As we reported yesterday, the inquiry by the Commons Public Accounts Committee on funding for special educational needs and disabilities has restarted, after it broke last December for the election.
Giving evidence in this second session were three Department for Education officials. Centre stage sat Permanent Secretary at the DfE, Jonathan Slater. On his right sat Suzanne Lunn, Deputy Director, Special Educational Needs and Disability Division since 2019. On his left, Andre Imich, SEND Professional Adviser, who is contracted full-time to work on SEND. Mr Imich is the only one of the three to have been in post since before the reforms.
There are just a few points that we feel the need to pick up on...
1. The future of SEND area inspections
We wrote last month about a decision being needed from the DfE on continuing the Ofsted/CQC inspections. As Suzanne Lunn pointed out, we are now two-thirds of the way through the first round of inspections of local areas.
Ms Lunn said, “Ofsted and CQC are compiling research evidence about how well the regime has been going with a view to informing Ministers around taking decisions as to what the future of that inspection regime would look like” So this does indicate that yes they will continue, even if they haven’t told announced it yet.
Ms Lunn continued to say the DfE thought their spending on parent carer forums meant that parents’ voices were heard strategically when designing services for SEND. I think parents would say this is in fact rather patchy and limited in many places. However, she said what parents are “less happy” with are the consequences of not making enough progress when local areas fail inspections. This is, she said, “...an area where we are looking to try to do more to intensify the improvement support and the intervention activity the Department puts in to really drive that progress forward.” We look forward to hearing more about this.
Jonathan Slater went on to highlight one LA, Brent, where the poor inspection had driven improvements in co-production. So as they are all such fans, why the delay with the announcement, when it is holding up plans to build an improved framework for next year?
One committee member raised the issue of the length of time inspectors spent with parents face-to-face, using the recent inspection of the large county of Norfolk as an example. Mr Slater said while they were going to look into issues raised in Norfolk, an hour, “on the face of it doesn’t sound good enough, does it?”
2. Local inspection failures
Fifty-six of the 110 local areas so far inspected (just over 50%) have failed. Some quite miserably. When asked if he was surprised by this, Jonathan Slater swiftly passed the question to Suzanne Lunn. And perhaps wishes he hadn’t.
“I’m not sure the Department thought enough about it as it should have done,” said Ms Lees, which was honest, at least. And it went downhill from there with explanations from both of them that certainly didn’t reflect what parents were experiencing. Ms Lees mentioned “great success” in transfers to plans. She wasn’t in her current role at the time, but as we were in our role as parents all the way through, we disagree. Mr Slater said some other things but it was difficult to understand what he was getting at.
Another low was when he highlighted that when revisited some 18 months later, a whopping seven out of 18 local areas (39%) had shown sufficient improvement as to be excused further scrutiny this time around. That’s after lots of input from the DfE’s SEND Advisors, possible departmental restructure, and presumed reflection on the error of their ways. No one on the committee spotted this. It seems Ms Lunn is quite right to seek to step up the quality of the help given to LAs. None should be failing revisits.
3. Are parents “clogging up the system” by applying for EHCPs?
The TES last week quoted minutes from a meeting where the chair of the SEND Leadership Board, Tony McArdle, apparently said, "..in some cases, parents and schools were applying for EHCPs when they were not justified by the need presented, meaning money was being wasted".
PAC Committtee chair, Meg Hillier asked Jonathan Slater if he agreed. Mr Slater replied that, while he hadn’t seen the remarks, the DfE had, “Deliberately designed a system that tried to make it easier for people to seek an education health and care plan to make sure need is met appropriately. I wouldn’t want to discourage anyone from seeking the right support for their child.”
He then cited Nottinghamshire where large chunks of budget had been devolved to schools to try to get support to children without them “needing to apply for an EHCP.” Perhaps he should have read this judgement from the Court of Appeal, where Nottinghamshire just failed a legal challenge over the meaning of “necessary” when it comes to a child needing an EHCP.
Ms Hillier suggested it was perhaps a lack of confidence in the system that drove parents to seek the security of an EHCP. Suzanne Lunn agreed that where local areas had good provision at SEN Support, fewer parents would feel the need for statutory support. Unfortunately, this isn’t the world families currently live in.
4. The SEND reforms had a target for saving money, that hasn’t been realised.
Or at least that’s what Meg Hillier said. It is my distinct recollection that the former SEND Minister, Edward Timpson (now once again an MP), said the changes weren’t about saving money, but about getting the right support for children. Apparently, this wasn't the whole truth.
DfE Permanent Secretary, Jonathan Slater, said he didn’t think there was a specific savings target, but there was the thought that the reforms would end up costing less. PAC Chair, Ms Hillier, asked what evidence they had for that, but the best that Mr Slater could do was to say “in theory”, a properly working system under the reforms would cost less. Ms Hillier looked unimpressed.
