Education Secretary: Disabled children’s “current” rights won’t be removed. But council proxies keep pushing to trash entitlements

With lots of help from Sharon Smith, Rachel Filmer, Catriona Moore, and Gill Doherty

Contents

Here we go again. Just days before the spending review (for which the DfE has already agreed its funding allocation) comes a new report from pantomime villains, the Isos Partnership. Isos is (in)famous for their “independent” local government-funded report, advocating trashing children’s rights and the SEND Tribunal to boot.

I don’t know why, but Isos remind me of a novelty money box I had in the 1970s, where a wind-up skeleton hand snaked out from under a cloth to drag your pocket money into its coffin. Only it’s taxpayers’ money they’re being paid, by apparently broke local government bodies.

The original Isos report has lit a long fuse that ends with where we are now – the very real prospect that disabled children’s rights to statutory education, health and care support will be diluted or removed altogether. It has terrified parent carers as it seems the Government gives greater weight to what Isos and local authorities (LAs) say over families’ lived experience.

Despite the relatively small number of people this new report consulted, our petition to protect legal rights, now nearing its goal of 100,000 signatures, shows people do not support reducing rights. You can still sign and share, if you haven’t already, here:

CLICK TO SIGN THE SAVE SEND RIGHTS PETITION

At 100k, we force a parliamentary debate on the issue. We’re SO CLOSE- please help get us over the line!

Unreassuring assurances from the Education Secretary

Before we get into it, several SNJ team members participated in an online “SEND Engagement” session yesterday, facilitated by the Council for Disabled Children (CDC) and the National Network of Parent Carer Forums (NNPCF). We were among around 90 other parent carers, Department for Education officials, the SEND/Schools Minister, Catherine McKinnell, and herself, Secretary of State Bridget Phillipson. It was somewhat disconcerting to have the session joint led by the NNPCF–making it look like NNPCF are on board with planned changes. But going from what the Isos report heard from local PCF leaders, this is not the case. [For the avoidance of doubt, we are not criticising the NNPCF or its members. They are working hard and doing what they can. We are criticising the government for using them as “coproduction” cover, when NNPCF themselves say they are not being sufficiently involved. And as that’s the case, what hope is there for the rest of us?]

This entirely performative session centred around set questions like “What does great support for all pupils look like?” “Do you have examples of when this is done well?” ”What would it take for more settings to do this?”

Why are you asking parents? Some of them have never seen great support for their child. And even if they’d offered up lots of ideas, it’s very unlikely anything will be done with them aside from being “collated”.

Parents in attendance spoke of their child being punished because of anxiety-related behaviour, of suicide attempts through lack of support, of how battling for support had broken their marriage and themselves. How they’re frightened of what people representing the state have done to their family and what might happen in the future, including cuts to financial support. The DfE official sheepishly offered a support slide of government-funded organisations.

Why not ask parents how their experience could have been improved? Because if you asked that, you would get answers like, “Make LAs comply with the law”. But perhaps the DfE doesn’t want to know that, if it’s planning to downgrade or remove the law.

So what was the point of this session, especially if the DfE has a plan that may be announced at any point between now and September? Unless, of course, the strength of feeling behind our petition can change minds that matter…

“I want you as parents and carers to have confidence that we are on your side” said Bridget Phillipson, as she read from her script about the “fights” she knows parents have to go through. She then gave an “assurance” that no child would lose their current SEND provision.

Note the use of the word “current”. This is not an assurance in any shape. EHCPs are supposed to be reviewed every year, so any updates can be made. Children reach transition points as they move to primary, secondary, and further education. At what point does “current” stop being current? While Ms Phillipson may not have intended it to be interpreted like this, LAs will be rubbing their hands in glee. Sorry Johnny, your “current” EHCP is out of date… Here’s nothing instead.

So, back to this new missive from Isos…

What does this new report say?

I’d like to say, who cares what it says? But we do have to, as they are working hand in glove with Dame Christine Lenehan, the former Director of the Disabled Children’s Council, turned head Government SEND Adviser. Dame CL is also embedded in three LAs, tasked with improving their terrible SEND. Parent voices are optional add-ons, just for “engagement events”— and only the ones the DfE pays to hear.

