Green Paper SEND Review Responses

As the Government plans on shaking up the SEND regime in the biggest changes since the Children and Families Act 2014 came into place, our Education team puts forward their views on the proposed changes.

The SEND Green Paper looks at making major changes in the current SEND legislation which will affect children, young people and their families across England. Our Education team took part in the opportunity to respond to the Government’s Green paper which included controversial proposals such as: mandatory mediation, a potentially restricted list of local schools, new SENCO qualifications and, again, no accountability for local authorities. Read our team’s response to the Government’s Green Paper below:

1. What key factors should be considered when developing national standards to ensure they deliver improved outcomes and experiences for children and young people with SEND and their families? This includes how the standards apply across education, health and care in a 0-25 system.

Our headline for this question would be that no two children are the same and while national standards assist process and procedure in terms of speeding these up across the board, standardisation must be differentiated from increasing the standards and the SEND regime must not remove personalisation. The current code of practice is like a national standards in a way and acts as guidance to local authorities. Each local authoirty is somewhat different to one another in terms of the provision that they have in place wich reflects (or should reflect) the different levels of need in each borough. As long as children are not boxed and there is a certain threshold which does allow for children who, for example, mask or who just about manage in mainstream school and therefore fly under the radar, then standardisation may be appropriate. All in all we fail to see how the Government is going to implement this without losing the personalisation of each of our children and this is not specified in the green paper. We would recommend that professionals are consulted if national standards are to be formulated and we would be happy to recommend the experts we work with if needed.

2. How should we develop the proposal for new local SEND partnerships to oversee the effective development of local inclusion plans whilst avoiding placing unnecessary burdens or duplicating current partnerships?

Local partnerships need to be made up of teachers and professionals working in the local area (with knowledge of that area) who can make reasoned decisions. Often we find that irrational decisions have been made based on policy or simply not reading documents carefully (or at all). We have found that it is only after the appeal falls into the hands of the legal department or a senior case officer where more reasoned decisions are being made. More often than not the overriding factor in decision making is based on financial and therefore policy reasons. The best way to ensure that the local partnerships are making the correct deicsion, therefore, is to remove the financial element from the decision.

3. What factors would enable local authorities to successfully commission provision for low-incidence high cost need, and further education, across local authority boundaries?

First of all, we would say that this question includes a lot of jargon which lay parents are unlikely to fully comprehend and respond to in a meaningful manner. Central government can compile a list of special schools across the entire country with their specialisms, cohort, etc. and create a forum where this is accessible based on need. Currently the only place where all of this information can be found is Edubase on the government website. However, this website does not list the type of specialism and only produces the information of the school once you have entered the school’s details. It would be useful if you could search, for example, “ASD specialist girls” and the website would generate a list of schools across the country that fits this criteria.

There should also be a registry of individual independent providers of SEP similar to section 41 which parents and LAs can freely access. It should include all kinds of specialisms, with locations of operation included. Availability should be clearly available and first-come-first-serve and not based on being inside a certain LA. Part of the agreement to be on the database will include giving a certain number of days of availability per month and the area of operation will be required to be a certain distance in order to be on the list. Rates will be set, based on location and market value of the provided support, meaning it is easier to source provision.

4. What components of the EHCP should we consider reviewing or amending as we move to a standardised and digitised version?

We think that a standardised and digital EHCP is useful. However we would like to highlight that some parents do not have access to computers and software, and so this will need to be considered and an alternative provided. We think that section A needs to be shortened as much as possible. Whilst section A is an informative section and one where parents and young people can add their views in terms of what they perceive their child or themselves to be like, sometimes we have found that this becomes onerous and local authority’s standard documents’ section As are very long. We also find that a lot of the information in section A is not updated and remains out of date for a long time.

5. How can parents and local authorities most effectively work together to produce a tailored list of placements that is appropriate for their child, and gives parents confidence in the EHCP process?

