HCB Solicitors response to SEND Review Green Paper
On 29 March 2022, the Government published a Green Paper entitled “SEND Review; Right Support, Right Place, Right Time”. This article will be sent, in full, to the Department for Education via the consultation email address. We have carefully considered the online portal which has been set up for the purposes of providing a response, however, we do not feel that that enables sufficient reply.
This is not a comprehensive response. We expect that across the entire SEND community, a comprehensive reply will be pulled together. What is provided here is merely our initial assessment of the Green Paper, its proposals and findings.
It is worth nothing that the Green Paper has been published very quickly after the much maligned Local Government Association report entitled “Agreeing to Disagree? Research in to arrangement for avoid disagreements and resolving disputes in the SEND system in England”. That report was so thoroughly one-sided and failed to grapple the reality of the issues in the current Special Educational Needs and Disability system that any similarity or indirect reference must given rise to concern. There are elements of the Green Paper which fails to realise the reality of the difficulties in a similar way to the LGA report.
What are the current issues with the SEND System
For the avoidance of any doubt, on the current system our views are that the following issues need to be addressed;
- Accountability. There are adequate rules, regulations and directions that create expectations for Local Authorities and health professionals to cooperate in order to achieve the best possible outcomes for young people. The difficulty that has clearly developed since 2014 is the distinct lack of accountability. Time limits, obligations, duties of care and requirements to engage both families and young people are central to the 2014 reforms, however, that legislation provided little by way of any degree of accountability. As raised at the time, issuing legislation that required a culture change does not give effect to a culture change. Until missed time limits actually mean something, or inadequate assessments result in some measure of accountability, cultural change simply will not happen.
- Proper funding. There have been points raised by others that some local authorities have declared surplus, however, as a national picture local authorities are struggling financially. Whether this is lack of adequate funds directly, or a mismanagement of funds internally, we cannot make a definitive view on. However, the fact that local authorities in England have had to take the extraordinary step of declaring bankruptcy does suggest that either there is a lack of proper funding or that local authorities are not using funding properly. The increase in Tribunal appeals contested to try to save, what can be relatively small amounts of, money suggests a real panic to try to save every penny.
- Adequate training. Plenty of local authorities, and local authority professionals, do know the law and do know the regulations. However, from practical experience, for each professional that does understand the law and the regulations, there is at least two more professionals that merely know and operate local authority policies. Whilst policies are important, they can often dilute or completely mislead the reader in respect of what the core legal duty actually is. All too often, especially with junior members of staff within local authorities, policy appears to be all they are aware of. This creates frustration for representatives who have to repeatedly have the same discussion, but more importantly leaves families and young people in receipt of misleading and/or wrong advice and also requires families and young people to inform themselves as to what their rights actually are.
- Availability of experts. There is a significant lack of experts nationally. This means educational psychologists, speech and language therapists, occupational therapists, physiotherapists etc etc. Many local authorities are currently indicating to parents that a needs assessment will take longer than the statutory time limit simply because there is no available expert to provide advice within the timescales. Obviously, this is not acceptable. However, if the real world situation is that there is no expert available to provide the advice, parents are left with either demanding an outcome to an assessment which will be incomplete or accepting delay.
- Cooperation. The 2014 reforms were based around the notion of health, education and social care working together, collaboratively, to support young people and families properly. Put simply, this is not happening. Health professionals, in our experience, do not appear to be conversant in the requirements on them from the Children and Families Act. Further, Social Care and Education rarely communicate. One simple example is that every single child with Special Educational Needs must also qualify as an “child in need” as defined by the Children Act 1989. In principle, therefore, that should mean that Social Care are at least aware of the young person. There should be no scope, whatsoever, for Social Services to be advising during the course of a needs assessment that there are unaware of a young person. However, this must happen in 75% of needs assessments which we say. This is plainly inadequate and clearly shows that even “inhouse departments” of Education and Social Care do not communicate clearly. Introducing the tertiary layer of health in to that has merely added another layer of failed communication rather than developing an effective tripartite system of support.
There is no need for additional bureaucracy, legislation or guidance.
What does the Green Paper say the current problems are?
The Green Paper itself identifies that there are three key challenges facing the SEND system these are details as follows.
- Outcomes for children and young people with SEND or in alternative provision are poor.
- Navigating the SEND system and alternative provision is not a positive experience for children, young people and their families.
- Despite unprecedented investment, the system is not delivering value for money for children, young people and families.
These are not the issues with the current SEND system. These are result of the difficulties that the SEND system faces. Yet again, the education system appears to be focusing exclusively on outcomes rather than provision, an issue which is endemic to EHCPs as well as the SEND system generally. If the review proposes to proceed on the basis of addressing the symptoms, the core issue(s) will never be addressed.
