#SENDReview Chapter 2 under the microscope: National standards, EHCP changes, and limiting choice

As we continue our analysis of the SEND Green Paper, today we're looking at Chapter two, which includes consultation questions 1-7. Remember, a Green Paper is a discussion document; these proposals are not set in stone, so it is very important that you respond. As previously stated, we’re not going to offer proposals or recommendations, just things for you to think about so you can make up your own mind. We'll also set up forms to help you respond, if you need it. The consultation ends on July 1st, so you have plenty of time.

The first chapter of the Green Paper makes the “case for change”: what the main problems are as the Government sees them, and what it aims to achieve. You may or may not entirely agree with the Government’s assessment of the situation.

Chapter 2 then sets out some of the big ideas of the SEND Review:

  • the creation of a new set of national standards for SEND provision,
  • a standardised process and template for Education, Health and Care (EHC) plans,
  • a new process for naming a school or college in a child or young person’s EHC plan,
  • and proposals to reduce the number of appeals to the SEND Tribunal. 

What problem is the Green Paper is trying to solve?

“The Review has concluded that there is a need for much greater consistency in how needs are identified and supported.”

SEND Review: Right support Right place Right time

The problem, as the SEND Review sees it, is a lack of clarity about what is supposed to be happening for children and young people with SEND. This leaves local authorities and education settings with too much leeway to make their own decisions, resulting in a wide variety of experiences, depending on where you live. 

But this isn’t quite right. The SEND legal framework – in the form of the Children and Families Act 2014 and associated regulations, plus the Code of Practice and of course the Equality Act 2010 – is clear. 

There is certainly inconsistency in how the legal framework is implemented (a polite way of saying that following the law on supporting children with SEND is widely seen as an entirely optional activity), but there should be no confusion about what is required.

Rather than expending effort and money on creating, and legislating for, a whole new set of national SEND standards, it would be much more useful and productive for the Department for Education to focus its efforts on making sure that local authorities and education settings work with parents and families to implement the SEND system that was introduced in 2014.

“The appeal rate to First-tier SEND Tribunals has increased year on year, demonstrating parents’ and carers’ increasing frustration with the system.”

SEND Review: Right support Right place Right time

This isn’t quite right either. The rising appeal rate demonstrates, above all, the extent of unlawful decision-making. 

The DfE acknowledges the widespread failure to uphold the law on provision and support for children and young people with SEND has undermined parents’ confidence in the system. Of course it has! 

The experience of the last eight years, since the last set of SEND reforms, has been that the onus is firmly on families to know and understand their children’s legal rights and enforce these rights through costly appeals to the Tribunal. The Review makes no attempt to deny that the vast majority of appeals are lost by local authorities, who mostly don’t have a legal leg to stand on.

The Department for Education is very keen to work out how to repair this loss of parental confidence. It is investing its hopes in their proposed new national standards, creating a situation where children’s needs are met so effectively, hardly anyone will need to appeal. But just in case this doesn’t happen, they plan to reduce the number of appeals by making the whole process much trickier and more time-consuming.

What are the main proposals for change in chapter two?

  1. National SEND Standards:

The SEND Review has concluded that there is too much variation between areas and that this is because local authorities have too much wriggle room to make their own decisions. So the top proposal is for new legislation for a new set of ‘national SEND standards’, with the aim of creating consistent provision, processes, and systems across the country.

These proposed new national standards will cover education, health, and social care. There will be standards on how to identify and assess children’s needs, what sort of provision should be available in each area for different types of need, and how children with SEND should access support in mainstream schools.

  1. Updated SEND Code of Practice:

The SEND Code of Practice will be reviewed and updated to ensure it reflects the new national standards for nationally consistent systems, processes, and SEND provision.

  1. Local SEND partnerships:

There will be legislation to introduce new ‘local SEND partnerships’, to be led by local authorities, to assess the overall needs of children and young people with SEND in their area and plan the range of types of provision required. 

  1. Local inclusion plans:

Every local SEND partnership will have to produce a ‘local inclusion plan’, explaining how the national SEND standards will be delivered in their area.

  1. Digital, standard EHCPs:

A national template is proposed for EHCPs to improve portability and reduce local variation. EHCPs will also be standardised with a digitised process for producing them.

  1. New local multi-agency panels

There is a proposal for introducing local multi-agency panels to review requests for EHC needs assessment, the needs assessment process itself, and subsequent decisions on school places and funding. This local multi-agency panel would then make recommendations to the local authority, who would still make the final decision.

  1. New placement process

The proposals include a new process for naming a school or college place in Section I of a child or young person’s Education, Health and Care (EHC) plan. Local authorities will offer parents a “tailored list” of education settings that are “appropriate” to meet their child’s needs. Parents will be invited to express an “informed preference” from this list, rather than being able to request any setting as at present.

  1. "Streamlining" Appeals & mandatory mediation:

Finally, there are proposals to “streamline” the redress process, including the introduction of mandatory mediation before families can register a SEND Tribunal appeal. The aim is to reducing the number of Tribunal appeals to only the “most challenging” cases.

