SEND Review update: ALLFIE’s Green Paper response consultation

Welcome to our latest campaign briefing, covering:

1. Introduction: The SEND Review Green Paper
2. What’s in the Green Paper: ‘SEND review: right support, right place, right time?’
3. ALLFIE’s view – what do we want?
4. What you can do? Consultation events and survey

1. Introduction

Dear friends,

In March 2022, the Government published its long-awaited Green Paper: SEND review – right support, right place, right time.[1]. This sets out the Government’s proposed changes to the SEND framework, addressing the negative experiences that Disabled children, Young people and parents’ have when securing appropriate education provision.

The Department for Education’s public consultation will be open for responses until Friday 1^st July 2022.

ALLFIE’s team will be analysing the SEND proposals and how they might impact Disabled children and young people’s rights to inclusive education. We will also be analysing the Government’s alterations to the existing SEND legal framework under the Children and Families Act 2014.[2]

We will be writing up our analysis as we go along and would welcome any thoughts from our members:

Have your say

• Attend our consultation events.
• Complete our inclusive education survey
• Attend our event with the Department for Education’s SEND Review Green Paper consultation civil servant team.

2. What’s in the Green Paper ‘SEND review: right support, right place, right time?’

Chapter 1: The Case for Change

The SEND Review was commissioned in September 2019 in response to growing concern about the challenges facing the SEND system in England, and the future of the children and young people it supports. The review reported the following:

• Families’ experiences of the SEND and alternative provision system are negative;
• Both SEND and the alternative provision system are financially unsustainable;
• There is too much inconsistency across the SEND system regarding how and where needs are assessed and me; and
• That a vicious cycle is driving these challenges through late intervention, low confidence across the system, and inefficient resource allocation.

ALLFIE is very disappointed that the SEND review and the SEND Green Paper proposals make no attempt to address the lack of implementation of Disabled children and young people’s rights to inclusive education, as set out in the UNCRPD Article 24.3 There is a glaring absence regarding how the Government will remove the injustices that Disabled children and young people face in accessing mainstream education through the barriers that this Government continues to put in place. 

Chapter 2: A Single National SEND and Alternative Provision System

There are currently 153 individual, local authority decision-making processes for implementing the SEND framework. These local processes cover the provision of education, health, and care assessments and plans, SEND funding allocation, and education placement arrangements. Disabled children and young people with similar needs can and will be placed in different types of education placements by different local authorities depending on the family’s residence. Consequently, parents have been highly critical of this postcode lottery, where residency will determine how the SEND framework will be implemented for their Disabled children.[4]

National SEND Standards

In the new Green Paper, the Government is proposing to reduce local authorities’ discretion over school placement decisions. It will do this by introducing national SEND standards which set out appropriate provisions and placements for children with similar needs. The national SEND standards will decide:

• Which needs of Disabled children and young people should, and can, be effectively accommodated within mainstream educational settings;
• The circumstances in which the needs of children and young people would be appropriately provided for within specialist provision, including both special and alternative provision schools.

Local SEND partnerships will bring together education, health, care, local government, and other partners. These partnerships will be legally required to help parents make informed choices regarding the suitability of education placements for their own child. It will do this by publishing  local inclusion plans, including tailored lists of appropriate schools and colleges which meet different educational needs.

ALLFIE is very disappointed that the national SEND standards are not national, inclusive education standards. They do not set out the obligations of public bodies within an education remit, or their role in supporting the inclusion of all disabled children and young people, regardless of background and location within all mainstream education settings, as set out in the UNCRPD Article 24. 

The proposed SEND standards reinforce a medical view on disability – whereby a medical diagnosis determines the type of SEND provision and type of education placement. National SEND standards have the potential to ignore the complexity of needs of Disabled children and young people with individual profiles of academic, physical, social, and emotional abilities within mainstream education settings and with pre-determined support provision. Suggesting some Disabled children should not be in mainstream education from the outset is ableist and discriminative, both of which are incompatible with the Government’s UNCRPD Article 24 obligations.

