When is a review not a review?
The Department for Education began a process in 2019 called the SEND (Special Educational Needs and Disability) Review. Based on this title (and the part of its subtitle which says ‘Government consultation on the SEND and alternative provision system’) an unsuspecting person might be drawn into thinking that this is a review of the SEND system and its performance. But this is the DfE and the unsuspecting person would be quite wrong.
The SEND Review began life with a DfE call for evidence asking stakeholders and interested parties to offer their thoughts and ideas on how the remarkably complex current funding arrangements for SEND could be revised – without increasing the global funding amount – to produce better outcomes.
This is equivalent to holding a consultation process, amidst the sounds of sirens and klaxons, to examine whether arranging an insufficient number of somewhat dilapidated lifeboats into a different configuration would be likely to improve outcomes for passengers. (‘If we dispense with life jackets we could fit more passengers into the lifeboats – what do you think?’)
The 2019 call for evidence also invited comment on some other areas of concern including:
- ‘decisions being taken primarily to avoid financial pressures from falling on a particular institution, by transferring costs elsewhere’;
- the ‘drift from mainstream provision towards special schools and alternative provision, which is raising overall costs to the system without improving the outcomes for children’;
- and ‘over-emphasis on securing an EHC plan to guarantee a particular level of financial support’ [1]
It’s difficult to follow how the DfE envisaged that respondents would have been able to comment on issues such as ‘over-emphasis on securing an EHC plan in order to guarantee a particular level of support’ without making reference to the funding arrangements that make it necessary for schools and parents to follow this route, or the likelihood that they will need to appeal to the SEND Tribunal in order to secure just a statutory assessment.
The 2019 Report of the House of Commons Education Select Committee, issued shortly after the announcement of the SEND Review, shared the concern about the over-emphasis on EHC plans (and the consequences thereof) but there was much about the SEND system that the Committee clearly expected the Review to address head on:
‘Let down by failures of implementation, the 2014 reforms have resulted in confusion and at times unlawful practice, bureaucratic nightmares, buckpassing and a lack of accountability, strained resources and adversarial experiences, and ultimately dashed the hopes of many.’
‘Parents and carers have to wade through a treacle of bureaucracy, full of conflict, missed appointments and despair.’
‘This generation is being let down—the reforms have not done enough to join the dots, to bring people together and to create opportunities for all young people to thrive in adulthood.’
‘The intense focus on Education Health and Care Plans and the transition date has led to children on SEN Support being neglected. Children are unable to access appropriate support at this level, which has led to a lack of early intervention, and an increase in parents applying for Education Health and Care Plans because they appear to be the only way to open doors for access to support that has become rationed and difficult to access.’
‘This has led to practices of rationing, gatekeeping and, fundamentally, children and young people’s needs being unidentified and unmet. Much of this is unlawful, goes wholly against the intentions of the Act and contributes to a lack of faith in the system.’
‘The Department for Education has an approach which is piecemeal, creating reactive, sticking-plaster policies, when what is needed is serious effort to ensure that issues are fully grappled with, and the 2014 Act works properly, as was intended.’ [2]
Manifestly, the Committee considered that these were issues that a SEND Review should address and it additionally set out four specific actions that it expected the SEND Review to undertake:
- to ‘fundamentally address the relationship between need and available provision’;
- to identify examples of excellent practice in early identification of needs and ‘spending of budgets upstream’;
- to map therapy provision across the country, to publish the results and to set out a strategy for addressing problems’;
- and to identify best practice for including children’s and young people’s views.
The SEND Review has not undertaken any of these actions. Addressing the relationship between need and available provision would seem to be of seminal importance within an SEND Review. But this is the DfE, which has spent decades assiduously avoiding the issue with an attitude best described as fingers in ears and ‘la, la, la – we can’t hear you’.
The SEND Review suggests that ‘hundreds of people’ were listened to, including representatives from a wide range of agencies, groups and organisations, but none of the evidence reportedly gathered from them has ever been published.
