One of the joys of being a parent of a child with special educational needs is working out why schools and local authorities do things the way they do. Sometimes it’s crystal-clear, but more often it’s not. And sometimes, the way things are done locally is hard to square with the law.
Every school & local authority has a set of SEND policies. They have to, because big dusty books of statutory duties don’t make things happen by themselves. Something has to be there to explain to people how to turn these duties into practical actions. Something has to turn an organisation’s high-falutin’ strategy into operational action, something has to match means to ends, and that something is normally a policy.
There’s nothing inherently bad about policies, provided that they don’t dilute, disregard or defy the law. In practice though, SEND policies have a depressing tendency to do just that, sometimes in ways that make it hard to challenge at local level.
So how do these policies work, and how can you as a parent or SENCO dig up information on them? We’ll look at two sets of policies in two LAs – one firmly in place, another that’s being worked up.
*But first, we know many LAs are planning HUGE cits to their SEND budgets. At the end of this article is a video that tells you how to do this - but BE QUICK!*
Take a look at Somerset’s profile, and one thing immediately stands out: the comparatively low number of children who have an EHCP. It’s 1.8%, against a rock-steady national average of 2.8%. That doesn’t tell you much by itself – at school level, a low percentage of EHCPs can sometimes be a sign that schools are meeting needs well. But that assumes that pupils are able to secure the benefits of an EHCP when they need it.
Is that the case in Somerset? It doesn’t look like it. Because Somerset has a range of policies in place that make it difficult to secure a fully-funded EHCP – an obstacle course of policies that you won’t find in SEND legislation or statutory duty. Some of these policies appear weaponised to deter schools from applying for an EHCP in the first place.
Take Somerset’s guidance for applying for EHC needs assessment. The law is simple and clear on this threshold: s36(8) of the Children & Families Act 2014 says that:
“The local authority must secure an EHC needs assessment for the child or young person if… …the authority is of the opinion that”
(a) the child or young person has or may have special educational needs, and
(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.
Somerset’s EHC needs assessment policy document says something different. Running to 49 pages rather than two paragraphs, the document says that an EHC needs application has to meet two criteria to warrant consideration, including at least two cycles of ‘assess-plan-do-review’ over a six-month time period, and full implementation of a full set of ‘Core Standards’ – standards requiring support that schools reportedly struggle to secure. The document begins gently, saying this is just guidance, and that requests will be looked at on a case-by-case basis (in which case, why are the criteria needed?) But later on, the document says clearly – in bold, bordered text – that:
“A statutory EHC Needs Assessment will only be agreed if BOTH criteria are met”
Remember, this is just to request an EHC needs assessment. If your child gets an EHCP – or if your child doesn’t have an EHCP, but requires high-needs top-up funding – then they start another bureaucratic assault course.
Somerset also have a policy document stipulating how high-needs SEND funding is doled out. It’s aimed at schools rather than parents. And it’s a piece of work, in every sense. To begin with, this document says that
“It is recognised that decision-making in SEN is difficult. We are charged however, by Ofsted in the task of “necessary discrimination.”
Ofsted have not charged any local authority to conduct any type of ‘necessary discrimination’. You won’t find this in any current Ofsted inspection handbook or framework. The document also makes it clear in several places that Somerset does not automatically provide funding to schools so that they can deliver provision specified in EHCPs.
“Where a Statement of SEN / EHC Plan is in place, the Headteacher is required to meet the need and make provision using the totality of resources available in the school’s delegated budget. There is no access to individually targeted resources on the basis of the child having a Statement of SEN / EHC Plan. Headteachers may apply for High Needs funding for these pupils, if it is felt that their needs meet the criteria set out in the framework.”
The law couldn’t be clearer on this. Section 42 of the Children & Families Act 2014 states that where a child has an EHCP in place:
“The local authority must secure the specified special educational provision for the child or young person.”
This is a legal duty that falls on the local authority, not the school. If the LA fails to provide the individually targeted resources necessary to make the provision in the EHCP, then they are in breach of their statutory duty – not the school. This policy is bound to exert a powerful deterrent effect on Somerset schools who do not know the LA’s legal duties – why bother applying for an EHCP, if the EHCP does not automatically provide the resources needed to support the child?
Worse still, Somerset are keen to defend this “well-established” policy. It looks like Ofsted’s school inspectors have questioned it – so Somerset prepared a set of talking points for schools to repeat at further inspections, implying that the Department for Education are content with this policy. The talking points are borderline incoherent, and the reference to statutory guidance in the Code of Practice is plain misleading – you can read it here.
This is a set of policies that fly in the face of the spirit of the SEND reforms. They do not provide schools with a complete and correct guide to statutory responsibilities. They rely on ignorance and apathy about SEND rights at school leader level. Elements of these policies are an open invitation to legal challenge.
Nothing is ever totally rotten in the state of SEND at local level. Somerset have set up a group of young people with SEND called the “Unstoppables,” who advocate on behalf of their peers. That’s a great initiative. Many parts of the current Somerset SEND strategy document look sound. But culture eats strategy for breakfast – and Somerset’s policy documents, combined with what we’ve heard from many Somerset parents who have reached out to SNJ over the course of the last few months, leave us deeply concerned about the organisational culture of SEND services there.
Hackney: questionable policies, parents prevail
Let’s turn from one LA’s present to another LA’s preferred future. The London Borough of Hackney have proposed radical changes to the way SEND support is funded – they put these changes out to consultation late last year, and the Council are now mulling them over. Like most LAs, Hackney uses a banded model to dole out high-needs SEND funding – you can read more about the pros and cons of banding here.
