#SENDReview: Defining Alternative Provision and… how about an apology?

Our team is currently beavering away at deep analysis, so while we await the arrival, today's article is answering, and asking, a few very pertinent questions. Read on...

Does the SEND review plan to replace the Children and Families Act 2014?

What you need to understand is that it doesn’t replace the Children and Families Act, as far as we can see. Although there is clearly-stated intention to legislate, it is not yet clear whether these will be added to the CFA as amendments, lumped in with any Schools White Paper legislation that there may be, or be a stand-alone update.

The SEND Code of Practice 2015 WILL be updated and we can only hope for the better.

Is it good, bad or just very unclear?

While the SEND and Alternative Provision Green Paper is billed as all singing and dancing positivity, there is much within the 100 pages that is missing, unclear, and unwelcome. There are also some good ideas. And there are also some things that seem almost designed to set the SEND sector aflutter and ensure that the consultation team will be inundated with a mega-tsunami of responses.

We would urge parents not to let only well-organised charities and professional associations be the only voices. Your voice is vital, and we will help you through it. The DfE are trying to make the process as user-friendly as possible but it is inevitable that some parents and young people may still find this intimidating. To help you, we are in the process of setting up a response form that we will collate and forward, if you prefer not to respond via the government website.

This week we have been digesting the review and from next week, we will begin publishing separate articles for each chapter. These will help you understand the implications of each section. The chapters won’t be in order simply because some will be ready before others and we don’t want to hold on to them. Matt will bring you the first tranche early next week. We have also created an editable document to help guide you through that we hope will help. You can download it at the end of this post.

Can you define alternative provision?

First things first. The paper is entitled SEND and Alternative Provision. You may be wondering what alternative provision is. We had an article a while ago here called “What's a PRU to you” that may help.

Renata and I met Will Quince after Tuesday’s announcement. We asked for the Department's specific definition of Alternative Provision for this review, and it has been provided for us (thank you Tessa)

  • Alternative Provision (AP) is education arranged by local authorities for pupils who, because of exclusion, illness or other reasons, would not otherwise receive suitable education; and education and support arranged by schools, including for pupils receiving targeted support in their mainstream school; pupils being directed by schools to off-site provision to improve their behaviour; and provision for pupils on a suspension. The SEND Review includes this definition in the glossary section (see in the quote below). Alternative provision covers a wide provider base, including Pupil Referral Units (PRUs), alternative provision academies and free schools, and independent settings.
  • We recognise that the role and purpose of alternative provision is, too often, unclear. As a result, it currently operates in multiple, inconsistent forms at local levels. This means that too many children are not in the right place and are not receiving the right education and support. This means that too many children are not in the right place and are not receiving the right education and support. To address this, in Chapter 4 of the SEND Review we have set out a new, national vision for alternative provision, enabling local areas to ensure that children and young people with challenging behaviour or with health conditions get the targeted support they need.
  • AP can include one to one education in the home if that child has a medical condition – which includes mental health issues such as high anxiety - that can’t be supported in a school. Such be-spoke, home-based provision can be delivered via AP schools, and medical AP schools provide this support. 
  • You (SNJ) referenced EOTAS which as you will be aware stands for Education Otherwise Than at School. LAs can arrange this provision via the ECHP process if they believe that non-school provision will best meet the child’s special educational needs.  This education is typically provided in unregistered settings, and our upcoming call for evidence will seek feedback on the use of such placements.

Alternative Provision: Education arranged by local authorities for pupils who, because of exclusion, illness or other reasons, would not otherwise receive suitable education; education and support arranged by schools, including for pupils receiving targeted support in their mainstream school; pupils being directed by schools to off-site provision to improve their behaviour; and provision for pupils on a fixed period exclusion. When we reference state place-funded alternative provision, we mean alternative provision receiving £10,000 per place from a local authority or the Education and Skills Funding Agency, comprised of all Pupil Referral Units, alternative provision academies and alternative provision free schools.

SEND and Alternative Provision, Page 83

So there you have it

Why such a focus on AP?

It is interesting that AP is such a focus. The DfE says it is because it was missed out of the 2014 reforms. However, AP makes up a tiny percentage of settings and a tiny percentage of children attend. 

