House of Commons - Education and Skills

Select Committee on Education and Skills Third Report

4 Failings within the SEN system

134. With around 18% of all children being categorised as having some sort of special educational need (1.5 million children), any description of the SEN system is describing a wide ranging area of education.

135. With such a large number of children involved, it is important to recognise, as the DfES did in their memorandum, that "for the great majority of families the system is operating effectively to meet their children's needs."[123] This does not, however, take away from the importance of the difficulties faced by a large number of parents for whom the system is failing to meet the needs of their children. The levels of frustration and conflict this causes have already been described in this report.

136. Recent reviews of the SEN system by Ofsted and the Audit Commission have both highlighted serious faults in the system, in standards of provision, and in outcomes for pupils with SEN. It is important that the flaws in the existing SEN system are carefully examined.

137. The Audit Commission's report Special Educational Needs—a mainstream issue (2002) identified some of the challenges in the SEN system as:

too many children waiting too long to have their needs met;
parents lacking confidence in the system, leading to pressure for statements; and
some children who could be taught in a mainstream school being turned away.

138. Ofsted found that for many schools, trying to fully include children with SEN was a significant challenge.[124] It also found that few schools evaluated systematically their provision for pupils with SEN for effectiveness and value for money. It did, however, highlight a growing awareness of the benefits of inclusive practice and some improvements in practice in schools.

139. Provision at special schools has also raised concerns. Recent Ofsted annual reports have noted a gradual improvement in the quality of curriculum delivery and teaching in special schools, though particular problems persist with setting challenging targets for achievement. At the same time, inspection reports have noted concern about the quality of teaching in independent special schools, which is unsatisfactory in nearly one third of these schools, and notes significant weaknesses in the curriculum in over one third.[125]

140. The poor outcomes for children with SEN and disabilities have already been referred to in terms of low-attainment and a high proportion not in education, employment or training. The Audit Commission also found that the vast majority of permanent exclusions in the 22 local authorities surveyed related to pupils with SEN: 87% of exclusions in primary schools and 60% of exclusions in secondary related to pupils with SEN.

141. The 2004 Ofsted and 2002 Audit Commission reviews identified serious flaws in the SEN system with regard to standards and consistency of provision, the statementing process, fair access to schools, and outcomes for children with SEN and disabilities. This Committee finds it both surprising and highly concerning that these issues have still not been addressed. Evidence presented to this inquiry has further highlighted that there are significant failings in the system that need to be dealt with urgently. We now turn to these issues in the following recommendations.

Statementing process

142. "Statements" are statements of special educational need that identify the needs of a child with SEN, allocate resources to meet those needs and decide the placement of a child with SEN. Around 18% of children have SEN but only 3% have statements—these proportions both rose gradually in the 1980s and 1990s but have remained fairly constant since 1999-2000.

143. One of the major causes of dissatisfaction amongst parents is the issue of statements and the statementing process, which is widely criticised as being a "costly, bureaucratic, and unresponsive process".[126] Variation of statementing practice is a major concern with local authorities ranging from issuing 1% to nearly 5% of children with statements (see Section 3: Facts and figures).

144. Statements are made up of three separate processes—assessment of need, allocation of resources, and placement. Problems occur at all three stages but the process itself is made even more complicated by the amalgamation of three constituent parts into one statementing process.

145. The major frustrations from parents can be summarised into the following categories:

local authorities being unwilling to make a statement;
Assessment of need being inaccurate or undertaken by reportedly biased professionals who are not sufficiently independent from the local authority;
Allocation of resources being insufficiently detailed/not specific enough. It is claimed that this is done on purpose to give local authorities "wriggle room" not to provide the services they are legally obliged to provide;
Placement decisions are badly made—complaints are either that a child has been forced into a special school when a mainstream school should have been sufficiently adapted to be able to take them, or that a child has been refused access to a special school of choice either because the local authority was unwilling to fund that place or because it is trying to close that special school; and
Transfer of statements is a major problem—when a child moves between authorities, statements cannot move with the child because each local authority has a different method of assessment and allocation of resources.

146. A recent research report from the University of Cambridge, The Costs of Inclusion, concluded that "there is an urgent need to reappraise systems of funding and in particular statementing, the rationale for which is less and less obvious. In addition the process can lose the goodwill of parents and teachers who become frustrated by what they see as a stalling and penny pinching policy. It consumes time in individual advocacy which often emanates in a sense of defeat."[127]

147. This inquiry received large numbers of memoranda from parents whose lives had been taken over by the statementing process and who had had to "fight" to achieve a better outcome for their child—and were still fighting. The vast majority of issues can be summarised into the areas above but that does not do justice to the severity of the problem and the sense of injustice and anger felt by many parents of children with SEN. To say that there is some dissatisfaction with the current system, or to claim that there are "some" problems as the Minister did, fails to give proper regard to the level of unhappiness felt by some parents.

ISSUING OF STATEMENTS

148. One of the major causes of dissatisfaction in the system at present is a view held by many parents that local authorities are unwilling to make a statement of need for their child. There is no national guidance on when a statement should be issued and practice varies considerably across local authorities with some local authorities issuing nearly five times as many as others (see Section 3: facts and figures).

