SPOTLIGHT

A zero sum game?

The number of SEND tribunal cases is rising and the proportion of appeals ‘lost’ by local authorities is at a record high. Lottie Winson talks to education lawyers to understand the reasons why, and sets out the results of Local Government Lawyer’s exclusive survey.

The SEND and AP Improvement Plan: does it go far enough?

Sarah Davidson sets out the key elements of the SEND and AP Improvement Plan published by the Department for Education earlier this month.

On 2 March 2023, the Department for Education published its SEND and AP Improvement Plan outlining its response to the SEND and AP Green Paper published in March 2022.

As of yet there are no legal changes, but the Government may change legal requirements to enforce more standardisation in the SEND/AP system and to try deliver more SEN provision through mainstream schools.

The Plan also introduces new National SEND and AP standards which will aim to standardise and regulate the delivery of SEN and AP nationally. These standards will be supported by SEND and AP practice guides for frontline professionals and a new SEND Code of Practice (COP).

Key aims of the SEND and AP Improvement Plan

The Plan identifies three key challenges which exist in the current system:

  1. Children and young people with SEND are not consistently being helped to fulfil their potential.
  2. Parent’s confidence in the system is in decline. This system is described as being insufficiently responsive to parents, increasingly adversarial and characterised by long waiting times to access information and support for their children (including accessing therapists and mental health support).
  3. The system has become financially unsustainable. Despite additional investment (50% increase of spending by the Government from 2019-20 to 2023-24), there continues to be no marked improvement in outcomes or experiences.

In response to these identified challenges, the Plan outlines the following corresponding aims:

  1. Fulfil children’s potential: there is a cycle of late intervention, low confidence and inefficient resource allocation. Children and young people’s needs are identified late or incorrectly, with needs escalating and becoming more entrenched. Parents and providers do not know what to reasonably expect from their local settings, resulting in low confidence in the ability of mainstream settings to effectively meet the needs of children and young people with SEND.
  2. Build parents’ trust: particularly in navigating the system and developing confidence in mainstream settings as high-quality, thereby reducing the need for EHCPs and specialist provision.
  3. Provide financial sustainability: enabling local systems to deploy their resources effectively such that spending shifts towards early intervention and away from costly specialist provision.

Key reforms proposed in the DfE’s Improvement Plan include:

  1. The creation of a new leadership level SENCO National Professional Qualification (NPQ).
  2. A new approach to AP which focuses on preparing children to return to mainstream provision or prepare for adulthood.
  3. An extension of AP Specialist Taskforces, which work directly with young people in AP to offer intensive support from experts, including mental health professionals, family workers, and speech and language therapists.
  4. Offering more supported internship places by 2025 (doubling this amount from the current 2,500 to around 5,000).
  5. £30m towards developing innovative approaches for short breaks for children, young people and their families.
  6. Increasing the capacity of specialists – investing a further £21 million to train educational psychologists in 2024/2025.

Proposed reforms

EHCP digitisation and standardisation

  1. Plans will be standardised and therefore produced through a template and digitised system.
  2. The DfE are working on a National EHCP template and say they will encourage all local authorities to adopt the template.

Multi-agency collaboration

  1. The Plan outlines that national standards will set out what provision system leaders need to make available for all children with SEND.
  2. The Plan promises to ‘develop National Standards that recognise the role of health and social care and the interdependencies, while operating within the existing statutory framework for health and adult social care’.
  3. The DFE will develop a standard for multi-agency and advisory panels.
  4. The Plan does not outline how this will take effect in practice and thus does not address the difficulties of multi-agency collaboration already faced through the Extended Appeal process.

Early intervention and Mainstream Provision

  1. The Plan aims to create a financially sustainable system by shifting to early intervention and provision in mainstream settings rather than specialist settings.
  2. The Plan intends that ‘more children and young people will receive the support they need through ordinarily available provision in their local setting’ and therefore fewer will need to access support through an EHCP.
  3. This shift, however, will rely on parents having sufficient confidence in mainstream settings. LAs will be required to provide ‘a tailored list of suitable settings informed by the local inclusion plan’ for parents to choose from. The Plan, however, does not specify whether parental choice will be restricted to those lists, and therefore the law around parental preference will not necessarily change.

Mainstream school provision

  1. The Plan outlines how SEND expertise in schools should be held at every level and specifically through school staffing (SENCOs and Teaching Assistants). The Plan proposes a new mandatory SENCO NPQ.
  2. The proposals in the Improvement Plan aim to increase the capacity of mainstream schools to meet a wider range of needs.
  3. However, the Plan does not provide any new information about how notional SEN budgets will fund enhanced SEN provision in mainstream.

Special Schools

  1. The Plan proposes a twin-track approach of reducing costs by:
    1. Creating more maintained special schools (33 new free special schools are due to be built)
    2. Re-examining the state’s relationship with independent special schools in order to ‘ensure that we set comparable expectations for all state-funded specialist providers’.

Alternative Provision

  1. The Plan aims to create a national standardisation of AP, and intends to introduce an AP framework based on five named metrics. These standards are going to focus on aspects such as increased attendance, attainment, re-integration into mainstream education or progression to sustainable post-16 destinations.
  2. The Plan therefore anticipates creating a more regulated AP provision framework, which meets the aim of ‘additional capacity for mainstream school leaders and staff to address challenging behaviour earlier and re-engage pupils in education’.
  3. The Plan sets out a ‘three-tier alternative provision system, focusing on targeted early support within mainstream school, time-limited intensive placements in an alternative provision setting, and longer-term placements to support return to mainstream or a sustainable post-16 destination’.
  4. Nevertheless, the Plan is still vague in terms of what exactly is AP, and when it can be used.

National funding bands

  1. The Plan states that the government will introduce national funding bands and tariffs.
  2. However, the standardisation of national funding bands and tariffs is still limited by the fact that there are no legal means which can force tariffs on (non Section 41) independent schools and AP institutions. Independent schools will therefore still be allowed to set their own tariffs.

SEND Tribunal Reforms

  1. The Plan states that the DfE will strengthen mediation processes and test and evaluate approaches before deciding whether to propose legislation to make these strengthened processes statutory (i.e., make mediation mandatory).

Conclusions and key criticisms

Investment in SEND and AP is increasing by more than 50% compared with 2019-20 to more than £10 billion by 2023-24.

However, substantial criticism around the Plan emphasises that the measures still do not go far enough to address the cost and demand issues that ultimately result in councils struggling to meet the needs of children with SEND.

The Plan is perhaps a promising start but ultimately does not go far or fast enough. While ‘the additional funding being made available is being welcome by all providers, with high needs budget deficits rising there is still not enough money in the system to meet the level of need being seen. The costs associated with the current SEND system are baked in for years to come, this must be addressed’ (Steve Crocker, President of the Association of Directors of Children Services).  

Moreover, while the enhanced funding for the creation of special schools is a positive thing, the 2014 SEND reforms were criticised for their shift away from inclusion in mainstream education to overreliance on independent specialist provision.

The ADCS President has called on the government to reaffirm its commitment to the White Paper and introduce legislative change to emphasise the importance of the focus on inclusion in mainstream schools. 

Sarah Davidson is a paralegal at SV Law, Solicitors.