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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.

Government “remains committed” to introducing register for children not in school

The Government has insisted it “remains committed” to introducing a national register of children not in school, in response to a cross-party report on persistent absence.

The Education Committee said that despite “repeated statements” from the Government that it supports the creation of a national register of children not in mainstream education, the legislation required did not appear in the King’s Speech. 

The Government said it would legislate for local authority registers “at a future suitable opportunity”.

In its report on persistent absence and support for disadvantaged pupils, the Education Committee said the Department for Education (DfE) should make it mandatory for all schools to provide daily absence data to be published on its Pupil Attendance Dashboard. 

In its response, the Department said it agrees with the recommendation of ensuring 100% of state schools are sharing their daily attendance data. However, the timeline it gave for achieving this was “no sooner than September 2024”. 

The cross-party committee had also urged the Government to put its 2022 guidance ‘Working together to improve school attendance’ on a “statutory footing” from September 2024.

The DfE agreed and said that updated statutory guidance will include “new sections on mental health and targeting support meetings, and updated sections on Special Educational Needs and Disabilities (SEND) and Local Authority services.”

However, the response did not provide a timescale by which this will be achieved, the Education Committee noted.

The committee's report said fixed penalty notices should be issued to parents of absent children once other means of support had been exhausted, and that the new statutory guidance should ensure councils have a “consistent nation-wide approach” to fines. 

The Government’s response said: “In circumstances where support is not successful, or is not engaged with […] there is a clear role for the use of legal intervention […] This includes fixed penalty notices.”

It also welcomed the committee’s recommendation and suggested it will help inform “future regulatory or legislative changes to establish a national framework” on councils’ use of fines.

To address the high waiting lists for children and adolescent mental health services, the committee recommended that ministers should order a “cross-government review of demand and support available, to be completed by summer 2024”. 

The response said: “Cross-government working is already taking place on several projects related to children’s mental health.”

The Government revealed that NHS England will “soon” publish outcomes of a consultation on introducing five new access and waiting time standards for mental health services, “including the proposal that children […] should start to receive care within four weeks from referral.”

On SEND reform, the Education Committee said that it “broadly” supports the Government’s SEND and Alternative Provision Improvement Plan, which aims to ensure more children and young people with SEND or in alternative provision get the support they need.

However, the committee recommended the DfE “prioritise resource for inclusion and assessment in mainstream schools, to ensure they are adequately set up to support SEND pupils and address the current level of unmet need, and therefore improve their attendance rates.” 

In response, the DfE said it is working with 32 local authorities and “testing approaches” in schools to improve early identification of SEND-related conditions. 

Education Committee Chair, Robin Walker MP, said: “We welcome the positive reforms the Government has laid out in its response. However, outstanding questions remain about whether the education and health systems are sufficiently resourced to meet the rising tide of demand for SEND and mental health services. Everyone in the sector can see the implications this is having on children’s attendance, which will then undoubtedly impact on their academic attainment. 

“The Committee also stresses the urgent need for the Government to bring in the long-awaited register of children not in school, and statutory guidance to help schools boost attendance, including guidance on councils’ inconsistent use of fines. Much like the case for creating a national register, the Pupil Attendance Dashboard will be a helpful tool for policy makers nationally and locally to help schools with absence issues. We again hope Government can crack on with these reforms.”

Lottie Winson