SNJ’s 7-point open letter to Bridget Phillipson, new Secretary of State for Education

The new ministerial team at the DfE is shaping up, and the new minister responsible for SEND is Catherine McKinnell who has been named as schools minister - this means SEND has been effectively “promoted”, something that happened briefly when Will Quince briefly returned to his bumped-up ministerial post after resigning over… er I can’t even remember, it’s like a bad dream. Anyway, Ms McKinnell is now in the SEND hotseat, and takes her place in Bridget Phillipson’s team, along with Jacqui Smith (former schools minister, now in the Lords), MP, Stephen Morgan MP and Janet Daby MP. The woman and equalities portfolio is held jointly by Ms Philippson and Annaliese Dodds MP.

The SEND ministerial position has previously been something of a journeyman role, with ambitious MPs staying for a short while before scampering up the greasy pole of government politics. This has not served SEND well.

Before the election, we looked at what SEND organisations are asking from the new government. We have now written an open letter to Bridget Phillipson, the new Education Secretary and her team, to reiterate what disabled children, young people and their families need. 

Open letter to Bridget Phillipson, Secretary of State for Education

Dear Ms Phillipson

We are writing to you from Special Needs Jungle, the parent-led, SEND advocacy non-profit website. For the last 16 years, our team has informed parents and practitioners about the law, about updates in special educational needs and disability policy and highlighted useful SEND resources. We have been instrumental in empowering families to defend their children’s rights and help them thrive in a world that is not set up for them. We have worked, as volunteers, to influence national SEND policy so it listens to, and values, the voices of families.

We have been delighted to work with the previous shadow children’s minister, and we hope we can continue to do this with you and whoever holds ministerial responsibility for children and young people with SEND.

We would like to set out some concerns and opportunities that we hope we can discuss with you soon. Although these are numbered, they are all equally important.

1.  Make SEND a priority, not an afterthought

It is good to see you aim to have a focus on special educational needs in your first letter to the sector. We would like to hear more about how you aim to do this, including ending the vilification of disabled children and their parents that has been allowed to grow under the last government. It is generally accepted that support that’s beneficial for children with SEND is beneficial for all children, yet this is rarely acted upon. Instead, disabled children make up a large proportion of exclusions or are left without a school place for many months due to a lack of appropriate provision.

What’s needed?

  • Be inclusive: For true inclusion, disabled children and young people must cease to be “othered” but be a normal part of planning to build an inclusive education system fit for the future
  • Prepare for future emergencies: We saw during the pandemic that although there was some guidance from the DfE, the laws protecting disabled children were “relaxed”. The pandemic had a far worse impact on SEND pupils, and some were not allowed back to school for a considerable time, as leaders misused risk assessment guidance. This MUST be learned from and preparation for potential future emergencies must be carried out now to avoid a repeat.
  • SEND at the centre: Any change to education policy must place SEND at its heart. New school and further education buildings must be mandated to be fully accessible. In mainstream FE, more must be done to sustain support so young people with SEND have every chance to thrive in adulthood.

2. Make accountability mean something

Local authorities (LAs) routinely ignore their legal obligations to children and young people with SEND and would like nothing more than to make statutory EHCPs more difficult to obtain. But it isn’t EHCPs that are the problem, it’s the lack of SEND resources in mainstream schools and the lack of legal compliance.

When LAs persistently break the law, nothing tangible happens to discourage them. LAs lose 98.3% of SEND Tribunal appeals. This shows their decision-making is dire–something underlined by the 2023 Administrative Justice Council report. We believe it is driven by cost-cutting, inflexible LA systems and poor culture, perpetuating an adversarial experience for families. Even though LAs almost always lose at the SEND Tribunal, LAs have saved the cost of providing support for a year or more. The real loser is the child.

Assessments for social care support and personal budgets in EHCPs often don’t happen. If parents make a fuss, the spotlight can be turned on them, with threats or accusations made against them of causing harm (e.g. Fabricated or Induced illness) that devastate families. When inevitably dropped, no one is held accountable for the chaos and harm caused.

Some schools are too keen to exclude a child or make “managed moves” to alternative provision (AP) without any assessment of need having been carried out. AP staff then have to belatedly organise one, with most pupils being found to have some kind of SEND that, untreated, has contributed to why they have been excluded in the first place. This is incredibly unfair and happens most of all to children who are already marginalised.

The Local Government and Social Care Ombudsman is overwhelmed by complaints about council decisions and delays. 84% of these complaints are upheld, yet it can take well over a year for a case to wind its way through the LA complaints system and on to the LGSCO. Even when a fine is made, it is only symbolic when compared to the toll it has taken on the child and their family.