I respect of Challenge 1, the narrative focuses on children and young people with SEND having worse attendance and achievements. There is nothing new in this. It is the reason for having an SEND system, not a difficulty with it. Expecting a hallmark of a functional SEND system to be “levelling up” whereby all pupils achieve the same outcomes is unrealistic and fails to understand some of the very severe needs that the SEND system caters for.
Challenge 2 refers to the navigation of the SEND system not being a positive experience. Again, the narrative relates to the system being too bureaucratic and adversarial rather than collaborative. These are all symptoms of the core issues which we have respectively detailed at the top of this piece. Equally, as discussed below, the proposals for reform create more bureaucracy and more potential areas of dispute.
Challenge 3 is the only one which draws close to an actual issue. Whilst the Green Paper provides some self-promotional commentary that “the government is making an unprecedented level of investment…”, the reality is “…spending is still outstripping funding”. This raises point 2 of our concerns above.
The Green Paper sets out a number of core proposals to address the issues it claims to identify;
- A new national SEND and alternative provision system setting nationally consistent standards.
- An update of the SEND Code of Practice.
- New local SEND partnerships bringing together Education, Health and Care to provide a local inclusion plan.
- Introduction of a standardised and digital EHCP process and template.
- Support parents and carers to express preference for a suitable placement by providing a tailored list of settings drawn from the local inclusion plan.
- Streamline the address process including mandatory mediation.
From these proposals, there are a number of specific concerns and a few general concerns.
At page 9 of the Green Paper, the Secretaries of State for Education and Health and Social Care set out that “we are proposing to establish a single national SEND and alternative provision system that sets clear standards for the provision that children and young people should expect to receive…”. We had expected that in fact the 2014 reforms were intended to do something similar.
Certainly, the 2014 reforms introduced a uniform test concerning what Special Educational Needs are, introduced EHCP with a set content and set national requirements around working with families and young people to achieve the “best possible outcomes”. The introduction of “alternative provision system” does appear to be new as against the 2014 system, however, in of itself that statement is unclear in terms of practical effect.
Realistically, we wait to see what this system really looks like. The suggestion of an mended Code of Practice suggest that detail will be provided in due course. However, it would appear that the Green Paper anticipates a heavy reliance on new Free Schools to support this new system.
In respect of the SEND Code of Practice, we are unclear how this could be reviewed and updated
The reference to local inclusion plan seems to suggest a drive toward keeping pupils within mainstream education. Elsewhere within the Green Paper, the narrative talks of the lack of availability within the specialist sector and/or young people turning to alternative provision. It would seem that as a drive to address these issues, coupled with the new alternative provision system, there is the intention is to “include” pupils with SEN in to the mainstream sector.
Of course, this is nothing new. There is an existing indication that all pupils without an EHCP should be educated in a mainstream school and, if parental preference cannot be complied with in respect of any particular school then again a mainstream school should be the default position for pupils with an EHCP. As such, the reference to local inclusion plans would seem to infer, that local authorities, and the mainstream sector generally are going to be required to even further increase their capacity and ability to support young people with complex Special Educational Needs. There does not seem to have been any adequate assessment of the impact on either pupils with Special Educational Needs and/or the existing mainstream sector with such a demand being placed upon them.
The introduction of a standardised and digitised EHCP appears positive, at least in part. Certainly, one of the major issues practically with SEND has been that there is no consistent template for an EHCP. Some local authorities have good templates, many have awful templates. Whilst a consistent template is positive, the danger is of course that the consistent template used is not fit for purpose. As long as there is careful consultation not just with local authorities, but families, charities, advocates and Tribunal judges then hopefully we will end up with a useful template. There is, also, concern around the proposal to digitise EHCPs. Quite plainly, it should not be the expectation that all EHCPs are purely digital. There are numerous accessibility issues with this, including both disability and financial implications.
The suggestion that parents and carers should express an “informed preference for a suitable placement by providing a tailored list of settings drawn from the local inclusion plan…” is probably one of the most concerning points raised in this review.
Central to almost all education legislation covering several decades has been the issue of choice. Especially when it comes to young people with Special Educational Needs, there are multiple provisions from the Education Act 1996 through to the Children and Families Act 2014 (and probably far beyond too) which enshrine unfettered preference at the core of the SEND system. The compliance with that choice is limited, but the ability to express a preference has never been restricted. The new suggestion seems to be that local authorities may control which schools parents even express a preference for. This would be a serious concern.
As lawyers, the most comment observation we make is that education legislation is drafted heavily on the assumption that local authorities will “do their job properly”. If the job is not done properly by a local authority, then parents and young people have the ability to challenge that failing, either through appeals to the SEN Tribunal or through actions such as judicial review or raising complaints with the Local Government and Social Care Ombudsman. The issue with all these is that they take months, can be expensive and are very stressful.
