Written evidence from ESC Management Services Ltd (CFA0094)

HOUSE OF LORDS CHILDREN AND FAMILIES ACT 2014 SELECT COMMITTEE INQURY

House of Lords Select Committee – Children and Families Act 2014 Inquiry

ESC was established in 2008 and provides consultancy services to the health and education sectors. Clients have included Clinical Commissioning Groups, NHS Trusts, the National Institute for Health and Care Excellence, schools/academies, multi academy trusts and school networks.

Emma Smith, ESC’s Director is recognised as a national expert in health provision within the education sector. ESC’s position is that if children and young people require NHS health services to access and fully participate in education, then they are entitled to high-quality NHS services. Drawing on ESC’s experience, the evidence submitted relates to health provision within mainstream and specialist school settings. Particularly, addressing the inquiry’s Question 5:

•                  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?

This submission is based on insights originating from an earlier ESC Report.[1] During 2020/21, this report was shared and discussed with representatives from the Department for Education (DfE), NHS England, the Care Quality Commission (CQC) and the Royal College of Nursing (RCN).

1.0          Executive Summary

Has the Act achieved its goal of improving health provision for children and young people with SEND in educational Settings?

1.1              Integration is a golden thread running through the CFA 2014 reforms. Aspirations for integration are now even more ambitious than before. Like a jigsaw puzzle a truly integrated, seamless education, health and care system is made up of distinct components with defined boundaries and clear links. ‘Health’ is a distinct piece in the integration jigsaw with its own statutory scheme, target functions and governance arrangements. This provides a framework for an NHS pathway of high-quality healthcare. However, there is a fundamental flaw in the provision of health services for children and young people with SEND in the school setting and it is essential that there is a full understanding of the what? why? and how?

1.2              What: Despite the CFA 2014 and NHS Act 2006 duties on the NHS and a backdrop of increasing pupil health needs, NHS services in schools have reduced. With responsibility for health provision shifting from the NHS to schools. The education sector has painted a stark picture; insufficient NHS input, ‘postcode lottery’ of provision, high levels of risk and inappropriate use of the high needs block. The fundamental flaw is that the current delivery model for health services in schools does not fit with the ‘health’ statutory scheme. Instead, the now established delivery model has diverged from the NHS pathway. As a consequence, there is a two-tier system of healthcare: NHS-led ‘quality’ health services v’s education-led health services.

1.3              Why: Registered health professional delegation is the fault line in the current service delivery model. Specifically, a system-wide failure to recognise the concept and legal implications of delegating health activity to the school workforce. There are three critical points. Firstly, an NHS commissioning responsibility is not removed when an activity is delegated to an unregistered support worker. So where an NHS commissioning responsibility exists, the NHS should commission the service in its entirety. Secondly, there is a difficult question that needs to asked and answered; does a school operating within the education statutory scheme have the legal duty or power to function as a provider of NHS funded health services? Thirdly, ‘delegate’ and ‘train’ are often used as interchangeable terms, they are not.

1.4              How: Delegation has blurred the edges and distorted the education piece of the jigsaw. It is apparent that there have been imperceptible shifts at different points to make this delivery model ‘fit.’ ESC contends that the statutory obligations on schools that are relevant to pupil health have been stretched and can be seen in the application of the welfare duties on schools including the CFA 2014 s.100 duty to support pupils with medical conditions, the Equality Act 2010 reasonable adjustment duty, health and safety duties and the common law duty of care. Additionally, within policy and practice there is evidence of misunderstanding and misrepresentation of the CFA 2014 which is also likely to have played a part in skewing the distinct ‘education’ function.

If changes are needed, could they be achieved under the framework of the Children and Families Act 2014 or is new legislation required?

1.5              Yes, changes are needed within the CFA 2014 framework but primarily, improved health provision will be reliant on compliance with the legislation as it is and reconciling the gap between the NHS pathway and the current service delivery model. ESC has made six recommendations. They include considering the service model in terms of delegation and the health and education statutory functions and obligations, amending the CFA 2014 s.100 to include a duty on health bodies to work jointly with schools/governing bodies to meet the needs of pupils with medical conditions. Additionally, recommendations cover updating the CFA 2014 part 3 and s.100 statutory guidance to define the boundaries between the NHS and school health responsibilities and also how links should be made between an NHS pathway and school-led health support pathway.

