Written evidence from Anita Devi, CEO at TeamADL (CFA0131)
HOUSE OF LORDS CHILDREN AND FAMILIES ACT 2014 SELECT COMMITTEE INQURY
Written evidence with regard to the Children & Families Act 2014
Anita Devi, CEO at TeamADL CIC www.teamadl.uk
Summary
In this submission, I draw on my experience and expertise to uncover some of the many problems that exist. This includes:
• Anomalies in the Children and Families Act 2014 (primary statutory instrument)
• Anomalies in the SEND Code of Practice 2015 (secondary statutory instrument)
• Differences between Children & Families Act 2014 and SEND Code of Practice 2015
I raise practical implementation issues around:
• Accuracy of information disseminated by the DfE delivery partners
• Political posturing by MPs
• Approaches adopted by the DfE
In addition, I highlight working practice issues around:
• Accountability
• Commissioning
• Strategic delivery and change management And I raise questions about:
• Intent of integrated services
• Evidence-based approaches
• Existing paradigms
Finally, I provide solutions and insights into:
• Required frameworks to drive change and effective implementation
1. Background and Context
As an Asian female, I have been involved in SEND for more than two decades. Throughout the SEND Reforms, I was actively involved in shaping the system. I lead teams of SEND specialists, many of whom are parents of children with special educational needs / disability. Below is my considered response to some of the questions pertaining to the inquiry. I have passed my PhD viva on Regulation 50 (Part 3) in practice, and I regularly train leaders on Regulation 51 (Part 3). As a consultant, I have worked with schools, MATs, LAs to implement and deal with challenges occurring, especially when local standards have not met expectations. Naturally, my views have been collated from this lens of experience and expertise.
2. Improvement & Implementation
I would argue it has not necessarily improved the situation for the most vulnerable. The Act, I believe was constructed to increase inclusion. The term inclusion is itself problematic, as many will have a different interpretation of what that means or looks like. In its very simplest form, inclusion means an acceptance of diversity. If diversity is recognised and perceived as a pre-requisite of inclusion, then there also has to be an acceptance of different opinions and voices. This is not the case. The existing ‘blame culture’ is rooted in an over reliance in the law (one view). So, conflict is perceived as the opposite of trust.
In 2021, We wrote an SRP Position paper for the DfE. They refused to discuss it; however, it contained the following:
Seven years on from the passing of the Children and Families Act 2104, so many of the original aspirations of Lamb Inquiry 2009 and the SEND Reforms remain unachieved. The SEND Reforms (2011- 2018) including full implementation were ambitious and that ambition has not been realised. Thus, demonstrating ambition on its own, is not sufficient. Innovative ways of working are required to build relationships, capacity, and shift paradigms.
Our own research and the work TeamADL lead on, supports the findings of Ofsted (June 2021) that provision varies greatly across the country and within regions. Common weaknesses identified locally being around,
1. a lack of joint commissioning
2. no co-production or co-production that was not working properly
3. poor-quality education, health, and care plans (EHC plans)
Question for the House of Lords: Why does the NHS 10-year plan not reference the Children & Families Act 2014?
The Ofsted (May 2021) report looking at SEND Support in schools also highlights core areas of weakness in:
1. gaps in external provision and training
2. lack of coordination between services
3. lack of accountability
4. weak co-production
In the Lamb Inquiry (2009), the construct ‘conflict’ is used just twice in the introduction, as being the opposite of trust. Yet it become the whole focus of the rhetoric following publication.
As the system stands it often creates ‘warrior parents’ at odds with the school and feeling they have to fight for what should be their children’s by right, conflict in place of trust.
It does not and should not have to be like this. I have seen for myself the difference that schools can make with good information, and particularly with good communication: the engagement of parents for the benefit of their child’s progress; trust in place of conflict.
In other words, ‘trust’ was positioned as desirable and ‘conflict’ not, and both seen as mutually
exclusive. Thus, placing parent and practitioners in one camp or the other.
We believe trust emerges from conflicts being resolved, not the absence of conflict. Therefore, conflict is the context for co-production and when conflict and trust overlap, co-production begins. There will never be complete trust. However, an overlapping model gives scope for measuring increasing progress in co-production.
It is important to clarify trust does not imply agreement; simply a safe environment for everyone (parents and practitioners alike) to express their diverse views. If the outcome goal is shared (i.e., all children and young people achieve well in their early years, at school and beyond; they find employment where that's appropriate; and lead happy, healthy, and fulfilled lives which they have choices and control over), then the diverse, conflicting voices should contribute to finding the best solutions. Social justice, which is at the heart of meeting the provision of needs for children and young people with SEND cannot be addressed without considering the dynamics of power. Co-production is based on the recognised equality.