Visiting the relevant web page now, in May 2022, parties interested in knowing about the evidence that was gathered are met with information that has evidently been there since the consultation closed on July 1st 2019:
| We are analysing your feedback Visit this page again soon to download the outcome to this public feedback. |
We know that a ‘SEND Review Steering Group’ (consisting of 23 members, four of whose professional titles included a reference to ‘SEND’) met at unspecified times between September 2021 and February 2022. The group’s stated purpose was to ‘help the Department for Education to publish the SEND Review’. Perhaps some of the group’s members had relevant experience in publishing, but the DfE has never previously been known to require help in publishing anything.
The green paper / SEND Review that has been published makes no reference to the evidence that was initially called for and collected, which one might expect to have informed its proposals.
When is a review not a review? When it is an SEND Review carried out by the Department for Education which does not consider how well (or otherwise) the SEND system has been working and the reasons why, i.e. without reviewing that system.
So here is a real review of the SEND system.
‘Bureaucratic, bewildering and adversarial’
The SEND framework does not do – and has never done – what it says it will do, on the tin. It sets out a system in which the nation’s children and young people, whatever their level of difficulty and need, are to be provided with the support that their needs call for. It sets out statutory duties that are intended to ensure that this happens, particularly (but not only) for those with higher levels of need. But these duties routinely go unmet, primarily by Local Authorities.
The SEND framework is an arena of widespread unlawful practice, in which only those parents or carers who are armed with the appropriate knowledge, bloody-mindedness and sometimes the financial wherewithal can find a route to securing that which the legal framework entitles their children to. On the surface, it would undoubtedly have been worthwhile for a SEND Review to investigate why this is the case. But the DfE chose not to take the path of the worthwhile.
The core features that make the framework what it is are not difficult to find.
| Exhibit A ‘…. we concluded that statutory assessment was a costly, bureaucratic and unresponsive process that may add little value in helping to meet a child’s needs’ .[3] |
| Exhibit B ‘The system almost forces local authorities, schools and parents to adopt an adversarial stance. Although suitable for a criminal court, it seems quite inappropriate for deciding how best to help a SEN child. We recognise, however, that all too often parents had little choice in taking an adversarial approach during the appeals process in order to obtain what is in the interests of their children.’ [4] |
| Exhibit C ‘Hundreds of thousands of families have a disabled child or a child with SEN, and parents say that the system is bureaucratic, bewildering and adversarial and that it does not sufficiently reflect the needs of their child and their family life.’ ‘Currently, local authorities often take decisions based on correspondence with other agencies, and we would like to see a less bureaucratic and less adversarial approach where agencies come together to agree their support with parents.’ [5] |
| Exhibit D ‘Many parents and carers are engaged in struggles with their LA. Some of these struggles are by-products of the challenges of the current system, which has led to the experience of an acutely adversarial system.’ ‘Navigating the SEND system should not be a bureaucratic nightmare, difficult to navigate and requiring significant levels of legal knowledge and personal resilience.’ [6] |
The similarities between Exhibits A, B, C and D are obvious (even without the underlining). But together they illustrate how entrenched these issues have been within the SEND framework(s). The Audit Commission’s original comments in Exhibit A were made in 2002. Exhibit B was written in 2006 by an Education Select Committee, Exhibit C in 2011 within a Green Paper and Exhibit D in 2019 by a different House of Commons Education Select Committee.
These issues have been in the open for at least 20 years.
The trend in appeals to the First Tier SEND Tribunal since 2014 suggests a system that is becoming more adversarial, rather than less.
| Academic Year | Appeals registered with SEND Tribunal |
| 2014-2015 | 3,417 |
| 2015-2016 | 3,712 |
| 2016-2017 | 4,725 |
| 2017-2018 | 5,700 |
| 2018-2019 | 6,374 |
| 2019-2020 | 7,900 |
| 2020-2021 | 8,600 |
Year on year, Tribunal Statistics Quarterly has explained these rises as being, ‘likely a continued effect of the 2014 SEN reforms which introduced Education Health and Care plans (EHCPs) and extended the provision of support from birth to 25 years of age’.
This may well be a reasonable explanation, but it’s rendered somewhat irrelevant by the statistic that last year 96% of Tribunal hearings were resolved in favour of parents (or ‘the appellant’) and this has been a rising proportion.