In terms of pupil referral units, very often, it is attended by children at risk of, or who have been, excluded. After arrival, they are found to have additional needs that the mainstream school hasn’t bothered to investigate in its rush to shoo them out of the door. 

The SEND Review is aware of this and the document says,

 “Decisions to move children and young people into and out of alternative provision should always be made in their best interest. As far as possible, placements should be made after other forms of support have been tested, and with the aim of returning the pupils to mainstream schooling as soon as is appropriate. To achieve this, we will review how children and young people move around the school system, including through off-site direction and unregulated managed moves, with a view to introducing a statutory framework for all pupil movements. We will draw on existing good practice, including Local Placement Panels and Fair Access Protocols, to inform this future policy and legislation.”

P64, Chapter 4

What this document doesn’t explicitly say is that no child should be shunted off to AP without having a full assessment of their needs. Children aren't just poorly behaved because they have a naughty gene. There is a reason for it. We think this needs to be specifically stated. “As far as possible” is way too woolly.

We know from how the current SEND Code of Practice is "used", that far too often what goes left unsaid, or isn’t tightly specified, just doesn’t happen. Mind you, what is clearly spelled out often doesn’t happen either, but that’s another matter that the DfE will have to tackle – how it’s going to make schools and LAs do as they're supposed to and are accountable when they don't. It does touch on this, and we will deal with this in one of our explanatory posts.

Key challenges?

The SEND Review has identified three key challenges facing the SEND system, driven by “a vicious cycle of late intervention, low confidence and inefficient resource allocation.” This is obviously blaming schools, parents, and LAs. But not, interestingly, the Department itself. 

Instead, it lays blame everywhere else, not unlike the recent LGA report, just from another angle. 

  • Challenge 1: outcomes for children and young people with SEN or in alternative provision are poor  
  • Challenge 2: navigating the SEND system and alternative provision is not a positive experience for children, young people and their families  
  • Challenge 3: despite unprecedented investment, the system is not delivering value for money for children, young people and families  

(Pages 10 & 11)

The DfE doesn’t take responsibility for any of these failings. In fact, it clearly points to the fact that it has given LAs a ton of money and they’ve burned through it without solving the problem. Perhaps it thinks accepting blame isn’t helpful, but it is ready to lay blame everywhere else, even at parents for not “having confidence” in a failing system. 

How about an apology?

But taking responsibility for failings, and apologising, is the first step to putting things right. 

No one has truly apologised to parents and disabled children for laying waste to so much of their time, money (including remortgaging homes), and, most importantly, precious educational opportunities. 

Instead of Mr Zahawi writing creepy open letters to kids that none of them are going to read (tick box anyone?), we would like to see him and Mr Quince apologise on behalf of the DfE for the things it got wrong in the earlier reforms. In particular, failing to listen to everyone back in 2013 telling them the bits in the previous SEND reforms that needed to be improved. 

Things such as not leaving too much (or anything) to the “creativity” of LAs, schools, and SENCOs when it comes to arranging SEND provision. Such as not increasing the amount of delegated funding schools get for SEN Support and ringfencing it. Such as not fixing the way Ofsted grades schools so they are disincentivised from taking SEND pupils, such as failing to ensure that every teacher actually has the specific initial teacher training, and mandatory regular CPD to be a true teacher of SEND. Such as allowing LAs to spaff their implementation money everywhere but training to ensure the reforms were carried out as intended. Such as delaying the development of Ofsted Area Inspections for so long after implementation that LAs were already failing before an inspection clipboard crossed the threshold. Such as not making LAs truly accountable for anything, from not assessing where needed, not implementing EHCPs, not carrying out timely reviews, and not ensuring that children weren't left without provision, and routinely failing to offer vital parts of the EHC needs assessment e.g, personal budgets and social care assessments.

Will this Green Paper seek to fix these? Yes, it most certainly announces an intention to address some of them. But there not enough detail to be able to judge how successful it will be.

Ofsted inspections will continue – but there is no new framework as yet. Training is mentioned a lot, but not in specifics. Shockingly, it does include plans to over-rule last week’s high court judgement reiterating the law on annual review timescales. When my kids had their annual review in Y13, they had actually left sixth-form before they got a revised draft. The LA was super-quick with the decision to cease their plans though, so they can get moving when they want to. 

Would you like to help SNJ keep going?

