How does the the SEND Improvement Plan intend to create more accountability?

On 2nd March, the Department for Education finally published its plan to improve the SEND and alternative provision system.

Over the next few weeks, SNJ will be looking at different bits of the DfE’s SEND & AP Improvement Plan – looking at what’s going to change, when it’ll change, how it’ll change, and what’s not going to change. We also have a podcast with Steve Broach coming up imminently about current legal rights and issues, and next week, our round table looking at the plan with a range of experts

But for today, we’re starting with accountability – because at every level, that’s what parent carers think is most lacking in the current system.

So what’s going to change? The good news, and the bad news, is that not much is going to change any time soon.

The good news: if you’re concerned about SEND statutory duties being watered down, not much is going to change on that front in the next couple of years.

The bad news? If you’re concerned about public bodies serially ignoring statutory duties, then not much is likely to change on that front in the next couple of years either.

No immediate change to the law

It’s important to repeat that: nothing is changing imminently. This is a plan, nothing more: it doesn’t change the law as it stands now, and there aren’t going to be major changes to law or regulation for years. If you come across anyone telling you otherwise, they are talking just plain wrong.

When it came out last week, many people’s initial reactions to the DfE’s SEND & AP Improvement Plan were lukewarm. Some people said the plan said nothing about accountability. That’s a bit unfair. The plan does talk about accountability, one of its six chapters is dedicated to it, and it’s clear that the DfE heard the feedback they got during the SEND & AP Green Paper’s consultation phase.

But it’s less clear how closely the DfE listened to this feedback, and it’s not at all clear whether the accountability changes they’re planning are going to make much difference at ground level either now, or in the future.

What changes are coming to accountability?

The Improvement Plan says,

“We heard consistently throughout the consultation that current accountability measures are not effective enough. Many respondents felt that whilst the design of the current system and legal framework is right, more should be done to hold all elements of the system to account.”

So what are they going to do about it?

This isn’t an easy question to answer, because a lot of it depends on a set of things that haven’t been fleshed out in the plan – in particular, a set of ‘National Standards.’ We’ll cover the National Standards in a future post, but one of our 2022 Green Paper posts summarises them here.

The idea is that the National Standards will make it crystal-clear who is responsible for what, what levels of provision and funding will be required to meet particular types of need, and how provision and funding will be delivered.

These National Standards will underpin every aspect of the future rebooted SEND and AP system, including accountability. But we don’t yet know what the standards will specifically look like in practice - and they won’t be embedded into the system until at least the back end of 2025, and probably later.

The Improvement Plan also talks about other changes that are intended to nudge local authorities, health bodies, and schools into making better SEND decisions.

The idea is that these changes, once implemented, will mean that officials will work better with everyone, including families of children and young people with SEND. By working better with everyone, it’s hoped that officials will make better and more transparent decisions, and fewer unlawful ones.

If officials do make poor or unlawful decisions, the idea is that their bosses and colleagues within the SEND system will intervene earlier – and because of this families will be able to get disputes resolved quicker and in a less stressful way. As a set of objectives, this sounds fine.

So what practical measures are going to be brought in to make this happen?

Small nudges for big improvements?

Some parts of the DfE’s SEND accountability plan are already being set in motion. One of the most important of these is financial accountability. This will be the most potent accountability stick that the DfE will be wielding for now. We’ll cover funding issues in depth in a future post.

Another part of the plan that’s already underway is inspection. Ofsted and the Care Quality Commission have rejigged their area SEND inspection framework, and the first inspections under this framework started in January. We covered these new inspections in a recent SNJ post. The new inspection focus on the lived experience of and outcomes for children and young people with SEND is an improvement – the squishy thresholds for what constitutes acceptable performance, not so much.

This year, the DfE also plans to start adjusting its approach to intervening in poorly-performing local areas, “so that it can act proactively when areas fail to provide the necessary support to meet the needs of children and young people, including the removal of service control and imposition of a trust or commissioner on local authorities, where required.”

This will involve creating a holistic new ladder of intervention, with a “focus on creating financial sustainability and improving outcomes for children and young people.”

It’s not obvious how this ladder of intervention will differ from current practice, and it’s not due to be finalised until the end of 2025. The DfE already has a graduated approach to intervention. It’s conservative, sparing and sluggish, driven by inspection outcomes that are years old, and usually implemented by public sector officials without a track record of SEND success.

If you want an example of how intervention currently works in practice, then read our recent post on just how little has changed in Birmingham following the 2021 appointment of a SEND Commissioner there.

Who breaks the law the most?

There’s something else that the DfE plan to do this year – and when I read it in the plan, I had to check that someone hadn’t fiddled with my water supply. In 2023, they will

“…evaluate the full evidence base of where statutory duties are met and not met across the local SEND and alternative provision system, to consider mechanisms to ensure we are able to be more robust with any partner that fails to meet their statutory responsibilities.”

Incredibly, bottoming out whether anyone’s abiding by their statutory duty doesn’t appear to have been core DfE business since the 2014 SEND reforms.

