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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.

MPs demand clarification amid reports of Government targets for reducing number of Education, Health and Care Plans

The Education Committee has called for clarification from the Department for Education following a report in The Observer suggesting that the Government had signed a contract with a consultancy firm in July 2022 - as part of the Delivering Better Value in Send programme - “targeting at least a 20% reduction in new EHCPs [Education, Health and Care Plans] issued.”

In a letter to David Johnston, Parliamentary Under-Secretary of State for Children, Families and Wellbeing, committee chair Robin Walker MP noted that this revelation would appear to contradict evidence from former children’s minister Claire Coutinho, who said in an evidence session on 23 May 2023 that the Department was “absolutely not trying to” ration EHCPs through the SEND and AP Improvement Plan.

Last week, Schools Week reported that it found both Kingston and Richmond councils have conditions to “manage demand” for EHCPs.

The letter separately backed various proposals from the Special Educational Needs and Disabilities (SEND) and Alternative Provision (AP) Improvement Plan, released in March of this year.

In particular Walker said the committee welcomed “commitments to train more Special Educational Needs Coordinators and educational psychologists, standardisation and digitalisation of EHCPs, and the general increase in funding through the Change Programme”.

The letter also welcomed confirmation in Coutinho’s evidence that the DfE was “not testing mandatory mediation” in the Change Programme. This came after a “prominent concern” from witnesses and families that mediation to tackle disputes over EHCPs, before parents registered an appeal to the tribunal, would be made mandatory.

On Coutinho’s confirmation on this point, Walker wrote: “This is a welcome step that reflects the concerns of the sector, and we are looking closely [to] see how the Department will best implement positive mediation.”

The letter said the committee also welcomed the former children’s minister’s announcement that through the Ofsted strategy 2022-27, “all inspectors who inspect specialist settings”, receive “specific SEND training on induction followed by enhanced SEND training and annual ‘top-up’ enhanced SEND training.”

However, the committee requested information from the Department on the proportion of inspectors who come from a special school background.

Concluding the letter, Walker noted that although the SEND and AP Improvement Plan includes “many measures” that would benefit children and young people, “issues of funding, regional disparity, workforce concerns, early identification and timescales” continued to cause concern.

A Department for Education spokesperson said: “It is completely wrong to suggest that we are withdrawing support for children and young people with SEND. Ministers have been consistently clear, including with parliament, about the fact that there are no specific targets for a reduction in EHCPs.

“The Government's investment in the high need budget has risen by over 60% since 2019-20 to £10.5 billion, alongside investment of £2.6 billion in high needs capital over this Spending Review and doubling the number of special free school places to 19,000 once those in the pipeline are complete.

“Our reform plan sets out how we will create high standards of SEND support across England, with improved earlier intervention. EHCPs will always be available for parents, but the earlier and better support we will deliver should reduce the need for some children to receive an EHCP to access the provision they need.”

Lottie Winson