Children and Famlies Bill



1. The purpose of this memorandum is to provide a commentary from the National Union of Teachers (NUT) on the Children and Families Bill. The NUT is the largest teachers’ union representing over 300,000 members, including special educational needs co-ordinators (SENCOs), educational psychologists, inspectors and advisers. The experiences of these members inform the Union’s positions on the Children and Families Bill.

2. The NUT is part of the Special Education Consortium [1] which is also providing evidence to the Bill Committee. Rather than replicate the arguments made by other organisations in its memorandum the NUT will set out some additional concerns and identify to members of the Bill Committee four key areas about the proposals relating to provision for children with special educational needs where we believe clarification or amendments would be useful.

Overall view

3. In the Next Steps ‘Green Paper’, the Government said that it wanted to remove the bias towards inclusion. In fact it has not done this in the Bill. The presumption in favour of a mainstream education is retained, and extended to academies and further education. This is welcomed by the NUT.

4. The Union believes the Bill preserves the right balance between making reasonable adjustments for individual students and allowing consideration of what school is the most appropriate educational setting for each student. It is right that there is a presumption that children will attend maintained nurseries and mainstream schools, including academies. It is right also that there is acknowledgment that local authorities need to maintain a continuum of provision to meet the full spectrum of need, including specialist provision, special schools and pupil referral units.

5. In practice, the focus should be on learning from the evidence about how to develop inclusive schools and how to deliver maximum co-operation between mainstream schools, special schools and alternative provision. The Department for Education (DfE) should consider outcomes and support for pupils with SEN and for disabled learners in all education policies, such as policies on class size, teacher training, curriculum and school infrastructure. The current proposed curriculum reforms appear to ignore the needs of children and young people with learning and emotional and behavioural difficulties.

6. The NUT is concerned, however, that the key background factors which undermine SEN provision are outside the scope of the Bill. In addition to the severe cuts to Local Authority services, there are other strategic issues which have, and will continue to have, a far greater impact on outcomes of children with SEN within the education system, such as:

· The funding reforms which will take effect in April 2013 will have an impact on funding for pupils with SEN. This impact is as yet untested and hard to predict;

· The high stakes nature of accountability measures which do not reward the contribution of schools to developing inclusive practice and penalise schools which have inclusive admissions policies [2] ;

· The fragmentation of the education system and the focus on free schools and academies has replaced a partnership and collaborative approach with a focus on competition and independence; and

· The impact of the inappropriate use of support staff on teaching of pupils with special educational needs – the increase in the number of teaching assistants and the inappropriate expansion of their roles has a negative effect on pupils’ academic progress [3] .

Importance of School Action Plus

7. School Action Plus gives schools the option to seek support from outside the school when they decide that agreed teaching strategies for an individual child are not working, or where the child is not making progress or the parent has identified issues. This is how the SEN Code of Practice explains what School Action Plus actually means:

‘’Outside specialists can play an important part in the very early identification of special needs and in advising schools on effective provision designed to prevent the development of more significant needs. They can act as consultants and be a source for in-service advice on learning and behaviour management strategies for all teachers.

At School Action Plus, external support services, both those provided by the LA and by outside agencies, will usually see the child, in school if that is appropriate and practicable, so that they can advise teachers on new Individual Education Plans with fresh targets and accompanying strategies, provide more specialist assessment that can inform planning and the measurement of a pupil’s progress, give advice on the use of new or specialist strategies or materials, and in some cases provide support for  particular activities.  ‘’

8. This is an exposition of what good practice should look like. The DfE has not explained how it believes reducing co-operation between schools and LAs in meeting the needs of pupils with additional and often complex needs will improve outcomes.  

9. The Second Reading debate revealed that Members of Parliament realise only too well the value placed by their constituents on access to speech and language therapists, educational psychologists and other specialist services. Access to these SEN specialist services is an essential plank of support to ensure early intervention, sharing of best practice and access to cutting edge research and knowledge.

Personal budgets and direct payments

10. The Bill at Clause 48 requires local authorities to prepare a personal budget in relation to an Education, Health and Care (EHC) plan where a request has been made by the parent, or the young person. This may include, in some circumstances, the making of a direct payment.

11. The NUT is concerned about the lack of evidence to support the introduction of direct payments. These proposals pose significant risks, which outweigh the potential benefits and may well not have the intended result of improving outcomes for children and young people.