149. Numerous witnesses, including the DfES and the Audit Commission, said to this inquiry that a "postcode lottery" or "lottery of provision" exists for children with SEN.[128] The SEN Strategy accepted that "too often parents face a 'postcode lottery' in the support available from their schools, local authority, social services and health services."[129]

150. There are three possible reasons why a local authority might decide not to issue a statement. The first is that a statement is not needed, the second is that the local authority is trying to reduce the number of statements issued as a matter of policy, and the third is that it is an attempt to save money. The first is acceptable, the second is questionable, and the third is illegal. local authorities have a statutory responsibility to assess and provide for the needs of children with SEN. The DfES have recently issued further guidance in a letter to local authorities stating that any "blanket policies" about who will and will not be issued statements of SEN were illegal.[130]

151. Any local authority that has a policy to reduce the number of statements—rather than aiming to improve provision and early intervention with the expectation that this will reduce reliance on statementing—has misunderstood Government guidance on this issue. The responsibility for this confusion must lie with the Government. The letter issued by Ian Coates on 15 November 2005 demonstrated that the DfES are aware of such confusion.[131] Whilst the DfES letter of guidance to Directors of Children's Services, 15 November 2005, was a helpful clarification of the Government's position on the illegality of blanket policies for issuing statements of SEN, it should not have been necessary, and does not make up for a lack of clear national strategy.

152. The SEN strategy does indeed talk about local authorities seeking to "reduce reliance" on statements. The Strategy clarifies that this should only be sought "in time, through action at local and national level to build the skills and capacity of schools to meet diverse pupils needs". But a SEN strategy that asks local authorities, already strapped for cash, to reduce the number of statements they make—no matter how many caveats are put in about capacity—is going to be seen by some as a green light to refuse more children a statement of SEN when in some cases this might still be required.

153. It is better to seek to reduce reliance on statements by improving the skills and capacity of schools to meet a diverse range of needs, but this must be set in a system with much greater clarification and much stronger guidance on minimum standards of provision. Without such a system in place, guidance on "reducing reliance" on statements has led to the inequity of provision and "postcode lottery" that exists. This cannot continue. The sector needs much clearer guidance through a national framework with local flexibility. The Government needs to give local authorities clear national guidance on when to issue statements of SEN.

154. The length of time that the statementing process takes is another area of concern, which has serious consequences for the education of any child who does not receive a timely decision on a statement. Under the existing SEN Code of Practice, local authorities must provide a draft statement with 18 weeks and a final statement within 26 weeks of the initial request for a statement from parents.[132] There are, however, several circumstances under which a local authority does not have to comply with this timetable.[133] We recommend that there should be an absolute deadline that a decision on whether to issue statement in respect of any child should be made within the required 26 weeks (six months) of a written request being made with no exceptions.

TRANSFER OF STATEMENTS

155. At present, statements cannot be transferred with a child when they move between local authorities because each local authority operates a different statementing process with a different method of assessment and allocation of resources. This is causing considerable difficulties for many children and parents—particularly those with high mobility such as Service Children, looked after children and many of the most vulnerable children in society. Some witnesses have argued that statements should move with the child and that there should not be automatic reassessment when they move to a new local authority—especially in those areas where a high degree of transience has a significant impact on education provision.

156. Whilst recognising that it would require significant changes to the existing system, we recommend that the DFES consider how to make statements of SEN transferable between local authorities so that they can follow the child. We believe this would reduce administrative costs, allowing more resources to be devoted to SEN provision, and, more importantly, would prioritise the needs of the child.

OTHER POSSIBLE MODELS

157. Both the Minister and the DfES said that they had heard much criticism of the existing statementing system but that critics had not proposed a better solution.[134] The Scottish Executive and the Conservative Party's alternative proposals may not be considered "better" by the Government but they are worth considering.

158. The Scottish Executive has introduced the Additional Support for Learning Act 2004 which replaces the Record of Needs with a strengthened and more streamlined staged intervention process, with a new, flexible Co-ordinated Support Plan for children with the most complex needs.

159. Improved staged intervention processes have been put in place using school-based support to provide for all children with additional support needs, including those with behavioural difficulties, children for whom English is an additional language, refugees and asylum seekers and gypsy/traveller children. External agencies, such as education authorities, social workers and health professionals will continue to support children, parents and schools whenever necessary.

160. The Conservative Party's Commission on SEN has suggested an alternative process in its interim recommendations. The Commission recommends that "statements should be replaced by a Special Needs Profile (SNP) drawn up by independent accredited Profile Assessors. [...] Assessments for them would be triggered by professionals within the education, health and social services or by a parent with the agreement of one of the former".[135]

161. The landscape of local authorities and local heath organisations is continually changing which makes it difficult to make specific individual recommendations about the way they should work together. We consider, however, that assessment of SEN should not be made directly by the bodies that fund the provision, and any revision of the system overall should take this principle on board.

162. Scottish reform to the statementing process demonstrates one way in which the 1978 Warnock framework might be reformed. These proposals may not have all of the answers but they are witness to the fact that something needs to be done to improve the existing system.