We think a standardised list is useful to the extent that it would identify some school placements for parents to observe and look at. However (and most importantly) if there is no selection for parents to opt for their own school which is not on the list, then we do not agree that the drop-down list of schools would be useful at all. This would limit parents’ ability to select a school that they consider suitable for their child’s needs. We think this would be very limiting and damaging to parents if there was no ‘other’ selection. Otherwise, every school across the country (whether on the section 41 list or not) needs to be on that list. There should be a standard amount of information required to be provided about every school, which should include pupil numbers, amount of pupils with EHCP, primary need catered to, average range of cognitive functioning, class sizes and teacher-to-pupil ratio, subject options if relevant and number and kind of specialists (teachers, therapists) as standard, for every school on a list provided to parents to pick from.

6. To what extent do you agree or disagree with our overall approach to strengthen redress, including through national standards and mandatory mediation? Strongly Agree, Agree, Neither Agree nor Disagree, Disagree, Strongly Disagree − If you selected Disagree or Strongly Disagree, please tell us why, specifying the components you disagree with and alternatives or exceptions, particularly to mandatory mediation.

We strongly disagree with mandatory mediation. We think that making mediation mandatory, particularly at the beginning of a process, is counter-productive and goes against the natural meaning of ‘mediation’. In order for mediation to work, both parties must want to come to the table and it is highly likely that parents and local authorities have already, up until the point of issuing an appeal, been mediating and trying to resolve the issues amongst themselves. The Government must be aware that an appeal is a last resort for parents; it is stressful and expensive, so all parents wish to avoid it. Mediation may be more useful after the final evidence deadline of the appeal process. Currently JADRs are in place and are being trialled by the tribunal and we think this is a far better solution. Mandatory mediation would elongate the process, make the process ever more stressful and expensive and make parents feel like they needed to jump through yet another hoop in order to try and fight for what their child needs. In addition, at mediation stage there is no incentive for the local authority to come to the table with a meaningful resolution to any sort of problem given the lack of redress they receive for not following processes.

7. Do you consider the current remedies available to the SEND Tribunal for disabled children who have been discriminated against by schools effective in putting children and young people’s education back on track? Please give a reason for your answer with examples, if possible.

No. The SEND Tribunal at present can only make a finding of discrimination and can reinstate a child after a permanent exclusion based on a discriminatory decision. As legal professionals, we tend to advise our client against filing for a discrimination claim because the remedy at the end of this is merely a finding of discrimination. There is no monetary compensation and there is no redress for schools which would deter them from making a similar decision in the future. It damages relationships between parents and schools and the outcome does not result in a good cost benefit. Our clients would benefit from investing in their funds in achieving a good fit for purpose EHCP rather than obtaining a finding of discrimination. The tribunal should be required to award compensation every time it finds discrimination has occurred, based on the level of offence. This should be according to guidelines:

Low rate – £2,500 – disability discrimination has been found to have occurred, but the impact was relatively minor.

Medium rate – £5,000 – disability discrimination has been found to have occurred, and the impact was of medium severity.

High rate – £10,000 – disability discrimination has been found to have occurred, and the impact was severe.

Maximum rate – £20,000 – disability discrimination has been found to have occurred, and the impact was severe and profoundly life-changing.

If the Government is serious about stopping discrimination, it must impose a regime like this.

8. What steps should be taken to strengthen early years practice with regard to conducting the two-year-old progress check and integration with the Healthy Child Programme review?

Training across the board for all professionals working from early years upwards needs to be implemented and put in place in order to recognise the early signs of SEND. This training should be updated annually.

9. To what extent do you agree or disagree that we should introduce a new mandatory SENCo NPQ to replace the NASENCo? Strongly Agree, Agree, Neither Agree or Disagree, Disagree, Strongly Disagree − If you selected Disagree or Strongly Disagree, please tell us why.

Neither agree nor disagree. We consider that the new SENCO NPQ to replace the NASENCO qualification may be beneficial, however we consider the more important matter is that all teachers, teaching assistants and teaching staff need to recieve training across the board. This training needs to be embedded as part of a whole school approach and refreshed annually. Assisting and teaching children with SEND is not just for one person; it is for everybody. SEND has a broad definition and can include children who are suffering from anxiety and mental health difficulties and masking the manifestations of their SEN. This needs careful handling and teachers need to be trained in order to identify this at an early stage in order to refer to an easily accessible SEN screening process.

