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#SENDReview Chapter 5 (part 1): The missing accountability question

#SENDReview Chapter 5 (part 1): The missing accountability question

In this article, we'll be looking at the first part of Chapter 5, dealing with Consultation Questions No. 17 & also the catch-all No. 22

The SEND Green Paper is a large document. From today, we're breaking down different aspects of the Paper, explaining what the government’s proposals actually say and what they might mean, as well as looking at the things that it doesn’t cover. We'll also be hearing from other organisations who have concerns they want to highlight about their particular section of SEND. The articles that we’re putting together are aimed at making it as easy as possible for you to contribute to that consultation. 

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're also offering help with responding, if you need it.

What's first? Why accountability, of course

If you talk to parents of children and young people with SEND, one theme consistently comes up – accountability. How mind-bendingly difficult it often is to get decision-makers within the SEND system to act within the law, to get them to justify their decisions against what the law and statutory guidance require, and to get them to explain why they make the same flawed decisions again and again, without any obvious professional or personal penalty.

The accountability problem was powerfully articulated in the Education Select Committee’s 2019 SEND inquiry report:

“Nobody appears to be taking any action based on the counting and measuring that is taking place, but even worse, no one appears to be asking anyone to take responsibility for their actions. There appears to be an absence of responsibility for driving any change or holding anyone accountable when changes do not happen.”

Education Committee SEND Inquiry

Accountability in the Green Paper

The SEND & AP Green Paper PDF is 106 pages long. It includes 22 questions that they’ve put out for consultation, and that they want to hear responses on. In the paper, six pages cover accountability issues. But strikingly, not a single one of the Department for Education’s 22 consultation questions asks you about the issue of accountability.

This is a paper that has taken over two-and-a-half years to produce. The omission of accountability from the consultation questions is unlikely to be accidental.

If you’re planning to provide a consultation response to the Department for Education (DfE) on the Green Paper using their questions, and if you want to say what you think about accountability, then your best bet is probably to answer under the final (catch-all) Question 22 – “Is there anything else you would like to say about the proposals in the green paper?”

The six pages on accountability sit in Chapter 5 of the SEND & AP Green Paper (Page 65) Chapter 5: System roles, accountabilities and funding reform. What issues do the DfE see with the current system, and what changes are they proposing to make?

The DfE’s Take on Accountability

In Chapter 5, the DfE say people have told them that there’s a need, 

“to align system incentives and accountabilities to reduce perverse behaviours that drive poor outcomes and high costs in the current system”

The Green Paper’s authors don’t spend any time explaining whose behaviours are perverse, whose outcomes are poor, who actually bears high costs, and whether they mean both human and financial costs, rather than just what’s on the balance sheet. 

But they don’t like what they see now. This is the end state that they want to see:

“We need every partner to be clear on their responsibilities in the system, have the right incentives and levers to fulfil those responsibilities and be held accountable for their role in delivery”

Fabulous. Who could disagree with that?

At this point, you might be wondering:

  1. Which partners DfE thinks are currently unclear on their responsibilities?
  2. Which partners already evade responsibilities that they very clearly understand?
  3. Why accountability has so obviously failed to date? and
  4. Why anyone should expect the exact same partners to behave differently going forward, given their track record?

There aren’t any answers in the Green Paper. But that’s the past and present. This is about the future, and these are the things that the DfE plan to do to get us to the promised land of accountability:

"Deliver clarity in roles and responsibilities" 

The DfE want to create:

“a system where incentives prioritise the needs of every child and young person and where effective, integrated, local delivery is achieved through collaboration, joint working and strategic leadership”

Every partner – education, health, care, local government, central government, private providers, voluntary groups, the inspectorates, and children and young people with SEND and their families:  

“will have a clear role and be equipped with the levers to fulfil their responsibilities to achieve this”

However, the Paper doesn’t fully explain how these partners’ roles will become clearer than they are already, or what levers partners will get that they don’t currently already have. 

"Uniquely placed" LAs will be getting new some new levers

There’ll be legislation to enable LAs to create local multi-agency partnerships, and LAs will be given new backstop powers to direct admissions to schools in some circumstances.