163. The lack of a ready-made alternative is not a good enough reason to keep a failing system of statementing. If SEN was given sufficient priority this would not be allowed to continue. It is the responsibility of Government to devise better processes for SEN—not necessarily in one statement—and to implement them. This should involve the early identification and assessment of needs, efficient and equitable allocation of resources, and the appropriate placement of pupils based on their needs and taking account of parental preference. We request a specific response from the Government on this issue.

Placement decisions

164. It has been repeatedly stated through this inquiry that the debate around placement should not be about mainstream provision v. special school provision but instead about the quality and range of appropriate provision available for children with SEN to meet their needs.

165. In written evidence Ofsted said "there is considerable evidence to show that learners make good progress in a range of types of provision and that neither one nor another by virtue of its type is more or less successful. If we ask the question: does the setting matter? there is an unequivocal reply of no if certain features are always in place. The key indicator is effective and skilful leadership with the ability to apply skills and knowledge and enshrine principles into practice for all learners."[136]

166. The DRC agreed with this position saying that "Education has played a central role in transforming the wider life chances of disabled people…. Any debate concerning the education of disabled children, therefore, must extend beyond simply the relative merits of placing children in 'mainstream' or 'special' schools and instead begin from the point of how our schools can effectively meet the quality of experience and outcomes that disabled children and young people deserve."[137]

167. We have received a large number of memoranda from parents who have had terrible experiences of their children suffering in an unsuitable mainstream setting and having to fight to achieve a place for their child in a special school. Equally, we have had also received a large number of memoranda from parents whose children have been placed in a special school and they have had to fight to allow them to be included in a mainstream school.

168. Following SENDA 2001 there is an assumption that children with SEN and disabilities should be included in mainstream schools where this is what the parents want and it is compatible with the efficient education of other children whilst preserving parents' rights to seek a special school place.[138] In theory, this guidance sounds fair, but in practice this does not seem to be happening. The language is sufficiently vague—and the parent's rights to "seek" a special school place sufficiently weak—to mean that in practice, some local authorities are not providing a range of appropriate provision for children with SEN.

169. As a result of the nature of the statementing process, there is also a great deal of concern from parents regarding how decisions made, on what basis is placement decided, and who has the final say. A large part of this is caused by poor communication with parents during the statementing process.

170. Where good practice exists in local authorities the level of parental satisfaction improves greatly. A National Framework of guidance should be put in place based on best practice of local authorities. It should ensure that: multi-agency panels make decisions regarding placement and are accountable for their decisions; parents are kept well-informed at all stages of the process and involved in the decision-making process as much as possible; and there is a wide range of appropriate high-quality provision available to meet the needs of children. There also needs to be much greater consideration given to support for parents of children with SEN who themselves may have SEN issues and require assistance in coming to considered decisions and views about their children's futures.

171. For many children with SEN and disabilities, special schools are invaluable. The issue should not be their closure but how to progress to a system based on a broad range of high quality, well resourced, flexible provision to meet the needs of all children. More schools should be positively encouraged to form federations including both mainstream and special schools.

Planning role of local authorities

172. Recent reports from the Audit Commission and Ofsted have recognised that SEN is one of the most challenging aspects of local authority's responsibilities. They note that despite a robust statutory framework and improvements in practice and provision in recent years there remains a number of continuing challenges to overcome in order to further improve outcomes for children with SEN and disabilities.

173. Every one of the examples of good practice highlighted in the DfES memorandum about "school and parent partnership", "communities of schools" and "building local capacity" originated from local authority planning. Good practice is not, however, common place.[139]

174. At present, local authorities have a statutory duty to assess the needs of, and make appropriate provision available for, children with special educational needs. The Independent Panel for Special Education Advice (IPSEA) argue that "local authorities [...] are seeking to downgrade their statutory duties towards children with SEN to discretionary duties."[140] Essentially, they argue, this is breaking the law. In a recent letter to local authorities,[141] the DfES identifies some local authorities as "operating blanket policies of never quantifying educational provision for particular groups of children". The letter clearly states that such authorities are "in breach of" their statutory responsibilities.

175. The nature of the legal duties which local authorities have towards children with SEN, as recorded in primary legislation, is clearly statutory and this has been upheld by rulings in cases that have reached the House of Lords.[142] IPSEA argue that the Government's statutory guidance (SEN Code of Practice 2002) recognises the statutory duty but that their non-statutory guidance since the mid-1990s (e.g. SEN Tool kit) has shown that the "Department itself now signals a disregard for the legal framework which is alarming[...]"[143] However, it has been suggested by representatives of local authorities that it is the SEN Code of Practice—the statutory guidance—that immediately waters down the legal duty by using a much weaker form of words and saying only that local authorities must have regard to the SEN Code of Practice. Straight away this creates scope for different interpretation, procedures, and processes—for example, there is no national criteria for the threshold at which statements should be initiated by local authorities so this becomes discretionary.

176. At present, local authorities have a duty to secure sufficient schools for children in their area and in doing so must have particular regard to the need for special educational provision. When the finite resources available to local authorities are considered, this seems to be an impossible situation. It is clear that a great deal of the conflict, frustration, and costly litigation is arising from these continuing circumstances.