The school placement proposal ignores the wide range of social factors (i.e. siblings, existing friendship groups, location) parents take into account when considering an appropriate mainstream setting for their Disabled child. We do not agree that the national SEND standards, as set out in the consultation, will increase the number of disabled children being appropriately supported within mainstream education. Instead, we anticipate that an increasing number of disabled children will experience segregated education as a result of being placed in SEND units attached to mainstream schools and special schools and colleges. Disabled children and young people and their parents will be more likely to be forced into segregated education, which is less likely to be the case under existing law and policy around parental choice. The presumption of segregated education for certain disabled children and young people is a violation of their human rights to inclusive education, as set out in Article 24.         

Simplify Education, Health, and Care Needs Assessments and Plans

Whilst the Children and Families Act legally prescribes education, health, and care plan (EHCP) sections, each local authority uses their own education, health, and care needs assessment (EHCA) and EHCP templates. The quality and quantity of information within the EHCP varies between local authorities. The Government proposes the introduction of national standards for EHCA needs and EHCP arrangements, including the use of digitalised templates. The national standards will include how needs are identified, met, and reviewed at every stage of a child’s journey across education, health, and care. To facilitate greater transparency within the EHC needs and child social care assessment processes, the Government is proposing the introduction of some independence into the decision-making arrangements.

The proposed statutory local multi-agency panels will be set up to review and make recommendations on requests for EHCAs and EHCPs, the needs assessments themselves, and any consequent placement and funding decisions. Panels will include representation from schools and colleges, health and social care workers, and parents and carers, taking a holistic view of the child. The panels will also make recommendations in line with the national SEND standards which local authorities must take into account when making their final decision.

Naming a School in an EHCP

Currently, parents and young people are able to name any school or post-16 placement preference unless it’s incompatible with the provision of efficient education for others. Local authorities are required to document the placement in the EHCP. During the drafting stage of the aforementioned EHCP, parents will be provided with a tailored list of education settings able to meet the needs of their child as set out in the Inclusion Plan.

Young people will be able to request a preference for a named post-16 placement from a similarly tailored list of appropriate 16-plus education providers that will meet their needs. Parents will still retain the right to request a preferred school that is not named in the tailored list of education settings. Parents can also still request a mainstream setting for their child even when they are eligible for a special school placement. The same legal provisions will be in place for young people if they want to attend a mainstream school or college rather than a special school or college for post-16 education. Local authorities must name the parents’ preferred school or young person’s college unless it is incompatible with the provision of efficient education for others in line with current legislation.

Parents and Young People Dispute Resolution and Redress

Dispute resolution can take up a significant amount of time, months or more, if disagreements about the child’s SEN arrangements between the parents/young person and local authority cannot be resolved before the tribunal hearing. The Government wants to speed up the dispute resolution process so that disagreements can be resolved at an earlier stage.

A proposed three stage dispute resolution process is being considered in the Green Paper. It would require mandatory mediation and a local independent panel hearing before a tribunal appeal could be registered by the parents or young person. The parents or young person will only be allowed to appeal if they feel the young person’s needs or proposed provision arrangements would not be in line with the new national SEND standards.

Tribunals will:

• Be required to make their decisions consistent with the new statutory national SEND standards;
• Continue to make non-legally binding recommendations about the health and social care aspects of the child or young person’s EHCP. The Government is considering whether to make legally binding judgements around the health and social care provision; and
• Continue to hear appeals when schools have failed to comply with their Equality Act 2010 disability equality duties.[5]

It’s the Government’s intention that all remaining maintained schools will become academy schools within existing or new multi-academy trusts by 2030. The academy trusts will include special schools and alternative provision schools. Unlike maintained schools, local authorities cannot direct an academy school to admit a disabled child with an EHCP. Subsequently, the Government is proposing to give local authorities a back stop power to direct academy trusts to admit the child to avoid a situation in which the child has no school to attend.

Currently, each local authority is required by law to commission a SEND Independent Advice Service (SENDIAS) for parents and young people.  National SEND standards will include a SENDIAS remit, including their role in dispute resolution between local authorities and the parents/young disabled person.

It’s unclear whether children and young people attending an appropriate school or college in line with SEND standards will rely upon the school to arrange such provision out of their own resources; if this is the case, children’s rights to SEND provision will be weakened.

Whilst ALLFIE would also consider streamlining the EHC needs and EHCP system, we do not think that the proposals will build the confidence needed to support Disabled children and young people in mainstream education. 

