SEND Inquiry report Part 2: No more reviews, it’s time to ACT

SEND Inquiry report Part 2: No more reviews, it's time to ACT

This is the second part in our SEND Inquiry report coverage. See Part one from Matt Keer here

It has been a long time coming, but the Education Select Committee’s report on the SEND reforms didn’t disappoint. I knew when the first page said “The Department [for Education] did not need to preside serenely over chaos for five years to see that things were not quite going as planned” that I was going to enjoy it. Not because it is anything other than grim reading, but because it describes so accurately the world as we know it and calls out so clearly the Government’s complacency. 

The statement that “The distance between young people’s lived experience, their families’ struggles and Ministers’ desks is just too far” made me think that our voices have been heard, and we have a powerful ally in Robert Halfon MP and his committee.

“Ultimately the Government must decide whether it wants local authorities to retain the statutory duties it set in place in the 2014 Act. If it does, it must give them the necessary funding and freedom to meet their local population’s needs, with the appropriate accountability to ensure that they do so.” [para 57]

You would think we’d have learned by now not to get our hopes up by reports and reviews. But there is something about the urgency of this one that invites a little optimism – as well as justifiable rage, of course. The select committee has so thoroughly taken on board the experiences of young people and families; they state so unambiguously that things have gone badly wrong with the way children with special educational needs are supported in this country; and they demand nothing less than immediate action from the Government.

Straight to the top

The most striking thing about the committee’s conclusions on where the problem lies is that they go straight to the top. The disastrous state of provision across the country for children with SEND is placed firmly at the door of the Department for Education, who – the committee says – should have a better insight into what is really happening beyond Whitehall.

“We heard countless examples of local authorities not meeting their statutory duties, and of schools deliberately or otherwise off-rolling, excluding and even discouraging parents from sending pupils to their schools. Many parents and carers are engaged in struggles with their LA. Some of these struggles are by-products of the challenges of the current system, which has led to the experience of an acutely adversarial system. In some local authorities this is particularly problematic, with a minority having acted appallingly, against both the spirit and the letter of the law.” [para 80]

The next most striking thing is that no-one across the system escapes blame for the way our children have been failed, and continue to be failed. Local authorities frequently act unlawfully. Schools neglect their duties to children who need SEN Support. Ofsted has failed to call out unlawful practice and act on it. The report observes that Ofsted is prepared to be proactive and make judgements about unlawful practice in relation to things like extremism and unregistered schools, but for some reason it doesn’t do the same in relation to unlawful actions affecting children with SEND.

The select committee has made a large number of recommendations to the Government – and has been clear that these need immediate action, not more discussion.

Holding people responsible

“The Government should introduce a reporting and accountability mechanism for non-compliance so that parents and schools can report directly to the Department for Education where local authorities appear not to be complying with the law. It should also implement an annual scorecard for local authorities and health bodies to measure their success against the SEND reforms including, but not limited to, reports of non-compliance; the school placement of children and young people with SEND, including those without a school place; Tribunal hearings, and how local authorities meet statutory timescales. These scorecards, along with a summary document, should be placed in the House of Commons library no later than three months after the end of the year to which they relate.” [para 34]

Many of the recommendations concern the problem of accountability: the whole business of holding people responsible for what is decided and what the consequences are for the children affected. It isn’t just about counting and measuring things, as the ministers and government advisers who gave evidence to the inquiry seemed to think. 

MPs heard repeatedly that the SEND system lacks accountability and transparency. Their solutions are a more rigorous inspection framework with clear consequences for failure, an extension of the powers of the Local Government and Social Care Ombudsman, and new rights for parents to report their concerns directly to the Government.

The committee says that Ofsted should look more closely at what is happening for children with SEND when they carry out their inspections of schools, and should deliver clear judgements on this – either through Ofsted’s existing programme of school inspections or through a new, separate type of specialised inspection that focuses on SEND. This is something that many witnesses called for. What we really want is for no school ever to be judged ‘outstanding’ unless it is genuinely inclusive and delivers an outstanding education for all children.