If local authorities are able to provide parents and young people with a prescribed list of schools, from which preference must be drawn, this provides local authorities with unprecedented control. From the decades of practical experience of this practice, we hold absolutely no hope that local authorities will properly exercise this level of unfettered power should it be granted to them. It is one of the singularly damaging and draconian powers which is proposed.
Finally, the review suggesting mandatory mediation is a concern. I have previously raised the issue that mediation has been a missed opportunity with the SEND reforms. I explained that mediation can be extremely valuable as a mode of resolving disputes, however, in the SEND world it is not because:
- Local authorities do not send anyone to mediation meetings; or
- The person the local authority sends to attend the mediation is not allowed to make a decision at the meeting (even though they are supposed to be able to) and instead indicate that they will take the matter back to “panel” for review and reconsideration. Thereafter, the mysterious “panel” send a decision out to parents several weeks later which may or may not overturn the original decision; or
- The person the local authority sends to the mediation is actively told to refuse any requests made by parents and/or families; and/or
- There is delay caused by local authorities in arranging mediation. The current regulations require that the mediation process if dealt within 30 days. I have had practical experience where a mediation process has taken in excess of 19 months to be arranged (before I was involved). Whilst this is the longest I have heard of, delay in arranging mediation, caused exclusively by local authority delay, is far from unusual.
The Green Paper highlights issue that “there is too much inconsistency across the SEND system in how and where needs are assessed and met”. This point is expanded to suggest that the “2014 reforms introduce, and plan significant emphasis on, local discretion with expectation based on the local authority working closely with local Education, Health and Care partners, parents and carers. However, this local discretion has resulted in significant inconsistencies in how SEND provision is delivered…”.
We are concerned by this point. It is not a matter of legislative, or regulatory issue that gives rise to this . It is purely a question of practical availability of support. In some local authorities, there are fewer special schools. Fewer professionals to assist with assessment and/or delivering provision. This is the inconsistency which gives rise to the difficulties. The system itself is a uniform system. In terms of the question of whether or not an EHCP is required, the test of whether or not a young person has Special Educational Needs or indeed how to assess what provision a young person requires, these are all consistent across the entire country. There is no local discrepancy when it comes to these questions, with as much being reiterated by the Court of Appeal in Nottinghamshire v SF and GD  EWCA Civ 226.
This review then takes this flawed conclusion and doubles down on the mistake.
Paragraph 32, page 27 of the Green Paper indicates that “as a result of [the] low confidence, parents, carers and providers feel they need to secure EHCPs and, in some cases, specialist provision as a means of guaranteeing appropriate support for their child”.
The point being made here, it seems, is that EHCPs are being secured unnecessarily, merely to reassure people rather than deliver necessary provision. Further, the review price suggests that specialist provisions are delivered by way of some kind reassurance rather than as a result of such provision being necessary. This is of course complete nonsense.
It is worth bearing in mind the extremely high (around 90%) success rate of appeals to the SEN Tribunal. The SEN Tribunal does not apply the question of reassurance when considering whether an EHCP is necessary. It does not consider the issue of reassurance when deciding whether or not specialist provision is necessary. The SEN Tribunal applies the legislation which, in turn, applies the test of “necessity”. If there is evidence that provision and/or EHCP is necessary, the SEN Tribunal will uphold an appeal. Likewise, I would refute entirely the possibility that a local authority will grant an EHCP or make specialist provision available simply to reassure a family. This conclusion is dangerously misguiding in terms of understanding how EHCPs work, when specialist provision is made available and the foundation legislation to the system.
Is money really the issue?
Page 22 of the Green Paper starts to, in our view, drive to the reality of why this review has been commissioned and the page is headed with the troubling title “The SEND and alternative provision system is financially unsustainable”.
Setting aside that the review itself has created the “ additional provision system”, only to immediately determine that it is financially unsustainable, it is of genuine concern that this review seems to suggest that SEND provision is not possible in the current format.
The data contained across pages 7 and 8 of the Green Paper is relevant to this. Much could be made of this data, however, what we know from this is the statement that the high needs budget has risen by more than 40% over three years with a total stated amount of £9.1 billion for 2022 to 2023. Within the same data set, the consultation sets out that 1.4 million pupils have been identified with Special Educational Needs with 3.7% of all pupils requiring an Education, Health and Care Plan. That means that there is a total of 327,848 pupils with an EHCP in England. The high needs budget figure, when divided across these pupils actually shows the lack of funding within the system. If divided across all pupils with SEN, the £9 billion budget amounts to just under £6,500 per pupil. If divided exclusively between pupils with EHCPs, this amount to just under £27,500 per pupil. Obviously, this seems like a lot of money per pupil, however, bear in mind that a pupil with an EHCP may require a placement which can cost in excess of £200,000 a year and you can immediately see the massive funding gap that will develop.
