Five reasons why the new SEN system improves on the present
by stevebroach
My first non #LBBill post is on the equally pressing issue of the major system reforms to SEN and disability provision for children and young people in England. These have been introduced through the Children and Families Act 2014 and the majority of them come into force on 1 September.
I am no cheerleader for the fact we have a new system. I strongly supported the conclusion of the Lamb Inquiry set up by the last Labour government that although ‘radical reform’ was needed to the approach to meeting children’s special educational needs this did not require wholesale legislative system change. I am particularly concerned about system change in a time of austerity; it is obvious that new wheels need to be greased with sufficient cash to make them turn and I do not think that the government has properly addressed the need for additional funding.
However – I also believe that the new legal framework, after vast amounts of work by charities, parents, disabled people, peers and MPs on amendments to the Bill, is a significant improvement on the current framework. It is, as I said on twitter recently, a million miles from perfect. It falls a long way short of requiring a genuinely seamless approach to the health, education and social care needs of every disabled child – and I fail to understand why this should not be achievable in law. But I don’t see many ways in which the new system is worse than the old, and I see a number of ways in which it is significantly and obviously better.
Law reform always provides an opportunity for improved practice. A new Act of Parliament gets people’s attention, brings some new resources (if far too little here) and provides a focus for those who want to make things better. So in the spirit of assisting that effort, here are the top five ways (roughly in order) that I think the Children and Families Act 2014 improves on the SEN system:
- The genuine 0-25 approach. Learning Difficulty Assessments (LDAs) for young people at college were nowhere near as useless as many people (including worryingly the Department for Education) appear to have thought – the statutory guidance and case law gives them a force which doesn’t fall far short of a statement for school age children. However in my experience, practice in relation to LDAs varied from adequate through poor to absolutely atrocious. So to have an entitlement to educational support through EHC Plans which does not vary very significantly pre- and post-18 is for me a big win. I also think the extension of ‘SEN Support’ to 25 could help improve accessibility of FE generally to young people with additional needs – although time will tell whether this latter point is overly optimistic.
- The new duty to provide health services. Section 42 of the CFA imposes the same duty on Clinical Commissioning Groups to provide health services specified in an EHC Plan as is imposed on Local Authorities in relation to special educational provision (I don’t see any legal difference between the terms ‘secure’ and ‘arrange’ which are used in the respective LA / CCG duties). As such from 1 September some disabled children and young people will, for the first time, have a clear enforceable right to some health provision. There are a number of sticking points here – will health provision get in the plan in the first place and what on earth does the requirement for health provision to be linked to SEN actually mean are two of the most obvious. However the principle that the NHS does not ‘do’ specifically enforceable duties has now been breached and for me this alone makes the CFA worth having.
- The attempt to deal with social care. This is one of the places where the lobby fought hardest, and the main prize for this effort is that EHC Plans must now contain social care provision which is required by section 2 of the Chronically Sick and Disabled Persons Act (CSDPA) 1970 – see section 37(2). This is good – except the CFA doesn’t tell anyone what this provision is and sadly the Code of Practice isn’t much better. The CSDPA is complicated and poorly understood but it is and will remain (bizarrely) the key statute giving social care rights to disabled children. I wouldn’t have done it this way, but at least the CFA does require local authorities to include certain provision to meet the social care needs of disabled children whose SEN is sufficiently complex to merit an EHC Plan – and that’s a gain worth having.
- The general principles. Section 19 of the CFA sets out general principles that a Local Authority must have regard to when exercising a function under the SEN part of the Act. They are all important, but my favourite is the final one – the need to ‘support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes’. So in everything they do Local Authorities must keep in mind the need to support children and young people not only adequately or sufficiently, but so that they can achieve the ‘best possible outcomes’. This is a ‘have regard’ duty, not a duty to achieve results – but then so is the Public Sector Equality Duty, and that has founded dozens of successful legal challenges. Watch this space…
- The Local Offer. I thought hard about number 5 – a good candidate was the duty on academies to admit children where named in EHC Plans – but despite my initial scepticism I’ve come to view the Local Offer as a potential force for real change. Firstly, it is obviously helpful for families for there to be very detailed requirements on Local Authorities to publish information on services which are expected to be available – a duty which I think goes far higher than if the wording was ‘may be available’. This should allow families an easy route to the information they need about what is on offer locally – which might just be more than they were expecting to find. Secondly and perhaps more importantly, the Local Offer should provide essential information for local lobbying. Local Offers will be comparable not just between neighbouring authorities but also between ‘statistical neighbours’ – ie areas with similar demographic profiles where all things being equal services should look roughly the same. I am actutely aware of the unfair burden which falls on families to drive up standards but it was ever thus – I helped write this nine years ago and nothing has or will change in this regard. However at least now families should get the information they need to challenge any assertion by a Local Authority that “it’s all very difficult and we are doing our best” – by reference to a similar authority which may be doing quite a lot better. This should help shine a spotlight on the local political choices which often see disabled children and young people pushed to the back of the queue when resources are allocated.