177. While some local authorities have made good progress in managing SEN in recent years, there remains much variation in performance and some poor practice. Clear statutory guidance is in place but local authorities are then told only that they must "have regard to" the SEN Code of Practice. Non-statutory guidance then further muddies the waters. Local authorities have a crucial role to play with SEN but the operation of good practice must become the norm.

178. Local authorities must be allowed to continue to plan provision at the local level to meet need but this should be within guidance of a clear National Framework linked to minimum standards to ensure consistency of outcomes for children with SEN.

179. All local authorities and schools should embrace the opportunity presented by the new Disability Equality Duty to ensure that they promote and provide a positive environment for children with SEN, both now and in the future.

Admissions and parental choice

Fair access for children with SEN

180. A key issue raised during this Committee's inquiry was the unwillingness of successful mainstream schools (selective and non-selective) to take their fair share of SEN pupils.

181. This issue should also be considered in light of the evidence from the Sutton Trust that the top 200 non-selective state schools do not take their fair share of children with SEN or on Free School Meals (FSM).[144] The impact on children with SEN of league tables and the priority given to raising standards is discussed in much further detail in the later section "Personalisation: SEN v. the standards agenda".

182. The Government should give careful consideration to the impact that key drivers such as league tables are having on admissions—particularly to the most successful non-selective state schools. There is strong evidence that the existing presentation of performance data in league tables does not reflect well on many children with SEN and consequently acts as a disincentive for some schools to accept them. This cannot continue.

183. Children with SEN and disabilities should have fair access to all types of provision. The Government should do more to encourage the most successful non-selective state schools to take their fair share of children with SEN and disabilities. Admissions policies in this matter should be carefully monitored with a requirement to report back on progress to Parliament and to this Select Committee. Furthermore, the Government should ensure the protocol for hard to place children makes specific reference to children with SEN and disabilities.

CHOICE FOR PARENTS OF CHILDREN WITH SEN

184. The DfES have said they have a "policy of including children with SEN and disabilities in mainstream schools where this is what parents want and it is compatible with the efficient education of other children whilst preserving parents' rights to seek a special school place".[145] Despite this policy, there are many parents that believe either their children are educated in mainstream schools against their wishes or that their children are not being given access to mainstream schooling when they should be.

185. The word "seek" is crucial. Parents have a legal right to seek a special school place, but do not have a right to be provided with one necessarily. This is a confusing situation.

186. Parents have a right to education provided by the state. They do not, however, have a right to choose between various state educational settings. As Disability Equality in Education explained in their memorandum "The Convention on the Rights of the Child 13(3) provides for the liberty of parents and legal guardians 'to choose schools' for their children, other than those established by the public authorities. That is, parents do not have the right to choose a specific type of public educational system for their children ( this has been affirmed by the European Court of HR)—they only have the right to take their children out of the public education system and place them in a private system or home-schooling environment—as long as that system or environment conforms to minimum educational standards laid down by the State. Thus the right to educational choice in current international law refers only to the right to remove a child from public education, not to choose within it."[146]

187. Parents are increasingly having their expectations raised about parental choice. The Education and Inspection Bill is based on the principle that more choice and diversity will raise standards in schools. The Schools White Paper talks of "progress that is driven by new freedoms" and a "system as a whole (that) is increasingly driven by parents and by choice".[147] But for parents of children with SEN the situation is often very different.

188. Many parents of children with SEN have reported to this Committee that they feel that they have very limited choice either because of mainstream schools not having the appropriate resources to take their child or because special schools are not being made available to them. As Baroness Warnock said in evidence to this Committee:

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189. There is a great deal of concern that an increasingly selective and independent market will only further exacerbate the lack of parental choice in admissions for children with SEN. Baroness Warnock added her voice to concerns about the proposals in the Schools White Paper saying that:

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190. The crux of the issue is that unlike other parents, the choice of parents of children with SEN is qualified by whether it is compatible with the efficient education of other children in the school. Assuming a school is not over-subscribed, if a parent of a child without SEN chooses a school, that school is obliged to accept that child. This is not the case for parents of children with SEN. It is this lack of consistency in approach that causes so much frustration with parents.

191. For children with SEN, the qualification regarding the efficient education of other children puts the final decision making power in the hands of officials and professionals rather than the parents of children with SEN. Parents increasingly have their expectations raised with regard to parental choice and this is understandably causing conflict and frustration when their experience is so different.

192. The existing DfES policy regarding the placement of children with SEN is good in theory, but in practice parental choice is not being upheld. Where a special school is sought by a parent this must be given proper consideration. Where a mainstream school is sought by a parent, a local authority must consider whether reasonable adjustments could be made to ensure that their admission could be made compatible with the efficient education of other children in the school.

193. We recommend that in the new Code of Practice on School Admissions, children with SEN and disabilities should be given explicit priority in over-subscription criteria.

