Written evidence from IPSEA (CFA0069)

HOUSE OF LORDS CHILDREN AND FAMILIES ACT 2014 SELECT COMMITTEE INQURY

Submission from IPSEA to the House of Lords Children and Families Act 2014 Committee

April 2022

Introduction

1.              IPSEA (Independent Provider of Special Education Advice) was established in 1983 and currently advises more than 4,000 parents and carers of children with special educational needs and/or a disability (SEND) every year.

2.              We deliver free and independent telephone advice services to parents and carers and young people. Our Advice Line provides legally-based next step advice on any educational issue that relates to a child or young person’s SEND, such as exclusion from school, discrimination and the process for securing additional support.

3.              On our Tribunal Helpline we give next step advice on proceedings in the First-tier Tribunal (Special Educational Needs and Disability) – more commonly known as the SEND Tribunal. This is also the gateway to our Tribunal Support Service through which we represent parents, carers and young people who are making appeals or claims to the SEND Tribunal. The Tribunal hears disputes between parents/carers/young people and local authorities regarding educational support for children and young people with SEND and also claims of disability discrimination against schools.

4.              Our helplines and Tribunal Support Service are largely delivered by volunteers, which enables us to provide our services to parents and carers free of charge. The range of services that IPSEA delivers across England places us in a unique position to identify trends and common issues.

5.              As well as training parents and carers on the SEND law framework, IPSEA also provides regular training to bodies such as SEND Information, Advice and Support Services (SENDIASS), education professionals and local authorities.

6.              Our views are based on evidence from what parents and carers tell us and our experience while supporting them to navigate the SEND system.

7.              We have noted the Committee’s terms of reference. This submission focuses on Part 3 of the Children and Families Act 2014, and on question five in the terms of reference: Has the Act achieved its goal of improving provision for children and young people with SEND, in all settings including mainstream schools, special schools and further education colleges? If changes are needed, could they be achieved under the framework of the Children and Families Act 2014 or is new legislation required?

8.              IPSEA is happy to provide any further information that the Committee would find useful, or to provide oral evidence if required.

Has the Act achieved its goal?

9.              The aim of Part 3 of the Children and Families Act 2014 was to make the system for supporting children and young people with SEND less confrontational and more efficient, to identify children’s needs early and put support in place quickly, and to make sure that children and young people and their parents or carers are fully involved in decisions about their support.[1]

10.         For many children and young people with SEND, these aims have not been achieved. The Act has not delivered what it promised. The evidence for this is set out in detail in a number of studies and reports. There is a large volume of evidence on the implementation and impact of Part 3 of the Children and Families Act 2014. We specifically refer the Committee to two detailed reports published in 2019 by the House of Commons Education Committee[2] and the National Audit Office.[3]

11.         The Department for Education accepts this in the recently published SEND Review, which states that “the SEND system is not operating effectively and the ambitions of the 2014 reforms have not yet been realised fully, with too many children and young people not fulfilling their potential, parental confidence in decline and further pressure on a system already under strain”.[4]

12.         It is important to be clear that, while the Covid-19 pandemic and measures to address it exposed and intensified problems in the system for supporting children and young people with SEND, the pandemic did not create these problems. The ministerial foreword to the recent SEND Green Paper clearly acknowledges this.[5]

13.         The Act has fallen short – and children and young people have been failed across the country, with long-lasting consequences – because of wide-ranging failures in implementing the legislation. There is very little meaningful accountability for how the legal framework for supporting children and young people with SEND is upheld, with the result that non-compliance with the law is widespread.

14.         The law itself, in our view, creates a strong set of rights for children and young people with SEND and their families; it is not the Act which is the problem, but its implementation. The issues with the legislation arise from the devolved, fragmented and often inaccurate application of the law by local authorities.

Non-compliance with Part 3 of the Act

15.         There is a fundamental disconnect between what is set out in the Children and Families Act 2014 and associated regulations, and what children, young people and families actually experience. We know this from the volume of calls to our telephone advice services, and from the high proportion of appeals to the SEND Tribunal that are upheld.

16.         The SEND system is failing children not because the law is wrong or non-existent, but because the SEND legal framework is not being followed by local authorities – and there are no real consequences for this. Too many children are not receiving the special educational provision to which the law entitles them, with widespread unlawful decision-making and poor accountability for decisions about the education and support provided to individual children.