A better word for conflict is tension. When people with different perspectives come together to discuss a common concern (i.e., the progress of children and young people), conflict is to be expected, not avoided. It is when we delve deeper into the conflict, we find solutions, and from the solutions trust grows. Trust is desirable, but it isn’t automatic. Conflict is unavoidable, but it isn’t always a negative.
Tension 1:
Co-production is not referenced in the Children & Families Act 2014 and mentioned only once (page 61) in the SEND Code of Practice 2015 and yet there is an assumption that this should be a desirable outcome reality of the SEND Reforms (2014-2018). The paragraph on page 61, states:
“Local authorities should do this in a way which ensures that children, young people and parents feel they have participated fully in the process and have a sense of co-ownership. This is often referred to as ‘co-production’.”
This is not co-production! The paragraph uses both the word participation and co-production synonymously. Incidentally, co-ordination is referenced 13 times in the SEND Code of Practice 2015 and collaboration 10 times, mainly in relation to education, health, and social care services. Ofsted (May 2021) refers to lack of coordination between services and many area inspections pick up on lack of integration in local commissioning. However, in the Code this refers 11 times to care and health services. In effect, language and interpretation of meaning is a key issue.
Tension 2:
Section 19 of the Children and Families Act 2014 states, ‘local authorities, in carrying out their functions under the Act in relation to disabled children and young people and those with special educational needs (SEN), must have regard to:
• the views, wishes and feelings of the child or young person, and the child’s parents
• the importance of the child or young person, and the child’s parents, participating as fully as possible in decisions, and being provided with the information and support necessary to enable participation in those decisions
• the need to support the child or young person, and the child’s parents, in order to facilitate the development of the child or young person and to help them achieve the best possible educational and other outcomes, preparing them effectively for adulthood’. (SENDCoP 2015 p19)
As an organisation supporting settings and local authorities, we at TeamADL sign up to these principles. However, the premise of the principles is not reciprocity, but rather one of that ‘done to’. Chapter 9 further states, ‘Children, young people and families should experience well-co-ordinated assessment and planning leading to timely, well-informed decisions.’ (9.20) Again the language of ‘should experience’ does not necessarily imply an active agent of change for themselves. The spirit of co-production is missing from the legislation and therefore not perceived as evidence in policy or practice. In effect, an increase in conflict has followed. Principles need to be determined through shared values, that place a responsibility on everybody, not just those who work for a local authority.
We have seen individuals who read the SEND Code of Practice 2015, assume they know and understand SEND. Where is tacit knowledge of practitioners being valued? Parents know their children and practitioners know their area of expertise. In a meeting, parents have the freedom to express the full range of emotions available to them, whereas practitioners must retain professional boundaries. So, it has become a system of ‘who shouts the loudest’. Individuals are not coming to the table with a true sense of listening and being heard is interpreted as ‘agreeing’. It should be noted, alongside this paper submitted to the DfE, many innovative solutions to address these complexities were proposed. They refused to even discuss the solutions and ideas. So, this lack of listening stems at the very top.
Multiple voices: https://teamadl.wordpress.com/2022/02/28/no-one-has-a-monopoly-on-truth- small-t/
Tension 3:
Murray (2009) suggests three areas that need to be in play for true co-production to be a reality through joint responsibility. Firstly, a re-structuring or alignment of organisational structures. Secondly networks that support a positive learning culture (see our 365 SEND Solution) where training and Communities of Practice are internalised and localised through more flexible and responsive programmes. Thirdly, evolving innovative solutions. This third factor has shaped and formed both our submissions. However, it is the first that is most relevant to this third tension.
There are exists two separate organisations for parents / carers:
1. SENDIAS - The Special Educational Needs and Disabilities Information Advice and Support Services that offer information, advice and support for parents and carers of children and young people with special educational needs and disabilities (SEND). This service is also offered directly to young people. The service is free, impartial, and confidential.
2. Parent Carer Forums (PCFs), one in each local authority to ensure the services in their area meet the needs of disabled children and their families. This is predicated on the social justice
model of representation, and as such diverts from co-production by introducing hierarchical structures.
In other words, the former is to address any issues and problems and the latter is to improve the system. Our research tells us there is no overlap between the two in practice and parents regard these as mutually exclusive organisations. And yet, if issues and patterns of inadequate provision are detected by SENDIAS, surely this could be used to improve services. Parents/ carers feel divided – either they are in the conflict zone, or they trust the system, reference back to Lamb (2009).
