SCN0685

Written evidence from East Sussex County Council

 

 

  1. What challenges do you face in discharging your statutory duties towards children and young people with SEND? Is this enough to lead to satisfactory outcomes for children and young people with SEND?

 

  1. First, there is insufficient resource from central government to Local Authorities in order to meet the demands of the Children and Families Act. The Act has significantly raised the expectations of families on what should be provided for children with SEND and it is just not possible for Local Authorities to deliver this within the envelope of the High Needs Block.

 

  1. Secondly, the legal requirement that schools ensure they provide a fully inclusive education is difficult to enforce and poor inclusive practice is not routinely challenged by Ofsted. This means that many schools are unwilling to admit children with SEND without significant challenge which means that we, now, have fewer children with EHCPs in mainstream schools than we do in specialist provision. As the notional SEND funding in schools is not ring-fenced, there is no obligation for schools to direct this to children with SEND and, thereby, improve provision for this cohort of children.

 

  1. Furthermore, the practice of some mainstream schools of implying they have insufficient resources and expertise to support pupils with additional needs and EHCPs, has eroded parents/carers confidence that local provision can meet needs. This has meant that we have seen a significant increase in the demand for specialist provision from parents who feel that their child cannot be placed in their local school. This adds to the pressure on the High Needs Block, which is left to fund unnecessary placements in special schools.

 

  1. The gap that the Act has created between demand and provision has been filled, in part, by the expansion of independent school placements, the costs of which are passported onto the High Needs Block. The Independent and Non-Maintained Schools (INMS) sector is aware of the shortfall in provision elsewhere and can inflate costs in the knowledge that Tribunal system favours parents. In addition, for children with the most complex SEND, this sector is a barrier to progression into appropriate adult services as they are providing a false safety net for parents by offering inappropriate ‘educational’ provision which does not secure adequate progression, but is almost impossible to challenge.

 

  1. The SEND Tribunal system contributes to these challenges in a number of ways. It takes no account of the role of Local Authorities as custodians of the public purse. (This is not a ‘purse’ that the LA creates from its resources it is one determined by the DfE.) Weight is given to independent schools who can offer provision at any cost, not aligned to what should be reasonably required within the state sector. In addition, we have examples of tribunals directing placements to settings which are deemed inadequate by Ofsted and to unregistered provision. This is not only poor value for money, but also creates significant safeguarding concerns.

 

  1. In addition to these challenges, the Education & Skills Funding Agency (ESFA) Funding Guidance which provides the regulatory duty for Local Authorities and Providers on the use of high needs block funding for young people post 16, lacks clarity about what is referred to as Element 2 (£6,000 places) and Element 3 (top up funding).  Since the introduction of High Needs in Post 16 provision, some providers have used the place funding figure of £6,000 as a benchmark to achieve additional income to fund support which historically would not have crossed the previous EFA high cost threshold.  This has produced an increase in hourly rates, in excess of £30 per hour in some cases, for non-specialist in class support.  When calculated across the Guided Learning Hours this inevitably crosses the threshold for top up funding and also inflates the number of places institutions appear to require for high needs funding.  This does not reflect the support need but the rates applied by the institution. The Local Authority has challenged such practices but this is an ongoing issue. The result is a significant increase in demand for high needs funding for young people who may not have required this previously during their education, but have become high needs funded due to the rates applied by the institution.

 

  1. Is the assessment threshold for an Education Health and Care Plan too low?

 

  1. Yes, it is.

 

  1. The legal test is whether Children and Young People (CYP) ‘may have’ SEN which require additional provision. The ‘may have’ part of the test presents a very low threshold as every child who ‘may have’ special educational needs should have a full SEN assessment. This significantly increases the number of assessments undertaken and the level of challenge to ‘refusal to assess’.

 

  1. The thresholds of need must be higher and better defined. A child or young person may have special educational needs for which their school can provide special educational provision for them within its own SEN budget and resources. The child may be making good progress and not need an EHC needs assessment because their needs are well-understood and well-provided for.

 

  1. Under any other specialist system, there is a level of triage and expectations within the system that universal and targeted provision should be tried first before resorting to the highest costs assessment methodology to understand need – this also should be the case with SEND. A full SEND needs assessment is not required identify if a child has SEND (schools are already required to identify and provide for children with SEN) and not all children with SEND require an EHCP in order to have their needs met appropriately. The current wording and threshold means that, ultimately, resources which should be used to support children with SEND in schools are being diverted to conduct unnecessary assessments.

