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Are new SEND financial accountability measures compatible with lawful SEND provision?

Accountability. Ask most SEND parents, and that’s what they’ll tell you is missing from the current system. Most of the questions that parents put to Minister Will Quince at last week’s SNJ / NNPCF webinar were about accountability, one way or another.

Everyone’s focused on the SEND & AP Green Paper right now. But in the shadows, without fanfare, a quiet SEND accountability revolution is already happening. Central government is holding local government to account – steadily, unblinkingly, remorselessly, with rapid consequences.

Sounds great, right? Maybe.

Because this is a very specific and narrow form of accountability. It’s financial accountability and its consequences are coming for your children, and your school or college, well before the Green Paper will ever get turned into something real.

The short version? Bean-counters think the screams they hear behind the SEND curtain aren’t screams of pain and misery - but screams of ecstasy from a full-on, balls-out, unjustifiably expensive taxpayer-fuelled party. The bigwigs want the party to end.

But the news for them is there’s no party. The screams will not be ending. 

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What Does Good Value Look Like?

Let’s go back to the Green Paper. The DfE identified three main problems with the current SEND system.

  • Outcomes for children and young people with SEND are poor.
  • The system is too hard to navigate for children, young people, and their families.
  • And finally, the system is not delivering value for money.

The Green Paper is supposed to deal with all of these, eventually. But the DfE is not hanging about in dealing with the third problem. They want better value for money, and they want it now. 

The paper doesn’t define what better value for money looks like for children and young people with SEND. The DfE have turned to IMPOWER, a consultancy firm, to help them find out. This project, (ably summarised by Chris Rossiter here) should have delivered by now, but the DfE hasn’t published anything. 

So outside the magic circle, no-one knows what the DfE think value for money in SEND looks like: what outcomes are acceptable, and at what cost. And when push comes to shove, no one knows what matters more to the department: better outcomes, or lower costs.

But looking at what’s happening before the Green Paper kicks in – checking actions, not words – it looks very much like lower cost is winning out.

Financial Accountability in Action

Over the last year, a small army of civil servants, consultants, and accountants has fanned out across the country. Their mission: to deal with the large Dedicated Schools Grant (DSG) deficits that many local authorities have built up running their SEND services. These DSG deficits now stand at around £1 billion. It would be great if LAs could simply eliminate them by cutting back on consultants, catering, and emotional support barristers. But the deficits are just too big now. And Whitehall wants its money back.

In their language, the DfE wants to make SEND finances “sustainable.” There are two main tools that the DfE are deploying to make this happen:

The High-Needs Safety Valve Programme is for the LAs in deepest financial doo-doo. Head to the bottom of this article, and you can find out if your LA’s already part of the safety valve programme, or whether they’ll probably get an invite soon. Essentially, both sides enter into a formal agreement. The LA gets some bailout funding from the DfE, dripped in over time, with strings attached. Sometimes, the council has to dip into its own pocket too. In return for the bailout cash, the LA has to run its services in ways that the DfE want. 

You can see what these safety valve agreements look like here. The financial conditions are specific, but the official detail on what else the LA has to do to meet the terms of the agreement is vague.

I’ve been looking at how safety valve agreements pan out in practice – and they are hardcore. It’s financial accountability, red in tooth and claw, with little patience for financial failure. 

And to keep the agreements going, these LAs are working to highly specified and quantified targets that have a direct impact on children and young people with SEND.

The crushing Key Performance Indicators

Take Kingston and Richmond. They are each working to meet at least 36 specific key performance indicators (KPIs). They have in-year targets to hit for ‘demand management’, ‘financial control’, and ‘value for money.’

DEMAND MANAGEMENT: Let’s take ‘demand management’ first. Kingston has a target to issue no more than 176 new EHCPs in this financial year, and a target to cease at least 107 EHCPs before the end of March 2023. Richmond has similar targets for both. York also appears to be working to similar targets.

FINANCIAL CONTROL: Kingston and Richmond each have a target to make £1 million of ‘savings and mitigations’ from April 2022 to March 2023, on top of their explicit deficit-reduction targets. 

Bury is retooling its high-needs funding banding system, stripping out the highest value band for the most complex needs, cutting funding to support services and remodelling special school funding, to save around £1.6m. 

VALUE FOR MONEY: 13 KPIs, each measured entirely by cost. Despite spiralling inflation, Kingston is working to a target to cut the average placement cost for under 16s, to reduce the average cost of an EHCP, and to reduce the average top-up cost of supporting a further education placement by 65% from spring 2022 to March 2023.

