Exceptional circumstances

The government has now published its much-awaited Green Paper on special educational needs, which has been dubbed the most radical programme of reforms to hit the area for 30 years. Robin Jacobs takes a look at the main points.

The government's paper - entitled Support and Aspiration: A New Approach to Special Educational Needs and Disability - runs to some 120 pages. Its proposals, which are wide ranging, pursue a number of goals including greater integration in the provision of services to children and young people, a reduction in bureaucracy and delay, greater choice for parents, and a simpler, less adversarial assessment process free from conflicts of interest.

The most significant proposals are as follows:

• The replacement of statements and ‘statementing’ with a single assessment process and a combined education, health and care plan so that health and social services are included in a package of support along with education. Such assessments and plans will run from birth up to the age of 25, supporting people through school, further and higher education and into employment.
• The replacement of ‘School Action’ & ‘School Action Plus’ with a single ‘school based category’. A similar change will be made in relation to Early Years Settings. The aim is to give schools greater flexibility (as well as accountability).
• ‘Power to Parents.’ This is to be achieved through a number of initiatives including; a requirement that local services publish a “local offer” showing what support is available and from whom; a legal right, by 2014, for parents to have control of the funds designated for supporting their child and a greater choice of schools with removal of the bias towards inclusion.
  Involvement of ‘the voluntary and community’ sector in delivering care plans. Targeted funding’ will be provided to suitable organisations.
• A reduction in the use of the term ‘SEN’ and the number of children designated as having special education needs. This is in accordance with the findings of a report undertaken last year which found that the term was being overused and large numbers of children wrongly diagnosed.
• Changes to the appeals process including a right for children to appeal in their own right if they feel they are not getting adequate support and a greater role for mediation facilitated by an independent party, possibly extending to a requirement that the parties “always try mediation before an appeal”.

Like the contents of any Green Paper, the proposals are broad and aspirational in nature at this stage, notwithstanding their length. As always, the devil will be in the detail and this is unlikely to be revealed until the proposals become draft legislation. It therefore remains to be seen how far the government will take some of the principles it has promulgated and for example;

• whether control of funding will be passed to all parents on a total and unfettered basis or whether there will be checks and balances;
• what incentives will be given to volunteers, independent organisations, mediators and schools to take up the additional challenges;
• what mechanisms will be put in place to ensure that different bodies act in unison, particularly at a time when they are being encouraged to become independent and pursue their own agendas;
• how the concept of choice can be balanced with the practical considerations of ensuring that specialist services remain viable; and
• how appeals will operate given the large number of different organisations who will become involved, both in assessing needs and delivering services.

Many are already questioning how the above aspirations can be reconciled with the cold realities of the current economic situation and how the government (and by extension the various individuals that the proposals would ‘empower’) will be able to deliver quality provision at a time when expenditure is being so heavily cut.

The maths (increasing numbers of children competing for increasingly scarce resources) suggests a future characterised by increased dissatisfaction and dispute rather than a new generation of empowered families receiving high quality provision tailored specifically to their own needs; this is undoubtedly the biggest challenge facing the government.

Robin Jacobs
is a barrister in the public law team at Hardwicke (www.hardwicke.co.uk).

The consultation runs until 9 June. The Paper can be viewed at the following link: SENGreenPaper