2.0          Introduction

2.1              The CFA 2014 reforms were described as landmark changes.[2] The Education, Health and Care Plan (EHCP) was intended to be the vehicle to deliver integrated, improved and consistent services for children and young people with SEND. However, reports and reviews have consistently highlighted a failing system and inadequate joint working across the sectors.[3],[4] In 2019, the House of Commons Education Committee noted that the role of health was integral but “the meshing of the systems had not worked”.[5] The Committee stood behind the SEND reforms, citing poor implementation as the issue and it did not shy away from calling out unlawful practices.

2.2              More recently, the SEND Green Paper reported that it was “local discretion” that had resulted in inconsistencies.[6] Certainly, from an EHCP ‘health’ perspective, the CFA 2014 obligations on health bodies do not permit the degree of local discretion commensurate with the inconsistencies seen in health provision. In the past, criticisms levelled at EHCPs have included poor quality health input and CQC and Ofsted noted, “common weaknesses” in processes for securing health contributions.[7],[8],[9] In 2022, EHCP ‘health’ issues remain with minimal/no improvement.[10]

2.3              This House of Lords inquiry is timely as it sits within the context of wider system reform; the Education White Paper, the SEND Green Paper and Integrated Care Systems. This presents a real opportunity to correct the missteps and reset the path so that the goal of improved health provision for children and young people with SEND can be realised. This wider context is vital, as the golden thread running through the CFA 2014 and current reforms is integration.

2.4              Aspirations for integration are now even more ambitious but greater integration, inherently means greater complexity. Ironically, navigation through this increasingly complex system, will require far greater clarity regarding sector functions and services. The jigsaw puzzle is a helpful analogy. A complete and seamless picture is based on three principles; distinct pieces, defined edges and clear links. In a similar way, integrated education, health and care services must follow these three principles by recognising the distinct sector/organisation functions, defining boundaries and forming clear links. It is only with this clarity and precision that the different services will fit together and offer a truly integrated, seamless system that improves provision, experiences and outcomes for children and young people with SEND.

The Integration Jigsaw - Health

2.5              The CFA 2014 and the NHS Act 2006 duties should be sufficient to secure high-quality health provision for all children and young people in the school setting. The CFA 2014 obligations on NHS bodies includes the s.42 duty to arrange the EHCP ‘health’ provision specified in Section G. For children and young people without an EHCP, under the NHS Act 2006 s.3, CCGs are responsible for commissioning the clinical support for children and young people with additional health needs, long-term conditions and disabilities in the school setting.[11] Whilst local authorities (LAs) are responsible for public health school nursing, NHS commissioners and LAs should have joint commissioning arrangements in line with their respective statutory obligations.[12],[13]

2.6              ‘Health’ must be acknowledged as a distinct component within the education, health and care integration jigsaw. In 2017, Judge Ward articulated the importance of this, stating;

“The systems of special educational needs, care provision and health provision are the subject of differing statutory provisions, with differing duties imposed on differing bodies and differing governance arrangements.”[14]

An NHS commissioning responsibility under the CFA 2014 or the NHS Act 2006 should trigger an NHS pathway of care which is subject to the ‘health’ statutory scheme and governance arrangements. A raft of legislation is embedded in this NHS pathway to ensure high-quality healthcare. For example, NHS 2006 Act s.26 duties on CCGs to improve quality and promote the NHS constitution[15] and the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 duties on providers to deliver safe care. Figure 1 summarises the NHS pathway.

2.7              In general terms, it would be fair to conclude that the status of health provision for children and young people with SEND in the school setting has fallen short of the CFA 2014 goals. If there is to be any hope of a meaningful move forward and improvements in provision for this group of children and young people, it is imperative that legislators and policy makers acknowledge and address a fundamental flaw in the system. This requires a full understand of the ‘what?’, ‘why?’ and ‘how?’ This issue must be tackled for the CFA 2014 to achieve its goal in relation to improved health provision in the school setting.

