One of the main, and most worrying, proposals in the SEND Green Paper is the introduction of National Standards. Some in the SEND sector are in favour of National Standards in principle, but my concern is that the true implications of what’s being proposed aren’t fully understood by some organisations and many parents and carers.
The idea of a set of standards which ensure consistency across the country, that ensure that all children and young people with SEND get support regardless of where they live, that remove the postcode lottery of provision, seems on the face of it very appealing. So, if you ask people whether they would like to see clear guidelines about the support their child will receive, most people would say yes (hell, I would say yes!), but saying yes to these proposals will be catastrophic for children and young people with SEND.
Local variation is not lawfully allowed
This is why:
The proposal to introduce National Standards is based on a misconception that local variation in SEND provision is permitted, but that’s not the case. “National standards” already exist in the form of the Children and Families Act 2014 and the Special Educational Needs and Disability Regulations 2014. These specify what children and young people with SEND are legally entitled to. These pieces of legislation mean that the same law and legal obligations apply wherever you live in the country and whichever local authority you fall under. The problem is that the law isn’t consistently complied with by local authorities, but that’s not because they have any kind of “local discretion” – it’s because there isn’t a sufficiently robust system of accountability to disincentivise them from doing so.
A dilution of rights
As it stands, when the law isn’t complied with, parents, carers and young people have a means of challenging this because the law is on their side. That will not be the case if the proposed National Standards are introduced, because they will dilute local authorities’ legal obligations, and children and young people’s rights and entitlements.
The proposed National Standards cannot be absorbed within the existing SEND law framework and the Government is clear about the status they will have:
“We propose to bring forward legislation to place the standards on a statutory footing…”SEND & Alternative Provision Green Paper (paragraph 5, chapter 2)
Putting something on a statutory footing makes it law, which overrides everything else (e.g. statutory codes of practice and government guidance).
The National Standards simply cannot 'co-exist' with the existing provisions in the Children and Families Act and associated Regulations; you can’t have two pieces of legislation that deal with the same thing in conflict with each other. The Green Paper doesn’t explicitly say the National Standards will replace the current law (which is why I’ve described it as a wolf in sheep’s clothing), but the hints are there, hiding in plain sight, in Chapter Two.
How they will conflict with the Children & Families Act
According to paragraphs five and 16, the National Standards will:
- instruct on how and when an assessment should take place
- set out who should be involved in the assessment process and make clear the input required from different services, including health and social care, to contribute to an EHC needs assessment
- stipulate how the information and evidence collected should be recorded and monitored
- set out the full range of appropriate types of support and placements for meeting different needs
- bring clarity to the circumstances in which a child or young person needs an EHC plan, and
- set clear standards for how and when EHC plans should be effectively reviewed, with a much greater emphasis on effective time-bound support and achieving individual outcomes.
This means, at the very least, the following will be replaced by National Standards:
- the legal test for an EHC needs assessment set out in section 36 of the Children and Families Act 2014
- the process for carrying out an EHC needs assessment under Regulations 3-10 of the Special Educational Needs and Disability Regulations 2014
- the list of people and bodies under Regulation 6 of the Special Educational Needs and Disability Regulations 2014 that the local authority is obliged to obtain advice and information from about the needs of a child or young person, the provision required to meet those needs and the outcomes that are intended to be achieved as a result of the provision
- the legal test for when a child or young person should be given an EHC plan under section 37 of the Children and Families Act 2014
- the format of an EHC plan set out in section 37 of the Children and Families Act 2014 and Regulation 12 of the Special Educational Needs and Disability Regulations 2014
- the annual review process set out in section 44 of the Children and Families Act 2014 and Regulations 18-22 of the Special Educational Needs and Disability Regulations 2014 (and the judgment in the recent case of R (L, M and P) v Devon County Council  EWHC 493 (Admin), which confirmed the statutory timescales for local authorities to amend an EHC plan following an annual review meeting, will be reversed)
- the definition of special educational provision under section 21 of the Children and Families Act 2014
- the long established case law that requires an EHC plan to set out all of a child or young person’s special educational needs, the provision to meet each and every need and requires the provision to be detailed, specific and normally quantified, so that it’s clear what should be provided, by whom, how often and for how long (R v The Secretary of State for Education and Science ex parte E  1 FLR 377 and EC v North East Lincolnshire LA  UKUT 0648 (AAC))
- the circumstances in which a local authority can cease to maintain an EHC plan as set out in section 45 of the Children and Families Act 2014, and
- the right to request that a particular school or other institution is named in an EHC plan set out in sections 38 and 39 of the Children and Families Act 2014.
Eviscerating current law
The next clue to the scale of the changes comes at paragraph 33 of chapter 2, which says “Tribunal decisions would be made in line with the new statutory national SEND and alternative provision standards.” The fact is that the Tribunal can only make decisions based on the law. This means that the National Standards WILL BE the law – the ONLY law.
Given that the Government intends to replace all of the aforementioned legal provisions with National Standards, it’s very unlikely that the current thresholds, entitlements and processes will remain the same – otherwise, what would be the point?
Let’s not forget that one of the stated aims of the SEND Review was to examine how the SEND system can ensure the effective and sustainable use of resources, and it’s acknowledged in Chapter 1 of the Green Paper that “local government spending is outstripping funding and the system is financially unsustainable” (paragraph 1). This is what the Green Paper proposals are really focused on addressing, and it’s important to view the proposals through this lens.
Changing thresholds for support so that fewer children and young people are eligible and reducing rights and entitlements is the only way to reduce spending, reduce the number of EHC plans and reduce the number of children and young people in specialist settings, which is ultimately what the Government wants to achieve.
It's vital not to underestimate the significance of the proposals in this Green Paper and the extent to which they will entail a complete overhaul of the current SEND legal framework. So, let’s call it out for what it is – an assault on the rights and entitlements of children and young people with SEND.
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- The SEND Review was published on Tuesday 29th March 2022. The consultation closed on July 22nd
- There is a dedicated website with alternative versions, languages and formats here
- The Green Paper is a DISCUSSION document, split into six chapters, with 22 consultation questions.
- See a list of all SNJ's posts on the SEND Review, including our analysis articles.
- Alternative versions of the consultation document: Large print PDF version | Order a copy | Easy read version | British Sign Language (BSL) version | Guide for children and young people
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