"Through a well-functioning annual review process, LAs should also consider whether some EHCPs could be ceased or stepped down, where needs can be or have been met without an ongoing need for a statutory plan. In other words, the annual review process should ensure EHCPs are fairly assessed for continued relevance and need, as well as whether additional funding needs to remain at previous levels. For some children and
young people, the nature of their needs mean that they should be met and addressed without the ongoing need for a plan."

P21 Sustainability in high needs systems Guidance for local authorities

KPIs or educating disabled children?

At this point, you might be wondering how the ‘safety valve’ local authorities can both meet the agreements and meet their statutory obligations. I wish I could tell you. But I found no key performance indicators that explicitly measured statutory compliance, or KPIs that explicitly measured better outcomes for kids. 

So what happens if you’re a local authority that doesn’t meet the terms of the safety valve agreement? In several cases – Bury LA being one example - the DfE simply turned off the bailout funding tap. Bury’s offence? They spent too much money on too many new EHCPs, too many placements in special schools, and too many placements out of borough.

Thus far, the safety valve shut-offs have been temporary. But to any parent who has spent any time trying to get the DfE to do anything about serial breaches of statutory duty in their local authority, the speed, precision and strength of the DfE’s latest financial accountability actions are nothing short of breath-taking.

There’s a grim contrast here between how the DfE expects parents and schools to behave to make the SEND system sustainable, and how its financial accountability works in practice. 

A contradiction in words and deeds

In the Green Paper, the DfE emphasises the importance of parental and school confidence. Believe in the system, trust that you won’t often need expensive, specified, and quantified EHCPs and placements, and your actions will help ensure that, once reformed, the system will give your children what they need - early, without a fight, at far less cost.

I hope that’s how it will pan out. But what the DfE is doing itself right now is the polar opposite. Highly specific, highly quantified terms and conditions, and rapid penalties for non-compliance. 

Even the DfE’s long-standing partners don’t escape this new lust for financial accountability. The Council for Disabled Children – the DfE’s strategic SEND reform partner for over a decade – now works to a 190-page contract with 12 detailed KPIs and the sort of specified, quantified provision that, ironically, parents only ever see in kids’ EHCPs if they go through the SEND Tribunal.

Delivering Better Value – for whom?

So what if you’re an LA that doesn’t fancy this degree of pain, or you’re an LA that’s actually concerned about the impact on children and young people with SEND?

There is an alternative. Fifty-five LAs with funding deficits have been invited to join the DfE’s Delivering Better Value (DBV) in SEND programme – you can find a list of which LAs been invited at the bottom of the article.

The DBV programme is less onerous. Sign up, and a team of consultants and accountants parachute in. These 'suits' bring “experience of working with local authorities to improve social care, alongside project management, change management, and analytical financial modelling capacity.” They’ll be working with the DfE’s team of consultant SEND Advisers, typically retired LA managers earning up to £90k, often with less-than-stellar track records of service delivery.

The consultants and bean-counters will work with the LA over at least two years, to develop and implement a financial plan. The stated aim is to get these LAs to “improve delivery of SEND services for children and young people and to ensure that this is done so within budget,” so that they’ll be better placed to implement whatever comes out of the Green Paper.

Financially, the DBV programme is supposed to get the books balanced on a year-by-year basis. It won’t deal with SEND financial deficits that these councils have already built up; Whitehall still wants that money back, and those are still the council’s problem to deal with.

The downside to DBV is that it comes with very little money - £85 million over three years. Spread over 55 LAs, £85m won’t touch the sides of the financial problem, but it will be enough to attract the consultants, change management specialists, and yes-and-ho bullsh*t artists who inevitably make bank on initiatives like these. 

The DBV programme has yet to start in earnest – these LAs will start jumping through the blazing hoop in three groups, probably starting in the autumn.

Chicken Run

The Safety Valve and DBV programmes are voluntary. So what happens if an LA with a deficit doesn’t fancy doing either of them? Things might get very painful and messy indeed.

Over the last few months, central and local government have been playing a game of chicken over the DSG deficits. In 2020, the government introduced statutory regulations that temporarily took DSG deficits off council balance sheets, leaving them in accounting limbo until the end of March 2023. The idea was that this would give councils time to deal with the deficits. That hasn’t happened: instead, the deficits have grown.

So in April 2023, these DSG deficits will be slammed back on to council balance sheets. There are some councils that don’t have enough general reserves to cover their deficit. Those councils effectively risk going bust.

The Local Government Association’s position is clear: it wants Whitehall to write off the DSG deficits entirely. Whitehall’s current position is clear: councils will have to suck it up and sign up to the DfE schemes or suck it up, even if it means risking the council’s wider ability to operate. The DfE recently issued guidance to LAs that said this:

“LAs have a responsibility not only to children and young people with high needs, but to all of their residents, to ensure that a lack of sustainability in high needs does not jeopardise their financial viability in the immediate future. Support is on offer to LAs through the Safety Valve and Delivering Better Value programmes: both these programmes require commitment from senior leaders.”