 

  1. The threshold for assessment should include a lack of adequate progress despite a high level of additional SEN provision and take account of the support provided by their local mainstream school. Although LAs have developed their own threshold criteria and use a multi-professional moderation panels to ensure consistency of decision making, decisions not to assess can be appealed. Tribunals do not have regard to the local thresholds, only to the legal test of ‘has or may have SEN’. This is a tautological position in that assessment is therefore required to judge whether the pupil ‘may have’ SEN.

 

  1. In reality, the current threshold means local authorities have to agree to conduct a needs assessment every time a request is made. This puts undue pressure on already stretched Local Authority resources and adds pressure on other partners who contribute to the assessment, such as educational psychologists (where there is a national shortage and yet whose advice is required as part of the statutory assessment process, in every case), health and social care professionals.

 

  1. In addition there is no real understanding that a pupil’s barriers to learning can be addressed so there is no longer a requirement for an EHCP. Instead of a point of ‘celebration’ for pupil and school it is avoided in order to maintain what is a very costly ‘safety-net’.

 

  1.                     Are the statutory timescales for assessment and finalisation of Education Health and Care Plans appropriate?

 

  1. Timescales are too tight and this places undue pressure on local authorities. It can be very difficult to obtain statutory advice from professionals with the 6 week timescale and lack of professional advice can lead to a decision being made (to issue or not to issue a plan) based on incomplete information. 

 

  1. The concept of coproducing the plan is a laudable idea, but requires time from the LA, the parents of children with SEND and young people to ensure a good quality plan.  Schools also report feeling under pressure to provide adequate responses to consultations within 15 calendar (10 working) days, especially where there are multiple consultations.  Parents often require more than one opportunity to consider a draft EHC Plan before it is finalised, but the current timescales do not allow for this.  This has resulted in increased numbers of SEND Tribunal appeals, which, once again, put the LA under an immense pressure.

 

  1.                     How do you quality control EHC Plans? Do you consider all plans to be of sufficient quality?

 

  1. Time pressures and management capacity do not allow effective quality control of all plans. More complex plans are checked by team leaders/managers but it is not possible to check every plan due to capacity.

 

  1. Service managers have attended South East 19 network meetings which focused on peer reviews of the EHCP and have taken the learning from these workshops back to their team. A series of internal EHCP writing workshops has been delivered to the team and moderation meetings arranged to review quality of the EHCP and take any further learning or development forward.

 

  1.                     In your authority, do you consider that there is enough focus on children and young people with SEND who do not have an EHC Plan?

 

  1. ESCC places significant focus on improving provision for children with SEND at the earliest stage and has developed a range of strategies for supporting both children and schools. For example:

 

  1. We have developed a Quality Mark for Inclusion targeted at raising schools’ awareness of the importance of early identification and meeting needs earlier for all children with SEN, not just those with a EHCP.

 

  1. We are working together with health to tackle the perception that some schools will only provide support where a pupil has a diagnosis or EHCP, rather than putting support in because behaviour/progress suggests a need.

 

  1. However, there is still too little within the legislation and inspection framework to ensure that mainstream schools are fully accountable for making high quality provision for children with additional needs. The focus of mainstream schools tends to be on securing EHCPs and additional resources. This means that the burden of responsibility too often falls on the Local Authority to make high cost provision for children who should be supported in their local school.

 

  1.                     What impact did the deadline for transition to EHC Plans have?

 

  1. The deadline placed significant additional pressure on the statutory assessment team and resulted in other areas of the work, particularly annual reviews, being de-prioritised. It also impacted on the quality of some of the plans produced due to the need to use agency staff in order to complete the transfers within the deadline. The transfers are now finished and all focus is now on the new assessments and annual reviews.

 

  1.                     What level of training do the case officers in your SEND team have?

 

  1. All new staff undertake a comprehensive induction programme overseen by senior staff within the Assessment and Planning team. Each new case officer is has a mentor and access to weekly case management  and monthly supervision.

 

  1. A monthly team CPD programme is in place for all staff within the team, including admin staff and managers. Some case officers have completed a Level 4 NASEN SEN Caseworker Award this year.

 

  1. Middle and Senior managers have attended and continue to attend DFE organised/sponsored training in SEND.  Three members of the team are members of the Education Law Association (ELAS) and share knowledge gained at ELAS meetings/conferences with the team as a whole. The learning from this training is then disseminated to the rest of the team.