194. As long as the choice of parents of children with SEN continues to be qualified by whether it is compatible with the efficient education of other children in the school, the final decision-making power regarding placement will remain out of the hands of parents and we do not suggest that this should be changed. This is appropriate where expert independent advice has been sought but should be the exception rather than the rule. There is a great deal more that could be done to increase involvement from parents: to seek their views and understand their choices more carefully, to work in partnership with them as much as possible, and to ensure they are fully informed at all stages of the process. Careful consideration should be given to parent-partnership schemes being funded independently of local authorities being trialled on a pilot basis. The system should not have to rely on an appeals process to achieve fair access for children with SEN.

195. The Government should work with local authorities and schools to raise the level of detailed understanding amongst parents of the implications of disability rights in education.

ACADEMIES

196. There are particular issues of admissions and parental choice for children with SEN in relation to Academies.

197. Firstly, the Committee has received reports throughout the inquiry of fears that academies are failing to seek the right approach towards children with SEN—and possibly even turning away children with SEN to improve their results. Steve Haines, Policy manager for Education and Employment at the Disability Rights Commission (DRC), told this Committee that:

"[...] what seems to be coming through what I am hearing through various networks that we are in contact with is that there is that lack of onus on children with special educational needs."[

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198. Children Now reported earlier this year that:[151]

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199. The Minister, in contrast, gave us other statistics suggesting that, overall, academies were taking both a greater proportion and number of children with SEN than their predecessor schools. Figures provided for 2005 show that the number of children with statements had increased from 411 to 508 (a static proportion of 3.3% of pupils) from the predecessor schools to the new academies, and that the number of children with SEN but without statements had increased from 3,231 to 4,184 (an increase from 26.5% to 27.5%).[153]

200. Evidence presented to us has been inconclusive, but if it is the case that some Academies are turning away children with SEN, this is of great concern.

201. Secondly, there is a legal issue with regard to the naming of a school in a statement. It is the case for all state schools that if a school is named by a local authority on a statement, that school is obliged to take that child. Parents have the right to state a preference of school during the process.

202. When we asked the Minister if parents of children with special educational needs can state a preference for an academy, we were very clearly told by Rt Hon Jacqui Smith MP, the then Minister of State for Schools and 14-19 Learners, that "they can" "yes".[154] However, the DfES letter of 15 November clearly says "since Academies are independent schools the admission arrangements are different.[155] Parents do not have a statutory right to express a preference for an Academy, though they can make representations as to the particular Academy they would like their child to attend." It then goes on to make it clear that if the Academy does not consent, the authority should not name it in the statement.

203. Although they were partly clarified in reply to Q663, other discrepancies were not covered: Annex 1 of the SEN dispute pack document makes clear that even if a parent appeals to the SEN Tribunal about an academy's refusal to accept their child and wins the appeal, the Academy is not required as a matter of law to admit the child —though it is "highly likely" that the Secretary of State would direct it to do so. The key point is that parents' rights are dramatically diminished. They must rely on the Secretary of State intervening rather than the protection afforded by statutory rights that arise from education legislation which applies to maintained schools but not to academies. Lord Adonis said that:

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When asked why it would not be possible to have a different kind of basis on which there is a funding agreement but still have a universal right for a child with special educational needs to go to any school which the statement recommends, the Minister agreed this would be possible. Lord Adonis said:

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204. Lord Adonis was not convinced, however, that there was a legitimate concern to justify such a change:

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205. When evidence was put to Lord Adonis regarding the reduction in children with SEN at some academies he said that it was the average levels that mattered:

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206. Average figures can disguise what is happening at an individual school level. In light of the evidence presented to this Committee, we believe that the risk of discrimination to children with SEN is not worth taking for the sake of maintaining the legal independence of Academies in this area. As Steve Haines, DRC, identified in oral evidence:

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207. To guard against the possibility that academies could discriminate against children with SEN this Committee recommends that the Government take the relatively simple step of changing the funding agreement so as to put academies on the same legal footing as all other schools with regard to children with SEN.

208. Local authorities should monitor admission of children with SEN to schools in their area, including academies and trust schools in England, and report publicly on this each year.

Appeals process

209. There were 3,354 appeals to the Special Educational Needs and Disability Tribunal (SENDIST) in 2003-04. From 1996-97 to 2002-03, the number of appeals rose steadily from 2,051 to 3,532—an increase of over 70% in 6 years. In the year from 2002-03 to 2003-04, however, the number of appeals declined by 5%. The majority of appeals are either against refusal to assess (nearly 40%) or against the contents of the statement (nearly 50%). Appeals against the failure to name a school or refusal to change the name of a school made up only 1.5% of appeals.

210. 3,354 appeals represents less that one per cent of children with SEN, as the DfES point out in their memorandum, but this does not imply necessarily that "for the great majority of families the system is operating effectively to meet their children's needs."[161]

THE COST OF APPEAL

211. It is true to say that in principle, as SENDIST explain in their memorandum, "there are no direct costs in appealing to the Tribunal."[162] In practice, however, there are often considerable additional costs involved in commissioning expert reports and further costs if parents choose to instruct their own legal representative. Parents have reported spending up to £18,000 on Tribunals.[163]

212. SENDIST do not collect data on the costs incurred by parents but they do recognise that there are "significant costs that parents may incur."[164] With regard to the cost of legal representation, SENDIST have argued that "in recent years we have seen greater use of legal representatives, but it is misleading to present it as the norm."[165] Their data show that in 2004-05:

20% of parents had the help of a legal representative throughout the process.
At hearings, 25% had legal representation and a further 23% had a non-legal representative.