*As a result of ‘Health and Social Care’ legislation some systems, structures and processes to ensure high-quality care span both health and care sectors.[16]

Figure 1: The NHS Pathway

3.0          The ‘What?’- Healthcare Services in Schools

3.1              Over recent decades, the national prevalence of life-limiting and life-threatening conditions in children and young people has significantly increased.[17],[18] Whilst the rising numbers of children and young people with complex health needs accessing education is positive, this has corresponded with a trend of reducing NHS services in schools. NHS policy drivers such as care closer to home and personal health budgets, NHS financial pressures and increasing health professional workloads has meant an increasing reliance on unregistered/non-health support workers and unpaid carers to deliver healthcare in the community.[19],[20]

3.2              Although there are examples of high-quality NHS health services in the school setting,[21] this is by no means a consistent picture. Despite the backdrop of rising health needs, there has been a shift in responsibility for health provision from the NHS to schools. There is an expectation and indeed, a reality that schools will meet pupils’ health needs, often regardless of the complexity of the needs and interventions involved. This impacts on all education settings but is particularly acute in specialist schools where clinical activity and the potential for harm is greatest. Schools either take on the role of ‘health’ commissioner and independently secure health services or school staff, predominately teaching assistants, deliver registered health professional interventions.

3.3              When school staff deliver healthcare interventions, they do so either via a registered health professional ‘delegating’ tasks or by staff undertaking stand-alone ‘training’. The Nursing and Midwifery Council (NMC) defines delegation as “the transfer to a competent individual, of the authority to perform a specific task in a specified situation.”[22] Both the NMC and the Health and Care Professions Council have standards and requirements for registrants delegating tasks.[23],[24] Delegation should encompass risk assessment, training, competency assessment, supervision, ongoing support and incident management protocols.[25]

3.4              The range of health interventions delegated to school staff is extensive covering several specialisms including nursing, physiotherapy, occupational therapy, speech and language therapy and dietetics. RCN guidance has listed registered nurse tasks considered suitable and unsuitable for delegation to the school workforce.[26] Clinical procedures deemed suitable include assisting with inhalers, intermittent catheterisation, oral suctioning, tracheostomy care and administering medication. This RCN list might equally serve as a list of nursing services that would fall under the CFA 2014 and the NHS Act 2006 ‘health’ commissioning obligations.

3.5              The fact is, the majority of health provision delivered in schools sits outside an NHS commissioning arrangement and so to varying degrees, this health activity circumvents the NHS pathway. The education sector has painted a stark picture of health services in schools: insufficient NHS input, ‘postcode lottery’ of provision, high levels of risk and inappropriate use of the LA high needs block.[27],[28] Concerns are not limited to the education sector, issues around risk and variability of provision have been echoed by leading paediatric nurses.[29],[30] NHS England has also identified concerns around variability of both commissioning models and training and support available for school staff.[31]

3.6              ESC research has identified poor practices around the delegation and incident management of nursing interventions.[32] Both these elements of practice have the potential to expose children and young people to increased risk and avoidable harm. Understandably, school leaders are reluctant to publicise when things go wrong but when they do, it is clear that the potential for harm and the impact on pupils and staff is immense.[33],[34] ESC is aware of numerous worrying local arrangements that include:

•                  Teaching assistants providing registered nursing interventions that the RCN has deemed unsuitable for delegation to unregistered support workers

•                  Children and young people with NHS continuing care packages to manage complex health needs that in effect stop and start at the school gates

•                  School staff in special schools responsible for writing healthcare plans for pupils with no/minimal input from local NHS services

•                  NHS provider trusts explicitly instructing Special School Nursing Teams not to undertake competency assessments when delegating/training school staff. Presumably, to mitigate against liability risks.

3.7              So, what is going wrong? The fundamental flaw in the current approach is that the service delivery model for health provision in schools sits outside the ‘health’ statutory scheme. As a consequence, this delivery model has diverged from the NHS pathway and the gap between the two has widened over time. Where NHS ‘health’ services should be, schools have extended their ‘education’ offer. Paradoxically, this education ‘health’ activity has on one hand, filled the void so there is no visible gap in provision but on the other, the activity has crossed into a ‘no-man’s land’ which is hidden, falling between the spheres of health and education functions. And because this health provision is generally not associated with any formal commissioning, there are no national metrics/databases to measure and monitor this activity. Figure 2 illustrates what can only be described as the epitome of a two-tier system of healthcare; NHS-led health services v’s education-led health services.

