Don’t make it harder to get EHCPs warns Equality and Human Rights Commission as DfE considers “raising the bar”

As education ministers review the upcoming “SEND Improvement Plan” it’s to be hoped they have found time to read this week’s Children’s Rights in Britain report from the Equality and Human Rights Commission (EHRC) report to the United Nations.

The EHCR has called for urgent action to improve protections for children on a number of issues, including SEND and school attendance policies.

Amid concerns that post-pandemic “catch up” education recovery money isn’t getting where it’s most needed, the EHCR says children with SEND (and Additional Learning Needs—ALN—in Wales) need special consideration to take into account the particular challenges they have and continue to face. Many of these issues we highlighted in our Coronavirus and SEND reports, and in our more recent research on Race and SEND. The report noted,

“…a steady decline in happiness among children and increasing rates of self-harm and suicide…We are particularly concerned about evidence which shows the negative and disproportionate impact of the pandemic on children’s mental health. Accessing mental health services is challenging for many children, though some progress has been made to address waiting times. Spending on specialist services has increased, but not enough to keep up with growing demand.”

Equality and Human Rights Commission, Children’s Rights in Britain 2023

The latter is important. When you starve education services of investment, or in the case of children’s mental health, promise money that isn’t delivered where it’s intended, the unmet need grows. This means greater levels of funding is required than would have been needed if the service had been well-run, functioning at its best, and properly funded to start off with. This is a lesson that government has failed to learn repeatedly.

Stick to equalities laws says EHRC

The EHRC report makes a point of warning that school attainment and attendance policies must comply with the Public Sector Equality Duty so they don’t make life harder for disabled children and others with “protected characteristics”.

Interestingly, it calls for caution that SEND Review proposals for new “national standards” do not reduce the entitlements and rights that disabled children and young people currently have. The report also warns that any SEND “Improvement Plan” shouldn’t “raise the thresholds for interventions, such as assessments.”

This last point is particularly pertinent. At a SEND sector meeting last week, an unimpeachable source related the troubling news of a DfE official saying the Department wants to “raise the bar” on EHCPs. What does this mean? Are they planning to ensure EHCPs are well-written, quantified and specified at the final draft? Of course not. They mean that they want to make them harder to get.

It’s not just the EHRC that’s issued this warning. Back in 2019 the Education Select Committee’s SEND inquiry report also warned the DfE off weakening rights. In fact, it was the first recommendation they made in their inquiry report:

“We are confident that the 2014 reforms were the right ones. We believe that if the challenges within the system—including finance—are addressed, local authorities will be able to discharge their duties sufficiently. 

“We recommend that when the Government makes changes to address these challenges, it should avoid the temptation to address the problems within the system by weakening or watering down duties or making fundamental changes to the law.”

SEND Inquiry, Education Select Committee (pdf)

Note, that changing EHCP criteria wasn’t mentioned in the SEND and AP (Or SENDAP as the DfE apparently wants to call SEND) Green Paper. If it had been, the consultation period last year may well have seen parents armed with burning pitchforks descending on the doors of the DfE’s Sanctuary Buildings HQ. There’s still time for this, by the way 😉.

In the meeting where this was reported, it was mused that DfE officials are “floating” controversial ideas to gauge reaction from parts of SEND sector. If that’s the case, then here’s ours—you need to chuck the idea onto the bonfire, along with the other proposals that no one asked for.

It’s ludicrous that, after (presumably) reading all the national reports and inquiries that came before the Green Paper, officials managed to come up with plans that were so anti-disabled child and anti-family that the EHRC was forced to raise the alarm. What an achievement, eh? It’s as if officials were told to do some “blue-sky thinking”, popped their maddest ideas into a hat and the first ones pulled out went into the Green Paper, regardless of whether they were workable or wanted.

Who is the DfE listening to?

The only parties that want a higher bar for an Education, Health and Care needs assessment are local authorities. So right there, we can see who the DfE is listening to. The ridiculous, insidious, packed with untruths LGA report, published just before the Green Paper, appears to be having a greater influence on DfE thinking than any submission from anyone who supports, parents, cares for or who actually is a child or young person with SEND.

Since the demise of the Schools Bill, it’s even less clear how any proposed changes that require legislation will move forward. While this comes as something of a relief, officials are still hinting there could be another White Paper and Bill. But they are up against legislative time before the next election—it’s already coming up to a year since the SEND and AP Green Paper was launched as it is. The SEND “Improvement” Plan is due in late February/March, once they’ve reworked what they now can’t easily achieve without a law change.  

Cart before the horse on SEND improvement

The very idea of “raising the bar” for EHCP criteria is bizarre, before anything has been achieved towards improving SEN Support and swift identification for children with emerging SEND. Without this, we know that children’s needs can easily escalate to the point where they become disengaged, maybe disruptive, anxious and depressed, or unable to face school at all.

Before even thinking about EHCP criteria, you also need to tackle poor Initial Teacher Training courses that do not focus on understanding and supporting children with SEND, and learning inclusive practice. And what about solving the massive gaps in the workforce across education? Not least specialist support that could keep a child in mainstream school. Even the EHRC in its report called for the government to ensure the “long-term sustainability of SEND or ALN provision, including by ensuring that teachers and other school staff are equipped to support the needs of children with SEND or ALN.”

But no, the DfE prefers the magical thinking of ‘If we make it harder to get an EHCP, then LAs save money, so children can have the money in schools.’ This is delusional. The money will not be used in that way because LAs and schools will find other non-SEND things to spend it on. Even if they did use it to hire more teaching assistants, for example, the training issues remain.

Removing the problem (child) before it impacts the school…

The EHRC highlighted intolerant and potentially unlawful school behaviour and attendance policies. Threatening fines for non-attendance, or kicking a “difficult” child off to alternative provision is easier (and cheaper) than assessing their needs and supporting them to remain in school. Pressure on schools from judgement by exam results and league tables are the drivers, not happy, thriving disabled children.

I don’t want to be unfair to officials who have undoubtedly spent months and probably a lot of money on analysts for the 7000 consultation responses. But what they really needed to do first was to consider the government’s own role in creating the ongoing SEND crisis. Crises don’t appear from nowhere and understanding why is the first step in not repeating the same mistakes. Maybe they have done this exercise, but we haven’t seen any published evidence of it (too embarrassing?). Neither have we seen any Equality Impact Assessment for the Green Paper that previous minister-before-last, Will Quince, said had been done. Why not?

Changing EHCP criteria fits Safety Valve plans

Instead, they came up with [“Delivering Better Value for SEND”] that birthed the Safety Valve programme. As Matt has written before, this is entirely financially driven with the net result that local authorities are incentivised to reduce the number of EHCPs. Staying on the right side of the law clearly isn’t an issue– and now we see why “raising the bar on EHCPs” becomes important. Making them harder to get by law means LAs on the ever-expanding safety-valve programme can’t be taken to the SEND Tribunal for refusing an assessment or an EHCP.

Nevertheless, when you speak to officials, they do genuinely seem to want to help. My suggestion would be to give greater weight to what families and practitioners say and less to LAs. LAs only really want more money. Find a way to give it to them so that it goes where it’s supposed to and make them accountable for how it’s spent. Yes, I know everyone wants more money for public services. But you can’t stabilise the current situation, increase capacity and improve the SEND system without significant, targeted investment and a true determination to support disabled children, young people and their families.

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Tania Tirraoro

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