IPSEA welcomes new Code with a caution ...

9 November 2001

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The final version of the new Code, approved in November 2001 by both Houses of Parliament, has been improved in the ways IPSEA wanted and argued for:

• the advice that Governors could decide whether or not to admit children with statements has been removed (it was at odds with the law, not to mention justice and common decency);
• LEAs have been reminded that they have a duty to consider assessment for children whose medical needs constitute a barrier to their learning; and,
• the duty to 'specify' provision means that normally statements should state clearly how much help a child is entitled to receive.

Collecting data on SEN

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IPSEA also argued that the Code should advise LEAs on collecting data on children with special educational needs in schools (with and without statements) and that, in particular, LEAs should collect data on numbers of children with SEN who are excluded from schools. On the first issue, the DfES refused to budge: LEAs will not be required to monitor numbers of pupils in their schools who have SEN and are on School Action and School Action Plus stages. Schools will not be required, either, to keep registers of pupils with SEN. It is difficult to understand how this 'not knowing' will assist LEAs, other than by giving the fake reassurance you get from the 'out of sight out of mind' factor.

Exclusions

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With regard to the issue of children with SEN who are excluded from school, the Government have promised that LEAs will be required to collect these statistics by other guidance. Which would be reassuring, were it not for the implication between the lines of the Government's new proposals for changes to the law on exclusion, that excluded children shall for ever be so and never more be seen-oh! (see IPSEA's response to the consultation on these changes to the law on exclusion). A recent High Court ruling stated that an order for reinstatement of an excluded child made by an Exclusion Appeals Panel only entitles an excluded child to enter a building -- not rejoin their class.

Quantification of provision

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The major issue which caused IPSEA and other organisations in the voluntary sector to campaign for the withdrawal of the original version of the Code, however, was the omission of the guidance to LEAs that special educational provision should 'normally' be quantified. This guidance is back, in the words of the 1994 Code, but strengthened by the injunction on LEAs that they must not operate blanket policies of non-quantification; and, that they must not prohibit professionals from including their opinions on the amount of help a child needs in their assessment Advice.

IPSEA has believed for a number of years that LEAs should have a duty under the primary legislation to quantify special educational provision in Statements. We still believe this. The DfES has an opportunity to prove us wrong by acting promptly and firmly when, from now on, they receive evidence that an LEA is operating a blanket policy of non-quantification. IPSEA has submitted a complaint of exactly this, to the Secretary of State, with regard to a policy operated by Wirral LEA since April of 2001 (click here to see the letter of complaint and the wording of Wirral's policy). We are counting the days, weeks, months it will take the DfES to instruct Wirral that this is a 'blanket policy' which they must drop immediately.

Past experience suggests that the DfES will not act promptly: despite having written proof that this policy is in operation, DfES officials will want to arrange a meeting with Wirral Officers, which will take time. Then they will doubtless want a further meeting, etc., etc. And in the meantime, Wirral will churn out unlawful Statements which leave children vulnerable to having the help they need reduced or even removed.

Will the new Code protect children in the absence of firmness of will on the part of the Department and the Government ? Of course not, which is why IPSEA believes that it is necessary to continue making the case for the duty to 'quantify' to be made mandatory, and set in law, not guidance.

In case this sounds overly negative, it is worth chalking up as a success of this last round of campaigning - and in particular as a success of the umbrella group Action on Entitlement -- the fact that the debates in Parliament around the new Code have shown that the overwhelming majority of Members of the Commons and the Lords now, at last, understand this issue.

For the future, our task is to work out how to keep the politicians on board -- and on the side of the children.

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