This report is a follow-up to Isos’s rancid ideas to remove legal entitlements and scrap the SEND Tribunal. To create it, Isos hosted a series of workshops, funded by council bodies, that heard from a select group including parent carer forum leaders, “to explore the issues raised in our report, foster mutual understanding, and discuss the ways in which system reform might be taken forward”.

So, basically, here is our wonderful report. Let’s talk about how wonderful it is. Many they spoke to, however, told them clearly that you shouldn’t reform legal protections ahead of ensuring the moves to improved inclusion are working (if at all). How utterly inconvenient. But Isos makes it clear this is not its preferred scenario, and the entire report is aimed at doubling down on this. It minimises and does not properly explore these views, but spends most of the report with some poorly-constructed charts trying to convince everyone of the rectitude of its assertions. The starting point of their discussions in these workshops was their own ideas. This is not credible research.

The report notes that it doesn’t presume to speak for all parents and young people, or consult on its ideas, “nor is it our role to do so.” Newsflash – you don’t have a role, you are a commercial research consultancy and a well-paid local government mouthpiece, whose reports are not even close to unbiased or factual.

Indeed, a particular point of inaccuracy: “A broader point was also raised about the need to consider the impact of moving away from statutory plans on the wider framework of benefits for disability which are currently, in many cases, dependent on either a specific diagnosis or being in receipt of an EHCP.” There are no benefits that depend on a specific diagnosis or having an EHCP. None. Perhaps they weren’t paid to check their facts, though this is totally in line with the Labout government’s grasp of how benefits work.

‘What we are seeing, in the absence of any meaningful engagement by the DfE and ministers, is a de facto pre-consultation process taking place, gathering ‘evidence’ of how to reform the SEND system. The original ISOS report has taken the place of a government issued Green Paper, setting the tone and direction of the national conversation about how to fix the issues children, young people and their families are facing. Their proposals are the ones being discussed and debated as the starting point. Following publication, ISOS is managing the agendas for workshops with families and those working in the system, and then reporting back with the power of LGA and CCN behind them. The government, with no obvious plan of its own, has started to use the language we are seeing in ISOS reports.’
As SNJ Co-Director Dr Sharon Smith

Whose fault is it anyway?

The report noted it was useful to have held discussions “without blame”. But why does the system cause “long-term misery”? A system provides a framework for people to work within. It is the people in power within the system who determine how it operates. What would have happened if LAs had complied with the law from the start and analysed contemporaneously how it was playing out? They would have been able to gather evidence, for example, that the lack of SEN Support funding was forcing parents and schools to apply for statutory assessment, long before a massive high-needs debt built up. Instead, they blamed “sharp-elbowed” parents for simply using the tenets of the system as designed.

So while they can set blame aside in a workshop, it is still there, but still unacknowledged. That makes it easy to keep blaming parents; to tell them they have to downgrade their “expectations”. And it sets the scene for simply throwing hands up in the air and saying the “system” isn’t working, so let’s ditch the statutory backstop.

“One of the things that stands out in this report is the mysterious absence of local authorities, whose legal duties to children and young people with SEND seem to have quietly left the building. In the future described here, responsibilities will lie with schools to determine whether a child or young person “has needs that require additional support” and to make provision, alongside health bodies, for these needs.”
SNJ columnist, Catriona Moore, IPSEA’s Policy Manager

ISOS’ two pillars

The main thrust of this report hinges on “two interdependent pillars”. Pillars made up of the eight proposals in their original report. The first pillar is about improving support, and the second is about getting rid of rights.

“For some (particularly PCF leaders), building the inclusive capacity of the system (Pillar 1) must be done before legislative reform (Pillar 2) can be countenanced. For others (particularly education setting, health service and LA leaders), it will not be possible to rebuild Pillar 1 without reform of Pillar 2. The challenge for national policymakers is to devise a path whereby reforms of both pillars can be moved forward in tandem avoiding the risks that concern families (weakening of entitlements and a loss of support) and those that concern leaders of settings and services (that new capacity will be taken up by the existing statutory system, rather than rebuilding Pillar 1 support).”
Isos report

What is interesting is that the views of PCF parents, whose children will lose out in any change in law, have been set apart from the views of everyone else, as if they are outliers. Our petition, nearing its 100,000 goal, suggests differently. Those who want legislative reform now are not the ones who will be personally affected by a loss of entitlement. For them, it is only a case of money. This is also the view of Isos, though why they should be entitled to a view considering they don’t have a stake in the system as provider, policymaker, or parent, is anyone’s guess.

