The Local Government Association research by ISOS Partnership claims that one of the key pressures on councils’ SEND funding is the fault of parents and the law. “…the nature of the legislation, and the weight given to parental preference in tribunal decisions and cases going to judicial review, which fetters local authorities’ ability to maintain a threshold for undertaking EHCP assessments or control the trend into increasingly specialist placements.”
The researchers seem to be claiming that the law (ie the Children and Families’ Act 2014) putting families at the heart of the system is just plain wrong and LAs should be able to set their own thresholds for EHCPs to suit themselves. Dear God. Although of course, many LAs do exactly that anyway until they are forced to the SEND tribunal by determined parents, demanding they live up to said law, whether it suits them or not.
In their press release, the LGA are calling for government to provide a "fundamental reboot" of their SEND powers. It won't surprise you to learn that they haven't properly specified what they mean by that - but if they're thinking about lobbying for a weakening of their statutory SEND duties, then they'll be in for a fight.
Further in the report it said:
Parental confidence can easily be eroded if their experience of the system of assessment, planning and review is poor. Where parents feel that they have not been heard, where they feel receiving support is a continual upwards struggle, where communications are sporadic and core processes, such as carrying out assessments for EHCPs or taking placement decisions are protracted then, understandably, they might cease to believe that the education system locally is able to meet the needs of their child.
Why yes! and then it leads directly to the Tribunal! However, the LGA’s answer is “maintaining a sufficient and efficient core team to carry out statutory assessment, oversee EHCP reviews and provide a strong case-work function.” Which, while a very good idea, will not solve the problem. Again: It’s the law, stupid. If an LA has poorly-trained staff who don't understand the law or, crucially, how to correctly apply it, then EHCPs are going to continue to be crap. And if they don't sort out the culture to reflect the spirit as well as the letter of the CFA, then likewise, the system isn’t going to work as it shouldAnd while we’re on the topic of the Tribunal, the most shocking statement in the report for me is this one:
“… it would appear that the system is becoming increasingly litigious. A number of local authorities involved in the research pointed to the emergence of no-win-no-fee legal firms operating in this space and encouraging parents to appeal.”LGA
Neither I, nor any of my SEND colleagues, have heard of this. We suspect it's unverified gossip from the LA watercooler - but If you have information, please let me know. And parents: if you’re paying for a lawyer but not getting a specialist in SEND, you are very possibly wasting your money (Or not, if you lose… 😉 ) In the New Year, Matt will be covering some top tips from parents and professionals about explaining what you need to look for in an advocate or lawyer, so sign up to receive post alerts by email at the top of bottom of this post, if you haven't already.
The 'trend' for specialist places also reflects a change in society
The LGA research said one of the biggest reasons for the overspend of many councils, was the “trend” for specialist placements, in particular for children with ASD and emotional needs. It pointed to one LA where over 60% of their spend on“out of county” independent specialist provision, was for children with Social, Emotional and Mental Health needs and/or autism. These children often had behavioural issues that mainstream schools found difficult to cater for. It meant LAs had no control over costs when these schools bumped up their fees between 6-33% in the last three years.
Aside from the fact that parents can't trust schools to deliver specialist education, let alone inclusion, it’s just a fact that the make up of society has changed. Councils - and government - need to catch up. There is increasing demand for specialist placements because there are rising numbers of disabled children.
More children with complex health conditions are surviving into childhood and need to be catered for. Numbers of children with autism are rising - be the reason genetic, environmental or whatever. And the pressure of schools in a Pisa-chasing, 'always-on' world, where everyone feels like they’re living in a sausage factory, undoubtedly has its impact on children too, sometimes severely.
Society and modern teaching pressures mean children with ADHD and other executive function difficulties find it hard to learn, so require a specialist setting to reach their potential. Perhaps the LGA would rather children not meeting their threshold of ‘normal’ be left on the scrapheap or, perhaps, shoved in an isolation room where they won’t bother anyone.
It just is what it is, so government and LAs need to stop clinging to the models of old and forecast how the future of the world looks for SEND.
