PA0134

Written evidence submitted by IPSEA

Introduction

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

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

3. Our Tribunal Helpline gives next step advice on proceedings in the First-tier Tribunal (Special Educational Needs and Disability) – more commonly known as the SEND Tribunal. This is also the gateway to our Tribunal Support Service through which we represent parents who are making appeals or claims to the SEND Tribunal.

4. Our helplines and Tribunal Support Service are largely delivered by trained volunteers with support from IPSEA’s legal team, enabling us to provide our services to parents/carers and young people free of charge.

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

6. The range of services that IPSEA delivers across England places us in a unique position to identify trends and common issues with the way the legal framework on support for children and young people with SEND is implemented.

7. We have noted the Committee’s terms of reference. This submission addresses factors causing persistent and severe absence among pupils with SEND, how support for pupils with SEND and their families could be improved, and the impact of the Government’s policies on school attendance.

Barriers to school attendance for pupils with SEND

8. Children with SEND are over-represented in the numbers of children who are regularly absent from school, accounting for 25 per cent of all persistent absentees.[1] Any analysis of school attendance and absence figures needs to begin with a strong understanding of the wide range of barriers to attendance for pupils with SEND. Attendance cannot and should not be considered in isolation from factors such as what stops pupils with SEND attending school, what they struggle with when they are there, and whether the support they need is being provided.

9. It is important not to over-simplify a situation that is rarely simple: there are many good reasons why pupils with SEND miss school. In addition to illness and regular medical appointments, they may be dealing with high levels of school-related anxiety and/or bullying. They may experience repeat exclusions – including so-called ‘informal’ exclusions – or lack a school place that meets their needs. Their experience of school may not be a positive one, and schools need to find out why this is, rather than sanctioning parents for their non-attendance.

10. Minimum attendance management expectations are problematic for children with SEND, unless reasonable adjustments are applied to a school’s attendance policy. A focus on achieving arbitrary attendance targets may also lead to unintended consequences – such as unlawful ‘informal’ exclusion – for any pupil unable to comply, to improve the school’s overall figures. 

11. A particular cause for concern is the popularity among schools of award schemes for good attendance, which not only have a negative impact on pupils with SEND who may be unavoidably absent, but may also be discriminatory under the Equality Act 2010.

12. IPSEA’s volunteer advisers regularly advise and support parents and carers whose school-aged children are unable to attend school because of anxiety or similar difficulties, which are very often associated with having special educational needs. This is often known as 'school refusal', but it is an unhelpful term because it suggests that the child (enabled by the parent) is making a choice not to attend school rather than being unable to do so.

13. School can be a miserable experience for children with SEND, if staff do not understand their needs and are not prepared to make necessary and legally required adjustments. The school environment can be unbearably noisy, distracting or even painful. Children can become increasingly anxious and overwhelmed. They may be singled out by their class-mates for being different. Behaviour that schools find disruptive is often associated with anxiety caused by things like transitions between lessons, unstructured times of day such as break-times and a lack of personal space.

14. We know from the large number of families who seek our advice and support that many children with SEND do not get the help and support they need in school and instead are punished, isolated and excluded. Schools do not always work with parents to make sure that children’s needs are correctly identified and that they get the right support. The outcome is that difficulties related to a child’s special educational needs can become behavioural issues.

Improving support for pupils with SEND and their families

Duty to identify and support children with SEND

15. Concerns about attendance should always be considered as a potential indicator of unmet special educational needs. “Special educational needs” is a broad term that covers a wide spectrum including social, emotional and mental health needs. A child does not need to be struggling academically in order to access SEN support in school, as paragraph 6.23 of the SEND Code of Practice (2015) makes clear.

16. We know from the well-reviewed and over-subscribed training courses we provide for school SENCOs that schools do not always have a good enough understanding of the SEND legal framework and the support to which children are entitled by law. Too often we see inaccurate statements being shared as facts, such as a child’s needs not being “severe” enough to meet local criteria for support. For example, parents are routinely told that there is not enough evidence to justify a request for an Education, Health and Care (EHC) needs assessment for their child – when in fact the law is clear that if a child has or may have special educational needs, for which it may be necessary for them to receive special educational provision through an EHC plan, an assessment should be carried out.[2]

17. Local authorities and schools have clearly specified duties under the Children and Families Act 2014 to identify and support children and young people with SEND. Schools have a legal duty to use their “best endeavours” to secure the special educational provision a child or young person needs, a duty that applies to mainstream and alternative provision settings.[3]

18. Where a mainstream school cannot meet a pupil’s needs, even with specialist advice and local support services, it should request an EHC needs assessment from the child’s local authority. (It is important to note that a child can still have an EHC needs assessment even if they are not in school.)

19. If a child has an EHC plan but is still struggling to attend school, the school and local authority should work with parents to consider whether the EHC plan needs to be reviewed and amended. The child may need extra or different support, and/or a different school. Their local authority must ensure that they continue to receive special educational provision[4], and the local authority must also comply with its duty to secure a suitable full time education for those of compulsory school age.[5]

Duty to secure alternative education for pupils who need this

20. Local authorities have a legal duty to secure suitable, full-time alternative education for those children of compulsory school age who, by reason of illness, exclusion or otherwise, cannot for any period receive suitable education unless such arrangements are made for them.[6] This applies whether or not a child has an EHC plan.

