Failures of implementation of the 2014 Children and Families Bill has resulted in confusion for families of children with special education needs and disabilities, unlawful practice, bureaucratic nightmares, buck-passing, a lack of accountability, strained resources and adversarial experiences, and ultimately dashed the hopes of many.
The Education Committee has published a report following an 18 month inquiry into the experiences of children with special educational needs and disabilities and found that while the reforms to the support for children and young people contained in the Children and Families Act 2014 were the right ones, poor implementation has put local authorities under pressure, left schools struggling to cope and, ultimately, thrown families into crisis.
Rt Hon Robert Halfon MP, Chair of the Committee, said: "Despite the good intentions of the reforms, many children with special educational needs and disabilities are being let down day after day. Many parents face a titanic struggle just to try and ensure their child gets access to the right support.
"Families are often forced to wade through a treacle of bureaucracy, in a system which breeds conflict and despair as parents try to navigate a postcode lottery of provision. A lack of accountability plagues the system as local authorities, social care and health providers too frequently seek to pass the buck rather than take responsibility for providing support.
"Children and parents should not have to struggle in this way – they should be supported. There needs to be a radical change to inspection, support for parents, and clear consequences for failure to ensure the 2014 Act delivers as the government intended," he added.
Failure of administration
The report outlines that the reforms in the legislation were ambitious: the Children and Families Bill sought to place young people at the heart of the system. However, it says that ambition remains to be realised.
Implementation of the reforms has been badly hampered by poor administration and a challenging funding environment in which local authorities and schools have lacked the ability to make transformative change.
There is too much of a tension between the child’s needs and the provision available. The significant funding shortfall is a serious contributory factor to the failure on the part of all involved to deliver on the SEND reforms and meet children’s needs. However, a culture change within schools and local authorities is also required.
The reforms were introduced during a period of financial strictures and systemic change, but also a period of great aspiration and ambition by the Department for Education. Schools and local authorities were and are under great strain and this can result in them struggling to provide the support that children and young people with SEND and their parents and carers need.
Decisions by the Department for Education to allow local authorities to spend their implementation grant with little or no oversight or safeguards was naïve, irresponsible and misguided and as a result significant errors were made, the report says. The money that was intended for systemic change has been spent on "business as usual and maintaining the status quo". Funds were given on a non-ringfenced basis to local authorities at a time of reducing local authority budgets by the Department for Education and this created an opportunity for the money to be used in ways other than supporting the transformation of the system. The report says this represents a serious failure of administration, policy and expenditure.
The financial challenges were exacerbated by creating a duty to maintain Education Health and Care Plans (EHCPs) for young people until their 25th birthday, and clear problems with a lack of ownership or responsibility being taken for paying for interventions. While the Department for Education made some effort to fund these changes, it failed to fully consider the increased costs and pressures that the duty to maintain an EHCP to 25 would place on local authorities and their staff, and schools and colleges.
The intense focus on Education Health and Care Plans and the transition date has led to children on SEN Support being neglected. Children are unable to access appropriate support at this level, which has led to a lack of early intervention, and an increase in parents applying for Education Health and Care Plans because they appear to be the only way to open doors for access to support that has become rationed and difficult to access. This has led to an increase in applications, which has further strained a system already under pressure from the introduction of Education Health and Care Plans and the transition process which was much more complex than had been imagined. This has led to practices of rationing, gate keeping and, fundamentally, children and young people’s needs being unidentified and unmet.
Much of this is unlawful, goes wholly against the intentions of the Act and contributes to a lack of faith in the system.
The inquiry also found a general lack of accountability within the system and the MPs said that the current approach to accountability is sufficient—the absence of a rigorous inspection regime at the beginning set the tone of a hands-off approach. The report urges greater oversight and a more rigorous inspection framework with clear consequences for failure.
"There should also be a greater focus on SEND in school inspections: at present, children who receive SEN Support are being let down by schools failing to meet their needs at this level," said the report.
Accountability, it says, is not just counting and measuring, it is being held responsible for actions taken. Yet nobody appears to be taking any action based on the counting and measuring that is taking place, but even worse, no one appears to be asking anyone to take responsibility for their actions. The report said that there appears to be an absence of responsibility for driving any change or holding anyone accountable when changes do not happen. Delaying the introduction of an inspection regime, and creating one that was initially time-limited, perpetuated the idea that the inspections were an improvement tool, rather than creating a rigorous system of accountability.