Many MPs speak in the language of fight and parents vs. the system, thus serving to embed a conflict and embed a culture of victimisation.
Question for the House of Lords: How are Ministers held to account, when they use conflict and emotive vulnerabilities to further their own political standing in the community?
Language matters https://teamadl.wordpress.com/2021/01/14/i-am-a-teacher-i-teach/
On the issue of implementation, to date no one has undertaken a full review of the DfE delivery partners and the effectiveness of their commissioned services. Between 2011 and 2021, the DfE paid two charities £152 million to support delivery of the SEND Reforms / Children & Families Act 2014 (FOI, 2022). They continue to use these same partners, without proper impact scrutiny and creating a monopoly / over- reliance on the same voices. The FOI pertains to just two charities. Over the years, the DfE have commissioned several similar organisations. The full amount spent is not known.
Questions for the House of Lords:
• Has there been extensive VfM scrutiny about how much the DfE has spent in implementing the Children & Families Act 2014?
• Who have they partnered with and what impact this has had?
• Should the DfE continue to partner with the same organisations year on year?
• Why has the DfE not considered a social enterprise model for circular SEND resourcing to schools and colleges?
Over the years we have seen how these delivery partners have added to the confusion of the system. We have supplied the DfE with evidence / examples. These have been ignored.
https://teamadl.wordpress.com/2021/04/21/bugs-viruses-and-ransomware-in-the-send-system/
3. Barriers to Implementation
I have detailed key issues regarding the trust vs. conflict dialogue above. Before elaborating on these, consideration needs to be made to the cost of focussing on trust vs conflict.
The law is used as leverage for accountability, at the cost of quality assurance. With a focus on entitlement, empowerment has been lost. Below I suggest reasons why this might be the case.
There is significant mismatch between legislation, policy and practice. The law is overly used as an accountability measure. Therefore, in sections the law is too vague or in fact missing elements for effective policy and practice alignment. It should be noted the SEND Regs 2014 (primary statutory instrument), does not align with the SEND Code of Practice 2015 (secondary statutory instrument)
plus other legislation / policies. SEND Code of Practice 2015 is meant to be about how this is applied in practice i.e., the interpretation. However, the ambiguity of the wording and mismatch is what gives rise to increased legal battles and tribunals.
1) There is significant confusion between special educational needs and disability. Bringing the Equality Act into the previous SEN arena has not been carefully thought through. Not every SEN is a disability and not every disability is a SEN. For example, mild dyslexia is classified as SEN and severe dyslexia is a disability. There is also a fine line between dyslexia and learning difficulty.
https://teamadl.wordpress.com/2020/09/02/special-educational-needs-and-disability-time- to-restore-a-differential-diagnosis-approach/
SEN is defined by provision that is ‘additional to and different from’. In other words, comparison is based what is required compared to peers of a similar age. Child development is also taken into consideration. This also gives rise to the recognition of short-term interventions needed to support a child / young person catch up / fill a gap or embed learning. Hence the construct in the Code of SEN Support. The C & F Act 2014 does not recognise SEN Support or even short-term interventions. This has been at the heart of many tribunals. Disability is a need that affects day to day life and is long-term. Disability needs are met through reasonable adjustments. So, it is a slightly different and nuanced approach. When the two are fused, everything becomes long-term and as such increases the legal battles.
2) Education Health Care Assessment (EHCA) threshold is different to Education Health Care Plan (EHCP) criteria. EHCA 9.8 -9.16 in SEND Code 2015 (pages 143-146) implies anyone can apply for an EHCA, where they believe a child ‘may’ have SEND, and whilst there may be criteria (9.14) stipulated, it really has not weighting (9.16). This is possibly where many of the first legal battles begin.
The law gives no scope to investigating ‘may have’ SEND. As such the distinction between low attainment, gap in learning and SEN/D is missing. The practitioners have no voice to suggest alternative reasons what a child / young person may not be achieving what they should be.
Question for the House of Lords: How has the DfE discerned different reasons for a child / young person not achieving desired outcomes?
May 10, 2019, the following message was sent to Robert Halfon MP, Chair of the Education Select Committee, in response to live hearings taking place:
A published research paper by Castro & Palikara (20161). Also highlights the lack of a theoretical framework alignment in the SEND Code of Practice 2015.