This is why we believe the Government has to dig itself out of the mess its predecessors created by writing off High Needs debts, while continuing to fund current High Needs requirements. Over time, work to improve inclusion and continuing the changes already underway from the SEND Improvement Plan should reduce the need for some children to require expensive provision. No need to touch the legislation. Read our 80 recommendations here.

Note, I say “some children”. There are thousands of profoundly disabled children and young people who will not thrive in a mainstream secondary class. The things they need to learn are not calculus, but the difference between ‘more’ and ‘fewer’, for example, or early-stage reading. They need highly trained specialists of the kind not usually found in mainstream schools. But to Isos, these children do not exist. They concentrate solely on children who could have been in mainstream if the people operating the system did what they were supposed to– most probably, neurodivergent children and those with speech, language and communication difficulties. Learning disabled children don’t get a look in. Those with sensory impairments? Who?

And what about those children with more complex needs whose parents do want them to be in an inclusive mainstream setting? How can this happen without funding from an EHCP? They should continue to have the opportunity to attend their local mainstream schools with appropriate support. Perhaps this is where the other big DfE idea comes in – resourced provision or units. And perhaps this is also where those troublesome children with AuDHD can go too. Without statutory support as a criteria for being in a mainstream unit or resourced provision, these may become on-site alternative provision for the ones they couldn’t exclude. Choice? Not for you, dear parent. Moving to an ‘inclusive system’ where those with the most complex needs are seen to belong in specialist settings (or units) will only perpetuate “othering” and lead to greater segregation. Choice should continue to be a fundamental part of the SEND system.

What do we support in the report?

The things we support were also spoken about by parents in these workshops. They include:

A focus on Early Years: Upskilling staff, so that working in Early Years is seen as much as a profession as teaching. There is a lack of appreciation that proper expertise and training at this foundational stage can create a vastly improved pupil experience throughout school. It has been staffed mostly by a low-earning workforce with low-level qualifications. Even the Early Years SENCO NVQ is only Level 3–an A-level equivalent.
That any changes in SEND should take into account current activity such as the Curriculum & Assessment review, Ofsted inspection changes, which aim to look closely at inclusion (once there is a working definition), and expanding early years entitlements. All these need to play out and bed in before any alteration to SEND legislation is considered. We maintain that an education system which values every child’s inclusion and wellbeing will naturally result in children having their needs met at an earlier stage, whenever they emerge. Why rush into costly legislation change before you know if it’s truly needed? Improvements to SEN Support (other than making it mandatory) can be done through regulations and the SEND Code of Practice.

Interestingly, the thrust of this report does indeed sound like it supports statutory SEN Support, although we’re not sure it realises it. It states as clearly as anyone could wish that, “as non-statutory support becomes weaker, requests for statutory assessments and EHC plans are likely to increase”.

“There was broad agreement among participants at the national workshop with the idea of giving the graduated approach some “teeth” and that placing a child or young person on the additional needs register should constitute a duty on education settings and health partners to ensure that the needs of that child are met effectively.”
Isos report

We, and SEND legal advice charity IPSEA, have advocated for SEN Support to be placed on a statutory footing. Our columnist, Catriona Moore, IPSEA’s Policy Manager, says:

“Whether it intends to or not, this report does a very good job of making the case that SEN Support should be placed on a statutory footing. It acknowledges that children and young people often don’t get the support they need until they get an EHC plan. The solution to this can’t be to pull the rug of legal protection from under them, in the hope that schools will all become so inclusive and well-resourced that statutory support will become simply unnecessary. That is not the world we are likely to live in any time soon. Policy cannot be made on the basis of wishful thinking, not if what the Government is trying to do is give parents confidence that the education system really can provide their child with the support they need to thrive and make progress.”
Catriona Moore, IPSEA

What it calls the “hollowing out” of SEN Support has happened precisely because it is non-statutory. Likewise, removing the right to support through an EHCP will hollow that out too, leaving even more children without an education.

Promoted

No EHCPs but support should have “teeth”?

We agree that there should be a much broader “core” offer of support for all pupils who need it, without needing a statutory plan. However, the report then goes on to say, laughably, that this offer of support would “need to have teeth in the sense of effective accountability and routes of redress for families.” Again, statutory SEN Support anyone?