Looking to the future
And that brings me back to something else I mentioned in Sunday’s post - the LGA called for evidence in what works for educating children with SEND. 'Serendipitously', the Government announced that very same day it was commissioning the first part of major research— called SEND Futures. Or rather research into research.
The tenders for these have now been announced in a letter by Education Secretary Damian Hinds. One is for a ‘discovery phase’ (worth £750k) to gather evidence on how to make sure the actual research can retain its parent and child participants so it has robust and reliable results.
The other research about research is an “SEN futures feasibility study” (worth £65k) to set up another study about value for money of SEN provision for pupils with EHCPs, and how much it’s even possible to obtain this. As the deadlines for both pre-study studies is 11th Jan, Mr Hinds has just ruined Christmas for a load of SEND researchers who want to apply.
His letter also mentioned reviewing current SEND content in Initial Teacher Training provision (ITT) and building on our existing SEND specialist qualifications.
I’m sorry, wasn't this what the Carter Review did? Weren’t the recommendations of that supposed to have been well underway by now? What the hell is going on in this topsy-turvy SEN world where work that should have been done BEFORE any major changes in legislation, is being done, and then done again, four years after it's implemented? And how much is this all going to cost? On top of the £815k research, that is. We've already kissed goodbye to £600m getting the 'reformed' SEND system to this stage, and it still isn't delivering for many children & young people.
SEN Support & into adulthood
Another thing in his letter was that in early 2019, “an evidence-gathering exercise on the financial incentives in the current arrangements, in particular on the operation and use of mainstream schools’ notional SEN budget, which pays for the costs of special educational provision up to £6,000.”
I’m assuming this isn’t part of the “research for the research”, but I can save him some money here. I think he’ll find it’s often used to buy school essentials instead being dedicated to SEND - which is what not ring-fencing gets you.
Finally, in Mr Hind’s packed little letter, he focused on post 16/19s with EHCPs and eventual move into employment. He’s commissioned the National Development Team for Inclusion (NDTi) to work with 20 local authorities on a “shared vision” of what good life outcomes look like for an individual, and when it is right to cease an EHC plan. I hope the “shared vision” includes the young person…
Making the NHS pay its share of an EHCP
Another of the problems, as mentioned in Sunday’s post was the unwillingness of the NHS to pay its share of provision in an EHCP. The LGA want government to “reboot” this so LAs can force the NHS to live up to its legal responsibilities (oh, the irony!) which will in turn, reduce pressures on them.
Local authorities have all the responsibility for maintaining high needs expenditure within budget, and yet have almost no hard levers with which to effect this. The continued viability of the system relies too much on the ability of local government to cajole partners to enter into a collaborative, inclusive approach to developing and delivering local provision for SEND, without the powers to sustain such an approach in face of misaligned incentives.LGA report
In its own attempts to achieve the same thing (though not by compulsion, it seems) The SEND Minister, Nadhim Zahawi has provided more details about the new SEND System Leadership Board it announced also on Sunday.
It aims are to:
- Clarify and shout about joint commissioning in SEND between education, health and social care
- Look at how how this can be supported by better communication such as data sharing, insight, good practice and peer support
Who’s on it? Well of course it’s the usual suspects as you can read in the letter . While it's true that fixing SEND has to come from the top down, I do wonder why a) this wasn’t been done at the outset of the reforms, b) how these leaders will make sure any promises they make will filter down the ranks to the front-line, and and c) whether anything the Leadership Board says and decides will be put in the public domain for parents and professionals to see.
Mr Zahawi will also co-host ministerial roundtables, with the Care Minister, giving, “providers, users and voluntary sector organisations the opportunity to feedback on the work of the board, alongside general SEND policy. We plan to hold these twice yearly.”
There will also be workshops to “answer questions on condition-specific needs, user experience and provider knowledge.” They’re looking for a Chair for the board. Any suggestions?
And of course, if the government collapses over Brexit, it’s all academic anyway...
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