Quotes from my PhD: (Devi, 2021)
“In other words, whilst the 2015 SEND Code is somewhat theoretically based on biopsychosocial and bioecological models of development and disability, provision is still driven by a medical model approach (Castro & Palikara, 2016) and not a social model of integrated services to deliver quality provision (Ofsted, 2021). Systematic diagnostic identification methodology (by the class teacher and specialist) that draws on typical child development patterns enables practitioners to infer neurodiversity in a learner (Tilestone and Layton, 2004) and therefore respond adjusting social structures to ensure inclusion.”2
As a practitioner, our response to need focusses on ‘provision’. Hence, we talk of Provision Frameworks. For parents/carers the focus is mostly on barriers. Need and barriers are also different, This is where some of the misalignment occurs. If the focus is accurate identification and need is crystalised, then in ‘theory’ outcomes should bridge the dialogue. However, Chapter 9 confuses SMART targets with outcomes. As such most EHCPs (see below) are poorly written.
As I have published elsewhere, an outcome is ‘something that will happen as a result of an activity, process, input or intervention’.
1) What works/is working well
2) Focus on changing things that are not working
3) Addresses need (i.e., distinction between barrier and need)
4) Moves young person towards their aspirations
In effect, person centred tools should be used to write a person-centred plan, so it can be reviewed in a person-centred way. This is not happening because the plans are not person centred. They are template centred. In January 2022, I started a petition to bring about a single EHCP template https://petition.parliament.uk/petitions/606602 Currently 152 templates exist in England. One for each local authority. If a child with an EHCP moves the plan has to be rewritten. This affects looked after/ foster children significantly. Some schools (e.g., London) intake from 8 local authorities. As such have to deal with 8 different systems. One single template would open the discussion for one national system. This would enable the DfE to quality assure across local authorities. It should also be
1 Castro, S., & Palikara, O. (2016). Mind the Gap: The New Special Educational Needs and Disability Legislation in England. Frontiers in Education (Lausanne), 1, Frontiers in education (Lausanne), 2016-11-01, Vol.1.
2 Devi, A (2021) SENCOs in England: career trajectory, CPD and a leadership model through identity and agency (PhD Thesis, Lancaster University)
ANITA DEVI | House of Lords Inquiry 2022
noted, four years ago I suggested the DfE look into blockchain technology to manage data between education, health and social care. The current EHCPs are not constructed through person-centred thinking tools, as such they are not person-centred plans and yet practitioners are required to undertaken person-centred reviews.
Question for the House of Lords:
• Has the DfE undertaken a scrutiny of plans to confirm that the majority are person-centred in process and outcome?
• Why is the DfE over-reliant on Ofsted to check for compliance of the Act?
• What has the DfE actually done themselves as a Department to support effective implementation?
The original Children & Families Act 2014 was based on an outcomes-based accountability approach. This is critical because it takes away from input and looks at ‘what difference this has made’. because of the contradictions between the Code of Practice 2015 and SEND Regs 2014, legal focus has been entirely on ‘input’ not impact. The new SEND Green Paper (DfE, 2022) further stress input measures through standards accountability. This will serve to increase legal battles. The systems, structures and change process built up around the Children & Families Act 2014 continues to be based on a single point of failure, thus making legal battles more likely.
Question for House of Lords: What is the theory of change underpinning the DfE SEND Green Paper 2022 and how does this align with the Children and Families Act 2014?
As part of my consultancy role, I have been involved in supporting LAs write a Written Statement of Action, when they have not met local area inspection standards. There is an anomaly in the EHCA / EHCP timeline, which is causing LAs many challenges. In other words, the Plan is written with parents before the decision to have a plan is made. Psychologically parents go through the pain of writing the plan, to then have it denied. Hence an increase in tribunals. To my knowledge the DfE has not undertaken any research across the 7000 annual tribunals to produce ‘key learning points’ document for LAs, nor have they scrutinised the failing points of LAs across the country to pick out common errors.
This timeline error was pointed out to the DfE strategic delivery partners. They chose to ignore it.
I have also trained different stakeholders on EHCA / EHCP panels. With a legally trained person in the room, what was interesting, was pathos and ethos swayed the decision. Logos was not considered. Yet ‘the law’ is based on logos. So again, a mismatch. The cases I used for the training were ones where there was significant pieces of information missing – yet no one asked thee right questions to triangulate the information. This by and large is to do with the way panels are set up and volume of information each panel member has to assimilate prior to the discussion. My work helped one LA track the thinking panel members offer behind the decision.
Again, to my knowledge the DfE have never looked into panel decision making drivers and errors. Given that it is these panel decisions that often trigger legal battles, this is a significant gap.
