Contact is a UK wide charity that supports families who have disabled children and those with additional needs.
In 2023/24, Contact helped 413,000 parents with information, advice and support. Contact also supports the National Network of Parent Carer Forums and its 127,921 members who are engaged in strengthening the voice of parents in strategic decision-making locally, regionally, and nationally.
Contact regularly runs focus groups with parent carers to gain their views. We ran a focus group with Parent Carers about the SEN System in August 2024. Our response has been informed by their contributions. Direct quotes from the focus group participants are in red throughout this response.
Contact is a member of the Special Education Consortium (SEC). Please consider SEC’s response as a representation of our views along with the individual response that follows.
Issues for response
The current SEN system is not fit for purpose. It lacks accountability mechanisms to ensure that SEND law is implemented, it is lacking in resources and specialist workforce and mistrust prevails between parents and local authorities.
Lack of Accountability
The Children and Families Act 2014 (CAFA) is clear, comprehensive and safeguards equality of opportunity in education for children with special educational needs and disabilities (SEND). The existing SEND legal framework is very clear about what local authorities, education providers and others must do. However, the law in CAFA is rarely properly implemented. LA’s routinely disregard their legal obligations and there are little or no consequences for poor decision making and legal noncompliance. Indeed, this is evidenced as 98% of cases at the SEND Tribunal are found in favour of the appellant. A parent told us that “there’s nobody holding LAs to account. They’re literally getting away with murder right now”. The current system works when parents enforce it by going through a redress system that they describe as purposely complex, convoluted and adversarial. Even within the current accountability system, which is reliant upon parental action to seek redress, LAs disregard their legal duties as they often do not abide by mediation standards and fail to bring a decision maker to the meditation or fail to attend meditation all together. Indeed, a parent told us that “no one turned up to my mediation meeting”.
The lack of accountability for poor decision making by LAs is making it necessary for many to appeal to the Tribunal, a process which causes LAs and parents alike to incur great costs.
Underfunding
Years of austerity have meant that the SEN System is severely underfunded and under resourced. When asked in a focus group what would you see as the root cause as to why the SEND system isn’t working, a parent answered “Lack of money. That’s what it is. Children who don’t fit the mainstream mold are just seen as a drain. Our LA is a safety valve LA, so the decisions not to assess have significantly increased and they’re doing lots of abhorrent illegal things. Children are being failed across the board”.
As a result of increased funding pressures and rising numbers of children with special educational needs (SEN), schools have reduced what they can offer in the way of special educational provision (called SEN Support). This has meant that many more parents have been driven to apply for an Education, Health and Care plan (EHC plan), giving them a better chance of getting the support their child needs. Due to this reduction in resources and funding, more disabled children than ever before are left without support, excluded or without an appropriate school place. There is an urgent need for investment and funding in the SEN System, particularly in school provided SEN Support.
While the recent budget has announced an additional £1billion for SEND Provision, with The Treasury admitting that most of this money will likely be used by councils to reduce their deficits, it is probable that this increase in funding will lead to no real change in the SEND provision disabled children receive.
Contact has heard from multiple parents through our specialist educational helpline of a worrying trend where LAs oppose appeals, pursing a hearing at the Tribunal only to concede a week before the hearing date in order to delay having to pay for a child’s SEND provision for a year while the appeal progressed. This is not only unlawful practice but is indicative of the large financial pressure local authorities are under. Indeed 38 LA’s have signed up to safety valve agreements that place cost cutting above the needs and legal entitlements of disabled children to special educational provision.
Crisis in the Specialist Workforce
There is a crisis in specialist workforce recruitment and retention. Schools used to be able to regularly call-in specialists but due to a reduction in school funding caused by years of austerity and a depletion in the NHS workforce, the frequency of input has decreased or is not available at all.
Some schools cannot call in any input from specialists. This is leading schools to have to request EHC plans to meet pupils needs. Even with an EHC plan in place, workforce and funding shortages can mean that not all of the support outlined in a plan will be provided.
Moreover, many schools are struggling to retain teachers and support staff. Also, initial teacher training lacks enough dedicated training regarding SEN and the laws and duties that surrounds it.
A parent said “There is not enough money to pay for the training, the staff, the support or people at the council to write the EHCPs. There is not enough money anywhere, it’s just bonkers”
The need for more inclusion in the mainstream school system
The current SEN System is failing to allow for inclusion in the mainstream school system. Lack of SEN Support in schools caused by a deficit in funding and resources means that many pupil’s needs are unmet. This means that many pupils with SEN are missing in education as their needs cannot be met in their school. Some of these pupils will be out of school awaiting a school placement, an EHC needs assessment or plan to be issued. Others will have been expelled as they were left unsupported in school. Moreover, Contact knows from its educational helpline that many parents are being forced to home educate as their child’s needs are not met in school and attending school is simply not possible. This is non-elective elective home-schooling.
The SEN system is bolted on to the mainstream system and this means that those with SEN are often disproportionately negatively impacted or not considered by the wider aspects of the mainstream education system. For example, those whose SEN needs cannot be met by school and so are not in attendance are often penalised for their non-attendance and their families face prosecution. Yet this nonattendance is through no fault of their own but rather due to failings in the SEN system. For the SEN System to work, there is a need for a cultural change in the wider school system towards inclusivity and reasonable adjustments.
A system devoid of trust
There is a mistrust between parents, LAs, schools and professionals. Local authorities regularly fail to answer parents when they contact them. In the focus group parents were keen to stress the disconnect between their lived experience and the way they are treated by LA staff, specialists, school staff and everyone else they come into contact with. There seems to be a fundamental lack of understanding and compassion for parents, who are simply trying to ensure that their children have equal opportunities in education. Parents in Contact’s focus group described an abhorrent and faulted culture of parent blaming.
A parent in the focus group said that “LAs and government need to work with parents and not see them as adversaries”
Too many children with SEN and disabilities are not receiving the support they need. Many of them fall below the ‘age related expectations’ assessment process and, therefore, have no measure of the progress that they do make.
The outcomes achieved are often described too narrowly, focusing on academic attainment.
SEN Support has been diminished at all levels due to years of underfunding. Schools no longer can fund, resource or access the SEN provision they should be providing as SEN Support to pupils who need support but do not have an EHCP.
This means that many more schools and parents are having to apply for EHCPs to meet the needs of disabled children.
There is a desperate lack of the specialist workforce, making it incredibly hard to get an assessment and the evidence needed to get support. Many families are having to resort to expensive private reports and are having to wait for long periods for these assessments.
Children who have an EHCP often don’t receive the provision that is stated within their plan and that they are legally entitled to.
Make the SEN System Accountable
The key to ensuring that the SEN system is fit for purpose lies in making sure that schools and local authorities comply with the law and fulfil their duties to children and young people.
When asked if the government could prioritise action on one issue, what issue should that be, parents in Contact’s focus group asked for a system of accountability that works. One parent compared the current complaints procedure to “psychological warfare”.
Contact is therefore calling for a stronger accountability system.
We believe this can be achieved by the introduction of various polices including
- The publication of the outcomes of tribunal cases, anonymised, to enable everyone to see and learn from decisions and spot patterns of breaches in law.
- Stronger intervention from government in cases of failure to comply with law and guidance. This intervention should be triggered by key data, including but not limited to, failings in Ofsted/CQC inspections, poor Tribunal statistics, failures to meet legal timescales and high levels of parental complaints. We suggest that these government interventions should be overseen by the Minister for Schools, as SEND is now within her remit.
- A legislative change to make health, social care and education jointly responsible for special educational provision, so that the SEND Tribunal can make legally binding decisions regarding health and social care provision, rather than just for educational provision.
- The establishment of a national board of representatives from health, social care and education overseen by an independent panel to hold each other accountable for complying with their SEN duties, so that the SEN system can work without the need for parents to assert their child’s rights through appeals or complaints.
- A wider remit for the Local Government and Social Care Ombudsman so that it can investigate how schools deliver provision to all children with SEND, including those on SEN Support without an EHCP.
- Greater clarity and transparency in decision making (particularly when it comes to the use of panels) - so parents can see how decisions are made and by whom and then can make a more informed decision as to whether and how to appeal.
- The availability of mediation at an earlier stage. All mediation must be meaningful and lawful, a decisionmaker must be present.
- Simplified complaint routes for parents must be established for when statutory timescales are ignored and when provision in an EHCP is not implemented.
