A failure of Children and Families Act implementation does not mean rip it up and start again m’luds

The Children and Families Act 2014 – a wide-ranging piece of legislation that includes the legal framework for supporting children and young people with SEND – has failed a generation of children and young people.

It hasn’t improved children and young people’s lives and has, instead, “largely sat on the shelf, a piece of legislation which has languished as a result of a lack of implementation, inadequate scrutiny and incessant churn amongst Ministers and officials. All this has been allowed to occur while children and young people continue to suffer through public service failures including poor SEND services, increasing mental health referrals waitlists and creeping delays in family courts.”

This highly damning quote isn’t made by Special Needs Jungle, or any other rabble-rousing campaign group, or even the Labour Opposition. It’s the conclusion of a House of Lords select committee set up earlier this year to undertake post-legislative scrutiny of the Children and Families Act 2014 – a process for looking at things like whether the Act has fulfilled policy-makers’ original aspirations and how well it’s been implemented by public bodies.

It’s not just SEND

You may well ask what’s the use of waiting eight years after the Act was passed before scrutinising it, and there’s no very obvious answer to that question. I suppose no one can say at this point that any issues are simply “teething problems”. That said, Part 3 of the Children and Families Act 2014 – the part of the legislation that covers SEND – has already been looked at in detail by the House of Commons Education Committee, which published a very comprehensive report with a long list of recommendations in October 2019.

This is acknowledged by the House of Lords committee, which spent less time looking at SEND than at other areas of the Act such as adoption, fostering, the family courts and mental health, which have had less previous scrutiny. The committee also acknowledges that its inquiry coincided with the Government’s SEND Review.

Nonetheless, the report published this week is clear about the reasons why children and young people with SEND have been so comprehensively failed:

“The 2014 reforms were, fundamentally, the right ones, but little thought was given to their implementation.”

“The SEND review does not give enough concern to students who receive SEN support, but who don’t have an education and healthcare plan (EHCP). (Yes, they really said “education and healthcare plan”. We despair.) More consideration should be given to early intervention and better mainstream provision for those students who need SEN support without an EHCP.”

“Truly joined up working between education, health and social care remains unrealised. Health and social care are often absent from the picture, and families struggle against an overwhelming tide of bureaucracy in a system lacking coherence. More accountability for all elements of the system is needed.”

Accountability needed, but not new reforms…

While it’s excellent that members of the House of Lords committee have heard loud and clear the accountability message – that applying the law on special educational provision and support for children and young people with SEND is widely perceived as an optional activity, because there are no consequences for failing to do so – they seem to have heard only half the story. Their conclusion, worryingly, is that what’s needed at this point is a new set of reforms.

Rather than finding a way to implement the existing system and ensure every child and young person gets what they’re entitled to, peers suggest that the current framework should be dismantled and lessons learned for next time. They say: “A clear implementation plan for the proposed next set of reforms is needed.”

Respectfully, your lordships and ladyships, that’s really not what’s needed.

 “The Children and Families Act 2014 was passed with the good intentions of giving greater protection to vulnerable children, better support for children whose parents are separating, a new system to help children with special educational needs and disabilities, and help for parents to balance work and family life. Regrettably, our inquiry has shown that this could have been the case, had any real focus been on implementing and monitoring the impact of the Act, without the added incessant churn within the Government.  Instead, it was a missed opportunity and has ultimately failed in meaningfully improving the lives of children and young people. 

The Chair of the Committee, Baroness Tyler of Enfield

What disabled children need and don’t need

Children and young people with SEND don’t need further legislative upheaval and more years lost to embedding a whole new way of doing things. What they DO need is a clear commitment on the part of policy-makers to making sure every child and young person receives provision and support that meets their individual needs, with no watering down of their existing rights and entitlements.

The money conundrum

The risk that children and young people’s existing rights and entitlements may not be protected hasn’t passed the Lords by. Acknowledging financial pressures and problems with allocating funding, they say: “Any proposals to make the system more financially sustainable are welcome, provided they can be achieved without rationing support for pupils.”

This is of course the crux of the matter, and the conundrum at the heart of the SEND Review. The committee’s chair, Baroness Tyler, wrote to the then-Education Secretary James Cleverly about the review in July, saying:

“The financial strain on the system is clear… We note that some proposals in the Green Paper, including those around banding and tariffs, are aimed at making the system more financially sustainable. We cautiously welcome these proposals, provided they can be achieved without rationing support for pupils…” [Our emphasis]

She also told the former minister:

“Our evidence has shown an absence of accountability across the system, forcing parents to dedicate their time to advocating for their children. Currently, accountability in the system is achieved primarily [through] tribunals but this is an expensive process which places the burden on parents to fight for their child’s rights. The Government’s proposals to reform the tribunal system are too focused on remedying poor provision and unlawful behaviour, rather than preventing it occurring in the first place.”

The full letter can be read in Appendix 4 of the report.

Mental health failure (still)

When systems fail to provide support, it’s children and young people and their families who suffer. The report says this is particularly the case in mental health services, where peers say that “the Government has failed a generation of children and young people”. Many children and young people with SEND rely – or would rely, if it was available – on mental health support.

The committee says: “Mental health emerged early on in our inquiry as a key theme which the 2014 Act didn’t address and which was indicative of a failure to support the wider needs of children and young people. Contributors to our inquiry stressed the poor mental health experienced by many children and young people, and their challenges in accessing care. This was particularly the case for those in social care or with special educational needs and disabilities.”

So what difference does it make if a House of Lords committee says things that we all already know to be true, years after we first knew them? Does it have any power to change anything? The answer is that it doesn’t have any particular power. A report like this is an additional contribution to an overall picture of policy failure. You might reasonably ask, how many contributions do we need? But it all adds up. If the Government persists with a plan to re-reform the SEND system without addressing any of the problems with implementing the last set of reforms, it will have to explain how it’s going to avoid failing yet another generation of children and young people.

Read the report here

Click to enlarge. Click here for screenreading of recommendations

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Catriona Moore
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