Why children with SEND in penal detention routinely fail to be given educational needs support

The majority of children who find themselves in penal detention have some form of special educational needs. These needs are routinely mislabelled, unrecognised and unmet. That’s the conclusion of a briefing for policy-makers jointly produced by SEND legal advice charity IPSEA and the Howard League for Penal Reform, who also highlight discrepancies in children’s entitlements to special educational provision and support.

The legal framework is clear that children (anyone under the age of 18 in England is legally a child) should receive special educational provision and support in custody. If they have an Education, Health and Care (EHC) plan, this remains in place.

At the same time, however, children in custody who have special educational needs and disabilities (SEND) are not entitled to exactly the same level of support as children in the community who have similar needs. IPSEA and the Howard League say this is an unfair situation that must be addressed by policy-makers.

Educational provision for children in penal detention – which includes secure children’s homes, secure training centres and young offender institutions – is, in general, woefully inadequate in both quantity and quality. For children with SEND the situation is particularly bad.

More than two-thirds of children in custody have special educational needs including learning difficulties, speech, language and communication difficulties, and social, emotional and mental health problems. In 2019/20, practitioners expressed concerns about the speech, language and communication needs of 71 per cent of children sentenced to custody.

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What does the law say?

The law requires that children with SEND receive special educational provision and support in penal detention. All secure penal settings are required to carry out an educational assessment of every child who’s placed there, including screening to identify whether the child needs further assessments to identify specific special educational needs. But this does not always happen as it should.

If a child has an Education, Health and Care (EHC) plan, this does not cease when the child enters custody. The local authority must keep the plan in place and arrange “appropriate special educational” provision while they are detained in the youth secure estate. If the plan specifies health care provision, NHS England must arrange “appropriate health care provision” while the child is detained in youth accommodation. Local authorities should also arrange social care provision as necessary.

The Howard League’s direct work with children in custody indicates that the rights and entitlements of this group are rarely adhered to. Many children in custody who need an EHC plan do not have one. For those children who do have a plan, this is often poor-quality and the support specified is simply not provided. For those children in penal detention who need an EHC needs assessment, the focus is on their post-detention needs rather than their needs while they are detained.

 “Despite the high levels of educational need among children in custody, it is rare to see children with up to date Education, Health and Care plans either when they arrive in custody or in preparation for release. It is virtually unheard of for parents, young people or secure establishments to request such assessments or, if they do, to challenge decisions not to complete them or the outcome of such assessments.”

Education inside penal detention for children in England: an overview
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What are the gaps in the law?

While the law is clear that children with SEND in custody have the right to receive special educational provision and support, they have fewer rights than children with similar needs who live in the community. Specifically:

  • There is no requirement to carry out annual reviews of EHC plans of children in custody. This means that there is no mechanism for ensuring that the needs and provision specified in a child’s EHC plan remain accurate and appropriate.
  • There are fewer appeal rights for parents of children in custody and for young people over the age of 16 themselves. Appeals can only be brought in a limited set of circumstances. In relation to detained children, the SEND Tribunal only has the power to order a local authority to carry out an EHC needs assessment, issue an EHC plan, and amend the placement (or type of placement) named in an EHC plan. For children in the community, there is also a right of appeal against:
  • the broader content of an EHC plan, such as the description of a child’s special educational needs in section B and the special educational provision to meet these needs in Section F;
  • the refusal to reassess a child’s needs;
  • the decision not to amend an EHC plan following annual review;
  • the decision to cease to maintain a child’s plan.
  • There is no option to appeal to the SEND Tribunal on provision to meet the health and social care needs of children in penal detention, as the Tribunal does not have the power to make non-binding recommendations on health and social care in the same way it does with children in the community. This is surprising, given that children released from penal detention are likely to have significant social care needs.

“Legal protections and frameworks should be strengthened to ensure that children have the same educational entitlements and provision in custody and in the community.”

Education inside penal detention for children in England: an overview

What needs to happen?

IPSEA and the Howard League are clear that much more needs to be done to make sure that children in custody receive their educational entitlements within the existing legal framework.

Professionals working with children in custody need to support them routinely to access their rights – and where their rights are not respected and upheld, children and families should be supported in bringing legal challenges. Both charities offer specialist legal advice to families and young people with special educational needs in penal detention.

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Catriona Moore
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