Tribunal appeals, it should be noted, are just one indicator of an adversarial system. Many, many parents are stymied – or rather led to believe that they are stymied – in the pursuit of greater support for their children by systematic misinformation about what they are entitled to. Often, Local Authorities adopt in-house systems that do not reflect either the spirit or the letter of the law, some of which are directly unlawful, but which parents navigating the system are not sufficiently knowledgeable about to be able to challenge (such as being told that their child ‘doesn’t meet the Local Authority’s criteria for statutory assessment’, without it being explained that any criteria invented by Local Authorities have no legal standing).
It has ever been thus. In 2000, when I was a school SENCO, our Local Authority introduced its first ‘Banding’ system which allocated a specific level of funding for provision to children with a statement of SEN according to in-house ‘descriptors’. In order for this system to work, it also required the Authority to write statements of SEN which, contrary to the legal requirement, did not properly specify all of the provision that the child’s needs warranted. This meant that it was impossible to show that the particular funding Band to which a child had been allocated was insufficient to fund the necessary provision– because the provision that was necessary was not set out.
Decisions about the funding Band to which each child was allocated were made by a mysterious panel whose composition was not revealed, but who routinely made recommendations that directly contradicted the professional advice of educational psychologists, specialist teachers and therapists.
As a SENCO I engaged in some….robust correspondence and dialogue with the Local Authority over this and related issues: the relationship between schools and the Local Authority in SEND matters has often been fundamentally adversarial as well.
Some Authorities have gone as far as to engage specialist legal firms to defend their indefensible positions at Tribunal, including one particularly notorious firm whose lead lawyer took to Twitter to proclaim the enjoyment that he derived from depriving parents of provision to which their child was entitled, without them even realising it. What larks!
The current (2014) SEND framework – plus ca change…
There had been much fanfare about the revisions to the SEND framework that were to be implemented in 2014. Ministers had declared the previous system as ‘not fit for purpose’ (and yes, ‘bureaucratic and adversarial’) and trumpeted the new framework as ‘putting parents in charge’.
But what actually emerged was a SEND framework that was exactly the same in configuration, albeit widened in terms of scope (to include health and social care needs and provision, and with an age range now extending from 0-25). Some of the terminology had changed but the model had most definitely not.
At the heart of both the new and the old framework lay a system that held the prospect for parents and carers of securing (as others have observed) a ‘golden ticket’ – a legally binding document setting out the child’s needs, and all of the support that was needed to meet them (which would by law have to be provided). Which parent wouldn’t want such a ticket?
The new golden ticket was the Education, Health and Care Plan, replacing the statement of SEN. Both depended on the process of statutory assessment, the conduct of which was set out in great legal detail. Getting a Local Authority to agree to an assessment, the content of the document subsequently issued, or the refusal to issue one, and the question of school placement were all subject to the same system of appeal, to the same body, on the same sets of grounds and at the same stages of the process.
(The most obvious reason why the two frameworks were so similar was that the legal entitlements that parents and children had secured, supported by a body of SEN case law which had accumulated during 18 years of the old SEN legal framework, could not simply be discarded.)
2014 was an opportunity to reflect on a system which only guarantees a select few the right to have their needs fully assessed, and the legal right to appropriate support. Such a system makes it a certainty that there will be disputes, but it also leaves behind the vast swathe of children with learning difficulties who don’t qualify for the golden ticket. It is a discriminatory system.
But instead of reflecting on the consequences of this system and addressing the issues head-on, the 2014 designers looked away (just as they are doing now) and promised a greatly improved system, of extended scope and complexity, which would somehow be less bureaucratic. This was unfathomably optimistic, as is illustrated by the fact that the body of the 2001 SEN Code of Practice consisted of 142 pages (before setting out statutory instruments), while the SEND Code of Practice within the new 2014 framework ran to 272 pages (without setting out statutory instruments).