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Consultation question 1

Question 1: What key factors should be considered when developing national standards to ensure they deliver improved outcomes and experiences for children and young people with SEND and their families? This includes how the standards apply across education, health and care in a 0-25 system.

It’s worth questioning the rationale for creating a whole new set of statutory national standards, and asking where the new standards would sit within the existing SEND framework and what they would replace. There is already a statutory framework, and the Green Paper doesn’t appear to propose an overhaul of the Children and Families Act 2014.

The assumption in the Green Paper that what is expected of local authorities and education settings isn’t currently clear enough needs to be challenged. 

“The 2014 reforms placed a strong emphasis on local decision-making… It is clear that there is too much local discretion.” 

SEND Review: Right support Right place Right time

Did the reforms do this, though? Is there really too much local discretion? Or is it that Part 3 of the Children and Families Act 2014 and the SEND regulations are simply disregarded with impunity?

The Green Paper promises that national standards will “bring clarity to the circumstances in which a child or young person needs an EHCP, and…whether their needs should be met in a specialist setting”.

There is a proposal to introduce a standard on how and when an EHC needs assessment should take place for an individual child. Do you think this is necessary? Could the intention here be to devise a standard on needs assessments that raises the threshold higher than the current test?

Think about the existing test for determining whether an assessment should be carried out: local authorities must consider whether the child or young person has or may have special educational needs, and whether they may need special educational provision to be made through an EHC plan (section 36 (8) of the Children and Families Act 2014). 

(8)The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted under subsection (7), the authority is of the opinion that—
(a)the child or young person has or may have special educational needs, and
(b)it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.
Children and Families Act 2014, Section 36 (8)

That is all they should consider, and if the answer to both questions is yes, they must carry out an assessment. But requests for EHC needs assessments are refused on a regular basis and routinely overturned on appeal.

So local authorities disregard a clear legal duty over which they already have no "local discretion". Who, and what is going to make them adhere to new national standards?

The Government would also like to have a national standard on allocating special school places. What they seem to want is a simple formula to calculate when a child requires a special school place. But meeting children’s individual needs doesn’t quite work that way, and parents should use the consultation to explain why. For example:

  • Think about what type of school setting works best for your child, and why this is.
  • Think about what makes, or could make, a mainstream setting possible, or impossible, for your child.
  • Think about the full range of factors involved in deciding what type of school place your child needs.

What about children and young people who don’t have an EHC plan? Would national standards help them get the support they need? Currently, SEN Support in schools isn’t on a statutory footing, and can’t be enforced, yet this is what most children with SEND rely on for adjustments and additional provision.

Therefore, the proposal to create a standard so that education settings can be clear about the support they are expected to ordinarily deliver for children and young people with SEND” has potential to be a positive. But again, how will the Department for Education make sure that everywhere complies with national standards?

Another subject for a national standard is “how and when EHCPs should be effectively reviewed. But a clear annual review process already exists. It may routinely be a bit of a shambles in many local areas, but is set out in law nonetheless (section 44 of the Children and Families Act 2014).

Section 44
Section 44 of the Children and Families Act 2014

And again, on transitions between phases of education and into adulthood: “Transitions standards will ensure there are consistently deliverable arrangements in place as children and young people move to their next phase, particularly into further education, employment and adulthood”. 

Apologies for repeating myself, but the “arrangements” that should be in place as young people approach adulthood are already set out in the current framework, but are often not delivered. What is going to be the magic ingredient that makes local authorities deliver on national standards, when they haven’t met their legal duties before?

Consultation question 2

Question 2 - How should we develop the proposal for new local SEND partnerships to oversee the effective development of local inclusion plans while avoiding placing unnecessary burdens or duplicating current partnerships?

The proposal for new local SEND partnerships effectively describes strategic commissioning, i.e. councils’ main job. They should take the lead in working with other local organisations to think about the particular local population they serve, the current and future needs of that population, what already exists locally to meet those needs, where the gaps are and how to fill them so children and families aren’t left without vital support. 

It’s an excellent idea, but hardly new. If a local authority isn’t already doing this, what is it even for?

The SEND Review recognises that health and social care providers don’t always work properly together or with education services – it could hardly conclude otherwise. But the Children and Families Act 2014 (section 26) and SEND Code of Practice (chapter 3) set out in a lot of detail how joint planning and commissioning should work. Why hasn’t this worked, and what will make it work now?

The local offer was supposed to be a commissioning tool to help local authorities do their job, but it hasn’t worked that way. This question is an opportunity to share your experiences of the local offer in your area and how it has helped, or not.

It isn’t fully clear how local inclusion plans will differ from local offers. Chapter 2 of the Green Paper says that the local inclusion plan won’t replace the local offer, but will “inform” it. This really does beg the question of what has been informing the local offer for the last eight years?

Consultation question 3

Question 3 - What factors would enable local authorities to successfully commission provision for low-incidence high cost need, and further education, across local authority boundaries?

It’s good that the Green Paper recognises that the needs of every child and young person can’t always be met by provision in their immediate local area – and for some young people this is particularly relevant as they get older. 