“We do not think enough is being done [by Ofsted] to ensure that every pupil with SEND receives a high standard of education and that all schools are inclusive. Ofsted must deliver a clear judgement, and through this assurance to parents, that schools are delivering for individual children with SEND. It should either seek to do this through its existing programme of inspections, or alternatively develop a separate type of specialised inspection focusing on SEND, with a particular focus on the school’s responsibility to deliver for pupils on SEN Support and that inclusive schools get the recognition that they deserve. If this requires legislative change, the Department should work with Ofsted to bring forward proposals at the earliest possible opportunity.” [para 42]

On the local area SEND inspections that Ofsted carries out jointly with the Care Quality Commission, MPs recommend that these should not be one-off events, as they are at present, but should become part of an annual inspection process – with clear consequences for local authorities and health bodies that fail their annual inspection. 

They also say that Ofsted should inspect the training in SEND law that is provided to all local authority staff who are involved in carrying out EHC assessments, writing or reviewing EHC plans, or preparing for Tribunal appeals. This assumes, of course, that staff receive training at all.

“The joint CQC and Ofsted inspections should not continue to be one-offs but should become part of an annual inspection process to which all local authorities and their partners are subject. CQC and Ofsted should be funded to be able to deliver this rigorous inspection timetable. CQC and Ofsted should design and implement an inspection regime that not only improves practice but has a rigorous framework that enables local authorities and their partners to be held to account and sets a clear timeframe for re-inspections. Ofsted and CQC should also clearly set out the consequences for local authorities and health bodies that fail their annual inspection.” [para 29]

New powers for the Ombudsman

When Michael King, the Local Government and Social Care Ombudsman, gave evidence to the select committee earlier this year, he explained that his ability to investigate the SEND system and obtain redress for children stops at the school gate. He made a compelling case for his office to be given additional powers by Parliament to look at exactly what goes on in schools, in the same way that they look at local authorities.

“The committee’s findings of families having to battle a system designed to support them, echoes what we’ve seen in the complaints we investigate. Sadly, we uphold almost nine out of every ten investigations from children and families with special educational needs and disabilities. This is unprecedented in our work.”

Michael King, Local Government & Social Care Ombudsman

The committee agrees that this should happen, and recommends extending the Ombudsman’s powers to cover “internal school management and free schools and academies”. This will need new legislation, and it is up to ministers to introduce this and push it through Parliament.

“…parents are still relied on to self-police the system. We heard repeatedly from parents who were forced to take a case to Tribunal in order to get appropriate support, navigate and exhaust a local authority complaints system before being able to take their complaint to the Local Government and Social Care Ombudsman, and in some cases judicially review the local authority, and in one case the Government.” [para 80]

New rights for parents

The committee also thinks that parents and schools should have the right to report directly to the Department for Education when local authorities behave in a way that goes against what the law and the SEND Code of Practice say. I hope they’ll have plenty of phone-lines open to receive those calls.

MPs are calling for an annual ‘scorecard’ for local authorities and health bodies to measure their success in putting into practice various aspects of the SEND reforms. They say this could include things like reports of non-compliance with the law, the number of children with SEND who do not have a school place, numbers of Tribunal appeals, and whether local authorities meet the required timescales for carrying out EHC assessments and producing EHC plans.

A neutral role?

The select committee is keen to emphasise that it understands how difficult it can be for parents to navigate the SEND system, describing it as a “treacle of bureaucracy”. It is more than that, to be honest. It’s not just paperwork and procedures that make life difficult for parents, but the deliberate obstacles that local authorities create to keep children out of the system and the ‘no help here’ stance that too many of them adopt.

MPs’ solution to these difficulties is to propose “a neutral role, allocated to every parent or carer…when a request is made for a needs assessment, which has the responsibility for coordinating all statutory SEND processes including the annual review”.

“We recommend that the Department for Education explores the potential for creating a neutral role, allocated to every parent or carer with a child when a request is made for a needs assessment, which has the responsibility for co-ordinating all statutory SEND processes including the annual review, similar to the role of the Independent Reviewing Officer for looked-after children.” [para 52]

This recommendation raises more questions than it answers. Who would take on this neutral role? Who would pay them, and who would they report to? Hasn’t this already been tried through the information, advice and support services run for local authorities by the Council for Disabled Children? What about the role of parent carer forums run by the charity Contact on behalf of the Department for Education? Wouldn’t this be another way of neutralising potentially critical voices by bringing them ‘inside’?