Mr Slater continued that it “…doesn’t seem unreasonable that a system that is designed to be more collaborative should be more cost-effective.” But the financial constraints that hit the system just as the reforms were implemented meant, “the stresses and strains that different parties in the system have been under, will lead to the kind of behaviour referred to in this [NAO] report." Presumably, he meant unlawful behaviour, lies, delays and gaslighting, but as a senior civil servant, he was “choosing his words carefully.”
5. The system was implemented before the SEND "pathfinder" trials were properly evaluated.
Glad this was raised. We talked about it waaay back when, complete with nifty infographic. July 2015 to be precise was when the final evaluation was published. The reforms had been implemented an entire school year and were already leaving families frustrated and confused.
6. An astonishing take on appeals against EHCP decisions
When asked about who pays for local authority Tribunal defence costs, the DfE witnesses said it came out of, "local authority budgets, not the high needs budget" - a surprising statement, given that some of the council payment data we have seen says the exact opposite. It's also clear from our own analysis that several councils used the grant money the DfE gave them to implement the SEND reforms to pay for Tribunal costs.
When asked by the Committee whether this expenditure was a good use of public money, Mr Slater said “This is not a 2014 problem… …the proportion of appealable cases to the Tribunal is exactly the same to the nearest tenth of a percentage point as it was before the 2014 reforms. It is in the nature of a system of this sort that there is going to be a dispute between parties from time to time, and it remains at about 1.5%.”
It’s simply astonishing that a senior public servant can write off this needless expenditure of state resource so glibly - £144m, by our last count. It’s also astonishing that a senior public servant finds it unremarkable that 92.5% of these appeals go against local authorities. It’s even more astonishing that a senior public servant cannot be bothered to interrogate data properly – the real appeal rate to Tribunal is far higher than 1.5%, because the near-total collapse of the EHCP annual review system means that most theoretical opportunities to appeal don’t actually exist.
And it’s disgraceful that a very well-paid public official just dismisses the horrific, almost entirely avoidable impact on children, young people, families and professionals as something that’s just “in the nature of a system of this sort.” When the Education Select Committee described the DfE in their SEND inquiry report as presiding “serenely over chaos” this is exactly what they meant.
7. The DfE isn't worried about funding changes that are terrifying everyone else
The Committee asked about the Government’s plans to ringfence the education budget at council level, preventing councils from using wider general funds to make good education budget deficits – something that’s become known as “robbing Peter to pay Paul”.
This is something that both parents and councils have expressed serious concern about, as it will make it far harder for LAs to deal with their SEND financial obligations from April onwards.
The DfE witnesses confirmed that was the case. Jonathan Slater seemed intensely relaxed about it, pointing out that the difference between high needs budgets and spending across councils was ‘only’ £300m last year, covered by transfers from general school funding and education budget reserves, and that £780m extra funding for high-needs SEND was coming down the pipe in the coming year.
Sounds simple – but it completely ignores what has to happen with the huge cumulative deficits that councils have already racked up for high-needs SEND. It ignores how far councils have had to draw on general funds outside the education budget, just to keep things from disintegrating. It takes (to quote a friend), "weapons-grade gaslighting" to make us feel real sympathy with local authorities, but Mr Slater was up to the task.
What Suzanne Lunn followed up with was a bit more nuanced. She stressed that councils could still apply to the DfE to have the ringfencing removed on a case-by-case basis, and hoped that more forensic auditing of the financial position of the 32 local authorities with particularly big deficits might shed more light on what was going on.
SEND Community Alliance has written about this issue in detail. My colleague in SCA, Gillian Doherty of SEND Action, said,
“The claim that the DfE’s new funding arrangements are to increase transparency is unconvincing. The 32 local authorities required to produce deficit recovery plans have not been named or the details of their plans made public. It is becoming clear that local authorities are under pressure to remain with budget and are making cuts to SEND provision in order to do so.
“Cambridgeshire’s director for education last week stated to local newspapers that they have been directed by the secretary of state to implement cuts in funding for high needs children. DfE has not published responses to its consultation where serious concerns were raised about the impact of these funding proposals on children with SEND and local authorities’ ability to meet the legal duties. This is anything but transparent. It is vital that all this information is made available to the Public Accounts Committee and to the All Party Parliamentary Group on SEND in order to allow proper scrutiny.”Gillian Doherty, (SEND Action), SEND Community Alliance
When it was put to Mr Slater that local authorities and parents were considering judicial reviews over the issues he replied, "That's a new one on me...but I'm happy to look into it." That might be a very good idea, sir.
Mr Slater ended with, “It’s always a heartache to see someone not getting what they should get.”
Words fail me. If you want to watch it all you can do so here
Thanks to other SNJ team members for their input with this article.
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- Can a new Parliamentary Group keep the pressure on to #fixSEND?
- Relentlessly unlawful LA decisions are damaging children and forcing the SEND Tribunal into crisis
- SEND Tribunal trial extended – but it needs more than just time to be a success
- The latest SEND Tribunal figures paint a troubling picture
- Special Educational Needs and Disability Pathfinder final report
- New children’s minister Vicky Ford MUST sign off on continued Ofsted/CQC SEND inspections
- Ofsted’s grim verdict on SEND in England