Figure 2. The NHS Pathway Gap

3.8              In practical terms, the process for securing EHCP Section G ‘Health’ provision provides a useful example of how the service model is at odds with the statutory scheme. Figure 3 outlines the statutory process for securing EHCP ‘health’ provision. Importantly, the CFA 2014 framework dictates that ‘heath’ needs and provision must be specified in the EHCP before a parent/young person requests a particular school. This means that before a prospective school is involved in process, the relevant health bodies have specified the type of provision including who will provide it and agreed the provision. Therefore, based on the statutory process, it is irrational for a school that has had no part in these steps to then be placed in the role of provider of EHCP ‘health’ interventions. But this is exactly what happens.

Figure 3: CFA 2014 - EHCP ‘Health’ Process

4.0          ‘The Why?’ Delegation – The Fault Line

4.1              So why has the service model diverged from the ‘health’ statutory scheme and the NHS pathway? The answer is simple; the fault line is registered health professional delegation. More specifically, the system-wide failure to recognise the concept of delegation and the legal implications of delegating health activity to the school workforce. Unfortunately, this failure has led to a series of missteps of significant magnitude at national and local level. This is the root cause as to why the CFA 2014 has failed to deliver improved health services for children and young people with SEND in the school setting. There are three critical points.

4.2              Point 1 - If an NHS commissioning responsibility exists for services, a registered health professional delegating the activity to an unregistered support worker does not remove the NHS commissioning responsibility. This has been established in case law and is recognised in NHS policies and guidance.[35],[36],[37] Therefore, where there is an NHS commissioning responsibility, the appropriate NHS commissioner should be securing the services that are required in their entirety i.e., registered health professional direct and delegated healthcare.

4.3              Point 2 - Assuming the current service model is implemented in accordance with NHS statutory obligations, this would mean health bodies commissioning schools i.e., NHS funding and contracting to provide delegated health services. Acknowledging the distinct statutory functions in the integration jigsaw, on the surface, this would appear problematic. For example, case law has established that LAs have neither the legal duty nor power to commission EHCP Section G ‘health’ services.[38] There is a difficult question that must be asked and answered, do schools operating within the education statutory scheme have the legal duty or power to take on the function of an NHS service provider? Furthermore, even if this is considered intra vires activity, the education sector’s governance arrangements are not set up to deliver high-quality NHS healthcare and so it is unclear how the NHS quality standards could be achieved and monitored.

4.4              Point 3 - Delegate and train are not interchangeable terms. The term ‘train’ is often used incorrectly when the term ‘delegate’ should be used.[39] As noted in 3.3, although training is an important component of delegation, they are not one in the same. Where there is an NHS commissioning responsibility, the NHS pathway should be followed and registered health professionals should be delegating the tasks. The RCN list referred to in para. 3.4, covers a range of nursing support for children and young people in schools.[40] Surely, by virtue of the fact that a procedure is deemed suitable for delegation, makes it a task that should be delegated. Downgrading the activity from ‘delegating’ to ‘training’ side-steps the NHS pathway’s governance arrangements and compromises quality. This is likely to expose children and young people, providers (schools/NHS) and professionals (education/health) to clinical, organisational and professional risks, respectively.

4.5              It should also be noted that there are complexities associated with cross-organisation delegation around accountability, supervision and liability. The CQC makes the distinction between “under the supervision of” and delegation and recognises the practice of delegation across provider organisations.[41] However, the Royal College of Speech and Language Therapist (RCSLT) has taken the stance that Speech and Language Therapists do not have the authority to delegate tasks to the wider workforce unless they have managerial or supervisory responsibilities for their actions. Instead, the RCSLT refers to ‘upskilling’ the wider workforce which includes school staff.

5.0          ‘The How?’ The Integration Jigsaw – Education

5.1              The ‘why?’ is relatively simple but the ‘how?’ is highly complex. The CFA 2014 part 3 has not been applied in isolation, it is set within a tangled mesh of wider legislation, policy and practice. Over the years, it is an inter-play between these factors which has embedded this service model as established custom and practice. When this is explored, it is apparent that delegation has blurred the edges and distorted the education piece of the jigsaw with imperceptible shifts at different points to make this delivery model ‘fit’.

Schools’ Health Related Duties

5.2              Statutory duties on schools that are relevant to pupils’ health have limits and seemingly, do not extend to a duty or power for schools to function as NHS commissioners/providers. Again, referring to Judge Ward’s comments;

“But the fact that the differing bodies are exhorted to collaborate, in the interests of delivering a more integrated result to the children and young people affected, does not mean that the underlying statutory distinctions do not exist, nor that the powers of the various bodies concerned can be stretched so as to yield a joined-up solution in the interests of the child where such a solution does not otherwise emerge.”[42]

However, education health-related duties do appear to have been stretched to accommodate this delivery model.

