Sense consultation response for the Children and Families Act 2014 Committee

April 2021

About Sense

Sense is a national disability charity that supports people with complex disabilities to be understood, connected and valued. Sense supports children, young people and adults in their home and in the community. Sense campaigns passionately for the rights of the people it serves and offers practical help and support to families and carers, including information and advice, short breaks, and family events.

Who does Sense support?

Sense Specialist Services for Children and Young People supports around 1400 children and young people with multi-sensory impairment (MSI), as well as those with single sensory impairment and complex disabilities. Sense also provides bespoke, tailored further education packages for around 120 young people with complex disabilities aged 16-25, through our Sense College provision. Sense College focusses on a total communication approach, supporting every young person to achieve the best possible outcomes.

Sense supports people with complex disabilities, and therefore we represent a diverse pan-disability group, including individuals with learning disabilities, autism, sensory impairments and complex health conditions. The individuals with complex disabilities we represent often require significant or constant care and support from family members or social care, including support with personal care. Many of the people we support are also deafblind, this includes individuals with congenital deafblindness and also those who are visually impaired or /Deaf or Hard of Hearing who then acquire an additional sensory impairment.

Our response in brief

•     Sense welcomed the act and considered the aims it had to be the right ones.
•     The legislation built and improved upon the Family Law Act 1996.
•     The act is good, it has the correct intentions and attempted to improve the quality of support disabled children received. However, the resourcing behind the act has not been in place to ensure the act can be implemented in full. This has impacted on the reality for children and families. Despite the ambitious aims in the act, the cuts to overall funding have led to a lack of specialist services and support for children.

Our Research and Response

We welcome the committee reviewing the Children and Families Act 2014, it was an ambitious piece of legislation that overhauled the Special Educational Needs and Disabilities (SEND) system. As an organisation representing people with complex disabilities, many of the people we support have been impacted by the Children and Families Act 2014.

Sense ran a Family Engagement Project across the summer 2021 which included a survey for parents and young people to feedback their views. The evidence provided in this consultation is drawn from this. Our survey looked to find out not only the challenges currently facing families, but what solutions parents might have to make the system better in the future. The evidence is intended to support the development of policy calls for the areas of SEND, and Children’s Social Care, as well as to provide evidence for responses to upcoming Government consultations.

Question responses

To what extent has the Act improved the situation for the most vulnerable children, young people and families in England?

In general, the Act was a good piece of legislation for special educational needs and disability. The intent was right, particularly in consideration to educational progression. The legislation ensured to retain the key rights and protections for children and families contained in the 1996 Act, but went on to introduce several welcome additions and expansions, including:

•     Applying them to young people in further education outside of school, up to the age of 25
•     More strongly binding in health and social care, including through joint commissioning duties and the duty under section 42, and through the extended powers of the Tribunal trial.
•     Extending the coverage of the legislation to all disabled children.
•     Giving a specific legal right for parent carers to an assessment of their needs.
•     Further embedding co-production.

However, several issues have become apparent since the introducing of the act.

EHCPs not achieving desired outcomes

•     We welcomed the transfer from Statements of SEN (Special Educational Needs) to Education, Health and Care Plans (EHCPs). EHCPs can be an effective way to collate a child’s needs and ensure the right support could be put in place efficiently if they are used correctly.
•     According to Sense’s family engagement research, 36% of parents say their child is currently receiving all the education, health and social care support they are entitled to.
•     The joint Care Quality Commission (CQC) and Ofsted local area inspections uncovered significant areas of weakness, including poor quality EHCPs, high levels of exclusions and a lack of confidence in the system amongst parents.[1]
•     A report from the Children’s Commissioner for England also found inconsistencies in the structure, length and formatting of the EHCP forms.[2]
•     Sense has experience of EHCPs being written very differently across different areas, with Local Authorities interpreting the SEND Code of Practice differently, and with varying levels of compliance with the guidance. This is likely down to the fact EHCPs are being written around what support is available, not what the child needs. 
•     Sense’s experience shows that many EHCPs are not of good quality and local authorities are failing to specify quantifiable amounts of provision in EHCPs, which is often the only way to ensure that the amount of support a child needs is provided.
•     Many of the parents that Sense supports have told us that, far from being included in the decision-making process, the onus has been fully placed on them to ensure their child has a good EHCP. This leads to variable outcomes for children with SEND, often dependent on their parent or carers knowledge of the system, and the support and capacity they have to guide them through the process.
•     This could have been prevented with adequate funding and more accountability. The act needs to introduce greater oversight and accountability at the local and national level for poor EHCPs. Including a mechanism for measuring successful joined up working, sharing best practice and supporting those areas unable to meet the needs of their SEND population. 

