Written evidence submitted by the Challenging Behaviour Foundation (SFC0070)

About the Challenging Behaviour Foundation

1.0               The Challenging Behaviour Foundation is a registered charity that was founded by Vivien Cooper OBE, the parent of a child with severe learning disabilities whose behaviour challenges. We are the only charity focused specifically on children, young people and adults with severe learning disabilities whose behaviour challenges.

Below we have summarised our evidence under the three headings of performance of the system, the overall picture on the support available and outcomes achieved for those with SEN and Government action to create a sustainable SEN system and restore confidence.

1. Performance of the system

1.1              In our view the SEND and alternative provision improvement plan developed in the previous parliament under the Conservative Party is narrowly focused on inclusion in mainstream schools and increasing the number of special free school placements.

We feel that the following root causes behind the current challenges in the SEND system have been missed:

A. The Department for Education approach to behaviours that challenge & lack of behaviour support services

1.2              The current approach set out by the Department for Education in guidance on behaviour in schools is based on schools setting high standards and values they expect all pupils to meet. Failing to meet the standards is characterised as children “misbehaving” and the response is sanctions, including suspensions and permanent exclusion. 

1.3              Data published on 18th July 2024 showed that this approach is not working with record numbers of children are being suspended and excluded from school. In the 2022-23 academic year there were 786961 suspensions and 9376 permanent exclusions. The most common reason for suspensions and exclusions was behaviour. Furthermore, children with identified SEN who have an EHC plan are more than three times more likely to be suspended than their typically developing peers and more than twice as likely to be permanently excluded from school. The rates are even higher for children with SEND without an EHC plan/SEN support. The figures are provided in the table below.

Table 1. Suspension and permanent exclusion rates (source)

1.4               It is clear from the data that children with SEN are disproportionately suspended and excluded from school with behaviours that challenge the primary cause. For children and young people with a learning disability behaviours that challenge often arise because children with a learning disability have the same needs as their peers but due to their disability have less developed pivotal skills such as communication, social skills and life skills. Their behaviour is a way of communicating an unmet need, but this is not acknowledged and rather than ascertaining what the underlying issue is (e.g. sensory overload, unrealistic demands, being unable to communicate what they want/need etc.) and addressing that, the approach is to try and contain or stop the behaviour. This approach to behaviour is discriminatory and a greater focus must be placed on identifying and meeting the needs of children with SEND and building key skills that will result in a decrease in behaviours that challenge.  For children with SEND the failure to meet needs early increases the child’s needs and permanent exclusion usually results in a more expensive school placement.

1.5               In addition, the consequence of the difficulty in accessing behaviour support and a lack of early help for families in understanding behaviour associated with learning disabilities is that parents are often blamed for their children’s behaviour (which is attributed to “misbehaviour” and poor parenting). This damages relationships and trust which is not in the best interests of the child.

1.6               The SEND improvement plan does not acknowledge that this approach to behaviour is failing children with SEND and subsequently does not propose alternative solutions. For children with learning disabilities  NICE guidance sets out the support that is needed. We have many calls to our helpline where evidence-based approaches to behaviours that challenge are not being implemented leading to exclusion and more costly services. 

1.7               Our view is that there is a lack of appropriate support for children with learning disabilities whose behaviour challenges and the availability of behaviour support  needs to be addressed. At present behaviour support for children with learning disabilities whose behaviour challenges is a postcode lottery. A research study led by the University of Warwick mapped[1] community-based services for children with learning disabilities who display behaviours that challenge in England and found five service models. These are described in the table below:

1.8              This evidence demonstrates that not all areas have a service or pathway for children with learning disabilities and behaviours that challenge and few have an intensive support team for those most in need. It is often difficult to identify a local behaviour support service (less than 50% of areas have this information on their local offer) and when parents do access a service there are long waiting lists.  However, in areas where there is good behaviour support services are able to work with the child, family, education and social care to improve understanding of behaviours that challenge across the child’s network and increase the child’s quality of life, reduce behaviours that challenge, reduce the use of restrictive practices and ultimately the use of costly out of area residential schools placements.  Addressing this issue will require cross governmental working and we therefore welcome the NAO recommendation that the government should explicitly consider whole system reform and build a more integrated system.

1.9              Behaviour that challenges can be a sign of unmet mental health needs as well as a range of other factors. Children with learning disabilities are 4.5 times more likely to have a mental health problem[4]  than their peers.  We welcome the Labour Party manifesto commitment to investing in mental health support in schools. Careful consideration will be needed to ensure that this provision is tailored for children with learning disabilities, including children with severe learning disabilities who attend a special needs school in line with NICE guidelines.

B.  Quality & regulation of special needs schools

1.10               Whilst there are many excellent special needs teachers there are too many special needs schools which do not provide the quality of education that children with SEND deserve, some of which are unsafe. Recent and shocking evidence of abuse has been uncovered for example,the Panorama programme “Undercover school: cruelty in the classroom” exposed abusive and highly inappropriate staff behaviour, highlighted that the director of Life Wirral was a former rugby player and police officer and had no experience in SEND. There is currently a significant gap in the relevant National Minimum Standard (NMS) which means that directors of independent residential education settings are not subject to appropriate fit and proper persons vetting.

