Written evidence from Mr Palmer (CFA0103)

HOUSE OF LORDS CHILDREN AND FAMILIES ACT 2014 SELECT COMMITTEE INQURY

Ben Palmer. SEND Strategist - I have a wide range of project and programme management experience within the public, private and community and voluntary sectors. Additionally, I have undertaken extensive consultancy work on behalf of parent carer forums, local authorities and health services and a range of national charities. I have comprehensive experience of public services having worked as an education provider, managing Ofsted registered provision and in commissioning and procurement functions with a variety of public sector organisations. Subsequently, I have gained an extensive understanding of the issues, legislation and practice impacting on these areas, and seek to use this experience along with a collaborative approach, to improve support, services and provision ultimately enabling greater equity in society. SEND Agenda is a public forum for Special Educational Needs and Disabilities (SEND) offering pro bono advocacy, resolution and mediation within the service areas of education, health and social care.

This response principally considers question 5, namely: “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?” However, wider issues are also touched relating to legislation, including but not limited to: Chronically Sick and Disabled Persons Act 1970, Children Act 1989 and the Equality Act 2010.

Special Educational Needs: The Children and Families Act 2014, Part 3, Section 20

20. When a child or young person has special educational needs

(1) A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.

(2) A child of compulsory school age or a young person has a learning difficulty or disability if he or she—

(a) has a significantly greater difficulty in learning than the majority of others of the same age, or

(b) has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.

Disability: The Equality Act 2010, Part 2, Chapter 1, Section 6

6. Disability

(1) A person (P) has a disability if—

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

This includes physical disabilities, sensory impairments, mental health conditions, learning disabilities, and long-term medical conditions.

The Children and Families Act 2014 (CFA) introduced new duties for Local Authorities (LAs), Clinical Commissioning Groups (CCGs), Public Health, NHS England for specialist services, Early Year’s settings, Schools and Further Education providers (Local Areas), including the following responsibilities:

•                  New requirement for local authorities, health and care services to commission services jointly, to ensure that the needs of children and young people are met.
•                  Local Authorities to publish a clear, transparent ‘local offer’ of services, so parents and young people can understand what is available; developed with parents and young people.
•                  More streamlined assessment process, co-ordinated across education, health and care, and involves children and young people and their families throughout.
•                  New 0-25 Education, Health and Care (EHC) plan, replacing the current system of statements and learning difficulty assessments, which reflects the child or young person’s aspirations for the future, as well as their current needs.
•                  A new duty on health commissioners to deliver the health elements of EHC plans.
•                  Option of a personal budget for families and young people with a plan, extending choice and control over their support.
•                  New statutory protections for young people aged 16-25 in further education, including right to request particular institutions named in their EHC plan and the right to appeal to the first-tier tribunal.
•                  A stronger focus on preparing for adulthood including new powers for local authorities to provide children’s services to young people over 18 to improve transition to adult services.
•                  Academies and free schools to have the same SEN duties as maintained schools.

At the time of the reforms, the Parliamentary Under Secretary of State for Children & Families, Edward Timpson stated: “The Act places the views, wishes and aspirations of children, parents and young people at the heart of the system and requires a culture change in the ways in which professionals work with families and with each other.” The Parliamentary Under Secretary of State for Health, Dan Poulter also stated: “Fundamental to making this work and managing expectations on all sides is open and honest dialogue with parents, children and young people.”

Local Areas are required to develop and embed processes for participation and coproduction with children and young people with SEND and their families. Early Support was a core delivery partner funded by the Department for Education (DfE) that aimed to improve the delivery and coordination of family services and supported the development of the CFA. The Early Support Principles align with the CFA and the SEND Code of Practice in relation to requirements for participation and coproduction on individual, operational and strategic levels.

Children and Families Act 2014, Part 3, Section 19

19 Local authority functions: supporting and involving children and young people

In exercising a function under this Part in the case of a child or young person, a local authority in England must have regard to the following matters in particular—

(a) the views, wishes and feelings of the child and his or her parent, or the young person;

(b) the importance of the child and his or her parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned;

(c) the importance of the child and his or her parent, or the young person, being provided with the information and support necessary to enable participation in those decisions;

(d) the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes.

Many areas now have functioning Parent Carer Forums (PCFs) which are groups made up of parent careers of children and young people with SEND and who work with Local Areas to support the ongoing development of services. These groups can apply for a grant from DfE, facilitated by the charity Contact and with support from the National Network of Parent Carer Forums (NNPCF). Some Local Areas also provide monetary support to PCFs as part of local arrangements. However, even where there are ‘successful’ PCFs in areas, often participation and coproduction can be viewed as a ‘nice thing to have’ rather than an important statutory duty. Once senior council officer known by this author stated at a strategic SEND meeting: “Don’t mention coproduction, it adds years to everything!”