The EHCA and EHCP processes are guided neither by the social model of Disability or the identification of needs, barriers, and solutions that will enable the Disabled child or young person to flourish within mainstream education settings. Thus, they are not framed around promoting Disabled people’s human rights to inclusive education, as set out in UNCRPD Article 24.

Chapter 3: Excellent Provision from Early Years to Adulthood

The Government has set out its plans to offer “excellent provision” for Disabled children and young people. The Government wants schools and colleges to be more inclusive of a broader range of students, with the aim of increasing the numbers of Disabled children and young people within mainstream education settings. The main focus is on workforce professional development. This covers:

• Mandatory initial teaching training and early career development so that all newly qualified teachers have experienced working with SEND children and young people;
• Introducing new SENCO national professional qualifications for schools, further education, and early years; and
• Department for Education guidance for teaching assistants.

For young people aged 16-25, the Government’s proposals are to:

• Create new transition standards;
• Implement reasonable adjustment passports that students can use to facilitate a smooth transition from further to higher education settings;
• Award £18 million of investments in supported internship placements over three years;
• Create 72,000 traineeship placements between 2022/2023 and 2024/25; and
• Invest in a comprehensive package of professional development for apprenticeship providers and employers making reasonable adjustments for disabled apprentices.

Whilst ALLFIE recognises that having a highly trained workforce is needed, this alone will not achieve the ultimate goal of improving Disabled children and young people’s learning experiences within mainstream educational settings. Achieving excellent inclusive education for all will require radical changes to our education system, including the phasing out of segregated education. 

As long as the law legislates for the segregation of Disabled children and young people, schools and colleges will justify their continuing arguments regarding their perceived inability to provide excellent education for certain Disabled children, particularly those with complex needs. The UNCRPD Monitoring Committee has already said that a dual education system is incompatible with Disabled students’ rights to inclusive education, as set out in Article 24. 

Chapter 4: A Reformed and Integrated Role for Alternative Provision  

The majority of children and young people being educated within alternative provision have SEND and most have been permanently excluded from school or are undergoing medical treatment requiring hospital school provision. Alternative provision covers education outside mainstream and special schools. Pupil Referral Units, hospital schools, alternative provision academies and free schools, independent schools and unregistered providers will be covered by the national SEND standards. The Government is proposing to refocus alternative provision so that it is used to support children to re-integrate or stay within existing or new mainstream schools or post-16 settings.

The proposed alternative provision performative framework is based on five key outcomes:

• Effective outreach support
• Improved attendance
• Reintegration
• Academic attainment with focus on English and Maths
• Successful post-16 transition

ALLFIE is concerned that the Government wants to expand rather than discontinue alternative provision, despite it having failed to keep Disabled children and young people from exploitation and trauma.  Similarly, in special schools all forms of segregation are harmful for Disabled students as the traumatic effects of feeling excluded and rejected by local communities can have long-term impacts. 

Private and charity-run alternative and segregated education provision, alongside psychiatric hospitals, have been heavily criticised for leaving many Disabled people traumatised and ill-prepared for the real world.  Outsourced placements and support arrangements remove responsibility and accountability from education providers and local authorities to provide the high-quality support and education young people require to flourish, especially when placements are not required to be named in an EHCP.

Alternative provision is therefore a form of segregated education that the UNCRPD Monitoring Committee would consider as incompatible with the Government’s obligation to promote inclusive education for all. 

Chapter 5: System Roles, Accountabilities, and Funding Reforms

Parents of Disabled children are highly critical of the accountability arrangements within the SEND framework. Currently, local authorities and EHC providers are held to account by various independent inspection bodies. Current proposals include:

• The Department for Education will establish regional groups who will hold local authorities and multi-academy trusts to account for local delivery of the inclusion plan in line with national SEND standards;
• OFSTED and CQC will update the local area SEND and alternative provision inspection framework to be launched during 2023;
• All schools and further education institutions will be inspected under the updated OFSTED education inspection framework (EIF)[6] at least once by 2025. The EIF standards place a strong emphasis on how schools support young people with SEN. Schools will not be graded as outstanding unless their disabled pupils’ achievements are exceptional;
• The regional NHS will work closely alongside the SEND improvement teams within the Department for Education to ensure that improvement and intervention actions are aligned and have impacts across the system; and
• The introduction of local and national inclusion dashboards, setting out clear performance data and metrics across EHC for strengthened accountability and transparency to parents.