1.11              Children with special needs who are failed by local systems are often placed in out of area independent “specialist” residential schools, where they are at increased risk. The consequences of this are significant and can lead to out of area placements and the increased risks this presents. There is little evidence of action to address this systemic issue and invest in local specialist support and services. The Child Safeguarding Practice Review Panel review conducted following the abuse of children in residential schools operated by Hesley recommended a number of actions, including that the CQC and Ofsted jointly inspect these settings “The DfE and DHSC should […] take immediate steps to establish arrangements for joint inspection by Ofsted and CQC of residential settings for children with disabilities and complex health needs”.

1.12              Because residential education settings are regulated by Ofsted and not CQC, they are not deemed as ‘health care providers’ despite being settings that are responsible for providing 24/7 care of children. This means that action cannot be taken against an education setting under section 21 of the Criminal Justice and Courts Act (CJCA) 2015 as this specifies that the ill-treatment or willful neglect of an individual must come from a ‘care provider’. We have been contacted by a family whose child was abused in a residential school highlighting that the Police and CPS were unable to take action against the directors responsible. In this instance their child was neglected at a residential school following a cost cutting exercise by new owners. This creates a lack of accountability. We recommend that the government urgently implements and monitors the Child Safeguarding Practice Review Panel recommendations, including the recommendation for CQC and Ofsted to jointly inspect these settings.

C. Restrictive practices in schools

1.13              In 2022, following research conducted by the Challenging Behaviour Foundation’s Protecting Rights; Eliminating Restraint (PR;ER) group, which identified that children with disabilities were being physically restrained in schools and their parents were not always informed and the Equality and Human Rights Commission, which identified that significant numbers of schools do not have basic safeguards in place including not having a policy covering the recording of restraint and not recording all instances of restraint.  the UK government led by the Conservative Party announced that it would:

• Provide new guidance on restraint in schools to avoid the need for restraint
• Bring into force primary legislation contained in the Apprenticeships, Skills, Children and Learning Act 2009, to make the recording of physical force mandatory in schools, and make it a legal duty to inform parents when it has been used;
• Make it compulsory for all schools to have a restraint policy covering recording.

1.14              The government commenced a Call for Evidence  which closed in May 2023. We recently welcomed the commitment made by the Labour government to implement these reforms by September 2025. To ensure that these reforms are effective mandatory training and national training standards need to be introduced along with a shift to early intervention and prevention to avoid the need for the use of restraint.

2. The overall picture on the support available and outcomes achieved for children and young people with SEN

2.1              There is some good, evidence-based practice in the system, but this is patchy and not widely available (it is the exception rather than the norm). Usual practice is a crisis management approach where behaviours that challenge escalate until they reach a point of exclusion from school and/or the child requiring a residential placement requiring much more costly and significant interventions, in addition to the significant human cost to the child/ young person and their family.

2.2              All local authorities are by law required to complete EHCPs within 20 weeks, fewer than half of all EHCPs are issued within this statutory timeframe (source: Wasting money, wasting potential). This means that children and young people with special educational needs are waiting significant amounts of time before they are able to access the support that they need. This can lead to children not attending school, not receiving the right educational support, becoming socially isolated, and experiencing deteriorating physical health4.

2.3              The Disabled Children’s Partnership and Pro Bono Economics found that in 2021-22, families were successful in 96% of tribunal EHCP cases, at a cost to the taxpayer of nearly £60m8. As of December 2023, this had risen to 98% of cases being found in the family’s favour at an estimated cost of £87m9. These figures do not take into account the costs of preparing for cases that are conceded by local authorities prior to tribunal. During the time that these cases are going to tribunal, children and young people with special educational needs are not having these needs properly met. In some cases, this can lead to children being admitted into care and/or to inpatient units.

2.4              However, even after the court has ruled in the family’s favour, local authorities still do not always put in place the support that children and young people with special educational needs are legally entitled to. Families that the CBF is in contact with have shared that they have had to go to tribunal multiple times as the support their child is legally entitled to is continually not put in place.

2.5              Within the SEND system, where there is early intervention and joint working (i.e., between education, health and social care), children and young people with learning disabilities and behaviours that challenge can receive good support and improved quality of life. When behaviours that challenge emerge, intensive co-ordinated support can prevent children and young people with learning disabilities from being placed in costly residential schools, residential care and/or assessment and treatment units. The three case studies below (which are also included in the reports Investing in Early Intervention and Paving the Way) demonstrate the benefits to the young person (as well as to their families) and the cost savings involved in providing community based intensive support to children and young people. Collaborative cross system working is a key component in all of the case studies.

3. Government action to create a sustainable SEN system and restore confidence.

3.1               The major barriers to achieving the ambitions in the DfE’s improvement plan are a lack of cross-system working, a failure to implement a child- and family-centred approach (as opposed to a system-centred approach), and a lack of accountability.