As you can see, I come at this from a places of knowledge and expertise. Hence the DfE’s reluctance to even have a conversation with me over the last 10 years is puzzling or bias. SEND and implementing cultural change doesn’t have to be complex. It does, however, need to be joined up and the existing paradigm do need to be questioned.
4. Enablement
See EHCP comments above.
In addition, I share a quote from a Foster carer that I shared with practitioners, when I was chairing an Assessment Conference in London,
“When we were struggling with two boys with severe attachment issues we had conflicting advice from social workers, psychologists, and others. We worked a lot out for ourselves which meant sourcing and reviewing a lot of information ourselves. We are a lot more therapeutic with our practice now, but even now there are those who don't understand or agree with how we approach things. Many different voices, plus of course every child is a total individual, so therapies may or may not work with them. I love the multi-agency approach, but I suppose a lot of ongoing cooperation and flexibility is required.”
5. Family Justice
More adversarial. However, this is due to historical baggage, perceptions of entitlement and legal loopholes. Confusion in the system does not help.
Mediation is seen as a piece of paper process. A different and new approach needs to be in place. We presented to the DfE an alternative model in 2021. Unfortunately, they declined the invitation to talk.
6. SEND specific implementation
For the system to be effective there has to be legislation, policy and practice alignment. If the law is the only mechanism being used as leverage for accountability, this in itself is where the problem lies.
The issues are complex and involve communication, intent as well as distribution of resources. The DfE has become overly reliant on charities to deliver services. This approach keeps ‘the problem’ locked in difficulty, as opposed to solution. Charities are set up to solve a problem, if they are effective, the problem should cease to exist and therefore the charity would no longer be required. However, too many charities need to defend their existence to obtain grant funding, hence an over reliance on rhetoric to keep defining the problem, as opposed to the solution.
Refinement of legislation is required for accuracy and innovation to be part of the way forward. The Local Offer is also highly under-used as part of the system and process.
7. Final thoughts
Given the lack of joined up thinking around SEND, in addition to the Children’s Commissioner, is there a need for a National SEND Advisor, that has specialist knowledge and background in this area? This would enable Reginal Commissioners to be involved in monitoring and eliciting local issues before they escalate. Meditation isn’t working, so we need to define a different way to address unresolved conflict.
A final note on my PhD and approach
My PhD (2021, Lancaster University) focuses on the role of the SENCO – a statutory role (Regulation 50) and required to undertake statutory training (SEND Regs 2008). My research unpicks how the legislation on its own isn’t enough and what is missing is clarity in policy and practice. The research puts forward a model for recruitment and retention, that ultimately benefits children and families through better relationships. The final line in my thesis states, “Whilst case law is shaping the system, it is not necessarily improving it.” (Devi, 2021)
It is critical for us to re-think our over-reliance on the law. It has been said ‘justice is public love’. If people ‘know’ (not just feel) they are loved their approach to themselves, and others would be different. Imagine a world where everyone knew they were loved, what a just world that would be.
I spoke recently at an international conference on ‘Love has to look like something’. So, I am not advocating an airy fairy ideal. Love begins with responsibility, not just entitlement. It needs to be postured in enablement. The law focuses on entitlement.
Question for the House of Lords: How can we bring about the desired outcomes for the nations’
children and young people, without it always being about a heavy reliance on the law?
I do not claim to have all the answers, but I speak from my lens of experience and expertise, and I believe I ask questions that promote a deeper understanding for implementation. Hopefully, my full bio below will also help you see, I come at this from multiple strands, with wide ranging experience to provide an informed contribution:
As a former SENCO, Senior Leader, School Improvement Advisor, and local authority SEND Advisory Teacher and Healthwatch Trustee Anita Devi carries a wealth of experience in developing leaders of learning. Her own teaching career spans early years to post grad in the UK and overseas and Anita lives her why through her belief in the joy of learning. In 2017, Anita was awarded the prestigious international Influential Educational Leaders Award for her SEND Pipeline strategy developing professional from initial teacher training to advanced and experienced SENCOs. Anita is author of the first SEND book for Early Career Teachers and has contributed to several other publications. In 2019, Anita was recognised as a Global Goodwill Ambassador and the team were finalists in the Disability Smart Awards for their work on SEND Careers. Throughout COVID19, Anita offered free coaching to school leaders to support provision and leadership of SEND. Anita submitted her PhD thesis on the career trajectory of a SENCO (beyond the NASENCO) in December 2021. Currently a Changemaker Education Consultant & Founding CEO of #TeamADL and pioneer of #365send
May 2022