Page 22 of the Green Paper continues, “…the system is not delivering value for money…”. So, rather than being unsustainable, the reality is of a stated national deficit of over £1 billion. To put that in to context, the 2021 financial year public sector receipts within the UK was £873 billion. The assertion of being unsustainable, therefore, seems to be inconsistent with the reviews other stated determination to “level up opportunities for all children and young people…” and that the government is “…just as ambition for children and young people with Special Educational Needs and Disabilities…”. Indeed, this one section fundamentally undermines the introduction of the Green Paper which is that the review “…sets out our proposes for a system that offers children and young people the opportunity to thrive, with access to the right support…”.
To further put the £1 billion figure into context, the BBC are reporting today, 30 March 2022, that the UK’s public procurement Watchdog is investigating £13.1 billion worth of procurement of Personal Protective Equipment (PPE) which was bought from companies with very close connections to members of the government where the typical safeguarding of public procurement was not followed. It is difficult to align the assertions of lacking sustainability with figures such as these.
Curiously, alongside the finding within the review that the £1 billion overspend renders the entire SEND system “unsustainable”, at page 65, the review also announces a £2.6 billion investment in multi-academy trusts. These are, of course, large organisations of academies which are hybrid schools created by the Academy Act 2010. It is curious that the SEND system is considered to be “unsustainable” due to the overspend, however, the review is very willing to syphon off nearly three times the overspend to private companies.
What about accountability?
As indicated, we would consider that one of the major issues in SEND system currently is the lack of accountability. As I have already said, one of the major issues with all educational legislation is the unwritten expectation that local authorities will do their job properly and that whilst their existing means of challenging poor or unlawful decisions, it is impossible to recover that lost time and, frustratingly for parents and young people, the professionals responsible for those poor or unlawful decisions never seem to be held to account.
Interestingly, the word “accountability” appears only 12 times in 104 pages of this review. Given that we would consider it to be one of the most singularly important issues, this seems to be a relatively brief reference.
The proposals in respect of holding local authorities to account sits at page 67 of the review, where it proposes the Department for Education will establish new region groups to support local authorities to identify emerging trends and work in a co-productive fashion with parents to inform effective delivery.
The issue, however, with this section is that, yet again, it is all financial. The reference here to accountability is financial accountability, not ensuring local authorities actually “do their job”. The review sets out that “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…”. This, in our view, highlights what the focus is. Financial. The concern is entirely about ensuring that local authorities do not overspend, rather than actually complying with the deadlines and service delivery that they are expected to muster in line with the current legislation.
This point is in with the section in the review on page 35, where the author seems to suggest that “in light of a recent High Court Judgment, local authorities must now issue proposed amendments to the plan within four weeks of a review meeting”.
Yet again, the authors of the review clearly do not understand the underpinning legislation, nor what this High Court Judgment actually set out.
Following an annual review, ever since the 2014 regulations were published, local authorities were required to confirm, within four weeks of an annual review meeting, whether or not it proposed to amend an EHCP. The regulations further made very clear that where a local authority proposed to amend, then it should out the details of those amendments by way of an amendment notice. The regulations, admittedly, were not absolutely clear that that amendment notice needed to accompany the decision to amend which was to be sent out within four weeks. However, I and all lawyers that I know that work for parents and families have always taken the view that the regulations were clear.
As such, the requirements have always been that the annual review happens, four weeks after which a decision is issued with details of any amendment published at the same time if necessary. This is not and was not created by the High Court.
What is frustrating, and why this is relevant to accountability, is that this case highlighted local authority delay. It highlighted a massive issue with annual reviews and it also highlighted just how far local authorities were willing to go to build delay in to the system. Rather than tackle that issue head on, the Green Paper appears to blame the High Court for creating a new task for local authorities, which is obviously nonsense, rather than recognising this as being a symptom of the core issues with the SEND System.
To conclude, therefore, this review is not, despite assurances, about improving the system. It is about reducing overspend and moving funding to private equity companies. The difficulty is that this review could never do the two things that it ultimately needed to do which were:
- Make the system better and less of a fight for parents and young people; and
- Reduce the costs of the system.
What is frustrating, however, is that this review has failed to identify what the core problems actually are, has failed to even fully understand the existing system despite it being the creation of this government and placing an apparent priority on redirection of public money, rather than ensuring that it is invested in actual service delivery. Unless and until the key points that we have identified at the top of this piece are properly addressed, the SEND system will continue to require families and young people to actively know and advocate for their rights.