213. In reference to whether these costs are necessary, SENDIST refer to recent research undertaken by the DCA Research Unit to demonstrate that legal representation did not improve the success rates of appeals.[166] Researchers "conducted thorough statistical analysis of over 1,100 cases and concluded that "whether or not an applicant was represented had not impact upon outcome." Although represented parents were more likely to be successful [represented cases had a higher success rate by 7 percentage points than non-represented cases—82% to 75%], the differences were not found to be statistically significant [demonstrated through regression analysis]."[167] SENDIST argue that "unless there are complex areas of law to be explored, factual and relevant evidence is better than unnecessary legalese and most parents are well able to argue their cases effectively."[168]

214. With regard to the cost of commissioning expert reports, however, SENDIST recognise that "a single report is likely to cost several hundred pounds".[169] Furthermore, they recognise the need for such expenditure in many cases. They say that "even if it is not a necessary part of the tribunal process for parents to commission such reports, we would have to recognise that there are cases where an alternative professional opinion will be necessary to sway the Tribunal against the advice of the relevant local authority professional[...]"[170]

215. SENDIST argue that "[...] it is for others to consider whether or not parents should receive any assistance if they decide to commission professional reports. It is not easy to see how the Tribunal itself might help."[171]

EQUAL ACCESS TO APPEAL

216. Parents should have equal access to an appeals process. There are, however, some specific issue of equity of access—such as for looked after children—as well as broader concerns regarding equity of access to a formal legal process. As one head teacher said, "tribunals are a complicated process and it's often only the dogged, middle-class parents that are prepared to take the process on."[172]

217. The high level of variation in the number of tribunals that take place across different local authorities suggests that there is a significant problem regarding equal access to the appeals process, but the access issues are complex. Evidence shows that there is no correlation between the number of tribunals and the wealth of the population of a local authority area (see Table 2 below). SENDIST do not collect data on the socio-economic backgrounds of parents making appeals. They do, however, in their memorandum make the point that "if one looks at LEAs with relatively high and relatively low levels of appeals, one cannot see any clear link to economic circumstance."[173]

Table 2: Local Authorities attracting most appeals, 2004-05
Local Authority	Appeals per 10,000 of school population
Lewisham	21.76
Lambeth	20.38
Hackney	15.61
Richmond	14.37
Croydon	12.55
Southwark	12.46
Wandsworth	11.78
Bromley	11.27
Kingston	11.14
City of Bristol	10.72

Source: SENDIST memorandum [SEN 230]

218. Equal access to tribunal is an important issue that needs urgent remedy but it is not a simple case of discrimination by affordability or by any particular policy held by a local authority. As the Minister said:

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219. One particular issue of equality of access that does need urgent resolution is that of access to appeal for looked-after children. Julia Thomas, a solicitor for the Children's Legal Centre, explained to the Committee that:

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220. Parents must have the right to appeal against decisions made regarding the education of their children. All parents and legal guardians must have equal access to the appeals process. Evidence suggests this is not the case at present. The Government is responsible for ensuring steps are taken to guarantee equal access to an appeals process for all parents and guardians; in doing so it should give particular attention to the access of parents from low socio-economic backgrounds, parents with SEN themselves, and the fair representation of looked-after children. The Government should start to collect data on the background of parents at tribunal, and on expenditure in relation to outcome.

221. Earlier attempts to have informal discussion to aid resolution of provision issues between local authorities, schools and parents could reduce expenditure on tribunals significantly and also remove much unnecessary delay and trauma in meeting the needs of the children concerned. Again, the effectiveness of local authorities in promoting such informal resolution needs to be closely monitored.

222. The standard approach should not be adversarial. We recognise, however, that all too often parents had little choice in taking an adversarial approach during the appeals process in order to obtain what is in the interests of their children. With a range of appropriate high quality SEN provision in place, a clearer understanding of roles and responsibilities and more transparent processes, the confidence of parents in the system should increase and the level of anxiety, frustration and litigation should reduce.

LOCAL AUTHORITY ROLE IN APPEALS

223. The memoranda received from local authorities each refer to frustrations regarding the Tribunal process and the lack of 'fairness' inherent in the system.[176] Buckinghamshire County Council said "The Tribunal process, initially established as a means of appeal for parents in disagreement with the local authority, has become a quasi-legal process where affluent parents engage barristers to 'fight' their case, irrespective of the educational rationale." [177]

224. Mark Rogers, Director of Education and Children's Services, Solihull Metropolitan Borough Council, argued that:

178

225. It is the role of a local authority to distribute a limited amount of funding for SEN. Parents seek an entitlement to have their child's needs met, and a local authority seeks to distribute finite resources as effectively as possible. This is a situation that inevitably raises conflict. Conflict between parents and local authorities needs to be minimised through clear understanding of roles and responsibilities, transparent processes, and better management of expectations.

