Author: Holly Blacklaws
In September 2014 the Government substantially changed the system for supporting children and young people with SEND. These reforms were under the Children and Families Act 2014 and the reasons for the reforms were to make it easier to identify a child’s special educational needs earlier, and to allow families to be more involved with the decisions affecting them, and for the support to remain in place up until the age of 25. The Government have now released a report following these reforms to assess how well pupils with SEND are being supported. I will be discussing the outcome of this report in this blog.
As of January 2019, 1.3 million pupils in England, which equates to 14.9% of all pupils, are recorded as having special educational needs and disabilities. The most commonly identified primary needs are speech, language and communication difficulties, which makes up 21.7% of pupils with SEND, and moderate learning difficulties which makes up 20.4% of pupils with SEND. Children and young people may also require therapy from an occupational therapist and physiotherapist. Disproportionately more boys than girls are identified as having special educational needs.
The report has identified that a number of pupils having the greatest needs has risen since 2014 and is therefore increasing the demand for support. It has been shown that the proportion of pupils with EHC Plans increased to 3.1% in 2015. However the number of pupils identified as needing additional support for SEND but who do not have a plan dropped considerably in the same timeframe. The department considers that this is likely to reflect changes in how pupils with SEND are identified and recorded therefore meaning that some of the most vulnerable children in school at the moment are being left to fend for themselves without the proper support which they are legally entitled to. Children with SEND are some of the most vulnerable and require additional support which they may not be getting, therefore stopping them fulfilling their true potential.
The report goes on to state that pupils with SEND have made consistently less progress than other pupils with the same starting point. This shows that pupils with SEND are still being left behind despite the recent statutory reforms in the law. There could be a variety of reasons for this lack of progress, however, if pupils are receiving appropriate support then they should still be making relative progress. A lack of progress could show that a child or young person isn’t receiving the provision they require and therefore either an EHC Needs Assessment Request needs to be make or their current EHC Plan needs to be updated.
Turning to funding, The Department of Education has provided £9.4 billion in 2018 to 2019 specifically to support pupils with SEN and additional needs, however despite this increase in funding it has failed to keep pace with the rise in the number of pupils with high and additional needs. This means that per pupil, in real terms, funding is lower therefore families increasingly have to fight for the support which their children are legally entitled to. Sometimes this means that families have to make appeals to SENDIST. This is a problem that our SEN Solicitors are seeing more and more and is often the reason why families are turn to us for assistance in ensuring that their children are fully supported through school and through Education and Health and Care Plans.
The report also identifies that schools are provided with a notional amount within the total funding provided to mainstream schools however as this is not ring fenced this can mean that schools are incentivised to be less inclusive by making them reluctant to admit or keep pupils with SEND who can be costly to support. This is where HCB’s Specialist Education Lawyers can step in to ensure that children with special educational needs are not being discriminated against purely on the basis of their additional needs. This could take the form a disciplinary discrimination claim to the Special Educational Needs and Disability Tribunal.
The report finds that Local Authorities are increasingly overspending their budgets on supporting pupils with high needs. This further shows that there just isn’t enough funding for all of the children and young people with special educational needs in England. This highlights how important it is to ensure that the additional provision for children with special educational needs is entrenched in a legally enforceable document i.e. an Educational Health and Care Plan.
One of the reasons why Local Authorities have overspent their high needs budget is that more pupils are attending special schools. One of the possible reasons identified for this is due to funding pressures limiting mainstream schools capacity to support pupils with high needs effectively.
Further, parents are now having more involvement in decisions about school choice which means that more children and young people are receiving the support that they require in special schools rather than being placed into mainstream schools who cannot effectively meet their SEN. If you are having difficulties with the admission of your child into a mainstream, special or independent school which will best meet his or her needs then this is something that HCB’s Specialist SEN and school admissions Lawyers can assist.
Appeals to the Special Educational Needs and Disability Tribunal – SENDIST
The Department of Education expected their reforms to save them a significant amount of money as they had assumed that there would be fewer challenges to Local Authorities’ decisions about the support and that more of these challenges could be resolved through mediation. In practice this has not happened.
The number of cases being taken to Special Educational Needs and Disability Tribunal has increased by 80.5% in 2017/2018. Our SEN Solicitors have seen firsthand this increase in Tribunal appeals and the number of these which are being defended by Local Authorities, which makes it even more important to seek proper legal advice and obtain expert evidence in order to prepare the best possible case for your Tribunal appeal.
Quality of Support
The Department of Education in their report state that there have been limited assurances about the quality of SEND provision in mainstream schools. This is in comparison to 90% of state special schools which are Ofsted rated as good or outstanding.
Further pupils with SEND, particularly those without EHC Plans, are more likely to be permanently excluded than pupils without SEND. This further shows the importance of obtaining an EHC Plan for your child should they have additional needs which cannot be met through the school. Further reviews of school exclusions have shown that vulnerable groups of children are more likely to be excluded and that there is too much variation in how exclusions are used. Unfortunately this is a common theme that HCB’s Specialist School Exclusion Lawyers have been seeing. If your child has been unfairly excluded then appealing this decision is something that we can assist with and should it be required we can assist with making disability discrimination claims to the Tribunal.
Given the concerns that the inspectors have had with the level of support that children with SEND are receiving in their local area, The Department of Education commissioned Ofsted and the Care Quality Commission to inspect the effectiveness of support for pupils with SEND provided the Local Authorities. It is shocking to read that significant areas of weakness were found in 50% of LAs inspected. Key influences on local performance included the strength of leadership, effectiveness of the joint working between agencies, and engagement with children and parents. Unfortunately we often see a breakdown in relationships between Local Authorities and parents which is where we can step in to bridge the gap and begin to repair that relationship for the good of the child who has the additional needs.
Unfortunately there is a huge amount of unexplained variation between local areas as to whether children are provided with EHC Plans or not. There should be no variation amongst Local Authorities as all Local Authorities must abide by the same law and code of practice. Unfortunately often Local Authorities are unaware or ignorant to the law and the code of practice and therefore it requires parents to take the Local Authorities to task regarding their application of the law. HCB’s Specialist Education Lawyers are here to provide advice and support when parents feel that the Local Authorities have not fully addressed their child’s special educational needs or properly applied the law. We can step in and make the application for an Education Health and Care Needs Assessment request in order to give your child the best chance of being successfully obtaining an EHCP.
Ultimately the report has found that there is a huge disparity between children with SEND who are being properly supported and those who aren’t. The report has found that pupils with SEND who do not have Educational Health and Care Plans are particularly exposed and vulnerable. This therefore highlights the importance of children and young people who have special educational needs being properly assessed and provided with an EHC Plan in order to secure their legal entitlement to support and provision.
In conclusion it is clear that children and young people with special educational needs are still significantly disadvantaged compared to their peers without SEN and that despite the reform in law the majority of them are still without the proper support and provision for which they are legally entitled. Families are further having to fight with their Local Authorities in order to secure this entitlement for their children. This can be a daunting and difficult task, especially without proper legal representation. HCB’s Specialist Education Solicitors and Lawyers are highly experienced in assisting families in the difficult and treacherous task of securing Education Health and Care Plans and the proper and appropriate support for their children. We can also advise on possible Judicial Review actions where EHC Plans are not being properly maintained.
Please do not hesitate to if you require our assistance with any aspect of educational law on 0333 202 7175.