What’s needed?

  • SEND Tribunal: Boost the capacity of the SEND Tribunal to ensure that cases can be heard without delay. Recently, cases were taking a year to reach a hearing, only for the LA to often concede the day before, knowing they would lose but having saved thousands in providing support. This practice should not be permitted without the LA being held to account. 
  • Publish the outcomes of cases, with family names redacted, as used to happen, to enable everyone to see and learn from decisions. This would also allow for better transparency. Councils that are frequent offenders could be penalised, perhaps with fines levied on the CEOs themselves or emulating the NHS by making funding contingent on audit criteria.
  • Exclusions: When gathering exclusions data, the DfE must include questions about whether the child has had an assessment of needs to make this information transparent. While many schools do their utmost to avoid exclusions, this will help highlight those that do not from simply “throwing away” “troublesome” children.
  • Behaviour policies The trend towards “zero tolerance” behaviour policies must be reviewed to ensure schools take note of reasonable adjustments and The Equality Act 2010.
  • Ombudsman: Give the LGSCO more resources to manage the complaints it receives. We have been told the Ombudsman is now limiting the cases it investigates because of the pressure it’s under.
  • Wider remit: Additionally, give the Ombudsman a wider remit it has long called for to investigate how schools deliver provision to all children with SEND, whether or not they have a statutory support plan.
  • Reflect injustice: The Ombudsman should also be able to levy fines and award compensation that truly reflects the injustice caused, rather than at present, what amounts to, in most cases, just a token.

3.  Make early intervention a reality

Often, by the time support is put into place, the child’s needs have already escalated. On top of this, their mental health has been impacted yet they have not been able to access support from CAMHS.

Years of underfunding mean SEN Support is inadequate. An over-focus on league tables has meant schools and academies focus scarce resources on results, rather than on pupils with SEND. This forces parents (and schools, which do the most applications) into trying to secure statutory provision. Then, when an EHCP is hard won, many children end up moving to specialist provision anyway because the school still cannot offer what they need. Sometimes this is environmental, for example, class sizes, or accessibility. Sometimes this is due to a lack of expertise in mainstream schools. Often, the school is happy to see them go because the EHCP comes with a lot of expectations, but not enough funding to provide it.

Early intervention requires:

  • teachers to have the skills and confidence to know what support to put in and when including making reasonable adjustments
  • the resources to do it with, and
  • the time to make sure the support is working.

What’s needed?

  • Training: The previous government’s Universal SEND Services training programme could be more effective if a greater number of schools knew about it and took it up. It needs a comprehensive communications campaign, which could easily be achieved. It also needs statutory guidance for schools to use it. It is, after all, free to access, so there really is no excuse.
  • Early Years training: The SEND Change Programme’s plan for early years SENCOs is active in only a small number of areas and is only at Level 3. With the expansion in nursery provision for two-year-olds, already overstretched pre-schools/nurseries will have many more children with additional needs, and we are already seeing a rise in EHCPs in preschool children. An expanded, national SEND training offer for Early Years is vital.
  • Resources: The Change Programme is heralding “Ordinarily Available Provision”, but without a working definition of what this is. The DfE says it aims to work this out through the programme however, councils, keen to find cost-cutting measures, are already devising their own, often unlawful, OAP policies, putting hurdles in the way of EHC assessments. In any case, schools do not have sufficient funds (or, again, training) to provide the resources needed to make this a reality. The notional SEN budget in schools hasn’t been increased for well over a decade and it isn’t ring-fenced, so it gets used elsewhere. The notional £6k pp budget MUST be increased urgently and ring-fenced for use by the SENCO, to give schools a fighting chance of delivering the provision that can prevent an escalation of needs.

4. Protect children and young people’s legal right to an education that meets their needs

The SEND Improvement plan, devised by Department for Education officials, has some good points when it comes to intervening early. However, the department is keen to tinker with an already good system with its plans for restricting parental choice through LA-created “tailored lists” of schools in EHCPs and “strengthening mediation”. This was originally “mandatory mediation” that the sector succeeded in forcing the DfE to change. These, and other plans, aim to create more layers of bureaucracy that may not improve provision in the slightest. No one asked for these particular changes—least of all in the consultation, and they are not needed. Leave the legislation alone and concentrate on enforcing it.

What’s needed:

  • Leave the legislation alone. Listen to the views of both the SEND sector and parents. There were over 6,000 responses to the SEND Review consultation, and the vast majority were calling for legal compliance. Only LAs want it harder to access EHCPs and that’s because they have to fund them. As our colleagues at IPSEA say:

“The existing SEND framework has the potential to transform the provision and support that children and young people with SEND receive, if it is fully implemented. The system does not need to be reformed again, just made to work as it should.