Somehow, this hasn’t already been done as part of a SEND Review that took 3.5 years to get this far. It looks like it’s only just occurred to central government that it might be a good idea to do it now, despite every single parent group, legal outfit, and most of the third sector telling them this at every available opportunity over the last 20 years.

Inclusion dashboards

The Department is also rolling out another change this year: the introduction of national and local inclusion dashboards. The idea is that more data, shared better through these dashboards, will improve decision-making and allow stakeholders to hold decision-makers to account more easily.

The DfEs hope that:

“…the dashboards will help to incentivise the behavioural and cultural change across the SEND and alternative provision system to achieve maximum impact of reform.”

The trouble is, data itself doesn’t drive that sort of change. People have to do that. Most LAs already have similar SEND dashboards for their strategic leadership, and their decision-making is still amongst the worst in the public sector.

The DfE used the Green Paper to seek views on what sort of data should go into these inclusion dashboards. They haven’t said what they’ve decided, but they’ll roll out initial prototype dashboards next month, and aim to roll out public versions in the autumn. That strongly implies that to begin with, they’ll simply use stats that are already being collected, rather than new ones.

Not much messing with redress

The plans above cover accountability at the system level – how to make official bodies answerable for their strategic choices. What about at the individual level? If you’re a young person with SEND or a parent carer, how will the DfE’s Improvement Plan change the way you can hold decision-makers to account?

The simple answer is: not much.

The Improvement Plan dearly hopes that you won’t need to be doing so much of this in the future, because all of the changes that they are thinking about at the top of the tree will reduce your need to complain, and your need to register appeals at the SEND First Tier Tribunal (SENDIST).

The DfE also won’t want you to be complaining and appealing so much, because this (in part) is how they are going to measure their own success in improving the system.

But for now at least, there aren’t many changes to individual accountability.

Kicking the can on controversial proposals

One of the proposals under consideration in the SEND & AP Green Paper was mandatory mediation – enforcing a mediation stage before a family could launch a SENDIST appeal.

This proposal hasn’t been junked – but at the same time, it’s not being taken forward just yet. The DfE will: “continue to explore options for strengthening mediation and will test and evaluate approaches further before deciding whether to bring forward legislation to make these strengthened processes statutory and make mediation mandatory”

Given the tempo of change elsewhere in this plan, mandatory mediation is very unlikely to happen within the next two years. If it comes in, it’ll be because the next government want it.

The Implementation Plan also has very little to say about any proposals to change the role of SENDIST in resolving SEND disputes.

A controversial Green Paper proposal to introduce a tailored list of approved placements remains on the drawing board, but it isn’t being taken forward any time soon. This proposal, if combined with legislative changes, could have the potential to fetter the Tribunal’s discretion – but again, it’s a problem for the next government to grapple with.

In the Green Paper, the DfE asked for views on the effectiveness of SENDIST in providing remedies for disability discrimination claims against schools. They’ve not made any decisions, but they’ll keep considering options. The judicial review about the consultation question on this is headed for a “rolled up hearing” and we’re monitoring this.

Likewise, the DfE say they will look at the future role of the Local Government and Social Care Ombudsman in the SEND system, but are proposing no changes at this stage, despite the Ombudsman calling for more powers.

What DOESN’T the paper say about accountability?

So what’s not on the accountability menu? Plenty.

  • Health and social care: There’s no sign of any major changes to accountability at the individual level for health and social care. SEND families aren’t going to find it any easier to hold these providers to account any time soon.
  • Local authorities will be disappointed that they don’t appear to be getting any additional powers yet to direct schools to admit pupils with SEND.
  • School SEND failings: There is no sign that the DfE plans to extend the LGSCO’s powers to explore SEND service failure at school level.
  • Performance Tables: The Green Paper had a proposal to broaden out school performance ‘league tables,’ to make it easier to recognise schools and colleges that are doing well for children and young people with SEND. There’s no mention of this proposal in the Improvement Plan.
  • Culture Change: Looking away from the prose of the Improvement Plan to organisational cultures and leadership of the key SEND players, and the pressures that these players will be under, there is very, very little here that provides credible reasons to believe that the sort of accountability that parent carers want will be coming to the SEND system any time soon.

There will be accountability. Plenty of financial accountability, from local government to central government. But that’s a very different thing.

Proposed Timelines for Accountability Changes

Along with the lengthy plan document, the DfE also published a roadmap for change

By the end of 2023:

  • New area SEND inspections (already underway)
  • Create and publish national and local inclusion dashboards
  • Update professional standards for SEND mediators
  • Start testing the ‘tailored list’ proposal
  • Every NHS Integrated Care Board to have a named executive board member lead accountable for SEND

By the end of 2025 (limited further detail, and probably dependent on outcome of general election)

  • Publish ‘a significant proportion’ of the National Standards
  • Put ‘robust’ processes in place to take action where there are breaches of statutory duties
  • Create a ‘ladder of intervention’ to deploy with poorly-performing local areas
  • Improve the quality of mediation services

We’ll be asking the Department about opportunities for parents and young people to get involved in these proposed changes as it’s crucial that a cross-section of all our voices, including those from marginalised communities.

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Matt Keer

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