Contact has published a detailed briefing paper on how a robust system of accountability could be established for the SEN Legal Framework.[1]
Robust accountability mechanisms will not only ensure that LAs comply with their legal duties, but it will also restore parents’ confidence that the government is committed to ensuring that all children get equal opportunities in education as an automatic right. An effective accountability system would mean that less appeals would go to the Tribunal as LAs would be making legally compliant decisions in the first instance, this would save money in legal fees.
Place SEN Support on a statutory footing and ensure access to sufficient funding and resources for all schools so they can fulfill their duties
It is crucial that Government strengthens Special Education Needs Support (SEN) Support in schools.
SEN Support needs to be properly funded and the duties to provide SEN support need to be placed on a statutory footing rather than merely in guidance.
Many pupils who have Special Educational Needs (SEN) do not require an EHCP if their needs can be met by the school through what is often referred to as SEN Support. As a result of austerity, a decrease in the availability of specialist workforce in schools and funding pressures, schools have reduced what they can offer in the way of special educational provision for those who qualify for SEN support.
This has meant that for many schools, as well as parents, the only way for a child to access a SALT, an Educational Psychologist or receive the support they need in school is to apply for an EHCP needs assessment.
Currently the Children and Families Act 2014 places minimal and vague duties on schools to support those pupils who have SEN without an EHCP. All the details that explain how schools are expected to support children who have SEN are within The SEN and Disability Code of Practice 2015, which schools only have a duty to have regard to, leaving room for discretion.
SEN support must be put on a statutory footing for all educational settings including early years providers and post-16 colleges and this should be added into CAFA 2014.
To do this, parts of The Code need to be elevated to legal status.
This needs to include clear legal duties on education settings to:
All of these legal duties need to be detailed and quantified with timescales.
This must be combined with the widening of the Local Government and Social Care Ombudsman’s remit so it can investigate how schools deliver provision to all children with SEND, particularly for those who receive SEN Support without an EHCP.
By establishing a more robust legal framework of the duties on schools to provide certain special educational provision in combination with investment in the school and specialist workforce, more children would be able to have their needs met without the need for an EHCP.
This would require significant investment in the short term but would, if implemented successfully, reduce the number of cases that appeal to the SEND Tribunal as more needs would be met in school. This would help to restore parents’ confidence in school SEN Support as the school’s duties would be legally clear, and parents would have a route of redress in cases of non-compliance.
The Government must commit to significant investment within the specialist workforce
The long-term future of the specialist workforce must be secured through proper workforce planning so that children and young people now, and in the future, can access the support they need to thrive.
All schools must be able to call in a range of specialists including speech and language therapists (SALTs), occupational therapists (OTs), educational psychologists (EPs), physiotherapists and mental health workers when necessary for assessments and input for children with SEN both with and without EHC plans.
Specialist workforce should be used to train and upskill school staff so that they can support pupils. This in-school support should not be a substitute for future input by specialists but rather support that is additional to and overseen, reviewed and updated by the specialists who still see the pupil on a regular basis to monitor progress.
Safety Valve Agreements must end
There is growing evidence that meeting the conditions of these agreements entails setting limits on the amount of support that is provided to individual children and young people. Safety Valves place cost cutting above SEN Provision and children’s legal rights to support in education. This can be seen from information contained in local safety valve monitoring reports and schools Forum minutes. This has been highlighted in a report published by IPSEA earlier this year.[2] For this reason it is imperative that Safety Valve Agreements in their current form end. Contact has also heard from many parents who have said that Safety Valve agreements have had a negative impact on their child’s SEN provision and therefore a change in this policy will do much to restore parental confidence in the system. [3]
The Curriculum
The concept of outcomes for children should be wider than academic achievement and should include social achievements and being part of the community, having access to assessment and qualifications suitable for their abilities, being able to participate in adulthood, and maintaining good health.
Contact’s view on SEN
Contact has developed 3 SEND asks that we believe the government should act upon to address the biggest challenges in the SEN System. [4]
November 2024
[1] https://contact.org.uk/wp-content/uploads/2024/08/Accountability-in-the-education-system-ENGLAND-briefingFINAL.pdf
[2] https://www.ipsea.org.uk/news/prioritise-needs-over-numbers-and-end-the-safety-valve-intervention-programme
[3] Contact’s focus group findings regarding the impact of Safety Valves (available on request
[4] https://contact.org.uk/wp-content/uploads/2024/06/3-Asks-SEND-system-England.pdf