21. Local authorities should have regard to statutory guidance, which states that they should provide suitable alternative education as soon as it is clear that a child will be away from school for 15 days or more, whether consecutive or cumulative, and should do so at the latest by the sixth day of the absence. They should liaise with appropriate medical professionals to ensure minimal delay in arranging appropriate provision for the child.[7]

Schools’ duties under the Equality Act 2010

22. Schools have clearly defined duties under the Equality Act 2010 to make arrangements to ensure that disabled pupils can access education without significant disadvantage.

23. One of these duties is to make reasonable adjustments for disabled pupils. The Equality Act 2010 is clear that this duty applies to the way a school operates on a daily basis, including its policies and decisions.[8]

24. School attendance policies should be underpinned by a good understanding of barriers to attendance for pupils with SEND, as stated by Ofsted in a recent report.[9] A school’s attendance policy should state clearly how it will be applied for pupils with SEND, for whom adjustments may need to be made.

25. School behaviour policies should also state clearly how they will be applied for pupils with SEND. Behaviour cannot be considered in isolation to a child’s special educational needs and/or disabilities, either practically or legally. Behaviour policies should not simply be about disciplinary measures to achieve desired behavioural outcomes, but should explicitly aim to understand and address underlying causes of children’s behaviour in school.

26. Behaviour policies should anticipate reasonable adjustments that may be required. In addition, staff should be aware of the individual variations and adjustments required for individual pupils, and all occasions where a child is disciplined under the behaviour policy should be recorded.

27. We are not suggesting that behaviour expectations should be lowered for pupils with SEND but that the playing field is levelled for every child, by providing support in accordance with their particular needs. Treating every child in the same way is setting some children up to fail. The 2019 Timpson review of school exclusion stated clearly that the way some schools apply sanctions and exclusions has a disproportionate impact on children and young people with SEND.[10]

Support rather than sanctions

28. Schools should focus on understanding what lies behind a pupil’s non-attendance, rather than issuing penalty notices to parents. The use of legal powers to sanction parents is not appropriate for the parents of a child or young person with SEND who is experiencing school-related anxiety. Instead, there should be coordinated action by schools and support agencies to identify and make provision for all of a child or young person’s needs.

29. It is important to recognise that parents of a child or young person with SEND typically have to fight hard to secure the additional support their child needs. They may be fighting for this support while at the same time they and their child are being sanctioned for not complying with the school’s expectations on attendance. It is vital that schools address the root of attendance problems, rather than punishing families for the consequences of unmet needs.

Working with parents

30. Building and maintaining positive relationships with parents is essential. Discussions about attendance have to be based on trust on both sides. Parents need to be able to trust that their child’s school has a good understanding both of how the child’s special educational needs affect their school experience and of the SEND legal framework and equality legislation.

31. Parents know their children best, and parents’ concerns should be taken seriously by schools – even if the child seems “fine at school”, as is often reported.[11] Schools should work with children and parents to identify what is causing school-related anxiety and how this can be resolved. A punitive approach can lead to a child missing months or years of education, and to a damaging breakdown in the relationship between parents, school and the local authority.

Managed moves and elective home education

32. Before any child or young person with SEND is moved to another education setting in a managed move, there should be a full assessment of any underlying needs they have that are not being met. Support and advice should be sought from specialist teachers, educational psychologists, health professionals, and others as relevant.

33. A negative cycle often begins when a school perceives a child with SEND as a ‘problem’ and seeks to move them elsewhere. A managed move can be a positive development if a child’s special educational needs are assessed and understood, and the support they need is put in place at the new school, whether this is through SEN Support or an EHC plan. However, too often a lack of support in one school is replicated by a lack of support in the next school, which can lead to school anxiety and other problems.

34. A managed move should only take place if it is the best decision for the child or young person, not as a process for schools to remove a child they do not wish to support.[12] Families should never feel pressured to accept a managed move for their child to another school under threat of exclusion from the first school.

35. While schools should respect parents’ choice to home educate, if that is what they wish to do, elective home education is a serious step. No parent should feel under pressure to de-register and home educate their child because of difficulties at school or threats of prosecution.

36. For some children and parents, home education can be a positive step. However, we have seen cases where parents are encouraged to make arrangements to educate their child at home by the school or local authority when the parent themselves does not think this is what their child needs. We have heard of parents feeling pressured into home education to avoid prosecution for non-attendance.

37. Both managed moves and home education become a form of off-rolling when they are done as a last resort rather than a positive choice.

Impact of Government’s policies on school attendance

38. We observe a lack of join-up within the Department for Education across inter-related policy areas. National policy on school attendance appears to be considered separately to the Government’s policy on provision for children with SEND.

39. The overall message is that policy-makers’ priority is the needs of schools, not the needs of individual children and young people. What is described as “school refusal” should be seen through the lens of the school environment and culture, and what is making it difficult for a child to attend, rather than as a problem created by the child or family. “In many cases, it may be best understood as a stress response to problems caused by a rigid and pressured system; in which case, policy responses need to reflect this.”[13]

Summary

40. We agree with this statement in the Timpson review of school exclusion: “Schools must be places that are welcoming and respectful, where every child has the chance to succeed… They should understand how their policies impact differently on pupils depending on their protected characteristics, such as disability or race, and should give particular consideration to the fair treatment of pupils from groups who are vulnerable to exclusion.”[14]

• Children who struggle to attend school regularly should be supported not sanctioned.
• If a child has not had an assessment to determine whether they have any special educational needs, this should be carried out.
• If a child is known to have special educational needs, they should receive appropriate provision to meet those needs.
• If a school is unable to support a child using its own resources and access to existing services, the school should be proactive in requesting an EHC needs assessment for the child.
• Schools should consider the impact of the school environment on children with SEND, and should make reasonable adjustments to the environment and to school policies.

February 2023

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