Confidence in Assessments

The EHC Needs Assessment process is a common issue for families. In chapter two, there is definitely an acknowledgement of the issues with EHC Needs assessment processes

“We have heard from parents that improving the impartiality of the needs assessment process will improve their overall confidence in EHC needs assessments and local authority decision-making. Some areas have already taken steps to address this through the use of multi-agency panels. We propose introducing statutory local multi-agency panels to review and make recommendations on requests for EHC needs assessments, the needs assessments themselves and the consequent placement and funding decisions.”

This looks good, but of course, it depends who’s on this panel, doesn’t it? If it turns out a specific provision going to cost your particular (eg health, social care) department a lot of money, are you going to recommend it? Where will any parental representatives on the panel come from? We need an SNJ rep for every LA – wouldn’t that be excellent? It won't be free though...

Catriona Moore is tackling chapter two which includes these issues in-depth to help you respond. 

How can the DfE avoid the same mistakes?

I would also like to know how they propose to avoid the same mistakes. Mr Zahawi has insisted they won’t repeat them (or presumably make new ones). But how? We know they’ve listened to literally everyone, as they did last time. But last time, following the Green Paper (that was quite good) consultation, the White Paper and Bill that followed had decimated all the “aspirational” bits and government ears were definitely turned off. It was a much worse piece of legislation as a result. 

Avoiding the same mistakes is also not something that is entirely within the DfE’s gift. Because who will be implementing the reforms? Why, that would be the same LAs and schools that didn’t implement the last ones, and perhaps even the very same officials and local politicians.

We’d like to know how the DfE is going to handle this. How will they make them truly accountable in a way that the current Ofsted inspections and Ombudsman cannot. They can't because they don’t have the powers to investigate everything they need to or hand out big enough fines, or make people lose their jobs or even go to jail or do community service for breaking the law. A slap on the wrist and a small fine is, frankly, rubbish.

What’s missed out?

What’s missing? Oh so much. We will bring you chapter and verse on this soon enough in an article from Pooja Sharma at the Special Education Consortium.

But one very fundamental thing that really is missing is something we have raised before. While officials are lamenting the increase in SEND, no one is asking WHY? Below is a quote from a previous post on this subject:

“… The simple fact is that more children are in need of SEND support because thanks to amazing medical advances, more children are surviving previously un-survivable pre-term births, birth complications, serious genetic conditions, and severe childhood illness, all of which may have lasting effects. More children are suffering from health conditions, including from environmental toxins and pollution, and from deprivation (thanks Tory austerity). More children are suffering mental health conditions from the socially and behaviourally unforgiving education system and the increasingly intolerant world we live in. More children have been left behind by COVID, or had emerging needs missed, thanks to the indescribably poor job “Sir” Gavin did during his tenure as Education Secretary.
More children are being diagnosed with learning difficulties and neurodivergent conditions that would previously have gone ignored with the young person written-off to a future without qualifications or any route to further or higher education, or a decent job. And as society changes, more children do not fit the existing narrow (and narrowing) model of mainstream education.”

So that is why. It’s no one’s fault but progress in medical science and diagnostic understanding. So rather than trying to cut “demand 🤢” they just need to get with the programme. This is the way the world is. Meet the needs of all children and stop trying to create a false narrative that somehow blames families.    

What is also missing is anything about diversity and race - especially as we presented our recent race report that they said they were so interested in and that the Government “Inclusive Britain” popilcy paper  placed at their doorstep

What else?

Over the coming weeks, we’ll be looking in greater detail at:

  • Initial Teacher Training:  we need to know that SEND will be included as a fundamental, unmissable part
  • Matt Keer is tackling chapters 5 and 6 
  • Renata, Gill Doherty and I will be exploring chapters 3 and 4. 
  • As mentioned Catriona will be inspecting chapter 2
  • Additionally, we will have articles focused on the implications for Post 16, SENCOs and Early Years, SEND support, 
  • We’re also looking for the missing Equality Impact assessment – and asking how well it plays with the Equality Act

If you are now reeling, I have just the thing for you. We’ve created a MS Word document for you that briefly highlights each proposal, where you can find it, the corresponding consultation question and a space for your notes. This will help you answer each question. You MUST respond. Please don’t just hope someone will have exactly the same view as you - your views are important.

Also read:

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Tania Tirraoro

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