Minister admits legal entitlements for children with SEND are “up for review”

The Children’s Minister, Vicky Ford MP, has admitted that existing legal entitlements for children and young people with SEND are under review, as part of the ongoing and long-awaited SEND Review.

The law was only changed in 2014 when the last SEND reforms created the Children and Families Act. Now, despite most people agreeing it's not the law itself that's the problem but local authority adherence to it, the long-overdue SEND Review appears to be considering changing it. We are watching this very closely, as you might expect.

How do we know?

So how do we know this? Well, last week, responding to parliamentary questions on the SEND Review from the Labour MP for Lancaster and Fleetwood, Cat Smith, the minister said: 

“The SEND Review continues to work with system experts to make sure we are designing a system fit for the future. We are drawing on the best evidence available to review the system, including the consideration of existing legal entitlements, before publishing proposals for public consultation.”

Vicky Ford MP

This is the first time, to our knowledge, it has been made publicly clear that there will be reforms to the SEND legal framework itself. There is increasing restlessness about why the review is taking so long, who is influencing it, and what changes -- i.e., attempts to restrict the number of children who can access necessary statutory support -- might be in the offing. 

On top of this, eight jobs were recently posted on the civil service recruitment site for SEND Review implementation. The post ads are below (click to enlarge), and then read Matt Keer's, take on the ads on Twitter.

SEND Review job advert 1
Job description
SEND review is high policy area

This all contrasts, ominously, with a now rather flimsy-looking assurance given in November 2020 in the House of Lords by Baroness Penn, a government whip, that the outcomes of the SEND Review would not lead to “any dilution or reduction of those rights and protections for children and their parents that are provided for in current legislation”.

Meanwhile...children are not being helped...

MPs, particularly those from areas still judged to have significant weaknesses after being revisited by Ofsted/CQC inspectors, are increasingly asking questions on behalf of constituents whose disabled children aren’t getting the provision and support they're entitled to.

To recap: the SEND Review was announced in September 2019 as an initiative to improve services for families, equip schools to meet children’s needs and end the ‘postcode lottery’ of provision that so many of us experience. The aim, according to DfE’s press release at the time, was “to boost outcomes and improve value for money”. Then the Covid-19 pandemic happened, and everything was delayed and derailed (not least special educational provision, therapies and social care support for children with SEND).

In September 2020, the Education Secretary, Gavin Williamson, told MPs on the education select committee that the review would be published in the early part of 2021. By March 2021, Vicky Ford reiterated that the pandemic had unavoidably delayed the review, and indicated the Government would publish proposals for consultation this spring (the one that came before the summer we’re now in). 

Now, publication date is anyone’s guess – but it doesn’t sound like it’s going to be particularly soon. In her answer to Cat Smith MP’s question, the minister said, “…the COVID-19 outbreak has frustrated the pace of this important review and materially altered the context for reform”. (No, we’re not quite sure what that means either.)

Meanwhile... parent-blaming is rife

It isn’t just families and MPs who are impatient and anxious for the SEND Review to publish its findings. Local government leaders, both elected representatives and senior officers, need to know what will be expected of them. In the meantime, they aren’t especially reticent about who they think is to blame for their overspent budgets: that’ll be parents of children with SEND.

In her speech to the annual conference of the Association of Directors of Children’s Services (ADCS) last week, the Association’s President, Charlotte Ramsden, said: 

“I fear that the SEND Review has lost its mojo… To date in the review, there’s been too much focus on parental wishes and education provision without any incentive for schools to be more inclusive.”

Ms Ramsden said that ADCS is urging the review to, among other things:

“….think carefully about post-16 offers; clarify accountabilities not just responsibilities; improve the quality of case work in relation to EHCPs – better paid, trained and qualified staff undertaking this important work could help deliver greater parental confidence in the process, thereby hopefully reducing the unnecessary pursuit of expensive placement in the independent sector”.

This follows a news release from the Local Government Association, also in conference mode last week, acknowledging that: 

“There needs to be a much greater focus [in the national recovery from the pandemic] on pupils with SEND who typically face a longer time to recover lost learning than other pupils and whose needs will become greater and more complex the longer it takes for the Government to publish and implement its review of the SEND system.”

But the LGA goes on to say:

“Providing support for children and young people with SEND is one of the biggest challenges that councils are currently dealing with. Demand for statements [sic] and Education, Health and Care (EHC) plans has soared by 480 per cent in the past five years, from 74,209 in 2016 to 430,697 in 2021. Many councils have previously been forced to overspend on their high needs budgets due to increasing demand for support.”

Meanwhile... systemic change is in the offing

So this is the climate we are in – the language of ‘demand’ rather than ‘need’ or legal entitlement– and this is what ministers are hearing from local councils. Vicky Ford told directors of children’s services this week:

“We know systemic change is needed across education, health and care if we are to improve outcomes, and better prepare young people with SEND effectively for adult life. We know the SEND system does not identify and respond to need quickly enough and is driving an adversarial climate where parents only feel confident their child will get the same opportunities as every other pupil through an EHCP (Education Health and Care Plan), which in turn is driving up unsustainable pressure on budgets.”

Vicky Ford MP, Minister for Children and Families at ADCSS conference

Parents again, thwarting everyone’s efforts at efficiency by seeking that pernicious "golden ticket", requiring the law to be followed and their children supported.

“System change” was also mooted last week by Ofsted’s Chief Inspector, Amanda Spielman. Calling for children and young people with SEND to be “front and centre of education recovery”, Ms Spielman said:

“Wholescale system changes are needed to make sure children are getting the best deal.”

Just obey the existing legal entitlements!

It’s beginning to feel like a concerted movement to prepare the ground for reforms that we believe are unnecessary for children and unwanted by parents. Our view at Special Needs Jungle is that the system for supporting children with SEND does not need to be reformed yet again. Rather, the last set of reforms needs to be implemented properly and lawfully, in all areas, backed up by the necessary resources and underpinned by accountability and transparency at every level of government.

The Council for Disabled Children is doing its best to keep everyone’s spirits up. In a blogpost last week, they referred to the “huge amount of work” and “hundreds of people [who] have contributed” to the SEND Review. The delay in publishing the review’s findings is welcomed as an “opportunity for a continued and focused phase of coproduction and solution building”. Be that as it may, the continued uncertainty is jangling everyone’s nerves.

Publish it now!

Also read:

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Catriona Moore
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