And the evidence of the first part of the SEND Review 2022 is that the promises that the 2014 SEND framework would address the inherent weaknesses of previous frameworks have simply not been fulfilled.
| Foreword, SEND Code of Practice 2014 | SEND Review 2022 |
| For children and young people this means that their experiences will be of a system which is less confrontational and more efficient. | Too many parents are navigating an adversarial system, and face difficulty and delay in accessing support for their child. |
| Their special educational needs and disabilities will be picked up at the earliest point with support routinely put in place quickly | This cycle begins in early years and mainstream schools where, despite the best endeavours of the workforce, settings are frequently ill-equipped to identify and effectively support children and young people’s needs. Children and young people’s needs are identified late, then escalate and become entrenched. |
| Children and young people and their parents or carers will be fully involved in decisions about their support and what they want to achieve. | The Review has concluded that there is a need for much greater consistency in how needs are identified and supported, so that decisions about support and provision are made based on a child or young person’s needs, in co-production with families, not where they live or the setting they attend |
| Importantly, the aspirations for children and young people will be raised through an increased focus on life outcomes, including employment and greater independence | Outcomes for children and young people with SEN or in alternative provision are poor |
The SEND Review identifies three ‘challenges’, each thoroughly in need of interrogation and comment, but only one of which I address here – on the long-standing and most frequently cited criticisms of the SEND framework.
Challenge 2: navigating the SEND system and alternative provision is not a positive experience for children, young people and their families
The plans arising from Challenge 2 could reasonably be expected to address the perennial issues of bureaucracy and adversarialism. But the content of the Review tells us that there is no appetite for acknowledging and facing up to these problems, let alone for seeking solutions to them.
If 96% of SEND Tribunal decisions were in favour of parents/carers (‘the appellant’), it’s quite obvious that the great majority of these cases should not have reached a Tribunal hearing and been defended there by the Local Authorities – it simply shouldn’t have been necessary for the families to have registered the appeals in the first place. Whatever it says on the tin, Local Authorities aren’t reading it.
There was an extensive consultation process leading up to the 2014 reforms. At the time I worked for a charity that provided free legally-based advice to parents and carers of children with SEN about how to navigate the system successfully. The charity’s submission to the consultation process highlighted that the single most significant way to improve the system would be to enforce the existing framework to ensure that Local Authorities met their statutory duties, and could not rely on the Tribunal system as their frontline defensive strategy for avoiding doing so.
If 96% of parents and carers who appealed to the Tribunal had not had to embark on and engage with that appeal process, how much less bureaucratic and adversarial do we think they would they have found the system?
So why have Local Authorities been allowed to continue to use the Tribunal system – often using spurious and previously discredited defences against appeals repeatedly, for so long? Why is widespread unlawful practice by Local Authorities allowed to continue unchallenged?
It is because government, in the form of the Department for Education, allows them to do so. As the Education Select Committee observed in 2019,
‘We do not think that the Department for Education is taking enough responsibility for ensuring that its reforms are overseen, that practice in local authorities is lawful, that statutory timescales are adhered to, and that children’s needs are being met. We are concerned that the Department has left it to local authorities, inspectorates, parents and the courts to operate and police the system.’
The fundamental reason why Local Authorities are innately resistant to carrying out statutory assessments, to issuing EHCPs and to agreeing to almost any form of support provision that is more expensive than the absolute bare minimum….is that their funding is insufficient to ensure that available provision matches the incidence of need. That is why the DfE ignored the Education Select Committee’s exhortation to address the relationship between need and available provision, and why it continues to seek solutions involving rearrangement of the lifeboats.
The definition of ‘Local Authority’ that I offer in The Devil’s Educational Glossary is:
‘A bureaucratic organisation designed to act as an intermediary protective buffer between government and its citizens so that it shoulders the blame for government underfunding of public services.’
