Douglas Silas, of Douglas Silas Solicitors, gives an overview of the latest developments in the SEND sector...
One of the fortunate things for me, as someone who has been dealing with SEND issues for so many years, is that I have the advantage of sometimes seeing ‘new’ issues, which are really just ‘old’ ones presenting themselves slightly differently this time around.
In the past year, I have also been lucky enough to hear a number of experienced SEND professionals. On the one hand, there are those people who feel we are now in the middle of a SEND crisis, whilst other people feel that we are just still experiencing initial difficulties, as a result of the move to a new SEND framework, brought into effect by the Children and Families Act 2014, some five years ago now.
Those who talk about a ‘SEND Crisis’ point out that:
- There was the report in October 2017, from the Local Government and Social Care Ombudsman (LGSCO), where the outcome of 80% of the first 100 investigations about SEND were upheld, compared to a figure of 53% in other areas they investigate;
- There was the Ofsted Annual Report for 2017/18 looking at a number of areas of LAs showing weaknesses in the identification of children/young people with SEND; variation in quality of Education, Health and Care (EHC) Plans (including non-implementation of agreed support) and poor SEND provision provided to young people from 19-25. This includes a lot of children and young people with SEND being excluded or ‘off-rolled;
- Almost half of all local area SEND inspections conducted by Ofsted/CQC (the Care Quality Commission) in recent years have required ‘Written Statements of Action’ and there have also been a number of Judicial Review cases brought by parents and carers against their LAs;
- Schools and colleges feel that there is an underestimation of children and young people’s needs in EHC Plans, a lack of support from LAs and Educational Psychology services, not enough staff and teaching assistants being available and generally insufficient support being there; and
- There has been a significant increase of appeals brought to the SEND Tribunal, particularly in recent years, when it was just over 3,500 in 2011/12, but in the last year it was over 5,500.
Those who say there are really only initial difficulties point out that:
There are a number of things to celebrate, in relation to ‘co-production’, ‘compliance with statutory duties’, ‘increased satisfaction with local services’ and ‘timely identification of SEND’;
- LAs have had to do a lot of work in the last few years in relation to transfers from Statements to EHC Plans and dealing with increasing requests for EHC Needs Assessments, as well as the increasing number of EHC Plans themselves (which was up last year over 11% from 2016), without additional resources and insufficient funding, or the now extended responsibilities in relation to the 19-25 group;
- There have been other challenges in the delivery of the SEND reforms, including high staff turnover, training and the pressure on school places, including the increased amount of demand for special school places and the need to keep mainstream schools onboard, (i.e. successful inclusion);
- There has been ‘improved attainment’ for those children and young people with SEND where there has been stronger focus on SEN support and where more young people are going onto post-16 education, training and employment. There just needs to be more focus on successful implementation, particularly in relation to cultural shifts, the legal framework and better accountability; and
- There has been improved parental confidence in a number of areas and they are encouraged by early evidence of the impact of the implementation of the SEND reforms and how they have improved the lives of children and young people, but they also recognise the challenges and that there is much more work to do in order to achieve consistency across the country.
I have found myself sometimes taken back to 2005/2006 and the Education Select Committee’s Inquiry, where they found that parents were really unhappy and that the SEN system was not working, because there were too many exclusions, too many Tribunals, etc. I have also noticed a number of similar themes though, for example:
- Many people feel that, whilst the principles of the new SEND Code of Practice were quite good in identifying and meeting all the needs, it was implemented at the time of limited budgets, schools turning into academies and changes to school assessments, so that it has probably been a bit overshadowed;
- There seems to now be a much greater demand for more special schools places, which seems a bit ironic, as there was so much drive towards inclusion in the first few years after the change in the law to strengthen mainstream inclusion in 2001;
- There are now some mainstream schools who now seem to be SEND ‘magnets’, that attract many children with SEND, as they are more inclusive – either because parents want their child with SEND to go to that school, as it is more welcoming, or because other mainstream schools tend to refer children with SEND to them;
- Everyone thinks that there is not enough funding in the SEND system, and this has fallen over many years, whilst trying to implement a new system, particularly for the post-16 section; and
- Although there are still problems, we must be careful not to only focus on the difficulties and recognise that there have been some improvements and there are many people who would now not want to go back to the old system. However, there is still a lot of work to do and there are still a lot of LAs and schools not doing things right.
Ultimately, we need to change the culture of the system to achieve better outcomes for children and young people with SEND and remember that, often, parents will choose for their child to go to a school that is welcoming, rather than one that is not. There are also a number of things that we can do, like investing in schools and colleges, including giving more training to frontline staff; listening to parents and young people more, including building more effective relationships between parents, schools and young people; looking at more strategic development with LAs; etc. (to name but a few).
There also needs to be better guidance from the Department for Education (DfE), more possibilities for 19-25 year olds, more advice and support for parents of young people, improved joined-up working and, of course, more funding!
I guess that you will make up your own mind, but one thing I am fairly sure of is that SEND issues will not go away and will probably just go round and around…
For more information visit www.specialeducationalneeds.co.uk
This article first appeared in the 2019/20 edition of Which School? for Special Needs. The digital version can be viewed here: