Written evidence submitted by The Independent Provider of Special Education Advice

SFC0004

Introduction

1. IPSEA (Independent Provider of Special Education 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. We have noted the National Audit Office report on SEND published in October 2024. As a charity that helps families navigate the education system, we offer our observations on how it currently fails too many children and young people and their families and what the implications of any legislative change are likely to be.

Overall picture of unlawful decision-making and insufficient accountability

7. The system for supporting children and young people with SEND is broken. It lacks local accountability and is riddled with unlawful decision-making, with no negative consequences for local decision-makers – only for children and young people with SEND. These negative consequences have been set out in detail over the last five years by the House of Commons Education Committee, the National Audit Office, the Administrative Justice Council and many others. This overall picture of non-compliance is reinforced every year by statistics from the Department for Education and the Ministry of Justice.

8. There is an urgent need for transformation, but not through wholesale legislative reform. What is needed is a firm, non-negotiable commitment to applying and enforcing the existing SEND framework. The system for supporting children and young people with SEN must be made to work as set out in the Children and Families Act 2014, The SEND Regulations 2014 and the SEND Code of Practice.

9. There is no evidence that this is not possible. The 2014 reforms had the potential to transform the provision and support that children and young people with SEN receive, to ensure that every child and young person had access to support that meets their needs and respects them as an individual. The legislation still has the potential to do this, if policy-makers are committed to making the system work as it should for every child and young person.

10. At present the current system works when parents enforce it. But any accountability that exists flows from individual parents bringing complaints or appeals – an option that is not available for every family. The onus is firmly on families to know, understand and enforce their children’s legal rights.

11. Families who are able to access legal advice (whether paid or not) are in a stronger position to secure their children's rights than those who are not able to do this – which means that some of the children and young people who are most in need do not get the right support. It is important to be clear that this inequitable situation is created by unlawful decision-making, not pushy parents.

12. One particular area where greater accountability is needed is in the delivery of SEN Support in schools, which we believe should be put on a statutory footing. SEN Support currently derives from the SEND Code of Practice, not the law. There is a lack of detail in the Code of Practice on how an education setting should determine if a child or young person has a significantly greater difficulty in learning than the majority of others of the same age, or a disability that prevents or hinders them from making use of facilities of a kind generally provided for others. There is also a lack of clarity on what good SEN Support looks like.

13. The lack of detail in the SEND Code of Practice about the nature of special educational provision for children and young people who do not require the additional support of an EHC plan means it is difficult to establish a failure of the “best endeavours” duty[1] and makes enforcement generally very difficult. This, we believe, has contributed to the steady rise in the number of children and young people who have an EHC plan as the only way to obtain necessary provision and support.

14. The lack of enforceability of SEN Support enables non-inclusive practice in mainstream schools. Putting it on a statutory footing would be a major improvement for children who do not need an EHC plan but do need extra help. We believe that this should apply to all providers in the early years and further education sectors, as well as to maintained nurseries and schools.

Restoring confidence means upholding children and young people’s rights

15. Children and young people with SEND are not receiving the special educational provision they need because the legal framework is routinely disregarded and their statutory rights are not enforced. This, more than any other factor, undermines parental confidence in the system.

16. The previous government’s SEND and alternative provision improvement plan did not address this issue. It was based on the mistaken premise that there is currently a lack of clarity about what should be provided to children and young people with SEND, an excessive amount of local discretion, and too many children and young people receiving too much unnecessary specialist provision.

17. We disagree with this premise, for the following reasons:

• The current SEND legal framework is clear about what children and young people are entitled to and where responsibility lies. Much of the “discretion” exercised by local authorities that was referred to in the 2022 green paper is unlawful.
• The problem is not that children and young people with SEND are receiving costly provision that they do not need, but that too many children are not receiving the support that they do need.

18. The law as set out in the Children and Families Act 2014 and The SEND Regulations 2014 is clear and specific, and applies in every local authority area in England. The current law makes clear:

• How and when parents/carers and young people can request an Education, Health and Care (EHC) needs assessment.
• How children and young people and their parents should be involved in producing and reviewing EHC plans.
• What is required from health and social care alongside education.
• What is required of schools and local authorities in relation to the transition to adulthood.

19. It also ensures that parents/carers can:

• Secure an EHC plan if their child or young person needs this level of support,
• Request a place at an education setting that meets their child or young person’s needs,
• Get essential therapies such as speech and language therapy or occupational therapy in their education setting,
• Appeal to the SEND Tribunal, challenge unlawful decision-making and/or pursue a complaint.

20. What is missing is compliance with the law, and accountability for non-compliance. The prevalence of unlawful decision-making at local level[2] is a crisis that we urge national and local policy-makers to explore and resolve.

21. Instead of proposing a solution to this, the SEND and alternative provision improvement plan risks diluting children and young people’s right to special educational provision and support that meets their individual needs by introducing new national standards.

22. While the focus of the intended statutory national standards is consistency, the risk is that a new statutory framework would, if implemented, level down not up, meaning many children and young people would receive less provision and support than they need.

23. Our concern is that the underlying reason for pursuing new national standards is to review – and ultimately to raise – the threshold for children and young people’s entitlement to special educational provision that meets their needs, based on a desire to contain costs and reduce the number of appeals to the SEND Tribunal.

24. IPSEA suggested to the Department for Education in our response to the consultation on the SEND green paper in 2022 that the Government should consider asking local authorities what the barriers are at a local level to compliance with the SEND legal framework and what they need in order to fulfil their statutory duties to children and young people.

25. One of the biggest current barriers to improving provision for children and young people with SEND is the fact that the previous government’s plan coincided with the implementation of two major SEND financial intervention schemes across a large number of local authorities. Both the safety valve intervention programme and the delivering better value programme require local authorities to curtail their spending on support for children and young people with SEND.

26. We are particularly concerned about the safety valve intervention programme, which is a series of agreements between the Department for Education and individual local authorities with the highest deficits in their high needs budgets. The ostensible aim of these agreements is to reform local high needs systems in order to improve provision for children and young people with SEND, within the constraints of available funding.

27. The aim of the safety valve intervention programme may be a reduction in costs, but the effect appears to be a reduction in provision for children and young people, putting their education and wellbeing at risk.

28. The conditions attached to individual safety valve agreements appear to encourage local authorities to breach their statutory duties to children and young people with SEND. From the information that has been made available to us via requests made under the Freedom of Information Act in October 2023, our concerns appear to be justified.[3]

29. From the responses we received from local authorities that have a safety valve agreement, it is clear that, across the board, reaching financial sustainability appears to depend on:

• “Managing demand” for EHC plans
• Making use of more “appropriate” (ie local mainstream) provision for children and young people with an EHC plan
• Reducing expenditure on children and young people with the most complex needs

30. There is a focus on keeping down the number of EHC needs assessments undertaken and EHC plans issued, as well as a trend towards providing standardised (rather than individualised) support. We have found no information or analysis of whether this approach is meeting children and young people’s needs.

31. The safety valve intervention programme fails to centre the needs of children and young people with SEND and instead focuses above all on reducing expenditure. Key performance indicators are all about costs and not about disabled children’s outcomes.

32. The success of the SEND and alternative provision improvement plan depends on a higher proportion of children and young people with SEND being educated in local mainstream settings. This will require many mainstream schools becoming much more inclusive than is currently the case. Making schools inclusive requires a commitment to upholding existing equality legislation.

33. The 2022 SEND green paper missed the opportunity to undertake an analysis of the implications of the Equality Act 2010 for schools and the extent to which the legislation should be driving greater inclusion for disabled children in mainstream schools. There is a presumption in law that children with SEND should attend mainstream schools, but insufficient analysis of what will make schools more inclusive and what is driving children and young people out of mainstream settings.

34. The Government should focus on schools’ duties to make reasonable adjustments and on ensuring that school leaders properly understand their legal obligations under the Equality Act 2010. This should be central to any drive towards inclusive education for all children and young people. Once again it is a question of accountability for upholding existing legislation.

Conclusion

35. We would like to reiterate our view that no changes should take place to law or policy that would make it harder for children and young people to access special educational provision and support that meets their individual needs, or harder to seek redress when these needs are not met. No evidence has been presented that children and young people with SEND are receiving provision and support that they do not need.

November 2024