226. Mark Rogers described the need to consider SEN appeals within a broader appeal system—rather than creating a separate system for SEN. He suggested:

179

227. The Government should review whether SEN appeals should be part of a broader education appeal process as part of a strategy to reduce reliance on a separate system for SEN.

Funding process

228. Section 3 of this report "Expenditure on SEN", describes the increase in Government spending on SEN in recent years. Lord Adonis told this Committee that:

"Spending on special educational needs has risen from £2.8 billion to £4.1 billion in the last four years"[

180

229. Recent increases and planned expenditure on SEN should, however, be put in the context of there being a long history of SEN being under-funded. Network 81, an organisation representing parents, described the majority of opinion by saying "resource availability is variable and too often led by the funding available from the local authority and not applicable to the needs of the children."[181]

230. Lord Adonis told us that:

182

231. He said this in reference to the Government being prepared to put a significant resource behind the development of 14-19 pathways,[183] however, not with regard to SEN.

232. This Committee welcomes the additional investment in SEN and special schools in the last three years but SEN remains under-funded, particularly in mainstream schools. We agree with the Minister that the Government can accomplish a huge amount when they put the resource behind it. The Committee recommends that this principle is applied to SEN. The Government should radically increase funding for SEN in order to achieve a range of appropriate, high-quality provision across every local authority with a fully equipped and resourced workforce. The Committee hopes that the Treasury review of funding for children with complex needs, which we welcome, will provide an opportunity to do just this.

DELEGATED FUNDING

233. The Government are committed to increasing the amount of delegated funding to schools for SEN. In their memorandum the DfES said that "the Government believes that schools are best placed to make decisions about support arrangements for pupils experiencing barriers to their learning. It is encouraging the delegation of more SEN resources to schools to enable head teachers and SENCOs to address the individual needs of pupils more quickly and without the need to 'demonstrate need' to their local authority before resources are made available. But the Department has always made clear that this must result in a better deal for children and not a reduced entitlement."[184]

234. Because there is only a limited national framework in place, there is no common practice with regard to the extent to which local authority budgets for SEN are being devolved to individual schools. The advantage of delegated funding is that early-intervention can be implemented at the schools level. The disadvantage of delegated funding is that the money is not ring-fenced and it is difficult to know whether it is being spent on SEN. Ofsted has found evidence that SEN budgets have been used for other "priority" areas in schools.[185] Mrs Eirwen Grefell-Essam, a SENCO and representative of Network 81 (a parent representative organisation), told the Committee that, in her experience:

186

235. The DfES memorandum said that "delegating funding for SEN to schools can help to boost earlier intervention for children with SEN so that support can be provided, wherever appropriate, without the need for a statutory assessment or a statement."[187] The majority of memoranda this Committee have received, however, do not support the practice of delegating funding. Network 81, for example, said "[...] the resources are allocated to each individual school to do with as they see fit. This may then not be allocated to the individual needs of the child. We can give many examples of individual schools where resources are provided but the individual children receive very little of the provision. As there is no 'ring fencing' of SEN funding it can easily be used in other ways by schools. There is also often no effective monitoring of these resources by the local authority."[188]

236. The Government should stop and think before further increasing the level of delegated funding to schools without other necessary conditions first being in place and without improved accountability for school spending. Delegated funding should enable more early intervention, in theory, but it needs to be implemented hand in hand with other key factors—a clearer national framework linked to minimum standards, a broad range of suitable provision, and a workforce that is fully equipped and resourced to identify and meet the needs of children with SEN. Without these other conditions in place further delegation of funding is a high-risk approach, particularly in light of evidence from Ofsted that some delegated funding to schools is not being spent on SEN.

237. We believe there would be much merit in reserving part of central government's funding to encourage flexible access and co-operation between special and mainstream schools, the Minister himself having said in evidence that it was "crucial to see that money intended for SEN is spent on SEN".[189]

FUNDING OF SPECIALIST SERVICES AND PROVISION FOR LOW-INCIDENCE NEEDS

238. NASUWT and NUT, along with others submitting evidence to the inquiry, argue that the increasing delegation of funding to schools prevents effective co-ordination of services at area level and puts specialist services—such as that provided by educational psychologists—at risk.

239. SEN Delegated funding also makes coherent and effective overall planning very difficult in relation to, for example, (1) low incidence special needs (2) coordinated, systematic, varied-level training/CPD around SEN and (3) schools' access to high level local expertise on SEN/disability. These difficulties are compounded by the growing diversity of school types.

240. The DfES have said that "following the recent Ofsted report [...] the Department will also be consulting on minimum standards for SEN advisory and support services to promote greater consistency in their quality, availability and cost effectiveness, however they are provided."[190] The result of this is the recent National Audit of Support, Services and Provision for Children with Low Incidence Needs, funded by the DfES, which took a thorough look at the sector and concluded that there was a "significant level of agreement" that "the DfES should give a clear steer to regions and local authorities with regard to good practice for children with low incidence needs."[191]

241. The NUT have argued that "SEN support services can be undermined and become disjointed by the delegation of funding for statemented pupils. Such support services require guaranteed funding in order to be able to plan provision, give appropriate levels of support, and employ sufficient permanent specialist teachers and other staff with the necessary skills and experience."[192]

242. Local authorities should be required to maintain a proportion of SEN funding to resource specialist services and services to meet low-incidence needs. The Committee supports the recommendations made in the recent SEN Audit on low-incidence needs.