5.3              CFA 2014: Ironically, it is likely that the application of the CFA 2014 s.42 duty on health commissioners to arrange EHCP ‘health’ provision has been hindered in part by the CFA 2014 framework. The CFA 2014 part 5, welfare duty on schools to support pupils with medical conditions was intended to support inclusion for pupils[43] and whilst well intentioned, this duty is problematic in terms of its construction and implementation.

•                  Construction: An early iteration of the Children and Families Bill included an NHS duty to co-operate with governing bodies[44] but despite warnings that this was needed, it was not included.[45] So a crucial legal lever to ensure appropriate links between the NHS and education was omitted.

•                  Implementation: The corresponding DfE guidance fails to recognise the concept and implications of delegation.[46] This means that the NHS pathway obligations and responsibilities on NHS bodies and registered health professionals have been overlooked. As a consequence, a wide interpretation has been applied to the school’s duty to ‘make arrangements.’[47] Schools, governing bodies and school staff are positioned as responsible for health provision, preparing healthcare plans and ensuring appropriate ‘training’. However, where there is an NHS commissioning responsibility, all these activities should sit within the NHS pathway but the DfE guidance presents NHS involvement as optional, “may provide advice” and “may be able to support.”[48]

5.4              In Haringey 2005, Judge Ouseley warned that a broad interpretation of a local authority’s welfare duties to cover medical provision would turn social services into a “substitute or additional NHS for children” and this would be “an impermissibly wide interpretation.”[49] It is possible to make the case that the CFA 2014 s.100 welfare duty to ‘make arrangements’ has been interpreted too widely creating the ‘substitute or additional’ NHS for children i.e., the education-led health service. An alternative interpretation is that there is a School-led health support pathway that sits alongside and complements the NHS pathway and that the duty on schools to ‘make arrangements’ is to ensure appropriate joint working with local NHS providers so that pupils are able to access the NHS-led health services they may need whilst in school.

5.5              CFA 2014 Part 3 – Statutory Guidance: The SEND Code of Practice describes in detail the s.42 statutory obligation on health commissioners to arrange EHCP health provision. The guidance also refers to health professionals advising and training "education services on managing health conditions such as epilepsy and diabetes, and health technologies such as tube feeding, tracheostomy care and ventilation in schools.” But the NHS is responsible for arranging provision for all these conditions and interventions in the school setting. Again, there is no recognition of the concept or legal implications of delegation. It is likely that as with the point in para 5.3, this statutory guidance has hampered the application of the CFA 2014 health duties i.e., EHCP ‘health’ provision specificity and delivery.

5.6              Duties to Safeguard and Promote Welfare: Similar to the points raised in para 5.4, the Children Act 2004 and the Education Act 2002 duties on schools to ‘make arrangements’ to promote welfare have limits. With respect to health and well-being, the Keeping Children Safe in Education guidance signposts to the DfE guidance, Supporting Pupils with Medical Conditions.[50] Thereby, looping back to the points made in para. 5.3 and 5.4.

5.7              Equality Act 2010: ESC is aware that the reasonable adjustment duty can be drawn on when discussing a school’s responsibility for health provision including complex healthcare. But given the limitations on the reasonable adjustment duty, this is often inappropriate.[51] The Equality and Human Rights Commission (EHRC) guidance sets out examples of reasonable adjustments relating to the provision of health services including school staff providing tracheostomy care. In 2020, ESC contacted the EHRC to highlight issues with this guidance i.e., the overlooked NHS commissioning responsibilities. In 2021, the EHRC response advised that clarification was in fact needed and that the guidance should and would be updated. As yet, no update has been issued.

5.8              Health and Safety Duties: First aid in schools should be in line with health and safety legislation and relevant guidance.[52],[53] A premise of first aid interventions and training, is that support is not on a named basis i.e., it is outside the routine management of a health condition. Within the first aid framework, there are also limits on administering medicines.[54],[55] Despite this, in recent years, there has been a proliferation of independent companies offering ‘training’ to schools to manage pupils’ medical conditions such as epilepsy and administering buccal midazolam.[56] This is probably a direct result of DfE guidance (para 5.3 and 5.5). Training offers are generally based on a first aid model i.e., not on a named basis and include on-line and ‘train the trainer’ approaches. However, this is inappropriate for pupils with a recognised medical condition, as this should sit within the NHS pathway of registered health professional care planning and delegated activity on a named basis.