Hackney currently use five bands. They are proposing to split these top-up bands out into two groups – you can see them in the bottom part of the table below.
The lowest three bands would fall under the “Additional Funding Model” – these won’t require an EHCP, but will get a non-statutory “SEND Support Plan”. The top two funding bands would fall under an “Exceptional Funding Model,” and are likely to require an EHCP.
So why do Hackney want to do this? Read the consultation document, and they say that the key advantage of this new system would be speed. The document says that pupils supported under the “Additional Funding Model” could potentially get their support funded within six weeks, rather than the 20 weeks that it takes to put an EHCP in place.
However, when talking to schools, Hackney’s leaders described the main drivers somewhat differently. In September, a senior council education officer told schools that:
“The intention is to reduce the need for the number of plans… by avoiding the need to go through parents it will allow the money to be distributed earlier.”
And elsewhere, Hackney’s leaders have stated that they plan to reduce their expenditure on high-needs SEND in schools by 5%. Putting it politely, Hackney parents weren’t given the chances they should have had to influence the development of this proposal, despite the presence of a superb parent carer forum in the borough. And it shows - there are glaring problems with this proposal, obvious to parents and teachers inside and outside Hackney:
Look at the proposed funding bands, and it’s clear that every single one of them would drop sharply in value. The highest band would drop by 11.5%, and at the lowest end, the drop could be as even steeper – potentially as steep as 90%. And as ever with banding values, there’s no guarantee that these values wouldn’t drop further in subsequent years.
Another thing that’ll almost certainly change if this new system goes ahead will be a fall in the numbers of Hackney children with EHCPs. As of January 2017, there were 1,775 kids with an EHCP or a statement in Hackney. If these changes go ahead, many children new to the system who would otherwise have received an EHCP will be supported by a non-statutory SEND Support Plan – which will have precisely none of the legal weight that an EHCP carries.
And if your child already has an EHCP, there’s no guarantee that they’ll keep it under the new system - Hackney state that “Annual reviews of EHCPs can also result in the child or young person no longer requiring a statutory EHC plan and [they] could be allocated Additional Funding through an SEND Support Plan instead.”
Are these proposed changes lawful? Hackney believe that they are. SEND legal advisors IPSEA believe otherwise - and you can read their polite, meticulous dismantling of Hackney’s legal position here. Are these proposed changes likely to be effective at improving outcomes? Hackney say yes, but it’s honestly hard to see how, when some children with high needs stand to lose 90% of the funding that underpins their provision.
Hackney parents revolt... and win
Are these proposed changes even likely to achieve the objective of reducing Hackney’s SEND expenditure? Frankly, no. Hackney leaders should venture 250 miles south-west to Devon, who introduced a very similar policy of non-statutory SEND Support Plans three years ago. They’ll be able to see the burning wreckage of Devon’s plans from miles away. According to Devon LA documents, the cost of their non-statutory plans wildly exceeded council expectations, and the failure of these non-statutory plans to deliver dependable support actually resulted in an increase in EHCP applications. Last summer, Devon abruptly announced that they were cutting funding to the non-statutory plans.
Hackney’s residents haven’t stood still and let this happen – they’ve been vigorously campaigning against the proposed changes. When Hackney finally put the proposals out to consultation with residents, 79% said they strongly disagreed with them. And this has had an impact – last week, Hackney leaders decided to halt work on the proposals, and go back to some sort of drawing-board, “in order to establish a SEND funding Task and Finish group with relevant stakeholders to look at how to develop SEND funding arrangements for the future.”
This doesn’t mean that any of the problems are going away. To its credit, Hackney Council has itself campaigned long and hard for relief from the acute SEND funding pressure it faces. But hopefully, what follows will be a new policy that serves children with SEND and their families better. We're hoping the Hackney parent campaigners will soon be on SNJ telling you how they did it*
Is this happening in my LA? Where to find out
Two LAs, two problematic sets of policies. We didn’t write about these LAs because they are unusual - they aren’t. We wrote about them because their policies were produced in-house without meaningful parental input, and are being challenged by parents trying to grapple with the realities of the SEND system.
If you’re a parent, and you would like to find out more about your own LA’s SEND policies, then there are places you can try first. In theory, your LA’s Local Offer website should house them. In a well-run LA that involves parents strategically, your local Parent Carer Forum (PCF) should also have copies of all LA SEND policies to share.
Unfortunately, not every LA does this. So if you need to dig deeper, your next port of call should be specific areas of the council website. The best places to look for policies or upcoming developments are:
- Minutes of meetings of the LA’s Schools Forum
- Meetings of council committees that focus on education and social care.
- If you are a governor or school staff member with access to a cross-LA education extranet, you can often find policies lodged on these too.
If you can’t get the information you need from these sources, then a Freedom of Information request is your next option. Keep the request brief, focused and specific – there’s a good guide on how to craft FOI requests here.
And if you unearth details on local authority policies, please send them to SNJ! We are slowly trying to assemble a national picture on dodgy LA policies, but we can’t do it without your help….
*Challenge cuts in your LA
*LAs have set their budgets for the next year and some have announced MASSIVE cuts to their SEND budgets. You can challenge these - but ACT NOW! This - but you have to start protesting now. This video from Alex Rook and Steve Broach, two specialist public lawyers, explain how the law can be used to influence cuts to local authority services. f you want to challenge your own LA.
- SEND judicial review and how LAs spin tales about “litigious” parents - April 8, 2021
- Blockbusting: What’s Happened to the £780m in Extra SEND Funding? - December 15, 2020
- 95% of decisions in favour of parents, but nobody wins at the SEND Tribunal - December 11, 2020