 

  1.                     What steps do your authority put in place to avoid Tribunal cases?

 

  1. There are a range of steps that we have put in place to avoid tribunals. These include:

 

 

  1. However, there are a range of challenges that we experience in working proactively with parents. For example, INMS schools advertise and promote provision, support parents in tribunal, offer ‘free’ placements to parents on the grounds of recovering costs from the LA via Tribunal. These practices hinder positive relationships with parents, particularly in LAs with a high number of INMS schools.

 

  1.                     What process do you go through when deciding when to engage external legal advice?

 

 

  1. Most of the issues are discussed with our internal legal team who will provide initial advice but also advise on the need to engage external legal professionals. These include the issues around tribunals, LGO, Judicial reviews and any other complexities that may arise.

 

  1.                     Do you use traded services? If so, do you think that this prevents some young people with SEND accessing support?

 

  1. ESCC continually review the threshold for accessing ‘core services’ to ensure that support that is free to schools at the point of delivery is reaching the most vulnerable pupils and is having the greatest impact at a whole school level. We have managed to retain a number of services which are ‘free to all’, but there are some areas where access to services is dependent on traded work as there is no capacity to fund them centrally.

 

  1. In our more inclusive schools understand that understand the funding streams available to them (SEN delegated funding, Pupil Premium, behaviour support funding etc.) use our traded services.  Some young people with SEND are not receiving the early intervention or crisis-point support from services that they should because many schools do not use their funding streams as intended. 

 

  1. We do have some beacons of good practice in our academies, but generally our academy schools do not buy-in support at the same level as the funding they receive.  Behaviour support funding is delegated to our maintained secondary schools; again this funding is not being spent consistently on services to support and prevent Social Emotional and Mental Health needs.

 

  1.                     Do your arrangements for involving children, young people and parents include a broadly representative group of the children with SEN or disabilities and their parents and young people with SEN or disabilities? How do you involve these groups in decision-making?

 

  1. We have well-established networks for engaging with parents of children with SEND (such as the Parent and Carer Council). However, it has widely been recognised that these groups are not comprehensive and are overrepresented with parents of children with the most complex needs and disabilities. Parents of children with SEND but without an EHCP, for example, are not well represented.

 

  1. We have parent/carer reps on all of our strategic groups (e.g. the SEND Commissioning and Governance Group) and we have involved parents in developing SEND pathways/guidance (e.g. co-production of Autism Pathway communication paperwork and co-production of our SEND prospectus).

 

  1.                     Do you consider that your local offer meets the needs of children, young people and parents?

 

  1. We have been able to greatly improve the information we provide to families, and this is supporting families’ resilience by promoting self-help and giving them earlier access to services. Feedback indicates that the information is often useful to both families and the services supporting them, but we need to keep improving it in response to feedback and user testing.

 

  1. The expectation that the local authority publish information about services provided by others and that it is published in one place has been difficult to interpret. Rather than duplicate other agencies’ information, we are working with them to co-ordinate our websites for a smooth user journey. User testing shows parents often google and go straight to a service website, rather than the Local Offer.  The emphasis by Ofsted on promoting ‘The Local Offer’ as a one size fits all solution for families has at times conflicted with feedback from parents about the way they use the web. 

 

  1. The guidance provided to authorities did not make clear the links between the Local Offer, SENDIASS, the Childcare Act family information duty or the Care Act Duty.  Even the best website cannot meet the needs of some vulnerable families, or those with complex needs alone. We are now making partnerships with those colleagues/agencies with those information duties, but some co-ordinated guidance would be useful.   

 

  1. We have now linked our Local Offer arrangements to our family participation arrangements and our strategic planning group, so that feedback and participation about information and services themselves can be co-ordinated.  The Children and Families Act and guidance does not cover the relationship between the Section 27- Duty to keep education and care provision under review  and Section 30 Local Offer (in information and advice section).   This is being discussed regionally and guidance from the Department of Education would be welcome.

 

  1.                     Do you consider that your social care and education teams work well enough together?

 

  1. The ISEND service in East Sussex integrates education services with children’s disability social care. The management structure is focussed on further developing the links between CDS and Education Services and meaningful joint working opportunities – joint training, joint network days, joint planning days.

 

  1. We have a dedicated ISEND Strategic Lead for social care to strengthen the links between Education and Social Care in senior management meetings and training both within in ISEND and Social Care. Heads of service for ISEND and Locality Social Care meet regularly to discuss individual cases and processes which help to identify and overcome barriers between service areas.