5.9              Common Law Duty of Care/in loco parentis: Schools and their staff have a common law duty to take care of pupils in their charge. There is a widespread view that because parents provide health interventions at home, schools should do the same. There can be doubt that it is commonplace for parents/carers to provide healthcare, some of which can be highly complex.[57] There are three relevant points. Firstly, whilst it is understandable that parents/carers provide these interventions, there is no statutory obligation on parents/carers to provide what would be considered NHS services.[58] Secondly, parents/carers providing healthcare for their own child, in their own home, is a different proposition to a school operating as a publicly funded body, undertaking distinct statutory functions. Thirdly, where there is an NHS commissioning responsibility, the assumption would be that these interventions would require some form of specialist skill and knowledge. Factors that are likely to take these health interventions outside the realms of what would be considered reasonable under the common law duty of care.

Policy and Practice – CFA 2014 Misunderstood and Misrepresented

5.10          The House of Commons Education Select Committee highlighted the confusion around legal responsibilities, EHCPs and school nursing.[59] Narratives on this topic appear to be biased in the way CFA 2014 duties have been presented and interpreted. Even in the context of EHCPs, focus has tended to be on the s.100 duty on schools to make arrangements to support pupils with medical conditions, whilst overlooking the s.42 duty on health commissioners to arrange EHCP ‘health’ provision. Examples shown below:

•                  National Association for Special Educational Needs (nasen): Guidance on SEND reforms and responsibilities, covered in detail EHCP statutory responsibilities but there was no reference to the duty on health commissioners to arrange EHCP health services.[60]

•                  RCN: Guidance on meeting health needs in schools included a section on policy and legislation.[61] Reference was made to EHCPs and the Code of Practice but only the s.100 duty on schools was mentioned with no reference to the s.42 duty on health commissioners.

•                  NHS England: SEND guidance states the Children’s Community Nursing Team role includes “providing clinical training for school staff aligned to the child’s EHC plan.”[62] Again, ‘training’ and not ‘delegating’ and no acknowledgement that ‘health’ provision in an EHCP should be part of an NHS commissioned service.

Policy and Practice - LA High Needs Funding/Banding Models

5.11          Many LA high needs funding/banding models have conflated health needs/medical conditions with the four areas of SEN outlined in the SEND Code of Practice. The category of SEN ‘Sensory and/or physical needs’ is often expanded to incorporate ‘health’. Consequently, health provision descriptors are included in funding/banding model. Examples include;

•                  North Somerset Council – Category E ‘Physical/Medical’ and descriptor examples uncontrolled epilepsy, suctioning and colostomy care.[63]

•                  City of York Council – Threshold document sets out the four broad areas of SEN including “Sensory and/or physical needs” and makes the point that the document refers to “Physical and Health Needs”. [64] Detailed health provision listed includes “invasive medical procedures such as catheterisation, tube feeding.”

•                  Cornwall Council – High Needs Banding Matrix Element 3 Specialist Settings ‘Medical’ row includes the descriptor “Chronic or degenerative medical condition. The severity and or the unpredictability of medical condition/s require constant adult intervention by staff with the competency standards required to undertake the necessary procedures.” [65]

5.12          It is not difficult to see how ‘health’ provision described in high needs block funding/banding models would then be specified in an EHCP Section F. So what should be health provision becomes special educational provision. Case law has shown that even if medical support is essential for a child or young person to be educated, that in itself does not make it special educational provision.[66] ESC’s 2020 report that was shared and discussed with the DfE highlighted this point and in 2021, the High Needs Funding Operational Guide 2021 to 2022 included a new Annex 3. This reiterated the Schools and Early Years Finance Regulations restrictions stating that the high needs block should not be used for non-educational costs and that the relevant health commissioner was responsible for the costs of securing EHCP ‘health’ provision.[67]

Question - If changes are needed, could they be achieved under the framework of the Children and Families Act 2014 or is new legislation required?