The report says that the Department for Education is not taking enough responsibility for ensuring that its reforms are overseen, that practice in local authorities is lawful, that statutory timescales are adhered to, and that children’s needs are being met. The Department has left it to local authorities, inspectorates, parents and the courts to operate and police the system and there is a clear need for the Department to be more proactive in its oversight of the way in which the system is operating. However, ultimately, local authorities must ensure that they are compliant with the law as opposed to waiting to be caught out by an inspection regime, parents or other professionals.
The government should introduce a reporting and accountability mechanism for non-compliance so that parents and schools can report directly to the Department for Education where local authorities appear not to be complying with the law.
The inquiry found that many local authorities are struggling with the reforms, and in some cases this has led to unlawful practice. However, they are also struggling against the tide of unintended consequences of policy decisions. Current restrictions on a local authority’s ability to create new specialist settings does nothing to improve the educational experiences of young people with SEND and leads to more pupils entering the independent sector at significant cost to the taxpayer. There should be a level playing field for local authorities.
MPs heard a lot about local authorities’ poor performance. But for children who receive SEN Support, they rely primarily on their school to get their support needs right. If, for whatever reason, a school fails to provide high quality SEN Support, the child is failed. Therefore, the committee welcomes Ofsted’s new framework to include a focus on children with SEND.
While there was a lot of evidence about the failure of mainstream schools to be inclusive during the inquiry, this seems to be exacerbated by special schools no longer fulfilling their function. As mainstream schools are struggling, or refusing, to meet the needs of children with lower-level needs, their parents and carers are seeking help and support in more specialised provision. This in turn is having an impact on local, maintained specialist provision, as children whose needs may be met locally are unable to access these placements, or their needs are no longer able to be met there. This in turn pushes these children towards costlier, often independent specialised provision.
Furthermore, the committee learnt that SENCOs can be part-time or diverted from their SEND responsibilities by other duties, taking them away from supporting teachers and pupils. ENCOs play increasingly important roles in schools. As the number of children with SEND increases, and as pressure on teachers also rise, they need expert advice from other professionals. Those undertaking the SENCO role should have enough dedicated time, pay and knowledge to enable them to do their job well. However, not all schools will be large enough to require a full-time dedicated SENCO. Currently SENCOs should undertake the NASENCO training within three years of taking on the role, but the committee recommends that this is done sooner.
Parents and carers also have to wade through "a treacle of bureaucracy, full of conflict, missed appointments and despair". Navigating the SEND system should not be a bureaucratic nightmare, difficult to navigate and requiring significant levels of legal knowledge and personal resilience. A child’s access to support should not be determined by a parent’s education, their social capital or the advice and support of people with whom they happen to come into contact. In some cases, parental empowerment has not happened. Children and parents are not ‘in the know’ and for some the law may not even appear to exist. Parents currently need a combination of special knowledge and social capital to navigate the system, and even then are left exhausted by the experience. Those without significant personal or social capital therefore face significant disadvantage.
MPs heard repeatedly from parents who were forced to take a case to Tribunal in order to get appropriate support, navigate and exhaust a local authority complaints system before being able to take their complaint to the Local Government and Social Care Ombudsman, and in some cases judicially review the local authority, and in one case the government
The report also calls for a neutral role to be introduced to arrange meetings, co-ordinate paperwork and be a source of impartial advice to parents in a bid to reduce conflict in the system and remove some of the responsibility that falls to parents’.
MPs heard from young people who told of their experiences as young people with special educational needs and disabilities. While they demonstrated confidence, determination and humour, the committee was "ultimately saddened by their experiences".
"This generation is being let down—the reforms have not done enough to join the dots, to bring people together and to create opportunities for all young people to thrive in adulthood," the committee said.
Not just an add-on
There are opportunities, such as supported internships and apprenticeships, out there, and there are young people out there who want to grab them with both hands. But these opportunities are limited, and there is not sufficient support, or sufficient emphasis on enabling them to achieve their hopes and dreams. The report urges the government to establish a ministerial-led cross-departmental working group to develop more employment and training opportunities for post-16 young people.
The inquiry also found serious gaps in therapy provision. Professionals should be trained and supported so that they are able to support all pupils as the huge gaps in therapy provision across the country are letting down all pupils, but particularly those on SEN Support.
"Special educational needs and disabilities must be seen as part of the whole approach of the Department’s remit, not just an add-on. The Department for Education has an approach which is piecemeal, creating reactive, sticking-plaster policies, when what is needed is serious effort to ensure that issues are fully grappled with, and the 2014 Act works properly, as was intended," the report concludes.
The committee makes a number of recommendations including:
- There should be a more rigorous inspection framework for local authorities, with clear consequences for failure. There should be a greater focus on SEND in school inspections.