Strengthening the SEND Code of Practice

The way that SEN Support is provided (or not provided) by schools comes in for a lot of criticism in the report. The committee has taken on board the evidence they heard from witness after witness that the needs of children on SEN Support are too often neglected. The lack of early intervention has driven a steady increase in the number of applications for EHC plans as the only way for children to get the help they need.

The committee’s conclusion is that the Government should strengthen the guidance in the Code of Practice on SEN Support in schools, to provide greater clarity over how children should be supported. This would at least give schools fewer places to hide, and help parents know what to ask for. They also recommend clarifying the guidance in the Code of Practice on EHC assessments and plans.

We are still waiting to hear whether, and when, the Government will carry out a comprehensive review of the SEND Code of Practice, and what this will look like.

New specialist schools

“The Department for Education should, in the absence of other plausible solutions, enable local authorities to create new maintained specialist schools, including specialist post-16 provision outside of the constraints of the free school programme. It should amend the capacity building guidance to ensure that local authorities are able to be more responsive to their local population’s needs and address the unfortunate unintended consequences of the programme. This should not detract from the principle of inclusion and right to mainstream schooling. If necessary, local authorities should also be able to build more mainstream schools outside of the free school programme. This would create a level playing field for provision within and beyond local authority structures.” [para 58]

The select committee politely pinpoints a tricky dilemma in the Government’s education policies, namely the difficulties of improving the educational experiences of children with SEND while at the same time preventing local authorities creating new specialist settings. MPs recommend that local authorities should  be enabled to created new maintained specialist schools, including specialist post-16 provision, outside of the constraints of the free schools programme. 

“Being heard isn’t enough. The Government must act now to make sure that schools and local authorities have the resources they need to support children properly.” – Jane Harris, National Autistic Society

This should be widely welcomed by parents who want their child to have the school place they need as close to home as possible, and by commissioners who want to reduce the cost of placing children at independent specialist schools. Local authorities should be responsive to their local population’s needs – otherwise what are they for? – and they need to be able to create provision to meet those needs.

There are a whole list of other recommendations – it’s a long and detailed report. The committee says that government departments should work together to develop more employment and training opportunities for young people post-16. It says that the Department for Education should work with other departments to review the capacity of local authorities to meet the independent living needs of young people with SEND. 

“We recommend that when the Government makes changes to address these challenges, it should avoid the temptation to address the problems within the system by weakening or watering down duties or making fundamental changes to the law.” [Para 18] “Nobody benefits when Departments avoid accountability and try and pass the buck. The Department for Education, together with the Department for Health and Social Care, should develop mutually beneficial options for cost- and burden-sharing with the health and social care sector.” [Para 25]

On health, the report says that the Government should map therapy provision across the country and identify ‘cold spots’. It also says that there should be an outcomes framework to measure how the health aspects of support for children and young people with SEND are being delivered locally. 

On funding, MPs say that the Government should look at the ‘notional budget’ that schools receive to support pupils with SEND, and make this a focus of its review of SEND funding. 

All of these recommendations are welcome. All are urgent.

The education select committee doesn’t conclude that parents’ expectations are too high, or that thresholds for support are too low, or that a bit more time is needed to allow the reforms to bed in. They reject all of that, saying in the epilogue to the report that “there are clear and fundamental problems that need fixing now, not left waiting on the outcome of another review”.

“The system is not working—yet. There are clear and fundamental problems that need fixing now, not left waiting on the outcome of another review. Apparently random examples of children getting good support are not enough. A reliance on relationships, luck or family circumstance is not enough. Families are in crisis, local authorities are under pressure, schools are struggling. And they cannot wait for the outcome of another review: they have waited patiently for long enough.” “The Government must act decisively and soon. It must implement our recommendations with immediate effect and move swiftly to address the many other problems that we identify in our report. A generation of children depends on it.”

The committee may not have power to make things happen, but it does have influence – and they need to use this like never before. What comes across most clearly is their insistence that the Government shouldn’t reform the system again, or water down anyone’s legal duties. The law is clear about what children who have special educational needs and disabilities are entitled to, and what everyone should do to support them. The system needs to be made to work. 

Image quotes: Tania Tirraoro. You may download free for non-commercial sharing on social media.

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Catriona Moore
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