6.0          The Changes Needed

6.1              Nationally and locally, there is extensive work underway to improve health services for children and young people with SEND.[68],[69],[70] Whilst this is commendable, unless the issues with delegation and the current service model are resolved, these efforts will be limited in their impact. There needs to be acknowledgement that ‘health’ and ‘education’ are distinct pieces in the integration jigsaw with differing statutory schemes, target functions and governance arrangements. The failure to recognise the concept and legal implications of delegation in the CFA 2014 framework (and wider legislation and policy) has meant this distinction has been lost. Revisiting statutory obligations and the service model may lead to challenging and difficult conversations but these issues must be tackled head on.

6.2              ESC’s stance is that the delivery model for ‘health’ services should be aligned to the NHS pathway which inevitably means increased NHS input. Having shared these insights, ESC is aware that this will be met with resistance. However, there is a need to be alert to the possible organisational and individual factors that may underlie this resistance. Of which there are many; NHS pressures, reluctance to accept mis-steps, ‘investment’ in the current service model, scale of change required, wider repercussions and status quo bias. All strong barriers to change but not sufficient justification to accept a two-tier system of healthcare. If a genuine goal is to improve health provision and outcomes for children and young people with SEND, the challenges and discomfort within the system must be overcome to enable a vital re-set.

6.3              The idea of increased NHS input is often met with warnings of ‘medicalising’ schools. But this should be considered in the context of the medical v’s social models of disability and the complex interplay with the law.[71] The negative connotations around the term ‘medical’ means that reference to ‘medicalising’ tends to be an effective way of shutting down the discussion but this is perhaps based on oversimplified reasoning. The social model of disability is enshrined in the principles of rights and equality. This should mean that if children and young people need NHS services to access and fully participate in education, then they have a right to high-quality NHS healthcare.

6.4              Downgrading or ‘de-medicalising’ healthcare may be the easier option but this will not secure the high-quality health provision that children and young people with SEND are entitled to. The challenge and the way forward must be in shaping high-quality NHS health provision to fit the needs of children and young people in the school setting. There are changes required within the CFA 2014 framework but primarily, improved health provision will be reliant on compliance with the legislation as it is and reconciling the gap between the NHS pathway and the current service delivery model.

7.0          Recommendations

Health and Education – Statutory Functions

7.1              Recommendation 1: The legality of the service model must be considered in terms of delegation and the health and education statutory functions, obligations and powers. The CFA 2014 framework must respond accordingly to facilitate a legally compliant approach.

7.2              Recommendation 2: The CFA 2014 s.100 duty should be amended to include a duty on NHS bodies to work jointly with schools/governing bodies. The extent of this duty will be dependent on the outcome of Recommendation 1.

7.3              Recommendation 3: The CFA 2014 part 3 and s.100 statutory guidance must recognise the concept and legal implications of delegation. Delegation must be positioned appropriately including how it fits with the health and education statutory schemes.

Health and Education – Defined Boundaries

7.4              Recommendation 4: The CFA 2014 framework must clarify the boundaries between the health CFA 2014/NHS Act 2006 duties and the education s.100 duty. In effect, this will mean describing the divide between health activity that is and is not an NHS commissioning responsibility. This would form the basis of an NHS health services pathway that runs alongside a School-led health support pathway. The s.100 guidance should be reframed to adopt this pathway approach and explicitly define the limits on the schools’ obligations.

7.5              Recommendation 5: Beyond the CFA 2014 framework, the policy, guidance and practice relating to wider statutory obligations on schools e.g., reasonable adjustments and first aid must be revisited to ensure they ‘fit’ with a compliant health service delivery model.

Health and Education – Clear Links

7.6              Recommendation 6: CFA 2014 statutory guidance should describe the links between the NHS pathway and the School-led health support pathway and would include jointly developed policies for integrated working. For example, a health records policy that covers how health records e.g., NHS care plans and school health support plans are managed in school in line with sector requirements and best practice.[72],[73] Figure 4 is a simplified illustration.

*Either a standalone policy or part of a school’s wider information governance policies

**Dependent on the outcome of the legal clarification on the school’s role in delivering NHS health provision, an NHS/school delegation governance framework.

Figure 4: NHS Pathway and School-led Health Support Pathway Links

Addendum

On re-reading, I've noticed that in paragraph 2.6 I've referred to the wrong act - the text states "the NHS Act 2006 s.26" when it should read "the Health and Social Care Act 2012, s.26).

May 2022