As the Lamb Inquiry found, ‘the education system is living with a legacy of a time when children with SEN were seen as uneducable’. The distance we need to travel is vast and the CFA takes us only a relatively small step along the way. Terrible decisions will still get made and the needs of some (sadly with austerity I fear many) children, young people and families will continue to go unmet. But the CFA still undoubtedly represents some progress – and the amount of progress it represents will be largely down to how well we all take the numerous opportunities it gives us to make things better, wherever we find ourselves in the SEN system.
Comments on the above and other candidates for positive changes from the new statutory scheme most welcome!
rightsinreality 
This is a very useful post Steve.
My points on your specific positive issues would be:
1. The 0-25 approach – helpful but this will depend on what happens in practice. The problem in the SEN system has always been that the ‘law on the books’ doesn’t get translated into ‘law in action’ as those involved with socio-legal studies would say. Law in action is a phrase used to describe how law affects people’s lives in the real world. There can be many reasons why law doesn’t actually work and you need to find out what they are if you are going to address the problem. Unfortunately, history has demonstrated that when a duty becomes enforceable, in practice, some people might try to avoid being caught by it at all.
2. Duty on health service providers – as above really. Helpful but likely to lead to discharges on spurious grounds (or vaguely defined provision) where once Part 6 provision may have languished on the statement – safe in the knowledge it was unenforceable. We have to be frank. A clinical discharge will be extraordinarily difficult to challenge by judicial review unless obviously irrational (let alone the stress this involves for the parents and child without provision). I am concerned there may now be a peverse incentive not to offer provision if it is likely to lead to provision which is legally enforceable. Again, this is the reality in which the system operates, the context in which law acts. If we don’t tackle that context (and this means staffing, outcomes, funding, attitudes), we will end up with the same turf wars and legal battles as parents had over Part 3.
3. Social care – a minor improvement.
4.I find s.19 to be a disappointment to be honest. I find it paternalistic. The use of the word ‘support’ is ‘blah’ and falls into the same mindset – needy kids who society must ‘support’. This is not progress. The language of rights should have been used. With no good reason, the Government refused to commit to decisions having to be made in a way which acknowledged that the ‘best interests of the child shall be paramount’ . This would have been stronger and easier to enforce as it is more recognised in law.
5. The Local Offer is a list of information which may assist parents in knowing what is available but it does not guarantee access to services or the quality of them. It does not stop services being withdrawn or being lied about or selectively offered. Imposing new duties on a system creaking at the seams in which unlawful practices are rife and simply hoping that it will change things demonstrates a lack of commitment to genuine change. Although the consultation duty is a very useful requirement, consultations have not seriously and inclusively been undertaken and no thought has seemingly been given to how they can be conducted in a way which reaches and meets the needs of a wide variety or parents with differing backgrounds and variable needs. It seems the Government and charity consortia are all happy as long as a PCF is consulted somewhere but this is not good enough. That is not genuine consultation.
And, to be honest, LAs really don’t care how they compare to neighbouring authorities. It’s not a beauty parade and there is no competition. You’re stuck with your own LA and they know it.
The Government evaluators concluded: “So concerns remain about how accessible the local offer will be come September and whether families will really notice the difference when they try to get information about what’s available to them.”http://www.opm.co.uk/specialist-areas/health-and-social-care/countdown-to-the-local-offer/ I think this is little more than an ‘advertising puff’ and parents will have far more serious preoccupations than trying to enforce legally the publication of an accurate list which does not, in any event, mean their child actually gets a service.
More general points about my disappointment with the Act are:
1. This is an Act which, in essence, is aimed at promoting children’s rights but it is very dated in its language – needs, support etc. It doesn’t enshrine the ‘best interests’ concept from the Convention on the Rights of the Child as a statutory principle. It is paternalistic and patronising (save for some limited improved rights for older CYP). No one seems to have challenged the outmoded thinking behind this. Is this becaue this is how some groups still think themselves? Or perhaps it’s because disabled adults can campaign for themselves so it’s hard to dismiss their voices whereas CYP are left often with parents as advocates and they are just dismissed.