Sustainability in high needs systems: Guidance for local authorities

What does this all mean?

Somewhere in the middle of all of this are children and young people with SEND. In this recent written guidance, and in the Green Paper, the DfE clearly states that financial changes are needed to ensure children and young people with SEND get the support they need. In theory, none of these changes are supposed to result in worse services, worse provision, or poorer outcomes for kids.

That’s good to hear. And if you’re optimistic, you can look at the dogfight above and take heart. The DfE is no longer “presiding serenely over chaos”, but is rolling up its sleeves and holding local government to account. If they can do this for finance, surely they’ll do the same for the law they designed, and for the children and young people at the heart of this system? Surely they won’t jeopardise already-fragile outcomes for children who are currently in the system, just to salvage the system on the cheap for those yet to enter it?

If you’re less optimistic – like IPSEA is – you might conclude that the DfE’s newly-found love of accountability won’t stretch further than getting the books balanced. That the primary (or even sole) purpose of this exercise is simply to stop SEND costing so much. That there’ll be no similarly rigorous accountability for implementing statutory SEND duties; duties that might end up being diluted anyway. That the blighting of life chances for many children and young people with SEND is a price that bigwigs consider acceptable.

Someone's benefitting - but it isn't disabled children

In the 20 years I’ve been trapped in this system, there’s never been a worse time to be a kid with SEND than now. There’s also never been a better time to be a SEND consultant than right now. Large sums of money are being hurled at slick PowerPoint merchants promising silver bullets, at people with proven track records of failure in delivering SEND services, and at (allegedly) shrivelled sociopaths who know the price of everything and the value of nothing.

I want to be optimistic. But what’s going on in places like Birmingham makes it very hard. 

Decades after Birmingham families first pointed out SEND system failure, four years after a damning Ofsted / CQC inspection, one year after the DfE appointed a SEND Commissioner, families say things are still shambolic. The Commissioner issued a rambling report that has yet to have any impact beyond placing Birmingham’s highly-effective SENDIASS service on notice. Birmingham’s Parent Carer Forum have put together an open letter in the hope that somebody – anybody – with clout and a clue will take meaningful action. They’re still waiting. Why? Probably because Birmingham doesn’t have a DSG deficit. 

Safety Valve Programme LAs

Current members: Tranche 1 (2020-21)

  • Bury
  • Hammersmith & Fulham
  • Kingston-upon-Thames
  • Richmond-upon-Thames
  • Stoke

Current members Tranche 2 (2021-22)

  • Dorset
  • Hillingdon
  • Kirklees
  • Merton
  • Rotherham
  • Salford
  • South Gloucestershire
  • Surrey
  • City of York

Potential Future Safety Valve Programme Invitees

  • Barnsley
  • Bath & North East Somerset
  • Bexley
  • Blackpool
  • Bolton
  • Cambridgeshire
  • Croydon
  • Darlington
  • Devon
  • Haringey
  • Hounslow
  • Kent
  • Medway
  • Norfolk
  • North Somerset
  • Slough
  • Southwark
  • Torbay
  • Wokingham

Delivering Better Value (DBV) for SEND Invitees

Tranche 1

  • Bournemouth, Christchurch and Poole
  • Bracknell Forest
  • Brent
  • Chesire East
  • Cumbria
  • Doncaster
  • Dudley
  • Hampshire
  • Kensington and Chelsea
  • Newham
  • North East Lincolnshire
  • Oxfordshire
  • Solihull
  • Somerset
  • South Tyneside
  • Southampton
  • Stockport
  • Stockton-on-Tees
  • Suffolk
  • Tower Hamlets

Tranche 2

  • Bristol
  • East Riding of Yorkshire
  • Enfield
  • Gloucestershire
  • Hackney
  • Havering
  • Kingston-upon-Hull
  • Leicestershire
  • Middlesbrough
  • Oldham
  • Reading
  • Redcar and Cleveland
  • Rochdale
  • Rutland
  • Sefton
  • Tameside
  • West Sussex
  • Wiltshire
  • Windsor and Maidenhead
  • Worcestershire

Tranche 3

  • Buckinghamshire
  • Cornwall
  • Durham
  • Halton
  • Lewisham
  • Manchester
  • North Yorkshire
  • St. Helens
  • Sunderland
  • Swindon
  • Thurrock
  • Warrington
  • Warwickshire
  • West Berkshire
  • Wirral
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