concerns expressed during the consultation, the DfE has stated:

We will continue to explore options for strengthening mediation and will test and evaluate approaches further before deciding whether to bring forward legislation to make these strengthened processes statutory and make mediation mandatory.

This does little to reassure many who share the view it would be incredibly unfair on parents (and of course the child or young person) to be forced to undergo mediation in cases where the LA has already caused huge delays, failed to carry out proper assessments of need, or made detrimental decisions about their child’s SEN. Appeals to the Tribunal can already take up to 12 months to reach a conclusion; mandatory mediation is likely to further exacerbate this.

Equality Act awareness in schools

The plan notes:

Throughout the consultation, we heard calls for more guidance to increase awareness of schools’ duties under the Equality Act 2010 to prevent discrimination, as well as some feedback that the remedies available to the Tribunal in disability discrimination cases should go further by enabling financial compensation to be awarded.

The DfE assures us that they will seek to prevent discrimination from arising in the first place and consider their policy on how disability discrimination claims against schools are dealt with. The possibility of financial compensation being awarded by the Tribunal did not gain much traction in the paper. In fact, it only a manage to secure a single passing reference.

Other aims worth mentioning

There are many other steps the DfE hopes to take in the coming year and beyond. Some of these include:

Increase SEND funding by more than 50% to over £10 billion by 2023-24;
A £70 million Change Programme to establish up to nine Regional Expert Partnerships who will help co-produce, test and refine key reforms.
Collaborate with Ofsted and the Care Quality Commission to deliver an updated local area SEND inspection framework.
Fund up to 5,000 early years staff to gain an accredited Level 3 early years SENCo qualification to support the early years sector, with training running until August 2024.
Increase capacity of specialists, including by investing a further £21 million to train two more cohorts of educational psychologists in the academic years 2024 and 2025;
The Institute for Apprenticeships and Technical Education will develop an apprenticeship for teachers of sensory impairments.
Introduce new guidance for professionals to help them provide the more appropriate support.
Develop a system of funding bands and tariffs so that consistent National Standards are backed by more consistent funding across the country.
Develop new approaches to funding alternative provision aligned to their focus on preventative work with, and reintegration of pupils into, mainstream schools. The DfE will do this in consultation with mainstream schools, the alternative provision sector and local authorities.
Invest £18 million between 2022 and 2025 to double the capacity of the Supported Internships Programme.