10. To what extent do you agree that we should strengthen the mandatory SENCo training requirement by requiring that headteachers must be satisfied that the SENCo is in the process of obtaining the relevant qualification when taking on the role? Strongly Agree, Agree, Neither Agree nor Disagree, Disagree, Strongly Disagree − If you selected Disagree or Strongly Disagree, please tell us why.

We consider that head teachers must be satisfied that the relevant SENCO qualification has been obtained before assigning that role to a person. The person must not just be working towards this. Again, we reiterate that SEND training needs to be delivered across the board to all teachers in all schools.

11. To what extent do you agree or disagree that both specialist and mixed MATs should be allowed to coexist in the fully trust-led future? This would allow current local authority maintained special schools and alternative provision settings to join either type of MAT. Strongly Agree, Agree, Neither Agree nor Disagree, Disagree, Strongly Disagree − If you selected Disagree or Strongly Disagree, please tell us why.

Disagree. Whilst we consider that it is positive that special schools with alternative provisions can join different types of MATs in order to spread the facilities, knowledge and the funding in order to improve, we consider that this may be looked at as too much of a business model and those alternative provisions and special schools may be at risk of losing their specialism and their niche. Fundamentally, schools should not be commercial enterprises.

12. What more can be done by employers, providers and government to ensure that those young people with SEND can access, participate in and be supported to achieve an apprenticeship, including through access routes like traineeships?

The Government can assist with funding for these apprenticeships or traineeship programmes much like the current access to work scheme or the furlough scheme. This will assist employees and young people with SEN who will be put into those roles. This additional funding would incentivise employers to take advantage of the scheme moving forward, thereby creating more roles. A yarly grant of up t say 10% of that persons salary. In addition to this however, all placements who would take up the apprenticeship scheme must receive mandatory training on SEND and neurodiversity in order to be inclusive.

13. To what extent do you agree or disagree that this new vision for alternative provision will result in improved outcomes for children and young people? Strongly Agree, Agree, Neither Agree nor Disagree, Disagree, Strongly Disagree − If you selected Disagree or Strongly Disagree, please tell us why.

We consider that this new vision firstly is very woolly. We consider that if an environment is unsuitable for somebody with mental health needs and/or behavioural needs then providing a short fixed term solution is not going to be the answer because ultimately they will still need to go back into that environment and it will still be as unsuitable then as it was originally. We cannot see that this “vision” is anything different than what is provided in normal maintained mainstream schools at present.

14. What needs to be in place in order to distribute existing funding more effectively to alternative provision schools, to ensure they have the financial stability required to deliver our vision for more early intervention and re-integration?

In order to establish truly useful placements for children, these provisions need to be not for profit as previously stated. At the very centre of these types of provisions are children and young people who are struggling with mental health difficulties/managing their SEN. We have, in our experience, seen alternative provisions which are part of multi-academy trusts be exploited by not providing emergency placements and keeping on long term placements, for example, based on purely financial decisions. Accordingly, yearly audits of how these funds are distrubuted need to take place, similar to an OFSTED audit perhaps where there is little notice.

15. To what extent do you agree or disagree that introducing a bespoke alternative provision performance framework, based on these 5 outcomes, will improve the quality of alternative provision? Strongly Agree, Agree, Neither Agree nor Disagree, Disagree, Strongly Disagree − If you selected Disagree or Strongly Disagree, please tell us why.

Disagree. We consider that these five outcomes are useful but we consider that alternative provisions should be not for profit organisations in order to truly keep the young person’s best interests at the centre of what they do.

16. To what extent do you agree or disagree that a statutory framework for pupil movements will improve oversight and transparency of placements into and out of alternative provision? Strongly Agree, Agree, Neither Agree nor Disagree, Disagree, Strongly Disagree − If you selected Disagree or Strongly Disagree, please tell us why.

We agree that there needs to be a guidance framework for local authorities for moving children from alternative provisions to different provisions based on their needs in that type of circumstances in order to assist them, however we fear that with that guidance will become a tick box exercise. We do not want that framework to act like a step-by-step guidance for schools to remove what they see as troublesome students from their school into alternative provisions.