2. Following on from this, why was there not an attempt to think differentl and focus on equality? This is not about money but about understanding that children with disabilities have fundamental rights to equality. This could have led to the mainstreaming of rights as with gender and race. We have to see SEN in that context or we will continue to be on the backfoot with these issues for the next thirty years. These are not SEN issues but EDUCATION issues. They are importnat for everyone. They’re not a special topic’. There can be no real inclusion until we see this issue through the lens of the equality and rights. But there has been silence on these issues.
3. Many of the gross systemic problems with the system, constant law-breaking, delay, lack of services, lack of sanctions, lack of availability for legal aid, random and inconsistent Tribunal process, failure to provide etc have simply been ignored.
4. The lack of genuine evidence to support the reform process, You can’t make law work better until you know why it fails. Money has been thrown around at all kinds of projects – but why no basic empirical studies to inform the process? Why are evaluators studies from Pathfinders still being published AFTER the Act has been passed? Why didn’t the Government wait and hear from the conclusion of the albeit limited evidence from the Pathfinders and allow this to inform the process? This leads to ad hoc and ill thought through law making.
5. The lack of genuine engagement – the specially selected groups, closed meetings to work out initiatives which are just announced out of the blue etc. In the ‘SEN’ world, it seems acceptable for a few big charity consortia to sit in a room with a Minister and decide what our kids need e.g. the development of the IS proposal. The lack of clarity accompanying these initiatives has been equally poor. The spin equally so – e.g. the Governement’s recent ‘parents feel more supported than ever ‘https://www.gov.uk/government/news/parents-feel-more-supported-ahead-of-radical-send-reforms when the report when the report doesn’t say this. Why aren’t those big charities shouting about this sort of thing?
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Hi Steve,
an excellent analysis of some of the ways in the new legislation is better than the old.
As you said I was not convinced that all of this needed to be done by wholesale legislation rather than cultural change plus some surgical changes to entitlements but like you on balance I think it has been worth it. Not least because one of the key points of the new legislation, where I think the Government has followed what I was hoping to achieve, is in the Local Offer (the principles of which were prefigured in the Core Offer from Aiming High for Disabled Children and recommend in my report). I think in many ways could turn out to more significant than some of the other changes precisely because it is about systematic culture change in planning and delivering services that does not depend on fixing individual wrongs.
This is because its primary effect could be to dramatically change the culture of local provision through the requirements to consult on its content with parents and young people and also the ability to have criticisms of its adequacy publicly recorded and responded to by the LA. For sure this will not mean that services become more adequate overnight and it is a different and more diffuse form of accountability than Tribunals and Judicial Review for individual cases. However the consultations that have already gone in many Local Authorities with parents and young people is already beginning to change the conversation at local level and bring more openness and dialogue into service provision. It does give parents groups an opportunity to focus comments and engage a more productive conversation with LA’s. Nobody would pretend this is the ideal financial circumstances to introduce this legislation. LA cuts may well impact on the success of delivery but the very visibility that the Local Offer brings to SEND provision will help sharpen that debate and focus decision making towards parental and young peoples aspirations even in a tight budget situation. We should all be ensuring that parents and young people are supported to be fully engaged in that process. I think you are spot on in seeing this as having the potential for real change and we should be looking to fully take advantage of that.
I would also agree with Steve that the focus in Clause 19 especially when coupled with requirement to produce “the best possible educational and other outcomes” (presumably the subject of an early tribunal case to test the possibilities of this?) could also have a profound effect the aspirations for children and young people. Debbie is wrong is saying that all aspects of the reform have not been researched. The previous Government and this one funded first a major research project “Achievement for All” which worked with 450 schools over two years to show that a combination of approaches now enshrined in the CoP in chapter 6 and principles of clause 19 can have a dramatic effect on attainment and outcomes for children with SEND. The current Government has supported the establishment of the charity of the same name and we (I am the Chair) are now in over 2,000 schools and helping children with SEND achieve progression rates that match or better their non SEN counterparts.
I can understand that many in sector will be looking at what they did not manage to get in the Act but its time to move on. If there was a ever a time to try to push the boundaries of what we have now got this is it. By all means then step back and judge what needs altering once we have done that but we will not have another chance to have this much focus on SEND for years to come. Also there will no new Act around the corner whoever forms the next Government so patient testing of the ground and taking the opportunities for change that are there must be the way to go rather than pointing out the hypothetical consequences of the changes.
