Uncovering the hidden truth about SEND safety valve agreements and how they’ll cut children’s SEND provision

Anything that calls itself the “safety valve intervention programme” is going to struggle to excite public interest. Perhaps that was the intention: create a bureaucratic-sounding programme in an obscure corner of the public finances, and hope that no one will feel inclined to look at it too closely.

Well, that was never going to work in SEND. Not as long as SNJ’s Matt Keer lives and breathes. He warned back in 2021 that this was all about reducing things, specifically, EHC needs assessments, EHC plans, and special school placements.

What are safety valve agreements?

Safety valve agreements are written arrangements between individual local authorities and the Department for Education. The DfE undertakes to “bail out” local authorities (LAs) that have vastly over-spent their high-needs budgets and have found themselves in great financial difficulty. In exchange for this financial assistance, LAs agree to contain their spending on provision for children and young people with SEND, to avoid deficits building up again. 

A charitable interpretation is that central and local government are attempting to pull off the impossible: simultaneously improve provision and support for disabled children and young people while also cutting costs.

A more jaded, less charitable assessment is they were hoping to distract us with words like ‘inclusion’ and ‘early intervention’ (good things) from the fact that our children would be receiving less support than they should have (obviously a bad thing), because the ultimate imperative is to contain councils’ costs rather than meet children’s needs.

Getting around the law? IPSEA sets out to investigate

At IPSEA, where I work, we were also growing increasingly worried about what was happening, because it looked like local authorities were being actively encouraged to circumvent the law on support for children and young people with SEND. Our chief executive wrote last summer to directors of children’s services of every local authority with a safety valve agreement, asking them to confirm that they would fulfil all their legal duties to children and young people with SEND. We heard back from around half of them, mostly giving bland assurances that they would, of course, comply with the law at all times.

What’s the real story?

We knew there was a story to be told, and the individual safety valve agreements published on DfE’s website wasn’t telling it. These surprisingly brief documents summarise how much the Government is paying each local authority and when, the actions the LA has agreed to take (i.e. the conditions of funding), and how the agreement is being monitored.  

But what we wanted to know and understand was exactly what these LAs had agreed to do in exchange for their financial bail-outs, and, most importantly, the impact this would have on children and young people with SEND, rather than council balance sheets. We particularly wanted to ascertain what targets might exist to limit special educational provision.

Realising that the most interesting information generally wouldn’t be anywhere obvious, we made requests under the Freedom of Information Act to each LA with a safety valve agreement for some specific documents: local dedicated schools grant management plans, safety valve monitoring reports sent to DfE, and lists of key performance indicators being used to monitor safety valve funding arrangements.

Local authorities’ responses ranged from, “…here’s the information you asked for” to “…it’s not in the public interest to publish this”, with a wide range of semi-useful things in between.

“Managing demand”

What we found, across the board, is that financial sustainability appears to depend on “managing demand’ for EHC plans, making use of more “appropriate” (ie local mainstream) provision for children and young people with an EHCP, and cutting spending on children and young people with the most complex needs. As Kingston upon Thames states in its SEND Futures Plan, “Everything must be considered to make [the authority’s] financial position as strong as possible.”

Reducing the number of EHC plans is being tackled in a variety of ways, from setting targets for refusing – or “de-escalating”, as one local authority puts it – requests for EHC needs assessment, to employing dedicated staff to identify plans that are candidates for “cease to maintain” (i.e. removing the EHCP altogether)

Increasing the proportion of decisions refusing to assess, or to issue, an EHCP is reported by some local authorities in positive terms, such as this example from Merton: “Tight management of referrals and new plans is key to maintaining progress towards the [financial] target.”

Some local authorities describe the development of local alternatives to the EHC needs assessment pathway. While the important thing is that individual children and young people receive support that meets their needs, it is potentially a cause for concern if these “alternatives” bypass the statutory process, including the right to appeal.

One of the most astonishing pieces of information we found is in the safety valve monitoring report Cambridgeshire submitted to the DfE in September 2023. This report includes a table (shown below) setting out “safety valve conditions” alongside a description of “what this really means”. One of the conditions is, “Improve decision-making on awarding EHCPs”. What this really means, written there in black and white, is: “Increase the number of refusal to assess and refusal to issue decisions”.

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Keeping children in local schools

Reducing the number of children and young people attending special schools and colleges is a central condition of pretty much every safety valve agreement, especially if these placements are out of the local area.

Kent says it is “reviewing the specialist continuum to ensure only the most severe and complex needs are supported in special schools”. Hounslow goes even further, setting an explicit target within its Key Performance Indicators (KPI) of the percentage of children with an EHCP to be placed in mainstream schools.

It is not clear how this approach works with parents’ right to choose the placement named in section I of a child or young person’s EHC plan.

In Salford, one condition of its safety valve agreement is that it “performs a deep dive on all placements in independent and non-maintained schools to identify children and young people who should [my emphasis], with support and parental confidence, return to local provision at appropriate transition points”.

Salford’s April-July 2023 monitoring report to DfE says, “There are key drivers which influence the numbers of placements in independent and non-maintained special schools. The most significant is the connection between parental preference and Tribunal decisions. The LA strives to reach resolution during Tribunal timelines, but this can be less effective where choice for independent schools is unwavering. Sufficiency of appropriate specialist placements continues to be a challenge both locally and regionally, often resulting in the commissioning of independent school placements.”

Salford misses the point of who’s to blame here, and it’s not parents: the SEND Tribunal is ruling for independent special school placements because the local authority has not commissioned sufficient local provision. It should go without saying that local authorities’ first priority should be to commission appropriate local provision before they even start to consider making it harder for disabled children and young people to attend out-of-area schools and colleges that will meet their needs.

Putting children’s needs first: The law HAS NOT changed!

But the law on supporting children and young people with SEND is clear and unchanged. Children and young people have the right to special educational provision that meets their individual needs. Given this, the safety valve programme may expose more local authorities to more legal challenges than ever before – putting the programme firmly at odds with the Government’s other policy of reducing Tribunal appeals. 

Catriona Moore

It seems pretty clear that the safety valve intervention programme fails to centre the needs of children and young people with SEND and instead focuses above all else on reducing expenditure. Key performance indicators are all about costs and not about how disabled children are affected or the outcomes they achieve. 

But the law on supporting children and young people with SEND is clear and unchanged. Children and young people have the right to special educational provision that meets their individual needs. Given this, the safety valve programme may expose more local authorities to more legal challenges than ever before – putting the programme firmly at odds with the Government’s other policy of reducing Tribunal appeals. 

Find our posts on SEND funding

What parents can do

If your LA has a safety valve agreement (you can see the current list here), and you’re concerned about its implications on your child’s SEND provision, you may want to write to your local councillors and the council leader. You could also contact your MP and, as the general election approaches, the candidates standing in your area for election to Parliament. Insist that elected representatives are fully aware of what the safety valve programme means and that local councillors take responsibility for local decision-making.

Please also consider signing this petition calling for the safety valve programme to be suspended and for SEND funding to be provided without conditions.

Find the IPSEA Safety Valve research here

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Catriona Moore
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