17. What are the key metrics we should capture and use to measure local and national performance? Please explain why you have selected these.

We consider that this a question better put to educational psychologists and one which they should be consulted on. The metrics should correspond with their diagnostic testing so that this is consistent across the board and easier for parents to identify and understand. We also consider that the SEND Judiciary, legal practitioners, teachers/SENCOs and other professionals who use the system need to be consulted before any changes to the entire regieme are made. In essence, we do not consider that the law needs to change but do consider that legislation needs to be amended to include redress to locall authoirties for not following through witht heir statutory obligations. There is a lack of funding in the system and we are concerned that instead of increasing this, central government is amending the legislation to lessen/ease obligations on local authorities, thus requiring less funding.

18. How can we best develop a national framework for funding bands and tariffs to achieve our objectives and mitigate unintended consequences and risks?

Ringfencing funds and asking for accounts, holding schools accountable for those funds that they have spent is the best way of ensuring that unintended consequences and risks are mitigated. Schools are severely underfunded at the moment and so tend to use funding that they receive in any way that they see fit. We have found, in our experience, that this is not always put to best use, for example, for children with SEND. The exact levels of banding and funding should be asked of special independent schools, who have a track record of being successful in money management and what generally the cost of the additional provisions are. This will give government a good framework to set bands and tariffs for this. We are happy to recommend good special independent schools who would be happy to assist.

19. How can the National SEND Delivery Board work most effectively with local partnerships to ensure the proposals are implemented successfully?

The National SEND Delivery Board must consist of those who are working directly in SEND. It must be comprised of teachers, headteachers, SENCOs, parents and the professionals who have personal experience in working with children and young people with SEND. We would suggest that in-person visits, much like Ofsted inspections, are undertaken in order to ensure compliance.

20. What will make the biggest difference to successful implementation of these proposals? What do you see as the barriers to and enablers of success?

The biggest difference to successful implementation of the proposals is better understanding of SEND across the board by all professionals. This includes staff and officers at local authorities and their understanding of SEND. Obligations need to be spread evenly and not overloaded at any point in the process. Currently there is no requirement for a qualification other than an undergraduate degree or equivilent relevent experience to become an SEND officer (as far as we understand). this is also inconsistent across local authorities. When SEND officers are taken onboard, they should be required to undertake formal training. Currently as we understand this is not taking place. In addition, those in manager roles will need more in depth training, particularly on the legal aspects of EHC plans and tribunal proceedure.

21. What support do local systems and delivery partners need to successfully transition and deliver the new national system?

Local systems and delivery partners need some sort of accountability in order to force local authorities and schools to implement these changes and to follow the SEND regime. At the moment there are no repercussions or redress for SEND departments at local authorities to not, for example, stick to their statutory deadlines. The only repercussion for this is a pre-action protocol letter and potential judicial review proceedings. This takes time and by the time a department would get a pre-action protocol letter, they are able to rectify this very simply and easily. There is no incentive not to wait until this point. From a parental perspective, it is only solicitors who are able to send these letters and so this incurs additional expense on parents as well as frustration.

22. Is there anything else you would like to say about the proposals in the green paper?

We consider that the green paper is woolly in nature and is describing a list of aspirations rather than a clearly set out new and better system. It is difficult to respond to the SEND green paper because of the format of the responses. It is highly restrictive, both in length (250 words per question) and the questions are prescriptive. It would have been far easier and more inclusive for government to allow individuals to respond to the paper as they felt comfortable. We consider that the current system works well, however we think that the local authorities need to be held to account for their failings in order for the system to work better and properly. The paper ignores the elephant in the room: in the current system local authorities can refuse to put in place provision because the appeal system rarely results in any punishment – there is no downside to behaving that way. The Government should amend the existing legislation to make it so that local authorities are expected to pay a certain level of costs towards parents’ expenses if they lose. There should be yearly published national statistics of how many EHCNA applications were made to every local authority, how many EHCPs were issued by the local authority, how many tribunal appeals were filed against the local authority, how many final hearings the local authority attended, how many EHCP appeals resulted in a school named by the local authority in section I being overturned.

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