A matter of even greater concern is the deficit of similar arrangements for children and young people with SEND themselves, most notably in the recent convening of the SEND Review steering group in response to the House of Commons Education Committee SEND Report and the Governments Response. The SEND Review has no formal process for participation and coproduction with children and young people with SEND at a strategic level. There have been some Ministerial meetings with a few representative groups, educational and other settings and some individuals, but this is not nearly enough when you consider these are the very people for whom the review is intended to benefit.

As of this date (25/04/2022) a notice was published by the charity KIDS detailing the plans for a single, one hour virtual event to gather the views of children and young people with SEND nationally, this appears to be an afterthought of the SEND Review team, and in no way can allow all attend, consider the implications, provide a response with any confidence their views will be acted on when so far they have been entirely excluded from the process which is central to their future.

Given these factors I thought it may be appropriate to share a piece of work I was involved in prior to the implementation of the current legislation. This document considers the following: elements that support and promote participation of children and young people with SEND (p. 25); research and learning (p. 28-38); the development of the Children and Families Act 2014, section 19 principles (p. 39-44); SEND Participation Charter (p. 45); and SEND Participation Guidance (p. 46). A Strategy for the Effective and Meaningful Participation of Children and Young People with Special Educational Needs and Disabilities (SEND'

By following the very laws they created, Central Government would give Local Areas no ground to disregard their position as they will be open and honest about processes, engage with all children, young people and families and be bold enough to enable effective and meaningful coproduction with the positive outcomes that this has been proven to achieve. In essence the CFA has not met it’s ambition with regard to participation and coproduction, and needs to consider and address the matter, moving away from the archaic manner of working, and being open-minded as to how children and young people and their families want to engage in participation and coproduction.

Public authorities are required to comply with the duties set out in the Equality Act 2010, including the Public Sector Equality Duty (PSED) as outlined at section 149. This requires public authorities to “have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

Disability is one of the nine protected characteristics covered by this legislation, and public authorities typically carry out Equality Impact Assessments prior to implementing legislation or policy with a view to predicting the impact on equality as detailed within the guidance: The Public Sector Equality Duty and Equality Impact Assessments. The Equality Impact Assessment for the Children and Families Bill - prior to royal ascent – was published here: A Child Rights Impact Assessment of Parts 1-3 of the Children and Families Bill by the Office of the Children’s Commissioner (OCC).

Within that document, OCC stated: “In this assessment, we draw largely on previous consultations and research by our own office and others. In February 2013, the OCC team discussed key elements of the new Bill with members of Amplify – the OCC’s young people’s advisory group. Their comments are reported in section 4. We also discussed SEN provision with the young people who are members of Brighton and Hove’s AHA! (Aiming High Advisory Group)”

As mentioned in the section participation and coproduction, a fundamental ambition of the CFA was to place the “…views, wishes and aspirations of children, parents and young people at the heart of the system…”. It is very clear that the limited cohort of children and young people forming the sample group of OCC Equality Impact Assessment could in no reasonable way capture the lived experiences of all children and young people with SEND and their families nationally. This failure to accurately assess the impact of the CFA has in turn created complex problems affecting the whole SEND Sector, including:

•                  The widening of the statutory SEND cohort from an age range of 0-18 (social care), 0-19 (education) to 0-25 (education, health and social care). While previous duties were governed by legislation for children and adults respectfully with established service areas and funding streams, the CFA introduced new duties and therefore expectations around support and provision for the extended SEND cohort of 19-25, where it did not exist, in turn placing pressure, and creating tension between Local Areas and families.
•                  Lack of comprehensive data on the number of children and young people with SEND. Local Areas do not have accurate data on the number of children and young people with SEND living within their geographic area, or for whom they hold responsibilities towards. Many datasets are limited in terms of detail, have duplications between education, health and social care services and a as such cannot helpfully support service provision as part of Joint Strategic Needs Assessments (JSNAs). While the introduction of the Special Educational Needs Survey (SEN2) goes some way to addressing this, many of the SEND categories are not linked to the SEND Code of Practice descriptors for primary and secondary codifiers. Without accurate data that can be interrogated to identify volume and areas of need, the resources allocated to Local Areas as part of funding arrangements is not sufficient to meet needs in real terms.
•                  An ineffective replacement of School Action and School Action Plus with SEN Support. There is no clearly defined descriptor of what SEN Support will consist of in terms of provision either locally or nationally. The threshold for receiving this support is based on how individual children are doing in relation to their peer group, not whether the child has SEND. A child in a well-resourced setting with skilled teachers offering differentiated lessons and excellent home and school relationships is less likely to be deemed to have SEND in terms of individualised learning, access to the whole curriculum and attainment in line with their peers as opposed to those in a setting with poor resources, with poor management that struggles to recruit good teachers and fails in meeting individual children's needs.
•                  An exponential growth in applications for Education, Health and Care Plan Assessments (EHCPAs), in turn increasing Education, Health and Care Plans (EHCPs). As there are no impactful levers to encourage settings to become wholly inclusive combined with the national shortage of special school places, families rightly lack confidence in SEN Support and seek the perceived legal protection an EHCP ostensibly provides. This in turn causes capacity issues within Statutory Assessment Teams, a decline in the quality of EHCPAs & EHCPs, creating ambiguity over the duties to assess and duties to provide resulting in a similar increase in families pursuing legal rulings at tribunal with circa 90% being judged in favour of families and ‘ambulance chaser’ advocates (unregulated) fuelling this adversarial approach.
•                  Academisation and Free schools. Adherence to the statutes set out in the CFA is required by maintained settings and Academies and Free Schools, however this does not apply in full in relation to statutory and non-statutory guidance. This creates legal ‘loop-holes’ where for example there are clear requirements for maintained settings when directing a child off-site to improve behaviour, but not for Academies and Free Schools. This is resulting in many of these settings in-effect illegally expelling students (off-rolling) where they make no educational provision, and the child is left in-limbo with no recourse. The increase of Academies and Free Schools also has a direct impact on Local Areas powers to implement local, regional or national strategies, such as an increase in inclusivity, as there are no requirements for these to be followed by these settings.
•                  High Needs Block (HNB) of Dedicated Schools Grant (DSG). The Education Skills and Funding Agency (ESFA) oversee the allocation of the DSG to Local Areas for local provision, with the exception being Academies and Free Schools who receive funding directly. There is no budgetary framework for the HNB of the DSG, and most Local Areas are in deficit due to the reasons outline within this document increasing growth in the SEND sector without adequate resources to meet the needs effectively and equitably. Where Local Areas are in deficit, they are required to produce a plan to outline how they will manage this expenditure to fall within expected boundaries. There has been an introduction of a ‘safety valve’ program to aide Local Areas with exceptional HNB expenditure, however this is not transparent in terms of what it will achieve to meet needs with ‘value for money’ and is perceived to be much more about managing the throughput into the SEND system. As such it would potentially encompass illegal practice with regard the respective duties to assess and provide for children and young people with SEND and their families.
•                  Commissioning and Provider Tensions. Given the lack of suitable capacity within Local Areas to meet the needs of children and young people with SEND and their families, the independent sector has grown. There are many good providers of education, health and social care, however there are also organisations who capitalise of the increasing reliance on independent providers with selective market shaping in relation to secured provision. Often this relates to contractual agreements between providers and Local Areas for a specific service, which once agreed is deemed to require further resources to maintain. There are occasions where this may be legitimate, however when settings are consulted as to whether they can meet a child need and terms are agreed, requests for additional resources in order to ‘maintain a placement’ can be perceived cynically as a breakdown would be in no-ones interest and be severely detrimental to the child, leaving the Local Area with little choice but to continue to fund high-cost provision due to a limited provider market.
•                  Joint Inspections Local Areas SEND Provision. Joint inspections conducted by Ofsted and the Care Quality Commission (CQC) were introduced to ascertain how well Local Areas were doing in terms of implementing the new arrangements. The inspections were intended to be a ‘one -off’ but it is apparent that most Local Areas are struggling to meet their legal duties. Local Areas that are deemed to have failed to achieve sufficient progress were required to produce a Written Statement of Action (WSOA) setting out how they intended to address the specific areas of concern. Although the programme of inspections was affected by COVID-19, most of the Local Areas have been required to produce a WSOA. This indicates systemic failures of Central Government in PSED (understanding the impact) setting deliverable legislation and providing necessary resources to enable Local Areas to successfully be able to implement the CFA. Perhaps more worrying is a recent trend where Local Areas who have highlighted failures by Ofsted and CQC and now ‘passing’ their inspections or revisits, with concerns that would have previously warranted the publication of a WSOA. Is this a ‘watering-down’ of standards, or a recognition that successful implementation of the CFA is an impossibility, and the joint inspections are now redefining the ‘success’ criteria?

It is clear that the CFA has not succeeded in meeting its aims and aspirations. In part it is reasonable to consider the impact of ‘Brexit’ process where due to shifting priorities Central Government did not allocate the necessary leadership, resources and governance to support the proper implementation of the legislation. It could also be considered that the direct and indirect effects of austerity have created challenges for Local Areas in terms of meeting their statutory duties with reduced staffing, increasing operational costs and shifting national priorities. More recently COVID-19 had a further impact with the Coronavirus Act and the ‘reasonable endeavours’ duty which temporarily relieved Local Areas of absolute duty to provide specifics and meet statutory timescales, in turn creating waiting lists for assessments and provision, detrimentally impacting children’s health and wellbeing through lack of needed services and a snowballing growth in children and young people with Social, Emotional and Mental Health needs. But the bottom line is this, the work was considered done. Central Government cannot lose, if things go well, they take the accolades, if they go badly, they commission an investigation and criticise everyone but themselves. A colleague said: “There is no such thing as Local Government, only local delegation”. Currently it is an impossibility for Local Areas to meet the needs of children and young people with SEND, and it will take accountability, for those creating the legislation to give those responsible for adhering to it the tools to enable children and young people with SEND and their families the opportunities to live their lives as they desire.

May 2022