2 December 2024

Our attention has been caught by two things over the last week or so: a succession of “innovations” by individual local authorities, and the worryingly inadequate level of scrutiny in Parliament of what actually happens to children and young people who depend on the SEND system. 

The two have to be connected. If local authorities have the impression that national policy-makers are only loosely aware of how the SEND legal framework is being implemented in local areas, it’s not hugely surprising that they feel free to play fast and loose with it. 

Let’s take a look at some of these local innovations. We can begin with Rutland, where the local authority says it will take “its own innovative measures” to reduce the amount that is spent on supporting children and young people with SEND. 

“Unwinding our commitment” 

The cabinet member for resources in Rutland is quoted as saying “we will have to unwind our commitment”. He adds, "In the absence of any intervention from government, intervention to protect the council is now required." Protecting the local authority’s finances is at the forefront; protecting children and young people who need special educational provision and support isn’t mentioned. 

A document sent by local authority officers to the senior elected councillors on Rutland’s Cabinet this month gives an example of the type of innovation they have in mind: 

“When a request for an EHCP [sic] results in a “no to proceed” conclusion the service have now introduced “Way Forward” meetings. At these meetings it is explained what other means of support is available for the pupil and parents (without the need for an EHCP) the aim here is to provide support in mainstream settings and reduce the number appeals to Tribunals. Tribunals are costly and time consuming and Parental Preference often prevails. It is also helpful to have these meetings before any form of mediation is required.” 

“Way Forward” meetings, which we have come across before, are not part of the legal framework. It isn’t always clear to parents what the difference is between these meetings and statutory mediation, or that they have a right to the latter without attending another meeting first. Our concern, based on the experiences of families who have contacted our advice service, is that parents may not realise they have grounds for an appeal, miss the appeal “window” and their child loses out on provision they really need. 

“Challenging the status quo” 

Another “innovative” local authority is Norfolk, where the director of children’s services told councillors in a report to Cabinet that, “We have offered to work with the DfE [Department for Education] to trial and innovate some new ways of working which challenge the status quo and we think would support local delivery.” 

What this entails is a series of recommendations that, were they to be implemented, would mean disregarding sections of the Children and Families Act 2014. For example, Norfolk is proposing “a trial period where Tribunal decisions must take account of Local Inclusion Plans and safety valve agreements” and “a trial period using ‘reasonable endeavours’ to secure Educational Psychology specialism within advice and information for EHCP assessments and reviews”. 

In other words, the local authority is suggesting to DfE that the law be set aside. The suggestion is that the SEND Tribunal should give up applying the law, and should instead make its decisions based on local authorities’ plans and priorities rather than on what the law says about meeting the needs of individual children and young people. And the proposal to downgrade the involvement of educational psychologists to a “reasonable endeavours” duty goes against Regulation 6(1)(d) of The SEND Regulations 2014. 

Another local authority that apparently plans to improve special educational provision by removing it is Worcestershire. The local authority’s overview and scrutiny panel has been told that children with “limited special educational needs” (a term unknown in law) should move from specialist schools to local mainstream schools. 

This suggests that children in Worcestershire have been placed unnecessarily in specialist schools and are receiving provision that their needs do not warrant. This is, of course, the hopeful premise on which the previous government’s SEND green paper was based. But we have seen no evidence that children and young people with SEND are receiving excessive amounts of specialist support – quite the reverse. 

A “bewildering” lack of knowledge of the law 

It's relevant to note here that Worcestershire was castigated by the Local Government and Social Care Ombudsman last month for its “bewildering” lack of basic knowledge of the law and its duties towards children and young people. 

Recommending that Worcestershire pay a remedy of more than £11,000 after a child with SEND missed out on five and a half terms of education due to failures by the local authority, the Ombudsman described it as “incomprehensible” that SEND staff could have “such a poor understanding of the law around special educational needs and disabilities and their duties towards children in their care”. 

A system that falls short 

To what extent can failures of this sort be laid at the door of the Department for Education? It’s worth briefly considering what should have been a pivotal moment two weeks ago in Parliament for putting senior DfE officials on the spot, following the recent publication of a report by the National Audit Office on support for children and young people with SEND.

The National Audit Office report couldn’t have been clearer. Outcomes for children and young people with SEND haven’t improved since 2019. The system “falls short of statutory and quality expectations”. State special schools are too full – but DfE doesn’t know how much school capacity should be planned, and where, to meet future needs. Inclusion isn’t working, because “there are limited incentives for schools to be inclusive”. 

Reports by the National Audit Office inform the work of the House of Commons Public Accounts Committee and should enable MPs to hold government officials to account for how public money is spent. Accordingly, MPs summoned some of the most senior officials at DfE to a three-hour evidence session to answer questions. 

But somehow it didn’t quite work. The MPs on the committee didn’t question officials as forensically as they might have on why a system that’s based on robust legal entitlements fails so many children and young people. I kept waiting for them to ask about compliance with statutory duties, and how this can ever be reconciled with the Government’s cost containment programmes – or even just what the real-life impact is on children and young people who need support and don’t get it unless their parents are able to fight.

We know that most MPs care deeply about the children and young people in their constituencies who need special educational provision. But they need to get much more curious about why these children and young people are being so routinely failed by a system that should have all the elements in place to support them.

 

About the author

Catriona is responsible for IPSEA’s work in bringing about change by influencing the development of SEND policy nationally. Her background is in public policy and communications, and she has worked for a number of charities and public sector organisations, as well as in Parliament. In the past she has served as an elected councillor in a London borough, a special school governor and a charity trustee. She has personal experience of having a disabled child. In her spare time, she enjoys walking, reading, going to the theatre and being by the sea.

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