The Government will work with the SEND sector to identify the most informative and appropriate data across themes against the national SEND standards at both the national and local authority levels. Such data and matrices may cover, for example, attainment and absence rates, tribunal appeal rates, proportion of children with SEN excluded, the percentage of young people in education, employment and training, the identification of needs, and value for money.

The Government will also:

• Link further education data dashboards to further education funding, and accountability systems to the “Levelling Up the United Kingdom” White Paper[7];
• Update school and college performance (performance tables) to support parents, young people, and wider stakeholders to consider contextual information about a school or college alongside their results data; and
• Consider aligning early years provision, including the inclusion fund, with the proposed national funding banding and tariffs.

ALLFIE believes that the Government’s proposal to give the Department for Education greater oversight monitoring and accountability regarding the SEND system will not increase, or improve, the quality of inclusive education practices within mainstream education settings.

Indeed, the UNCRPD Monitoring Committee made it very clear that the Government has a duty to monitor and evaluate the effectiveness of mainstream education settings, which would include setting out the criteria for the inspection of the quality of inclusive education practice and leadership. The standards of inclusive education are set out in UNCRPD Article 24, comment No. 4.[8]       

SEND Funding Banding and Tariffs with the Aim of Building a More Financially Sustainable System

The Department for Education is responsible for school and college funding policy, including the allocation of grants for public bodies that are themselves responsible for the inspection and delivery of education services. The Dedicated Schools Grant consists of four blocks of funding to cover schools, central school services, high needs, and early years. These are allocated through a nationally-determined formula to local authorities.[9]  To place the SEND spending on a more long-term, financially-sustainable footing, the Government is proposing to introduce national funding banding and tarriffs with the aim of creating better value for money. Unlike at present, the Government is proposing to introduce upper limits for the cost of school placements:

• The proposed national banding system will be matched to levels of need and types of appropriate education provision within the national SEND standards. Banding will cluster specific types of provision (aligned to need) as set out by national standards. Tariffs would set out the rules and prices with which commissioners would pay providers;
• Reviewing the national threshold of £6,000 required before schools can draw down additional funding from the local authority’s high needs budget. The appropriate threshold will be considered in the context of the responsibilities held by mainstream schools under the new national SEND standards. These will be set out in a future consultation; and
• To ensure funding arrangements are consistent across the country, joint Department for Education and Department of Health and Social Care funding guidance will set out the responsibilities of local authorities and the NHS regarding paying for EHC provision within education settings for Disabled children and young people.

ALLFIE does not agree that the proposed funding banding and tarrif system will lead to higher quality inclusive education for Disabled children and young people within mainstream education settings. We are concerned that Disabled children requiring EHC support will be placed in a special school in receipt of a higher rate per pupil after being assigned to a higher funding band. Additionally, Disabled children and young people may well receive inadequate levels of EHC support within full-time education as the mainstream school is likely to be in receipt of a lower rate per pupil associated with being placed within a lower funding band.

Thus, the continuation of the funding of segregated education is incompatible with the Government’s duties to promote inclusive education under UNCRPD Article 24.

Chapter 6: Delivering Change for Children and Families

The Department for Education wants to strengthen its strategic role in the delivery of both the SEND and wider school reforms. As set out in the Green Paper under analysis, the proposed SEND delivery board will oversee the development of new national SEND standards. The Department for Education and Department for Health and Social Care will work with relevant health and care bodies to align these with expectations for health and adult social care.

The national SEND delivery board will bring together relevant Government department bodies and national delivery partners, including parents. The SEND delivery board will oversee:

• The development of the national SEND standards;
• The publication of a national SEND and alternative provision delivery plan that includes testing and refining key proposals and support and the management of improvements within the local SEND delivery system;
• The stabilisation of local SEND systems through the safety valve and Delivering Better Value programmes over the next three years to support those local authorities with the largest deficits[10]; and
• Alignment with wider reforms such as those set out in the Covid-19 Pandemic recovery plan[11], the Schools White Paper[12], and the independent review of children’s social care and integrated care boards.[13]

3. ALLFIE’s View

ALLFIE is very concerned that the “SEND review: right support, right place, right time” paper does not draw upon the UNCRPD Monitoring Committee’s recommendations to focus on developing a national inclusive education system. Instead, it will result in the further regression of Disabled children and young people’s human rights to inclusive education, as set out in UNCRPD Article 24.  Furthermore, the proposals are in conflict with the Government’s responsibilities under the Equality Act Public Sector’s Equality Duty and Reasonable Adjustments duties.  Whilst the Government says that parents can state a preference for a mainstream school placement, this right will be severely weakened within the Children and Families Act if the National SEND standards become law.