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Thanks very much for taking the time to leave this detailed and thought provoking analysis Brian. I agree with very much of it and particularly this sentence; ‘If there was a ever a time to try to push the boundaries of what we have now got this is it’.
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Hi Debbie – thanks for posting such a detailed and considered response. There are lots of things we agree on – I think the major issue on which we disagree is whether it is worth trying to make best of a new system which neither of us would have chosen to have in the form adopted.
I just wanted to pick up a few of the points you make above:
– on the health duty, while I accept your concerns I do think it is a landmark moment to finally have a specifically enforceable duty on health to provide services to disabled children – and this is something we need to shout about so families are aware of this new right.
– on social care, I accept the amendment is in legal terms relatively minor – it merely requires LAs to record in the EHC Plan social care services which they already had a statutory duty to provide. However – in terms of law in action, we know that LAs routinely ignore and / or misunderstand their CSDPA duties (indeed all their social care duties). As such the way the new Act shines a spotlight on the old legal requirements under the CSDPA is welcome. Before 1 September I will write a detailed blog post setting out exactly how the CSDPA is supposed to work, as hopefully this will help families and advocates dealing with EHC Plans who may be more familiar with education issues. It’s bloomin’ complicated…
– Your critique of section 19 as paternalistic is interesting and in some respects I agree with it. However I’m surprised to see you advocating for a best interests approach – as the many critics of the Mental Capacity Act from a disability rights perspective have attacked the paternalism of the best interests requirement at the centre of that Act. For my part I’m not so convinced best interests is the wrong approach – indeed another blog post I’ve got brewing is to explain how the requirement in Article 3 UNCRC that children’s best interests should be a primary consideration in every decision taken which affects them can be made a reality in our area – as they have become in other areas, particularly immigration.
– I have a great deal of sympathy for your critique of the local offer, but I still maintain it can be a useful tool. Given the terrible turn out at local elections it seems to me a local group could quite possibly use the comparator data from the local offer to put real pressure on councillors at election time. Plus at the other end of the spectrum having a directory of services is itself no bad thing.
– you know from our tweets about the excellent paper from Katherine and Nick that I agree with you about the need to reframe the ‘SEN’ debate into a debate about children’s educational rights.
– I agree lots of the gross systemic problems have been ignored. Many of them stem in my view from the inability of LAs with finite resources to cope with (what they perceive as) potentially limitless need. I hope the next government will want to tackle this – it seems to me we need some kind of regional funding structure for children who require highly expensive input as this would at least raise the chances of that input being provided without Tribunal.
– Of course you’re right about the typically shoddy approach to the evidence base in the passage of the Act. Too much policy-based evidence-making, not enough evidence-based policy-making. Again though, for me these flaws do not make it impossible to make the new system work at least a little better for children and families than the present one.
– As for the big charities – I’ll let them answer for themselves!
Thanks again for taking the time to read and comment, and I look forward to further debate on twitter.
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one one important point missing is the presumption of mainstream education for young people aged between 0-25 clause 30 – please see our campaign website – http://www.allfie.org.uk on our review of the Act alongside the SEN COP.
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Dear Brian,
Thank you for commenting that I am wrong. However, this is what I actually said:
“The lack of genuine evidence to support the reform process, You can’t make law work better until you know why it fails. Money has been thrown around at all kinds of projects – but why no basic empirical studies to inform the process? Why are evaluators studies from Pathfinders still being published AFTER the Act has been passed? Why didn’t the Government wait and hear from the conclusion of the albeit limited evidence from the Pathfinders and allow this to inform the process? This leads to ad hoc and ill thought through law making.”
Your consultancy consultance work with your own charity is clearly not what I am talking about.
Or perhaps you did produce socio-legal studies demonstrating what SEN law was failing? If so, do share.
Debbie
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Hi Debbie,
as you point out this is what you said “The lack of genuine evidence to support the reform process, You can’t make law work better until you know why it fails. Money has been thrown around at all kinds of projects – but why no basic empirical studies to inform the process?”
The Achievement for All research was a two year empirical research programme involving 450 schools in 11 Local Authorities which was researched and evaluated by Manchester University. It was the largest study of its kind in Europe. It’s analysis formed the basis of chapter 6 of the CoP. It had £31 million pounds funding from the previous Government and further funding to roll out from the current one. Hardly my consultancy work.