You could share with the Department for Education your specific experiences of the type of needs that rely on local authorities working together collaboratively to commission the type of specialist provision that can’t be set up and run everywhere. For example, it’s crucial that LAs grasp regional commissioning for specialist college places for young people with the most complex needs. The specialist college sector is on the brink of crisis, with too few places for the young people who need them.

Consultation question 4

Question 4 - What components of the EHCP should we consider reviewing or amending as we move to a standardised and digitised version?

I think most people would agree that a standardised national EHC plan template is long overdue. It would have been particularly useful in 2014 when the SEND reforms were introduced, and many people made the case for this at the time. Nonetheless, it should still be useful now, not least for children's hospitals and specialist schools and colleges who may deal with dozens of LAs, each with their own EHC plan format.

The Green Paper says that a national template “will place greater focus on the support that is being put in place”.

This question is an opportunity for you to comment on whether the format of your child’s EHC plan helps or hinders the description of your child as a person, their full range of needs, the provision and support they require, and the outcomes the whole thing is supposed to help them achieve. For example:

  • Which sections do you think are essential?
  • Are there any sections in your child’s plan that you think don’t make sense?
  • Do you have views on the most logical sequence of sections? (For example, should ‘outcomes’ follow ‘provision’, rather than the other way round as at present.)
  • Also think about how a fully-digitised process for producing and reviewing an EHC plan might work, and whether you welcome this or have concerns about it.

Consultation question 5

Question 5 - How can parents and local authorities most effectively work together to produce a tailored list of placements that is appropriate for their child, and gives parents confidence in the EHCP process?

The proposal to change the process for naming a school or college in a child or young person’s EHC plan---and, let’s not mince our words, restrict the options to a set list pre-approved by the local authority---is a big change from how it currently works. 

Under the current legal framework, parents of a child with an EHC plan, or a young person themselves, have the right to request that a particular school or college is named in the plan. This request can only be refused by a local authority in three specific, legally defined, evidence-based circumstances.

We know that one of the main driving forces of the Green Paper is the Government’s wish to cut costs. It seems one of the ways it plans to do this is by reducing parents’ choices and allowing them to express an “informed preference” instead. (The definition and status of what an informed preference might be is currently unclear.)

“The local authority will allocate the first available place in order of the parent’s or carer’s preference and this school will be named in the child’s EHCP.”

SEND Review: Right support Right place Right time

This sounds like a move towards something similar to the Common Admissions Process that exists for children without an EHC plan. The proposal to replace an open choice with “a tailored list of placements that is appropriate for [the] child” raises the obvious question of who will produce the tailored list and decide what’s appropriate for a particular child. This consultation question suggests that LAs should work with parents to agree on what options exist to meet a child’s needs, which is certainly preferable to parents having a pre-approved list imposed on them. How many schools would even be on this list, in most cases?

  • Tell the Department for Education what you think about this, and what you think the implications could be for children with particular needs.
  • Think about how to avoid a situation where children have to adapt to what is available in their immediate area, rather than their needs being a starting point.

Consultation questions 6 and 7

Question 6 - To what extent do you agree or disagree with our overall approach to strengthen redress, including through national standards and mandatory mediation? Strongly Agree, Agree, Neither Agree nor Disagree, Disagree, Strongly Disagree 

If you selected Disagree or Strongly Disagree, please tell us why, specifying the components you disagree with and alternatives or exceptions, particularly to mandatory mediation.

Question 7 - Do you consider the current remedies available to the SEND Tribunal for disabled children who have been discriminated against by schools effective in putting children and young people’s education back on track? Please give a reason for your answer with examples, if possible.

The proposals at the end of chapter two to “streamline” the process by which parents, carers and young people can seek redress or remedy for unlawful decisions raise more questions than I can do justice to at the end of what is already a very long post! However, legal experts such as the charity I work for, IPSEA, and others will be producing their own detailed analysis of what these proposals mean for children and young people, and we will cover this separately in a future post. SNJ also has an imminent article on the mandatory mediation plans from professional mediator, Margaret Doyle.

In brief, the Government’s stated aim is to reduce the number of appeals to the SEND Tribunal. The obvious way to tackle this would be to require local authorities to comply with the law, with punitive consequences for failure. If they did this, there would be no grounds to appeal, and the Tribunal would be much less busy. 

The SEND Review has decided to approach it by

  1. setting national standards for responding to complaints and resolving concerns locally,
  2. introducing mandatory mediation before a legal appeal can be registered and,
  3. considering “an additional redress measure in the form of an independent review mechanism”.

If you have experienced SEND mediation---or if you have considered it and decided against it ---you may want to respond to Question 6 on whether mediation should be made mandatory. Think about:

  • The power imbalance between parents and local authorities.
  • The extent to which parents understand their child’s legal rights and entitlements.
  • The implications for children and young people whose families are unable to pursue mediation or an appeal, for whatever reason.

Let’s end on a positive note. Chapter 2 of the Green Paper confirms that the extended powers given to the SEND Tribunal to hear appeals and make non-binding recommendations on health and social care, tested under the National Trial that ended last August, will continue. But let’s not resist the temptation to observe that it would be even more positive if these health and social care recommendations could be made binding.

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Catriona Moore
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