It is essential that children and young people’s existing rights to an education that meets their needs are upheld and not diluted by the next government.”

IPSEA manifesto

5.  SEND funding

While not all the problems in SEND stem from a lack of funding, it is the starting point for most things that are wrong. There have been many years of chronic underfunding of local government, in particular of children’s education and social care services. And, of course, the same underfunding exists within the NHS, particularly of CAMHS.

If we want our children to grow up so they can be thriving, contributing members of society, it starts with giving them the education, health and care they are entitled to. After all, they are the taxpayers of the future. It is a completely false economy to do anything else other than properly fund our future generations; we have seen how lack of funds sets off a vicious circle: lack of funding leads to lack of support, escalating needs requiring more expensive provision without which children are left to flounder, needing more government support into adulthood.

What’s needed

  • Lose the debt: Write off local authority High Needs deficits. They exist largely because of government underfunding.
  • Scrap the safety valve scheme, and look again at the Delivering Better Value in SEND scheme, both of which are leading to greater LA unlawfulness as they pit cost-cutting against legal compliance. The DfE has reiterated LAs should still abide by their statutory duties, but this is virtually impossible while also complying with the terms of the agreements.
  • Speak to LAs to find out what they need to support all the services they must provide - and deliver it, starting with education.

6.  Launch a national recruitment drive to boost the SEND workforce

It is good to hear you have launched a teacher recruitment drive. We also need one for the specialist workforce. The Change Programme intends to boost the number of Educational Psychologists by 400, which is a drop in the ocean.

Many EPs leave the public sector because they can earn more by working privately. They also then get to do the work they prefer, rather than spend all their time carrying out rushed EHC needs assessments, under pressure from LAs that do not want them to do detailed reports with recommendations that they then have to act upon. EPs become disillusioned and leave, as do other kinds of practitioners.

Many teaching assistants are either facing redundancy through rising costs or are abandoning schools to have significant pay boosts working, for example, in the local supermarket. And who can blame them? Without TAs, a significant number of children will not be able to access the curriculum, leading them to become disaffected and unable to learn and so in need of an EHC Needs Assessment.

What’s needed

  • The DfE and LAs should make it more attractive for practitioners in the private sector–whether EPs, teaching staff, speech and language therapists or occupational therapists, to return to LAs. This may include better working conditions, improved culture within councils, and a better pay package. In the interim, councils should be told to hire in private practitioners to clear the backlog of requests, and funded to do so.
  • Teaching Assistants should also be properly paid for the vital work they do. TAs should be valued, trained, and paid accordingly to ensure they are retained.

7.   Value the voice of parents and children

Finally, there is always a talk about valuing the voice of the parent and their child. But the narrative in LAs and the press is still of “golden tickets” and “sharp-elbowed parents”, which is incredibly unfair and damaging. No parent applies for an EHC Needs Assessment frivolously. It is an excruciating marathon to endure that can lead to depression, marital breakdown, and financial hardship.

The DfE claims to want to hear from a wider group of parents than just their “official” Parent Carer Forums that they fund. PCFs do an important job, but they lack the diversity needed and the capacity to do as much as is asked of them. We recently provided the DfE, at the request of officials, with the names of local groups in change partner areas who would be willing to be involved. When one of these parents got in touch with the DfE to follow up, they were told they weren’t needed. This is definitely not valuing the voice of parents.

What’s needed

  • Parents and disabled children are experts by experience. They shouldn’t have to join a forum that can seem exclusive and restrictive to have their voices heard.
  • The DfE also needs to listen to a wider range of young people’s voices. It can be difficult to know how to engage with a young person who is non-verbal, has profound disabilities or is demand-avoidant. But there are ways to succeed (just ask their schools!) and their voices are just as important as those of more eloquent children with SEND.
  • Families’ voices should be valued in the same way that NHS Experts by Experience or patient volunteers are. Their time and expenses should be compensated to allow more to participate. Following the NHS’ lead could enable our SEND services to achieve meaningful, genuine coproduction, making services safer, more effective and more efficient.

These are but a few of the important issues that need to be heard from stakeholders like ourselves. We are happy to work with you to ensure a broad and diverse range of voices are heard from.

Wishing you and your team every success in ensuring every child really matters

Yours sincerely

The Special Needs Jungle team

Directors: Tania Tirraoro, Renata Blower, Gillian Doherty, Sharon Smith

Also read:

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Tania Tirraoro

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