- The government should introduce a reporting and accountability mechanism for non-compliance so that parents and schools can report directly to the Department for Education where local authorities appear not to be complying with the law.
- The government should make the notional budget a focus of its review into the financial arrangements of provision for pupils with SEND, and for those in alternative provision. The government should pay particular attention to ensuring that the funding system works for children and young people with SEND who do not need EHCPs so that they are not inevitably dragged into that part of the system.
- The Department for Education should, within six months of the publication of this report, issue updated guidance setting out that all SENCOs should undertake the NASENCO course upon taking on a SENCO role.
- The Department for Education should explore the potential for creating a neutral role, allocated to every parent or carer with a child when a request is made for a needs assessment, which has the responsibility for co-ordinating all statutory SEND processes including the annual review, similar to the role of the Independent Reviewing Officer for looked-after children.
- The Department for Education should, in the absence of other plausible solutions, enable local authorities to create new maintained specialist schools, including specialist post-16 provision outside of the constraints of the free school programme.
- Powers should be given to the Local Government and Social Care Ombudsman to investigate complaints about schools.
- More employment and training opportunities should be developed for post-16 young people.
- The Equality and Human Rights Commission conducts a monitoring review of apprenticeship participation by gender, ethnicity and by people with learning difficulties and/or disabilities every three years. Each review should recommend changes to improve government policy and employer practice.
Robert Halfon concluded: "We need to end this major social injustice, one which affects children and their families, particularly those who are not as well equipped to navigate this bureaucratic maze.
"Of course, extra funding for SEND announced in the spending round is welcome but the truth is that more cash will fail to make a difference to children with special education needs unless there is a radical change of approach throughout the system.
"The DfE cannot continue with a piecemeal and reactive approach to supporting children with SEND. Rather than making do with sticking plasters, what is needed is a transformation, a more strategic oversight and fundamental change to ensure a generation of children is no longer let down," he concluded.
Cllr Judith Blake, Chair of the Local Government Association’s Children and Young People Board, said: “This report supports our long-term concerns that the services for children with special education needs have reached a tipping point.
“Extra funding for SEND services next year is recognition of these pressures and will help councils in meeting demand for support next year, but we agree with the Committee that system reform is necessary alongside additional funding.
“We are pleased that MPs have also echoed our call for Ofsted to assess inclusion by schools – rather than focusing primarily on academic results - during an inspection and hold schools with low numbers of children with SEND to account..
“Councils support the reforms set out in the Children and Families Act in 2014, but we were clear at the time that the cost of implementing them had been underestimated by the government.
“Since the introduction of the Act, which extended eligibility for SEND support, councils have seen a near 50 per cent rise in children and young people with Education, Health and Care plans– which state the support a child with SEND can receive. There are currently 354,000 pupils with EHCPs, and is a 11 per cent increase since last year alone, government funding has simply not kept up with the increased demand.
“Councils want to work with the government and families and children with SEND to make the system work more effectively for everyone," she added.
No child should be left behind
Rachel Dickinson, ADCS President, said: “This report shines a light on some of the systemic challenges that local authorities face as we work hard to implement a complex and underfunded system of reforms. The 2014 reforms rightly raised expectations, required partners to join up holistically to meet the needs of children and young people and extended support from birth to 25 years. However, children’s services were not adequately funded to meet these expanded duties.
“Despite record levels of spending in the SEND system there is growing frustration and dissatisfaction too. This is because funding alone will not solve the system-level challenges we now face in meeting our statutory duties. Issues include: a school accountability system focused on academic attainment above inclusion which means some pupils with low level needs are being pushed out of the mainstream system into costlier, often independent specialist provision as well as the lack of a national workforce strategy. Having the right workforce to meet the needs of children and young people is essential and therapists are an important part of this, but there are shortages elsewhere in the wider workforce that act as a barrier to achieving an inclusive education system.
“Under the reforms local partners are required to develop joint commissioning arrangements to meet the needs of children and young people with SEND. However, it can be challenging for local authorities to engage health partners at a local level. ADCS believes the Departments for Education and Health and Social Care should lead by example, particularly in relation to funding arrangements to reflect their joint duties towards this cohort.
“We are pleased the committee supports the need for local authorities to open new maintained special schools and welcomes the greater focus on inclusion in the new school inspections regime – the level and quality of SEN support should be a limiting factor in terms of inspection outcomes. Any future inspection framework to measure how local areas are meeting the needs of children and young people with SEND needs to clearly define what good looks like to facilitate the spread of good practice.
“Our shared endeavour must be on improving the experiences and outcomes of all children and young people with special educational needs and disabilities and ensuring no child is left behind," she concluded.
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