Also your comments did not seem to me to be wholly restricted to comments on social legal studies nor do your comments on Pathfinders which are obviously as much about structural and service change than just legal. I was not saying you are wrong just that this was not the whole picture and while Pathfinders have not yet fully reported non I am aware of any saying the current system is not workable-there is room for fine tuning implementation as lessons are learnt. Parents I have worked with in the Pathfinder areas are overwhelmingly positive.
On the point about legal studies there was a report commissioned on the operation of the Tribunal Service and Statementing how parents found that ran parallel to and was part of the evidence to the Inquiry. Penfold C, Cleghorn N, Tennant R, Palmer I, Read J Parental Confidence in the Special Educational Needs Assessment, Statementing and Tribunal System: a qualitative study. National Centre for Social Research for DCSF. Research Report DCSF-RR117. Its a bit out of date now but many of themes that are taken up the legislation, better communication with parents, greater use of team around the child and joint assessments, more transparency in decision making are all there and informed some of my recommendations and the legislation.
Of course there could be more research but are you really saying we don’t know why the old system failed parents and children and that understanding is not available to inform current proposals? I think we had two Select Committee reports, four or five major inquiries depending who count, numerous OFSTED reports over the years not to mention the Government consultations, draft legislation and so on since 2005 which have given us a good idea of what needs changing and how to start addressing that change. Hardly ad hoc law making? Yes it would be good to test everything to final degree before implementing but much legislation is not like that and this has had more piloting than most.
One of the consistent conclusions of all those reports was that we needed to change the culture of service provision and listen to parents and young people more. Something the previous framework actually and Code of Practice said should happen but did very badly at actually implementing it. One of the lessons I drew was that legal frameworks are only part of the answer-if everyone did what they where supposed to do under the old Code life would have been a lot better. You also need culture change in who those who run the system work with parents, young people and children. Legislation can help set the framework but is not the whole answer.
All I am saying is that there is a chance in the Local Offer and some of the other measures to try and address that. I think it holds out the prospect of improving current practice-but I know only one way of finding out-which is to try and make it work.
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I have one issue that I would like you to clarify please. In point 2 you say that there is a new duty to provide health services specified in an EHC plan. However, it is my understanding from IPSEA that only health services such as speech therapy that are specified as being an EDUCATIONAL provision are legally enforceable. As this is such a crucial issue, I think you need to clarify this.
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Thanks for this comment Elaine. Point 2 in the blog above is correct, and the reason why is set out below.
Have a look at section 42 of the Children and Families Act 2014 – see http://www.legislation.gov.uk/ukpga/2014/6/section/42/enacted.
Sub-section 2 of section 42 is the duty on Local Authorities to secure the special educational provision set out in the Plan – precisely as was previously the case in relation to statements. This duty will apply to health services which have been accepted to be special educational provision for the child or young person, like speech and language therapy in the example you give.
However – sub-section 3 is the new duty – it reads ‘If the plan specifies health care provision, the responsible commissioning body must arrange the specified health care provision for the child or young person.’ I don’t see any legal distinction between a duty to ‘secure’ or a duty to ‘arrange’ – as I see it, Local Authorities have to make sure the special educational provision in the Plan is actually delivered, Clinical Commissioning Groups have to make sure the health provision in the plan is actually delivered. Neither duty allows any excuses to be made – it is ‘absolute’.
This is fundamentally important for the many disabled children and young people who have additional health needs. If health provision is specified in the Plan it HAS to be delivered – in the same way as with special educational provision. And for both types of provision, the remedy in the event of failure to deliver the specified provision is judicial review.
Does this clarify the position for you?
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Really good points made so far…
But surely the real point about the health care specified in an EHCP is that unless it is specified as special educational provision in section’s B and F of the EHCP then SENDIST cannot look at the issue in any appeal?
And if there is not a right of appeal to SENDIST how can a commissioning body be held to account for a failure to provide the specified health care provision?
Complaints procedures/judicial review may well exist in theory but you need deep pockets and gritted teeth and tenacity.
What is still needed under the new system is an EHCP appeal process that has jurisdictiion over all provision specified as necessary in an EHCP not just the educational elements.
It is incredibly frustrating and very unfair that public bodies have seemingly unlimited access to public funding to defend their stated positions. An awful lot of children/young people will continue to slip through the net simply because the only free (ish) appeal service (SENDIST) cannot look at the issues of concern and parents/young people cannot lodge judicial reviews because they do not have the funds but are not eligible for legal aid.
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All fair points – and the fact that SENDIST has no remit in relation to health or social care outside the pilot areas is absurd. However families should look into judicial review as a remedy re health / social care, specialist solicitors will be able to advise if legal aid is available in the child’s name.
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