England & Wales Education and children's services, Welfare and equalities

Special needs need special measures

The Government is expected to publish this month (June 2021) a Green Paper setting out its conclusions from the long-awaited review of special educational needs in schools and colleges in England. LGIU Associate, Mark Upton provides us with a preview.

In his foreword for the recent Education Policy Institute report on special educational needs (SEN), former Education Minister David Laws tells us that at any one time around a quarter of children are identified as having special educational needs, and at some stage in their educational journey as many as four-in-ten are considered to have such needs.

But for as long as can be remembered what has been provided has not come close to meeting those needs. Seven years ago the Coalition Government sought to address this by introducing Education, Health and Care (EHC) Plans and a multi-agency approach, requiring local authorities to publish a ‘local offer’ setting out the support available to children and young people, and the introduction of a new national ‘high needs’ funding formula.

Almost two years ago the National Audit Office concluded that the ‘new’ system is not financially sustainable as demand for and the cost of special education interventions has risen much faster than funding leading to widespread overspending of local authority budgets: according to the Observer (15 May 2021) 131 local authorities (out of 151 upper tier councils) are forecasting a combined ‘overspend’ of £503 million for 2020-21.

Ofsted and the Care Quality Commission have found significant areas of weakness in just over half (59) of the 116 local authorities inspected. Research points to varying interpretations and practices across professionals, schools and local authorities in identifying need and providing interventions. The Education Select Committee found the system adversarial and hard-to-navigate. Parents needed to fight for support they are entitled to, with many having to take their case to tribunals – where 95% of the cases are decided in favour of parents – providing an unfair advantage to the more knowledgeable.

At the same time outcomes for children and young people with EHC plans are still poor relative to their peers with lower attainment at all key stages, higher exclusion rates and significantly worse labour market outcomes.

Review

Two years ago, five years after the introduction of the current system, the Government announced a review of SEND support. Much delayed it will report at the end of June with the publication of a Green Paper. There is much support for the underlying principles of the 2014 legislation. Therefore we could expect the Green Paper to primarily focus upon some of the key challenges within the existing legal framework.

The Government promised that the review will bring an end to the ‘postcode lottery’ that families often face: the proportion of pupils aged 5-to-15 with EHC plans ranges from 1% to 5.9% in different local authorities; those identified as needing SEN support range from 7.3% to 17.1%; and the proportion of children in special schools ranges from 0.4% to 2.8% (2019 figures). The Education Policy Institute has called for a framework of national expectations defining the kinds of support that any mainstream school should make available as a matter of course for SEND (Special Educational Needs and Disabilities) children. That may come about through strengthening the existing SEND Code of Practice, particularly for those children without an EHC plan.

Whilst the review is being led by the Department for Education, it is working in collaboration with the Department for Health and Social Care in recognition that one of the weakest elements of the system is health services. The two departments – and, crucially, NHS England – may commit to introducing a shared outcomes framework to measure the health-related SEND support that local authorities and health commissioners are held jointly responsible for.

Stronger inspection

There are several advocates for stronger school and local authority accountability through inspection. Ofsted and the Care Quality Commission are already working on a new joint area SEND inspection framework to be launched after the existing cycle – currently paused due to the pandemic – has been completed. Involving a continuous cycle of inspections it is likely to fall short of calls from the Education Select Committee to incorporate these into the local authority children’s services inspection programme with clear consequences for those areas falling short of expectations; though we may see a shift in that direction involving some kind of annual activity with local areas.

Resources

The review was established “to boost outcomes and improve value for money” suggesting that the £780 million a year uplift in high needs funding introduced in the 2019 Spending Review might not be built upon. That’s not to say we will not see a further top-up, however that will be addressed in the next spending review in the autumn. But given recent developments, calls for extra high needs funding might be drowned out by louder ones for further Covid-19 catch-up pupil funding.

The Green Paper is expected to signal changes – subject to subsequent consultation – to the way funding is distributed to local authorities. The Department for Education is already working on a small number of changes for 2022-23, notably basing funding on actual historic expenditure rather than the forecast. They want to go further by replacing the historic spend factor, within the formula, with an alternative factor or range of factors that better reflects the local issues that drive the cost of provision, and is more responsive to changing local needs.

Mainstream versus specialist provision

The review has been exploring how to strike the right balance between mainstream and specialist provision, and the financial incentives on mainstream schools to be inclusive of those pupils with special needs. It has been reviewing the requirement that mainstream schools meet the costs up to £6,000 of supporting a SEND pupil from their core budget and whether existing funding arrangements provide perverse incentives against early intervention to support children with SEN. Previously the Department for Education mooted tiering school formula per-pupil funding according to the complexity of SEN need.

What local authorities are keen to learn is whether the review will lift some of the constraints placed on them hindering their ability to create more mainstream and specialist school places so that they are better able to meet demand and to reduce reliance on costly placements, often made outside their local areas and/or in the independent sector.

New provision

A welcome step in that direction came in April with the Department for Education announcing £280 million for councils to create new places and improve existing provision for children with SEND or alternative provision, whether through a new special school or improving existing provision, representing a significant increase in funding to what was available in previous years. What is needed is a long-term capital funding commitment. At a time of declining pupil numbers more schools capital funding can be afforded to be re-directed towards creating more specialist places; though again, we may have to await the spending review for any moves in that direction.

Parental preferences

It is parental preferences that are considered one of the most critical drivers of the nature and quantity of different types of provision available in a local area – shaping how and where money is spent. Ofsted’s Chief Inspector, Amanda Spielman has warned that the view amongst parents is that obtaining an EHC plan is considered the ‘golden ticket’ for effective support – rather than relying upon lower-level and cheaper SEN support – putting further pressure onto the system. A reminder that whatever reforms we may see through the Green Paper, parents will need to be engaged and convinced, both nationally and locally that what’s good for the overall SEND cohort and for the taxpayer, is also good for their own child.

Mark Upton (@PublicPolicyS) authored the LGIU Briefing Special Educational Needs and Disabilities – EPI report (18 May 2021)

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