FUNDING OF PLACES AT NON-MAINTAINED AND INDEPENDENT SPECIAL SCHOOLS

243. With regard to local authority funded places in non-maintained and independent special schools (NMISS), the Audit Commission have found that "between 2002-2003 and 2004-2005 there has been a 43% increase in spending on these placements. We now intend to expand on this by examining the role, potential contribution and costs of non-maintained and independent special schools, which tend to cater for those pupils with the most complex needs. We consider this to be an important issue for local authorities, children and parents and will be producing a national report on third party placements by May 2006".[193]

244. Non-maintained and independent special schools (NMISS) provide invaluable provision for many pupils—including some children with low-incidence special needs. The Committee notes with some concern the rapid increase in expenditure on NMISS places in recent years. NMISS places must remain an essential component of a broad range of flexible provision within all local authorities but we recommend that fees for NMISS places should be monitored by the DfES.

ALLOCATION OF RESOURCES THROUGH THE STATEMENTING PROCESS

245. Concerns have been raised throughout this inquiry regarding the allocation of resources in statementing process. 50% of appeals to Tribunal are regarding the content of a statement—a large part of which seeks to allocate resources based on identified need.

246. It has been proposed during this inquiry that a voucher system of funding could be allocated through the statementing process and that money and resource would then follow the child to whichever school they chose to attend. The aim would be to create a very specific financial entitlement through the statementing process. A listener to the Radio 4 You and Yours Programme on SEN[194] emailed the programme to ask "why can't the education department give the parents a voucher equivalent to the cost of educating their child which could be used to pay towards the school of their choice. Often a small private school with smaller classes is better, but many parents cannot afford this, to the detriment of their children."

247. The Minister was asked if he would endorse such proposals, and he replied "no" for what he described as a "perfectly immediate reason."[195] As the Minister implied in his response, a voucher system is not, in itself, going to fix the underlying faults in the statementing process that impact on whether or not the resource follows the child: firstly the continuing lack of specificity in the part of the statement that allocates resources (despite statutory guidance on specificity); secondly the role of the local authority in having the final say in decisions regarding placement. The difficulty is that a voucher system cannot, in itself, resolve these more fundamental problems in the system. Furthermore, if these problems were resolved then the resource would—as in theory it should—follow the child and a voucher system would not be necessary.

248. Others have argued that funding can better follow the child if some is retained in a central resource. Primarily, this is because of capacity issues for children low-incidence needs, but also because of funding complications if the child moves schools or if there is dual-registration.[196]

249. The Government should improve the extent to which funding follows the child. Whether this be through a voucher system or through an increased central resource for low-incidence needs, this issue should be given further consideration. The fundamental problems in the statementing process that prevent funding from following the child should be resolved as a matter of urgency.

123 SEN 178 Back

124 Ofsted, Special educational needs and disability; towards inclusive schools, 2004 Back

125 Ofsted, Annual Report 2001-02 - Special Schools http://www.ofsted.gov.uk/publications/index.cfm?fuseaction=pubs.summary&id=3151 Back

126 Audit Commission, Statutory Assessment and Statements of SEN: In Need of Review, June 2002. Back

127 University of Cambridge, John MacBeath et al, The Costs of Inclusion: a study of inclusion policy and practice in English primary, secondary, and special schools. Commissioned and funded by the National Union of Teachers.2006. Back

128 Q307, Q458, Q464, Q574, Q577, Q595, Q625, Q645, Q816. Back

129 DfES Removing Barriers to Achievement, 2004 SEN Strategy page 71 Back

130 DfES, Letter to CEOs / Directors of Children's Services, 15 November 2005, regarding Special Educational Needs Back

131 DfES, Letter to CEOs / Directors of Children's Services, 15 November 2005, regarding Special Educational Needs Back

132 Where parents ask an LEA to assess their child for a statement, the LEA must say within six weeks whether or not it will make such an assessment. Where an LEA decides to assess a child for a statement, it must give the parents a proposed or draft statement within a further 12 weeks i.e. within 18 weeks of the parents first asking for an assessment. Once the parent is given a draft statement, the LEA must consider any comments the parents may make about the statement, and must then give the parents a final statement within a further 8 weeks.Teachernet.http://www.teachernet.gov.uk/wholeschool/sen/faq/ Back

133 Where an LEA fails to meet the time limits it may be because it asked the district health authority or social services for advice about the child, and did not receive a response for a long time. If the delay in such a case was for six weeks or more, the LEA is 'excused' from having to meet the time limits. The Regulations also cite several other circumstances in which the LEA does not need to comply with the time limits.[Paragraphs 3 (2) and 5(3) and (4) of Schedule 27 of the 1996 Act; regulations 12 and 17 of the SEN Regulations; the summary table on page 120 of the Code of Practice]. Teachernet. http://www.teachernet.gov.uk/wholeschool/sen/faq/ Back

134 Q71 and Q880 Back