Will non-statutory National Standards improve SEND or just create confusion and more unlawful behaviour?

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The SEND Improvement Plan published by the Government on 2nd March was described in an excited press release from the Department for Education as a programme of “transformational reform”. Its purpose is to explain how ministers intend to proceed with the proposals for SEND reform contained in last year’s SEND green paper.

The interesting thing, though, is that although the green paper appeared to be laying the groundwork for a significant overhaul of the existing law on supporting children and young people with SEND, there is actually nothing very transformational planned for any time in the foreseeable future.

The centrepiece of the green paper was the intention to create a set of new statutory National Standards. The problem the SEND Review decided it had to solve was an apparent lack of clarity about what is supposed to be happening for children and young people with SEND.

Their premise was that local authorities and education settings had too much leeway to make their own decisions, resulting in a wide variety of experiences depending on where you live. 

There is already clarity but not enough compliance

The weakness of this premise has been well-rehearsed. The existing SEND legal framework – in the form of the Children and Families Act 2014 and associated regulations, plus the SEND Code of Practice and of course the Equality Act 2010 – is already clear about things like when an EHC needs assessment should be undertaken, when an EHC plan should be issued, and how the annual review process should work. Much of the “discretion” exercised by local authorities that’s referred to in the green paper is simply unlawful.

The problem is that the existing framework has never been implemented consistently. As we said last year, it would have been much more useful and productive for the Department for Education to focus its efforts on making sure that local authorities fulfil their legal obligations.

There was a mixed response to the proposed new National Standards from the SEND sector and from parents. Initial optimism from some was replaced by widespread scepticism about what it meant for children and young people’s existing rights and entitlements. Many questioned the rationale for creating a whole new set of statutory national standards, and asked where these new standards would sit within the existing SEND framework and – crucially – what they would replace.

Regardless of these concerns and questions, the SEND Improvement Plan is clear that the introduction of new national standards is central to a (theoretically) transformed SEND system. (“What we heard through the consultation – particularly from parents and families – gives us confidence to establish a new system.” Really? The analysis of consultation responses published alongside the Improvement Plan doesn’t suggest this.)

Steering Groups, Expert Groups…

The Improvement Plan confirms that these new National Standards will start to take shape this spring, with the formation of “a steering group of cross-sector representatives to oversee their development”. (Isn’t there always a steering group, and doesn’t it always seem to consist of the same people?) We are told that “some elements” of the National Standards will be ready for testing by new Regional Expert Partnerships (REPs) by the end of this year.

These Regional Expert Partnerships – up to nine of them, if DfE can find as many as nine local authorities that are up to the task – will lead a “SEND Change Programme”. They will gather evidence to “support the co-production of careful and effective improvements to the statutory framework in the next Parliament”.

The Improvement Plan says that National Standards will:

“Provide clarity for children, young people and their families on what provision should be available through ordinarily available provision and for those with EHCPs. National Standards will clarify what good evidence-based provision looks like, who is responsible for securing it and from which budgets. This will help families, practitioners and providers understand what support every child or young person should be receiving from early years through to further education, no matter where they live or what their needs are.”

(chapter 2, para 12)

It also says, “When National Standards are delivered, this will mean every child and young person will have access to consistently high-quality and evidence-led support.”

The same outcome would of course also be achieved by enforcing compliance with the current legal framework.

Proposals unchanged as consultation response concerns brushed aside…

The Improvement Plan acknowledges the concern expressed by many consultation responses that national standards would lead to a loss of focus on individual children’s needs – but says the Government is “committed to working closely with children, young people and their families when writing the National Standards to find a balance between national consistency and individual needs” (chapter 2, para 15).

…Like the “Tailored lists of schools” for EHCPs…

The SEND Change Programme will also involve testing other proposals from the green paper. One of the most talked-about of these is the plan to limit parents’ choice of the education setting that’s named in their child’s EHC plan to a “tailored list” of schools that the local authority considers appropriate. The Improvement Plan confirms that the Government remains committed to this proposal. Crucially, however, it makes clear that, “in the areas we test this proposal, there will be no change to the existing statutory framework and parents and young people’s existing rights will be unaffected”.

What’s happening, when?

So what’s the timeframe? Regional Expert Partnerships (REPs) are being set up by DfE around about now. “Engagement” is beginning across education, health and care to develop standards and to, “consider a wide range of perspectives, including those with expertise across a broad range of needs, and in specific settings such as alternative provision, early years, youth justice and further education”. Elements of the proposed National Standards will be tested by REPs later this year, and “a significant proportion” of them will be published by the end of 2025. That’s the point at which there will be consultation on an amended SEND Code of Practice and the development of plans to underpin National Standards with legislation “at the earliest opportunity”.

Mixed messsages and massive betrayal

The problem with this plan is big enough to be visible from outer space. The SEND Improvement Plan is described as a “multi-year programme” to deliver an improved system. But this government doesn’t have multiple years. With a general election due by January 2025, how much of it will actually happen? It’s hard not to suspect that ministers are largely filling in time until the electorate puts them all out of their misery.

While this might be an interesting diversion for the policy nerds among us, it’s a massive betrayal of families of children and young people with SEND, who were promised that the SEND Review would resolve the crisis in SEND provision but which will in fact deliver very little.

As we’ve said, the key message is that the legal framework remains unchanged. Local authorities must follow the law; parents can continue to rely on the law; the SEND Tribunal will continue to apply the law. But the mixed messages that are being sent to local authorities makes it likely that there will be an increase in breaches. The system will become even harder for parents to navigate (for example, if the law says one thing, and the developing National Standards say another) and the onus will remain on parents to challenge unlawful decisions.

Increasingly the question is not, “what’s the Government going to do to fix the mess the SEND system is in?”, but “how would an incoming Labour government take the Improvement Plan forward?” We need to hear from the Labour Opposition – and they need to hear from young people and families.

Watch this space…

Also read:

• SNJ in Conversation: SEND law in 2023. Public law barrister, Steve Broach, answers your questions
• How does the the SEND Improvement Plan intend to create more accountability?
• The Government’s SEND Improvement Plan: an initial overview

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Catriona Moore

Catriona Moore has a background in policy and communications and has worked for a number of health, social care and disability organisations.

When her younger daughter was diagnosed with Rett Syndrome in 2009 shortly before her second birthday, Catriona found herself dealing in practice with things she’d previously thought she understood in principle.

She juggles her work as policy manager for a national charity with caring and advocating for her daughter. She's passionate about improving the lives of disabled children and their families, and making the systems that should support them work more transparently and equitably.

Catriona writes for Special Needs Jungle in a personal capacity, and all views expressed are her own.

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Latest posts by Catriona Moore (see all)

• Expert group recommends reducing SEND Tribunal appeals by getting decisions right first time - August 4, 2023
• Is the Government rationing EHC plans? - May 25, 2023
• Will non-statutory National Standards improve SEND or just create confusion and more unlawful behaviour? - March 15, 2023