Legal Update: SEND Review and green paper

In its launch press release, the Department for Education said the Special Educational Needs and Disabilities (SEND) Review and green paper “sets out its vision for a single, national SEND and alternative provision system that will introduce new standards in the quality of support given to children across education, health and care”.

Three key challenges facing the SEND system have been identified:

1. Outcomes for children and young people with SEN or in alternative provision are poor.

2. Navigating the SEND system and alternative provision is not a positive experience for children, young people and their families.

3. Despite unprecedented investment, the system is not delivering value for money for children, young people and families.

Key proposals

The green paper is not light reading. It consists of six chapters and a vast number of “ambitious proposals”, which include:

• New consistent national standards for SEND and alternative provision “to build on the foundations created through the Children and Families Act 2014, for a higher performing SEND system”.

• A requirement for new local SEND partnerships to be set up, with the aim of bringing together education, health and care to produce a local inclusion plan. Partnerships will address how each area will meet the national standards.

• A standardised and digitised education, health and care plan (EHCP) process and template.

• Introduction of mandatory mediation as opposed to the current system which gives parents, carers and young people choice. The new requirement will mean that families and local authorities must engage in mediation ahead of appeals being registered with the tribunal.

• Requiring the new local SEND partnerships to plan and deliver an alternative provision service focused on early intervention.

• An update to the SEND Code of Practice.

• A new National SEND Delivery Board, who will bring together “relevant government departments and partners, to hold partners to account for delivery”.

Funding and accountability

While the intended extra investment in the SEND system is welcome, concerns have been raised that the funding proposed might only scratch the surface and not address the long-term systemic problems. Furthermore, funding to councils already in deficit may act as a bailout rather than a new source of dedicated income to aid improvements. For instance, the paper outlines that to “stabilise” local SEND systems an additional £300m will be invested through the “safety valve” programme and £85m in the Delivering Better Value programme to support councils with the biggest deficits.

Along with preventing financial waste, accountability and compliance with the legal framework and statutory obligations must be given equal importance, and councils consistently falling short must face some measures. The education select committee’s SEND inquiry report in 2019, states that “let down by failures of implementation, the 2014 reforms have resulted in confusion and at times unlawful practice, bureaucratic nightmares, buck-passing and a lack of accountability, strained resources and adversarial experiences, and ultimately dashed the hopes of many”.

The green paper assures us that the funding will be monitored in terms of delivery and spending but does not give much focus on outcomes or quality of service. For instance, it is stated, “the DfE will collect timely data and create trigger points that result in an intervention. We will work with local authorities and stakeholders in developing these triggers to ensure they are fair and proportionate. These would be put in place to prevent financial failure”.

Astonishingly, the green paper has overlooked concerns voiced for many years by parents, lawyers and charities with decisions being made by councils in the first instance and then their failure to comply with legal duties to deliver provision set out in EHCPs. In addition, far too often local authorities simply fail to comply with statutory deadlines – for example, delaying important annual reviews of EHCPs, failures to issue amended EHCPs or amendment notices for children transitioning to the next phase of their education (i.e. primary to secondary school). Special Needs Jungle, a charity supporting parents, makes the point that of the 22 consultation questions, not one asks for feedback on the issue of accountability.

School placements

The green paper places a great emphasis on improving mainstream provision for pupils with SEND, which on the face of it can be seen as positive, especially as we find in SEN tribunal appeals many mainstream schools reluctant to support admission of children with significant needs, particularly those with challenging behaviour or emotional difficulties. This is sometimes due to a lack of resources and other times over concerns that admission would detrimentally impact the efficient education of other pupils. Increased investment in schools, staff training and better resources to meet the needs of SEND children can only be a good thing. Although mainstream education is considered the default position for children with SEND, even those with an EHCP, it may not be appropriate for all pupils with very significant needs and pupils who have already struggled to make adequate progress in this type of educational setting. Councils must not be pressured to shoehorn every child into a mainstream setting and instead be required to carefully consider the views of schools, parents and expert professionals who have worked with or assessed pupils, rather than just assuming mainstream as the default.

Sticking with this theme, the DfE proposes to support parents in choosing a placement by “providing a tailored list of settings, including mainstream, specialist and independent, that are appropriate to meet the child and young person’s needs”. It is not clear how such lists will be drawn up or who would be responsible for developing them. Nor is it clear how a parent’s ability to express a school preference, that the council must give due regard to, could lawfully be restricted by local authorities seeking to fill school spaces from pre-determined lists. This proposal would give them a very concerning level of control over parental choice, something which would be at odds with the past and present legislation (in particular section nine Education Act 1996) and statutory guidance.

Universal EHCP template

The introduction of a universal EHCP template may provide consistency across the country provided it is well designed. Furthermore, the DfE’s aim of simplification should not undermine well-established legal precedence on content, especially around description of a pupil’s needs and detailed specification of specialist provisions.

Barrister Alice de Coverley, who advocates regularly in the SEN tribunal, states: “We have all worked with EHCPs that have been unwieldy, inaccessibly formatted and/or poorly structured”. She adds: “Any blanket digitisation of EHCPs must come with the necessary resourcing and training for local authorities, as well as careful consideration of accessibility for everyone using the plan, particularly for those with disabilities and those who do not have access to a computer or technological support.”

Whether this is a positive proposal will depend on the DfE’s final product. A standardised EHCP template must be introduced only after wide consultation with all those involved in drafting and reviewing EHCPs, including councils, lawyers, advocates, parent support groups and importantly the SEN Tribunal.

Mediation

The proposal to introduce “mandatory” mediation is deeply concerning. Not only can it be very challenging to arrange mediation with a local authority, in many cases its position is completely at odds with parents and is not likely to change through mediation. It can already take several months for an appeal to be concluded by the tribunal. Compulsory mediation will only increase the time and act as another barrier for parents challenging council decisions about their child’s SEN assessment or EHCP. It is not uncommon for councils to fall seriously behind statutory timescales in issuing a right to appeal or commencing annual reviews.

It would be incredibly unfair on parents (and of course the child or young person) to be forced to undergo mediation with an authority that has caused huge delays already, failed to carry out proper assessments of need, or made detrimental decisions about their child’s SEN. Ali Fiddy, chief executive of IPSEA (Providers of Special Educational Advice), says that mandatory mediation “fails to recognise the inherent inequality that exists in SEND disputes”, adding that the way to reduce the number of appeals to the SEND Tribunal is “to make sure the law is complied with in the first place, not to restrict routes of redress”.

Respond to the consultation

It will be crucial for all stakeholders in the SEND sector, including parents and carers to review the green paper and provide responses. The plans to reform the system will be open for a 13-week public consultation, closing on 1 July 2022.

To take part in the consultation you will need undertake an online survey https://consult.education.gov.uk/send-review-division/send-review-2022/

If unable to do so, contact sendreview.consultation@education.gov.uk

• SEND Review: Right support, right place, right time www.gov.uk/government/consultations/send-review-right-support-right-place-right-time