17.         There is a weight of evidence to show that local authorities routinely fail to comply with the law. This is demonstrated by the steady rise in the number of appeals to the SEND Tribunal. The most recent figures show that there were more appeals recorded in 2020-21 than any other year, with more than 95 per cent of decisions going against local authorities.[6]

18.         This pattern of poor local decision-making is further demonstrated by the Local Government and Social Care Ombudsman, who is investigating and upholding more complaints about support for children with SEND than ever before. In 2018/19 the Ombudsman received 45 per cent more complaints and carried out 80 per cent more detailed investigations about EHC plans than in 2016/17. In 2019 the Ombudsman upheld 87 per cent of complaints about the education, EHC plan process.[7] This compares with an uphold rate of 57 per cent across all other cases they look at, unrelated to SEND, suggesting that the system for supporting children with SEND is failing badly.

19.         There is an accountability gap between central and local government that the local area SEND inspection programme is not adequately filling. Local area SEND inspections were introduced as a means of finding out how well local areas are fulfilling their legal duties for children with SEND.[8] Since these inspections began in 2016, Ofsted and the Care Quality Commission have found significant weaknesses across the country in identifying, assessing and meeting children’s needs. Well over half of local areas inspected have had to produce a Written Statement of Action (WSoA) addressing the weaknesses the inspection had uncovered. Inspection outcomes have been steadily worsening, with 25 per cent of local areas having to produce a WSoA in 2016 and 60 per cent in 2018/19.

20.         The House of Commons Education Committee made the following observation about non-compliance with the law in their comprehensive report in 2019 on support for children and young people with SEND:

“We heard countless examples of local authorities not meeting their statutory duties, and of schools deliberately or otherwise off-rolling, excluding and even discouraging parents from sending pupils to their schools. Many parents and carers are engaged in struggles with their local authority. 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. In some local authorities this is particularly problematic, with a minority having acted appallingly, against both the spirit and the letter of the law.”

21.         Our concerns about non-implementation of the law include:

•                  Local authorities routinely failing to apply the correct legal test for an EHC needs assessment.
•                  Widespread variation in the format of EHC plans, which often fail to follow the thread of “need, provision, outcome”.
•                  Failure to specify and quantify the special educational provision set out in EHC plans.
•                  Failure to comply with statutory timeframes for issuing, reviewing and amending EHC plans.
•                  Lack of co-operation and joined up working between education, health and social care.
•                  Failure to adequately fund the provision set out in EHC plans.
•                  Failures in supporting children with SEND who are out of school due to illness, exclusion or otherwise.
•                  No meaningful change to support for young people aged 19-25.

22.         The Act was intended to result in a more holistic approach being taken to meet the needs of children and young people with SEND, recognising two important things: that children and young people’s educational needs cannot be considered in isolation from their health and social care needs, and that children and young people do not stop having health and social care needs or a need for education or training when they turn 19. In our experience, the implementation and application of the Act to date has failed to achieve these two fundamental aims.

Refusal to assess children and young people’s needs

23.         Children with SEND are often subject to repeated failure and disadvantage before a request is made for an EHC needs assessment. The problem is exacerbated by schools and parents who wrongly believe they have to satisfy a higher threshold or different criteria in local authority policies to those set out in law. Such policies are unlawful.

24.         The test in law for an EHC needs assessment is set out in s.36(8) of the Act: the local authority must assess where: (a) the child or young person has or may have special educational needs, and (b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

25.         We regularly see local authorities giving unlawful reasons for refusing an EHC needs assessment because they apply a higher standard than the test in s.36(8). These unlawful reasons include:

•                  “The school or college hasn’t completed three terms of SEN Support”: This is not a lawful reason to refuse an assessment, and it forces a child or young person to wait a full academic year to access support they may require immediately.
•                  “There has to be a report from an educational psychologist before considering an EHC needs assessment”: The law requires an educational psychologist’s report to be prepared as part of an EHC needs assessment.
•                  “The school/college hasn’t used all of its allocated SEN resources”: Aside from being unlawful, this can be very difficult for schools to show definitively, as the funding they receive for pupils on SEN Support is not ringfenced and does not always correlate to the number of pupils with SEND they have in the school at any given time.
•                  “The child or young person’s needs are not long term, severe and complex”: This sets a higher bar than the law requires.
•                  “Not all the professionals agree that an EHC plan is needed”: The law does not require this, and professionals themselves may have misunderstood the legal test for assessment.

26.         Once it has been agreed or ordered that an EHC needs assessment is undertaken, we see the following issues:

•                  Breach of statutory timescales: It is not uncommon for the 20-week statutory limit from the request to the issue of the final EHC plan to exceed 30 weeks, and in some cases significantly longer.
•                  Poor quality advice from professionals: If a local authority issues an EHC plan on the basis of poor quality advice, this in turn leads to poor or no specification of needs and provision.
•                  Lack of response from some professionals, particularly from health and social care services: In relation to social care, the response received is often “not known to this service” rather than any engagement/consideration of responsibilities towards disabled children and young people under the Children Act 1989 and the Care Act 2014.