The SEND review’s proposals are thus inherently discriminative. The homogenisation of the experiences of Disabled people and families results in the failure to recognise issues such as the intersection of ableism, racism and classism within the education system, departments and wider society. Therefore, the SEND Review assumes some groups of Disabled children and young people must be placed in segregated education, perpetuating division and segregation between communities.

What is the purpose of this SEND review and green paper? Is it to uphold practices of separation or is it to eradicate failures discrimination in education system for all Disabled children and young people?

What does ALLFIE want?

ALLFIE wants the Government to have National Inclusive Education Standards that are in line with UNCRPD Article 24 comment 4.  We need your thoughts on what inclusive education standards are needed and what else must to be done to develop inclusive education practice.

4. What you can do

• Attend our consultation events.
• Complete our inclusive education survey
• Attend our event with the Department for Education’s SEND Review Green Paper consultation civil servant team. There you will be able to ask questions. If you want to ask a question please submit questions to simoneaspis@allfie.org.uk by Monday 9^th May 2022 at 10 am.

We will be uploading materials that will help you to:

• Write a response to the DFE’s SEND Review Green Paper consultation document.
• Aid a letter or conversation with your local MP.

We will provide you with email updates (including any proposals for new education legislation): Register

By Simone Aspis, ALLFIE Campaigns and Policy Coordinator 

References

[1] Department for Education. (2022). SEND review: right support, right place, right time. Retrieved from https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1063620/SEND_review_right_support_right_place_right_time_accessible.pdf

[2] Children and Families Act. (2014). Retrieved from https://www.legislation.gov.uk/ukpga/2014/6/contents/enacted

3 United Nations. (2006). Article 24 – Education. Retrieved from https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/article-24-education.html

[3] Department for Education. (2015). Special educational needs and disability code of practice: 0 to 25 years. Retrieved from https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/398815/SEND_Code_of_Practice_January_2015.pdf

[4] Nuffield Foundation. (2021). The level of support offered to children with special educational needs is decided by a ‘postcode lottery’. Retrieved from https://www.nuffieldfoundation.org/news/the-level-of-support-offered-to-children-with-special-educational-needs-is-decided-by-a-postcode-lottery

[5] Equality Act. (2010). Retrieved from https://www.legislation.gov.uk/ukpga/2010/15/contents

[6] Ofsted. (2019). Education inspection framework (EIF). Retrieved from https://www.gov.uk/government/publications/education-inspection-framework

[7] Department for Levelling Up, Housing and Communities. (2022). Levelling Up the United Kingdom. Retrieved from https://www.gov.uk/government/publications/levelling-up-the-united-kingdom

[8] United Nations. (2016). General comment No. 4 on Article 24 – the right to inclusive education. Retrieved from https://www.ohchr.org/en/documents/general-comments-and-recommendations/general-comment-no-4-article-24-right-inclusive

[9] Education and Skills Funding Agency. (2021). Dedicated schools grant (DSG): 2022 to 2023. Retrieved from https://www.gov.uk/government/publications/dedicated-schools-grant-dsg-2022-to-2023

[10] Department for Education. (2022). Sustainable high needs systems: learning from the ‘safety valve’ intervention programme. Retrieved from https://www.gov.uk/government/publications/creating-sustainable-high-needs-systems/sustainable-high-needs-systems-learning-from-the-safety-valve-intervention-programme

[11] Cabinet Office. (2020). Our plan to rebuild: The UK Government’s COVID-19 recovery strategy. Retrieved from https://www.gov.uk/government/publications/our-plan-to-rebuild-the-uk-governments-covid-19-recovery-strategy

[12] Department for Education. (2022). Schools White Paper delivers real action to level up education. Retrieved from https://www.gov.uk/government/news/schools-white-paper-delivers-real-action-to-level-up-education

[13] Department for Education. (2022). Independent review of children’s social care. Retrieved from https://www.gov.uk/government/groups/independent-review-of-childrens-social-care