Higher Exclusions of Disabled Children

•     Higher levels of exclusions for children with SEND indicate how poorly the system is currently working, as mainstream schools are unable to appropriately meet the needs of children with SEND, partly due to budgetary pressures.
•     In the year 2016-17, children with SEND accounted for 46.7% of all permanent exclusions and 44.9% of all fixed period exclusions in schools.[3]
•     Sense has direct experience of this and has supported a family where the child gradually had their support withdrawn, meaning they were unable to communicate in their preferred method. In trying to express their communication, the child was identified as displaying poor behaviour and threatened with exclusion as a result. Had the appropriate support been available, we believe that situations like this would never have occurred.

Funding and EHCPs

•     Funding has never been increased significantly to meet the additional needs, contributing to an overall 2.7% reduction in per pupil funding since 2013-14 for children and young people with SEND.[4]
•     Additionally, in the context of wider cuts to education, health and social care funding, general SEN Support has not been funded, pushing more children and parents towards EHCPs to ensure the correct support is in place.
•     Sense College have also faced challenges in terms of local authority budget cuts and being able to provide appropriate specialist placements for children at reduced costs. A young person’s EHCP can remain in place until the young person is 25. We know of examples whereby adult social care services, working to a different inspection and regulatory framework, have disregarded the support put in place by the EHCP.

Has the Act achieved its goal of improving provision for children with special educational and disability needs and disabilities? 

The act itself is a positive piece of legislation aiming to improve the lives of children with SEND. As previously mentioned, it introduced several important improvements. These were ambitious and had the right intentions.

However, whilst good on paper, in practise there has not been equal or adequate implementation of the legislation.

•     There is difficulty in getting support, 52% of parents are not able to get the support their child needs.
•     Parents are then left to try to keep support together on their own, with EHCP’s quality varying across the country.
•     The act struggled to be backed with funding that matched the level of ambition in the legislation, this led to its goal not being achieved as well as it could have.

Difficulty Getting Specialist Support

•     Our Family Engagement survey found that over half of parents (52%) say their child is not receiving all the educational support, health and social care that they have been assessed as needing at present.
•     Many of the families Sense supports across the country are unable to access specialist teachers of sensory impairment.
•     According to Senses MSI Teachers research 52% of local authorities do not employ MSI teachers. Teachers specialising in support for hearing impairment or support for visual impairment are available in some areas, and the work of these teachers is often useful to help young people develop. However, this is not the same as specialist MSI support due to the additional barriers to learning created when sight loss and hearing loss are combined.
•     All children with MSI should have access to the specialist support they need to have the best start in life. We are calling for a new MSI Education Fund with £34.3 million ring fenced funding available to local authorities in England to recruit, train and employ MSI teachers to improve the provision available.
•     Our Children’s Specialist Service also report considerable variation & describe a postcode lottery of support, particularly for low incidence impairments such as deafblindness. According to the families Sense work with, outcomes identified for children and young people with complex needs are being based on what provision is available rather than the needs of the child.

Parents difficulty in keeping support together

•     90% of parents say they have to fight to get the services their disabled child needs.[5] Parents have told us that they frequently have to ‘police’ the system to ensure that any support detailed in their plan is followed through.
•     To secure an EHCP, disabled children and their families need to go through a series of assessments and draft plans, which is administrated by the Local Authority. This process is complex, lengthy and parents have told us it is challenging to navigate. Below are quotes from parents who navigated the system:

–                 ‘I feel as though I am the linchpin for joined up care and communication between agencies.’

–                 ‘I have to coordinate professionals, treatments, education, paperwork/information etc. I am the case worker - unpaid and exhausted. I'm the professional of my disabled children yet not afforded professional courtesy.

•     Worryingly, some parents also report information about another child in their plan. In 2019-20, only 60.4% of all EHCP’s were issued within the 20-week statutory timeframe, meaning many children and young people are also facing significant delays in identifying and securing provision.[6]

Funding and Budgets 

•     Sense has found that there has been a reduction in experienced specialist assessors due to funding cuts. This means that the intentions of the act and EHCP’s are not being implemented
•     Additional funding is required to ensure that local authorities can provide qualified assessors who can understand the care and support needs of children and young people with complex disabilities.
•     The National Audit Office published data indicating that Local Authorities are currently for the most part overspending on their High Needs Budgets. In 2017-18, 81.3% of local authorities overspent on their High Needs budget.[7] This shows that demand for services is higher than current funding allocations.
•     The significant increase in the amount of children receiving EHCPs also indicates that more parents are using EHCPs to secure support, increasing the administrative cost, certainly contributing to the high levels of Local Authorities overspending on their High Needs Budget.
•     Data produced by the Department for Education, found only 60% of all EHCPs are being produced within the 20-week period[8], suggesting that Local Authorities are not appropriate resourced to administer the higher levels of requests for EHCPs. The system under significant administrative pressure, and Local Authorities failing to meet their duties to put in place support for children with SEND at the earliest opportunity.

April 2022