 

  1. Social care managers and senior social workers have received training on EHCPs and tribunals and training is rolling out to all social care practitioners.

 

  1. Education and social care are also represented on the Continuing Care Panel which determines support for children with complex health needs.

 

  1. The lack of clarity in what constitutes appropriate educational provision post 19, however, can make it difficult to enable children to move into adult services. The Act has prompted a large number of providers to expand provision to 25 which is seen as a safety-net by parents, but does not facilitate progression into either employment, independence or semi-independence.

 

  1.                     How are you overcoming barriers such as different thresholds and different assessment timescales for different services?

 

  1. We have been working with all stakeholders towards bringing different timescales in line with each other’s wherever possible.

 

  1. We have ongoing communication and networking with all stakeholders to ensure a mutual understanding of each other’s service needs, thresholds and timescales and work together to try and overcome any barriers. Increased understanding of differing statutory duties, timescales and constraints is being achieved through training, focus groups, panels and individual cases, to achieve as cohesive and timely plans and outcomes as possible.  This is an ongoing piece of work and presents continual challenges.

 

  1. The biggest challenge, however, remains with the difference in statutory responsibilities between Local Authority services (education and social care) and those provided by health. Significant challenges often arise where health services will not fund health provision that is required in order for a child to access provision in a school, or where funding ceases when health improves and no longer meets prescribed thresholds. In these cases, the High Needs Block invariably needs to meet provision that falls outside its remit.

 

  1.                     How are you helping schools to overcome challenges with working with health services?

 

  1. The SEND Governance and Commissioning Group has representation from Education, Health, Social Care and Parent/Carers.  School representatives attend this governance group.  This facilitates discussion of barriers in the system and how these might be removed.

 

  1. The Designated Medical Offer (DMO), Deputy Head of ISEND Strategic Lead for Education and Locality Manager for Hastings CAMHS and Manager for East Sussex FISS/LD Service share letters where a medical professional, school or education service practitioner has made recommendations outside the remit of their profession.  These letters cause unintended consequences in that they either raise inappropriate parent/carer expectations, or negatively impact parental confidence in the education/health/EHCP systems.  The letters are followed up with the professionals concerned to prevent future occurrences and identify training needs.

 

  1. The DMO meets regularly with the Head and Deputy Head of ISEND to consider how the health and education systems can come closer together and how to reinforce positive messages to keep the needs of the pupil at the heart of planning and decision-making and prevent miscommunications between schools and health professionals.

 

  1. We have strong integrated pathways in the Early Years Phase and take opportunities to share learning from this phase to improve communication between schools, school nurses and health providers.

 

  1.                     What challenges do you face in discharging your post-19 duties as intended by the legislation?

 

  1. Expectations have been set by the legislation that all young people with EHCP can continue with education up to the age of 25 years. This results in more young people wanting to stay in education, often requiring high levels of support to do so, impacting on Local Authority resources for all young people with SEND. This is an unfunded new burden for local authorities.

 

  1. If young people are in educational provision with high levels of support, parents, young people and schools are generally unwilling to engage in conversations early enough to transition them into other services outside of education.  Early planning is key and whilst happens between LA services and with maintained provision, it is more difficult to shift independent providers towards supporting transition out of school placements and toward adult services. Indeed, there is a vested interest in these providers maintaining placements to secure ongoing income. As the law stands, it is almost impossible to challenge these placements effectively.

 

  1. The Code of Practice makes reference to five day provision and ‘in some cases courses offered over three days, may need to be spread over four or five..’  However, the way FE providers receive funding means that they cannot draw down sufficient funding from the ESFA for 5 day programmes and, therefore, any additional provision would be sought from the LA. Independent providers have, again, exploited this and will offer 5 day provision with the full costs being drawn from the High Needs Block.

 

  1. Since the introduction of Post 19 statutory duties there have been a number of significant challenges which have impacted on ISEND teams.  Knowledge and experience about educational pathways, funding and legislation was limited.  Whilst this has improved, this has taken a significant amount of time and financial / human resource to embed the required knowledge.

 

  1. In addition to this, the requirement for post 19 assessments by LA Educational Psychologists and therapists including OT, Speech and Language has increased demand on these services and requires new skills among these professions to deliver requested assessments for this age group in line with statutory duty. 

 

March 2019