Many Local Authorities have run up significant deficits in their SEND budgets. In March 2022 the Government came to ‘agreements’ with (a further) nine such Local Authorities
| Nine more councils have been told to make sweeping reforms to their special needs and disabilities (SEND) support in exchange for over £300 million to fill budget black holes. The Department for Education has reached deals with nine local authorities, on top of the first five councils who secured “safety valve” bailouts last year. Councils have an estimated £2.3 billion in high needs funding deficits. The government cash aims to ease struggles, but comes with strict conditions. Surrey will receive £100 million by 2026-27 to eliminate their deficit, with an initial payment of £40.5 million before the end of this financial year. But it must “reduce the escalation of need and push to move” children into specialist provision, by instead developing the skills of mainstream staff to support children with SEND. Dorset will be handed £42 million by 2025-26. But it must reduce the “likelihood” that a child will require a “specialist placement as they grow older” by focusing on early identification and “intervention strategies”. Rotherham has been told to reduce the use of independent specialist provision out of the area in return for £20 million by 2025-26. York should “manage demand appropriately” by supporting more children in mainstream and “appropriate and timely ceasing” of education, health and care plans. This is for £17.1 million over five years. [7] |
The most superficially plausible, but ultimately deceptive part of this is the idea that the incidence and level of need can be reduced by intervening early, even though schools are hardly likely to wait to see if learning difficulties and impairments resolve themselves without such intervention – and it is children and young people with lifelong conditions who are most likely to need long-term specialist provision.
But the funding shortfall is real, and worsening. The National Audit Office noted that between 2017-18 and 2020-21 the most deprived fifth of schools had been subject to an average real-terms reduction in per-pupil schools block funding of 1.2% (while the least deprived fifth of schools experienced an increase of 2.9% over the same period). Between 2017-18 and 2020-21, 58.3% of schools in the most deprived quintile saw a real-terms decrease in per-pupil funding. [8]
(For a thorough and comprehensive explanation of the system of SEND funding used by government and a walk-through of the SEND Review I’d direct readers to the excellent series of articles at Special Needs Jungle.)
The only measure proposed within the SEND Review green paper that relates to the issues of bureaucracy and adversarialism is the poorly-motivated introduction of mandatory mediation. Mediation is a process that can only be appropriate where each of the two parties have the same level of knowledge and power. Mediation in circumstances where there is an imbalance of knowledge and power – such as between a Local Authority and a parent – cannot be a fair process.
Otherwise, the green paper’s proposals for local SEND partnerships, multi-agency panels, new national SEND standards and the standardisation of EHCP formats do not address that which a meaningful SEND Review should address. All are irrelevant and meaningless if there is no intention to police and enforce the system that is set out in law and to fund the system properly – and without the chutzpah to acknowledge the evidence of a system that has not worked properly for well over 20 years and the determination to do something about it.
The SEND Review’s central conclusion was probably decided before the call for evidence was made in 2019. It is summarised within the green paper thus:
‘The SEND and alternative provision system is financially unsustainable.’
The real problem here for the DfE is what the SEND system says on the tin, which starts from the point of the child and the legally framed right to have their special educational needs met. Not partly and insufficiently met ‘as far as resources allow’, just….met. My sense is that there are battles ahead to preserve such rights, but that in some senses these may be the wrong battles if we are fighting just to preserve a fundamentally flawed system. But they will have to be fought, if only because the DfE seems not to have either the will or the ingenuity to propose a different model.
Responses to the consultation process must be submitted by 1st July 2022. There is only one question that seems to me to be relevant:
q.22. Is there anything else you would like to say about the proposals in the green paper?
All I need to do is to condense this, my response, into 250 words. But it seems very unlikely that the DfE will want to read it.
[1] https://consult.education.gov.uk/funding-policy-unit/funding-for-send-and-those-who-need-ap-call-for-ev/supporting_documents/Call%20for%20evidence%20on%20SENDAP%20Funding.pdf
[2] https://publications.parliament.uk/pa/cm201919/cmselect/cmeduc/20/20.pdf
[3] https://publications.parliament.uk/pa/cm200607/cmselect/cmeduski/memo/specialedneeds/ucm2802.pdf
[4] https://publications.parliament.uk/pa/cm200506/cmselect/cmeduski/478/478i.pdf
[5]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/198141/Support_and_Aspiration_Green-Paper-SEN.pdf
[6] https://publications.parliament.uk/pa/cm201919/cmselect/cmeduc/20/20.pdf
[7] https://schoolsweek.co.uk/nine-more-councils-told-to-reform-send-services-in-return-for-300m/
[8] https://www.nao.org.uk/wp-content/uploads/2021/07/School-funding-in-England.pdf