Inadequate provision in EHC plans

27.         In the EHC plans that we see via our tribunal support service, vague descriptions of special educational provision that fail to meet the requirements for specificity are commonplace. It is important for EHC plans to be clear and specific, because there is a legal obligation on local authorities and health services to ensure that the provision specified in a plan is delivered: once certain provision is set out in a plan (for example, one hour per week of speech and language therapy), then there is an obligation on the local authority to secure that provision. If a school does not have sufficient funds to provide all the support specified in a child’s EHC plan, the local authority must provide additional funding in order for that provision to be made.

28.         Even where an EHC plan is specific, some local authorities and education settings appear unaware that the local authority has an absolute legal obligation to secure the provision in that plan. We hear of parents saying that they have gone through so much effort to get an EHC plan for their child, but nothing has changed. We understand the funding pressures on local authorities, but failure to deliver on their legal obligations towards children with SEND is unlawful.

Support for children with SEND who are out of school

29.         A hugely significant issue is the large number of children with SEND who are out of education, despite being of compulsory school age. Through our advice services we regularly come across children who have missed months or even years of school due to their local authority’s failure to provide the support they need. There are a number of contributing factors to this:

•                  Mainstream schools frequently argue they are ‘not suitable’ for children with SEND and those children can end up left without a school place.
•                  Children with SEND are at far higher risk of exclusion than their peers who have no special educational needs.
•                  Linked to the issue of exclusions is the widespread failure of local authorities to meet their duty to ensure that all children out of school by reason of illness, exclusion or otherwise receive full-time, suitable education. Excluded children and those out of school due to mental health problems are often left without any educational provision or additional support. It should be noted that the obligation on local authorities to secure the provision set out in an EHC plan does not cease simply because a child is out of school: this is rarely understood.
•                  We often see parents being pressured by schools or local authorities to home educate their child, to avoid prosecution for the child missing school, or avoid exclusion, or simply because the local authority does not consider there to be a ‘suitable’ school for the child. Home education is a major undertaking which should never be forced on parents against their will.

The onus is on families to enforce the law

30.         The Children and Families Act 2014 and accompanying regulations are very clear about local authorities’ duties to children and young people who need multi-agency support to enable them to achieve their potential and live good lives.

31.         However, making this happen in practice too often depends on families knowing what the law says and having the financial and emotional resources to pursue this on behalf of their child. It should not be necessary for parents to appeal to the Tribunal to get what their child is entitled to by law. It is important to emphasise that parents who ‘win’ a Tribunal appeal are only securing the provision and support to which the law already entitles their child.

Is new legislation required?

32.         Part 3 of the Children and Families Act 2014 has not achieved its goal. But it does not follow that new legislation is required. The Act is not a poorly conceived or inadequately drafted piece of legislation. It has never been fully implemented across the country, and there is no way of knowing how well it could have worked if it had been.

33.         We believe that Part 3 of the Children and Families Act 2014, along with associated regulations and other pieces of legislation such as the Equality Act 2010 and the Children Act 1989, provides a sufficient legal framework for supporting children and young people with SEND – if it is implemented in full.

34.         The SEND Review is an important opportunity to address the problems with the way the SEND legal framework is working in practice. It should be an opportunity to look at the wealth of evidence on how and why the 2014 SEND reforms haven’t worked as intended, and why so many children and young people with SEND have been let down. We agree with the House of Commons Education Committee’s statement that:

“Ultimately the Government must decide whether it wants local authorities to retain the statutory duties it set in place in the 2014 Act. If it does, it must give them the necessary funding and freedom to meet their local population’s needs, with the appropriate accountability to ensure that they do so.”

35.         The widespread culture of disregarding the law on support for children and young people with SEND needs to change. This is a question of leadership and priorities, not just resources. The Department for Education has failed to make local decision-makers accountable for the decisions they make about the lives of individual children and young people. The existing system needs to be underpinned with a robust accountability framework, with clear consequences for local authorities that circumvent the law.

36.         We do not share the Government’s view, set out in the SEND Green Paper, that new standards and structures are needed: what is needed is for the existing law to be followed in every area for every child. We believe that the proposals are motivated by a desire to reduce the number of children and young people with EHC plans, reduce the number of children in special schools, reduce the number of appeals to the SEND Tribunal and most significantly reduce cost.

April 2022