In their rush to trash EHCPs and the SEND Tribunal, Isos ignores the hundreds of thousands of children who are only accessing education–and often in mainstream–because of their legal right to an EHCP and a robust appeals process. Yes, we’ve all had to wait too long and fight too hard to get here, but children thriving with the right support exist in great numbers, even if this is inconvenient for lobbyists.

“Two new routes of redress, available for all children and young people with additional needs (not just those with statutory plans). We argued in our report that a legal route of redress is not effective (it does not alter the environment in education settings or the availability of local support and provision), sustainable, or equitable. We proposed two new routes to secure redress, first an Ombudsman-style body to deal with complaints about decision-making processes, and second our proposed National Institute as the independent practitioner body to deal with complaints about the substance of support.”
Isos

In this new universe, there would be two areas for appeal and the SEND Tribunal isn’t one of them. If parents disagree with a school’s decision on whether to place their child on its ‘additional needs register’, they would appeal to…the school’s governing body. How often does this ever happen? Governing bodies would also consider appeals against “whether the support provided met the expectations set out in the development record and was consistent with national expectations”. The word ‘expectations’ is doing a lot of heavy lifting here. Expectations are, by definition much weaker than a child or young person’s entitlement to provision set out in an EHC plan. And all a governing body has to do is say “yes, we think it does.”

The “teeth” in the system of accountability proposed in the report is all gums and the report appears to be advocating for dental extraction across the system, removing any right of redress for families. At present, the Ombudsman can’t investigate in schools, something they have long asked for.

It also forgets here that there is the judicial review process, the very route to question unlawful decisions by public bodies. Without a Tribunal, we can foresee lawyers being very busy drafting Letters Before Action. And, of course, there is also the Equality Act 2010, although we expect Isos will find some way to try to block that too…

The report does touch on the “imperative that a future system breaks down the barriers that continue to exist to joint working across education and health services.” The best way to achieve this would be to increase accountability for health and social care by having directions from the SEND Tribunal rather than recommendations.

What do the young people say?

Isos also spoke to young people, but of course, this was framed around its own ideas. One of the more disturbing parts of the report is the weaponisation of the words of young people with SEND currently attending specialist schools. They were asked about the ways specialist schools make them feel included and support them to learn, and ways that mainstream schools failed to meet their needs. They were asked how EHCPs had helped them, when it’s far from clear they knew what their support would have been like without one. The report insists that the things they list – like smaller class sizes and speech therapists in the classroom – need not be the preserve of specialist schools, which completely ignores the barriers to creating a system where these things are available everywhere.There’s also no mention of the children and young people who would be unable to understand such questions, let alone formulate a response.

These children and young people with more complex needs should continue to have the opportunity to attend their local mainstream schools with appropriate support, should that be what their parents prefer. While specialist provision will be sought by many families, many also want an ‘inclusive mainstream’ experience. Moving to an ‘inclusive system’ where those with the most complex needs are seen to belong in specialist settings only will perpetuate othering and lead to greater segregation. Choice should continue to be a fundamental part of the SEND system.

Specialist settings are good at what they do. However, what they do not have expertise in is how to support a child or young person who has complex needs in a mainstream setting. This sits outside of their experience and expertise, as they will be unfamiliar with the mainstream curriculum, pace and style of teaching, and how to support friendships and mutually beneficial relationships between all pupils, with and without SEND.

The report claims there is “consensus that a brave and fundamental change is needed.” Sorry, but there is no consensus. This report is even more biased than its predecessor, and it seems to have cherry-picked many anecdotes to fit its own ideas, giving scant mention to the views of most parent carers. The views of children and families – the people who will be affected by these changes – are being silenced and marginalised, and the charities that support them are also, so far, being ignored.

We invite the government to engage with groups like ours, to read our submission to the SEND Inquiry, and to start to take parents seriously, not as “stakeholders” but as central voices to decision-making.

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About
Latest Posts

Tania Tirraoro

Founder, Co-Director at Special Needs Jungle

Founder & co-director of Special Needs Jungle. (She/Her) Autistic parent of two young autistic adults Devoted Grandma. National SEND advisor, journalist & author. Tania also runs a PR, web & social media consultancy, SocialOro Media.
She is a rare disease & chronic pain patient advocate with Ehlers Danlos syndrome.

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