Lack of cross-system working & failure to implement a child and family centred approach

3.2              A recent report from the Parliamentary and Health Service Ombudsman and the Local Government and Social Care Ombudsman “People not structure: Putting people at the heart of integrated care” identified two areas where there is significant room for improvement:

1. Communication between ICB’s and councils
2. Service providers putting the person at the heart of their care

One of the learning points from this report is for councils and ICB’s to take a “whole system” approach. The report features a case study of Oliver who had an EHC plan due to his complex needs. Oliver lost 6 years of education due to a lack of communication between system partners and a failure to put Oliver at the heart of decision making.  This caused significant harm to Oliver and his family. The report states “Councils and Integrated Care Boards need to put the person affected at the heart of their processes and decision making and ensure a ‘whole system’ approach is taken by default. Whilst it is tempting for pressured organisations to only look at their own responsibilities, working together can help address bottlenecks and improve delivery. Had that happened here, Oliver might not have missed six vital years of education” pg.6

3.3              One of the learning points from this report is for councils and ICB’s to take a “whole system” approach. The report features a case study of Oliver who had an EHC plan due to his complex needs. Oliver lost 6 years of education due to a lack of communication between system partners and a failure to put Oliver at the heart of decision making.  This caused significant harm to Oliver and his family. The report states “Councils and Integrated Care Boards need to put the person affected at the heart of their processes and decision making and ensure a ‘whole system’ approach is taken by default. Whilst it is tempting for pressured organisations to only look at their own responsibilities, working together can help address bottlenecks and improve delivery. Had that happened here, Oliver might not have missed six vital years of education” pg.6

The report makes three recommendations:

1. Agree a ‘person first approach’: Where it does not exist, Integrated Care Boards (ICBs), Integrated Care Partnerships (ICPs) and local authorities should design a local approach that brings councils and health services together to look at how a person’s needs can be met first, with considerations of who is responsible and who pays coming an important second. This would create a structured ‘person first’ approach that puts people before organisational structures.

2. Use the existing tools effectively: Councils and NHS bodies must use the tools that exist effectively to support a holistic approach, such as local dispute resolution processes and the National Framework for children and young people’s continuing care. ICPs should monitor how effectively this is being done in their area.

3. Agree standard frameworks for communication: Where they do not already exist, councils and health bodies should put in place person-centred, standard frameworks for effective communication between organisations. These should focus on ensuring the professionals on the ground interact effectively and that discussions and decisions are properly recorded

3.4              In addition to the actions already mentioned the DfE needs to clarify how joined up working will be delivered to drive the systemic change required. Whilst we fully support the policy intention set out in the SEND improvement plan there is a lack of detail about how this will be achieved. Translating plans into practice requires implementation support, resources and robust monitoring processes which are not currently in place.

• Targeted resources and support for implementation and monitoring of progress is required. Investment is required in new services and new ways of working are needed in order to achieve the vision set out in the improvement plan. Change programmes need to be co-produced with families and disabled children and young people.
• Cultural change is needed to move away from parental blame to partnership working. Research conducted by Professor Luke Clements identified institutional parent carer blame in children’s social care. Parents in contact with the CBF report feeling blamed by professionals working across health, education and social care. In addition, family interactions with “the system” to get the support their child needs is causing significant trauma[5] – with long term consequences[6]
• Additionally, there needs to be investment in supporting families including funding for short breaks targeted at children with the most complex needs and those with highest risk factors for inequality of outcomes. Too often children with behaviours that challenge are excluded from local services, including short breaks and respite as they are considered “too difficult” resulting in parents with the greatest need for short breaks missing out. This inevitably leads to placements in costly out of area residential schools. Research has long identified that children end up in 52 week schools because of a lack of investment in families, lack of local skilled support and services and lack of planning.

3.5              One issue we would wish to see as a priority is for the Department for Education to deliver is the development of safe, local services for children and young people with a learning disability who have a mental health problem/and or display behaviours that challenge. This will take cross-government action to address as children with complex needs have needs that span education, health and social care. NICE guidance sets out what services and support should be available for children and young people with learning disabilities whose behaviour challenges, and how this should be commissioned and delivered across education, health and social care. The CBF and others have worked together to co-produce an action plan setting out a lifelong approach and a range of actions that are required.

3.6               There is a need for proactive market shaping to develop local community-based services and support. Too many children and young people are currently placed out of area in institutional residential schools denying them the right to a family life.  Local authorities have a sufficiency duty under the Children and Families Act 2014 and the Children and Young Persons Act 2008 to ensure that there are sufficient appropriate placements in the local areas for children with special educational needs however in many areas there is a lack of market shaping to ensure that children and young people can have their needs met in their local area. In order for any new programme of work to be effective this must include:

• Implementation of the recommendations of the Child Safeguarding Practice Review following the abuse of children at schools operated by the independent provider Hesley including the development of Regional Co-operatives, workforce development and the implementation of keyworking

• Investment in families as providers of significant and lifelong care and support including access to high quality, tailored information, training and support
• Adherence to NICE guidelines.

3.8               There is currently no formal governance process to monitor progress and provide oversight of implementation of the recommendations of the Hesley review. In order to effectively drive and deliver reform across governmental oversight group is required to ensure implementation for children with complex needs. Without oversight there will inevitably be diffusion of responsibility amongst agencies and inertia.

November 2024