But there isn’t a lot more detail than that. What’s in the Paper here either reproduces things that are either already in place or points to work that’s yet to be properly defined or completed. 

You’ll be ecstatic to learn that the DfE believe that local authorities are

“uniquely placed to be a champion for the best interests of every child and young person in their area.” 

This is true, in much the same way that Dr Harold Shipman was "uniquely placed" to provide personalised care to his patients. It also doesn’t really explain much.

This part of the Paper seems to assume the problem is that education, health and care organisations don’t understand their roles or duties, and that they can be educated and incentivised to do so. 

It doesn’t seem to consider that many of these organisations do in fact understand their roles and duties, but don’t perform them – either because they can’t, or because they won’t, as no one with clout and a clue makes them. 

If you’re dealing with organisations that have to be routinely and repeatedly compelled to obey the law, then incentives, levers and nudges are not going to be enough to change their behaviour. 

Area SEND Inspections

Ofsted and the Care Quality Commission have been conducting inspections of local area SEND services since 2016. From 2023, these will be changed from a one-off arrangement into a running cycle of inspections, something we knew already. The Green Paper doesn’t have a lot more to say on these new inspections – we’ll be covering them in a separate SNJ article soon.

The DfE Tools Up

What is going to change though, is the DfE’s role in overseeing and regulating the SEND system, and the Green Paper goes into some detail on what the DfE plans to do.

The SEND sector hasn’t really had a regulator before. The Green Paper is now proposing to set one up, and...it’ll be the DfE. This sits alongside other proposals in this Green Paper that will centralise and standardise the national SEND system – we’ll be covering those other proposals very soon. 

In the summer, the DfE plans to set up a new Regions Group to improve the way it works at a local level, combining civil servants and education funding specialists. 

Among other things, this DfE Regions Group will: 

“lead [SEND] system regulation, holding local authorities and multi-academy trusts to account for local delivery in line with the new national SEND standards.”

In short, DfE says it wants to get much more hands-on in regulating SEND at a local level: checking new ‘local inclusion plans,’ making sure that local organisations deliver on them, and keeping a closer eye on what local areas and academies are spending SEND money on. 

The plan, on paper, will beef up accountability. Can it work? 

How can the DfE implement their accountability plans?

When you’re thinking about how the DfE might implement this and how you can contribute to their thinking, consider the following:

  • Institutional Capacity and Mindset – If this is going to work, the DfE will need to build and scale up new teams who will quickly need to acquire substantial SEND expertise from somewhere. Right now, this expertise is thinly spread, and much of it comes from ex-local authority consultants. It will also require a substantial change in mindset, as anyone will tell you who’s already tried to get the DfE to intervene when local-level bastardry is going on.
  • What will they prioritise – funding, or delivering? The Green Paper says that these DfE groups will monitor both delivery and spending – but most of the detail on what they’ll monitor and when they’ll intervene focuses on the money, with far less on quality of service or outcomes.
  • Regulatory independence – The DfE is already a key part of the SEND system. The Green Paper’s proposals will see it play an even more central role. Regulators are normally independent – it’s normally a bad idea for the same organisation to be both managing and regulating a system. At some point, it’ll lead to a conflict of interest within the DfE that risks reducing accountability.
  • How does health fit into this? The Green Paper has very, very little new to say about how services funded through the NHS will be held to account – just two paragraphs that are essentially ‘watch this space.’ If you have ideas of how this can be improved, now is a good time to bring these forward.
  • What intervention powers will the DfE have, and when will they use them?  The detail in the Green Paper suggests that these powers will be much the same as they are now: expert advisers, peer support from other LAs, and statutory intervention as a last resort. The Green Paper also implies – strongly – that the main trigger for DfE intervention will be overspending on children and young people with SEND, rather than a failure to deliver for children and young people with SEND.

Also, think about what difference this new accountability setup might make to specific practical SEND accountability issues that parents and front-line professionals face on a daily basis. For example:

  • If a local authority or NHS body uses unlawful policies to manage "demand" for their service to keep costs down – or even just uses policies where the best interests of children and young people with SEND are not the priority – will this new accountability system act in a promptly and timely fashion to change those policies, and how will it do this?
  • If a local authority’s decision is challenged and corrected in an individual case by an external body (such as the SENDIST First Tier Tribunal, or the Local Government and Social Care Ombudsman), how will the new accountability system ensure that the same decision is not replicated again, and again, and again by the same local authority?
  • The new SEND system will centralise many decisions about standards and funding. The DfE want to set funding bands, based loosely on need. If a school is not given sufficient funding to meet the needs of an individual pupil with an EHCP, meaning in turn that the LA cannot meet its current obligations under s42 of the Children and Families Act, how will the new accountability system work in practice? On paper, it looks like one opaque part of the DfE would be holding another opaque part of the DfE to account.
  • If a multi-academy trust repeatedly makes decisions about admissions, exclusions, or delivering SEND provision that prioritises its own interests above the best interests of pupils with SEND in the local community. Who picks up the accountability baton here? Is it Ofsted? Is it the Regional Schools Commissioner? Is it the local authority? Is it the new DfE Regional Group?
  • How will the new SEND accountability system influence and compel the health and social care component of the system to meet its obligations? Will SEND system leaders have sufficient levers and powers to prevent large-scale redeployment of NHS speech and language therapists, audiologists, occupational therapists and physiotherapists if the health system wants them elsewhere?
  • How will the new SEND accountability system uphold specialist professional standards – in particular, ensuring that specialist professionals of every stripe have the autonomy to conduct and deliver genuinely independent assessments in the best interest of the child or young person with SEND, rather than in the best interest of their employer?

Data, data, everywhere

A key part of the DfE’s Green Paper proposals is using data better. They admit that: 

“We do not always collect the right information, at the right time, in a way that enables local systems and leadership to respond to local needs before it is too late”

To remedy this, the DfE intends to do two things:  

  • Setting up ‘inclusion dashboards,’ to help people in the SEND system better monitor how things are going at both a local and national level; and 
  • Tweaking the ‘league table’ system, so that it’s easier for people to find out which schools and colleges do a good job for children and young people with SEND. By implication, the DfE may also want to do this to reduce the chances that schools will see pupils with SEND as a threat to their league table position.

Is this a good thing? It can be. It might not be. It all depends how it’s done.

Consultation Question 17

But the ‘inclusion dashboard’ is one area where the DfE are specifically asking people to answer a consultation question - it goes like this:

Question 17 - What are the key metrics we should capture and use to measure local and national performance? Please explain why you have selected these.

This sounds dry, but it’s an area where I think that parental input is vital. 

Organisations tend to over-value the things that they can measure. Over time, the things that organisations can measure can end up being the only things they value – and time and again, SEND system leaders show that they do not value the things that families do. They need to.

Because if SEND bigwigs are measuring the wrong things, in the wrong way, for the wrong reasons, or focusing on things simply because they’re things that can be put neatly on a single PowerPoint slide, then those bigwigs will simply continue making crap decisions.

Data dashboards aren’t a magic bullet. They don’t automatically enable better decisions. All too often, they are used as a substitute for strategic thinking, rather than something that enables and enhances it. 

If ‘inclusion dashboards’ are going to be used, then they need to be tracking the right things. 

The Green Paper gives some examples of data that the ‘inclusion dashboard’ could track. The examples given are worryingly, predictably unimaginative:

  • school attendance rates,
  • school attainment,
  • percentage of children with EHCPs (with lower likely to be seen as better),
  • financial positions,
  • waiting times for access to services,
  • percentage of Tribunal appeals.

This combination of data sources is way too narrow, way too vulnerable to manipulation under the bonnet, and way too prone to inaccurate collection and reporting. 

Left as it is, there is a real risk that an ‘inclusion dashboard’ like this will simply drive poorer decisions for children and young people with SEND, while giving leaders false confidence that all is well.

So this is where we come in.

  • Think about what things in the SEND system have the greatest impact on the wellbeing and health of your children and young people.
  • Think about whether those things are accurately captured right now – the chances are high that they’re not. 

The Green Paper states that: 

“Sometimes those who know what is happening best are those who are most affected, such as children and young people, their families, and professionals; DfE will use reports from those on the ground to build up an understanding of what is happening”

This consultation process is a good litmus test of whether the DfE intends to walk it like they talk it. Make them prove to you that they are going to.

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Matt Keer
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