12. Rather than increasing choice for parents, services may disappear because the funding will not be secure as it will not be possible to predict which services parents will buy into. The options which parents have will reduce because a lack of financial viability will mean the range of services will decrease. Services for low incidence SEN will particularly be put at risk. Rather than raise parental expectations, the Government should focus on the actual barriers which parents face and the factors identified by the Lamb Review into parental confidence which have not been addressed.

13. Clause 48, as presently drafted, gives the parent a statutory right to require the local authority to prepare a personal budget and make direct payments even in circumstances where the school does not want this or where it would not be justified in terms of efficiency or economy.  It is not to disparage the contribution that parents make to recognise that their wishes may not necessarily be the best for their own children or reasonable in the context of an efficient and cost effective system for all children.    

14. The concept of direct payments has been trialled under the SEN Green Paper Pathfinders. In the statutory regulations which enabled this, head teachers were given the ability to exercise professional judgement over whether students or parents could use personal budgets in relation to their school. This was sensible and demonstrated respect for professional expertise and judgement.

15. This requirement to seek agreement from the school/college to the use of a direct payment, referred to during the pathfinders as a ‘veto’ for schools, has not been carried forward into this Bill. The NUT believes that, at the very least, a school should have some say where they believe a direct payment may be used for provision which is inappropriate for a child’s needs. The Bill should also allow a Local Authority discretion to weigh up whether making a payment to one parent or child would threaten or jeopardise existing provision for that child or other children and parents because of economies of scale or other local factors.

16. In order to avoid exacerbating the existing postcode lottery and to help ensure greater consistency and transparency of provision across the country the NUT believes any regulations should set out clearly the criteria a local authority uses for deciding whether or not to make a personal budget.

17. Teachers are concerned that these proposals seem to question their professional judgement and the value of their many years of education and training. In evidence to the NUT [4] , 65% of SENCOs were concerned about allowing parents to control funding for SEN provision.

‘Parents’ views are crucial and should be heard but parents of pupils do not often fully understand the needs of their child within a school environment or know enough about teaching and learning strategies to make informed decisions.’

‘I support parental choice and agree there should be some flexibility in the use of funding, but I am concerned about the quality and appropriateness of many alternative educational provisions which parents might buy and what systems would be in place to audit the use of delegated funding.’

Special educational needs co-ordinators

18. Clause 62 refers to a ‘member of staff’ rather than to a qualified teacher. Currently a SENCO is required to have qualified teacher status. Ensuring that SENCOs are teachers signals high expectations for pupils with SEN. It sends the vital message that SEN provision within schools should be co-ordinated by qualified teachers.

19. The DfE has indicated to the teacher and governor organisations that that the regulations will specify the prescribed qualifications for SENCOs and that the draft regulations will be made available for the scrutiny of the Bill Committee. A similarly welcome assurance has been given to the Education Select Committee. The Chair of the Committee, Graham Stuart MP said at Second Reading: "The Minister shares the Committee’s view that special educational needs co-ordinators should be required to be qualified teachers, and he has expressed his intention that regulations should make that a requirement in future" [5] .

Local Offer

20. The DfE has given assurances that the entitlements of children and young people with SEN and their families will not be weakened by the passage of the Children and Families Bill or by the revision of the statutory SEN Code of Practice. The Minister, Edward Timpson, gave this assurance once again during the Second Reading debate on 25th February 2013.

21. Yet the Local Offer, as described in Clause 30 of the Bill, as drafted, will potentially be a significantly weaker and more narrowly defined duty on Local Authorities than the equivalent provision in the Special Educational Needs (Provision of Information by Local Education Authorities) (England) Regulations 2001.

22. The current 2001 Regulations set out what information Local Authorities must provide. This includes (among other things) a requirement to provide information about:

· the action the LA is taking to promote high standards of education for children with SEN;

· what action the LA is taking to encourage schools in their area to share their practice in making special educational needs provision for children with SEN;

· the general arrangements including any plans, objectives and timescales for monitoring the admission of children with SEN (whether or not they have a statement) to schools in their area.

· the general arrangements including any plans, objectives and timescales for providing support to schools in the area with regard to making special educational provision for children with SEN

· the general arrangements including any plans, objectives and timescales for auditing, planning, monitoring and reviewing provision for children with SEN in their area.

· the general arrangements including any plans, objectives and timescales for securing training, advice and support for staff working in their area with children with special educational needs.

23. The information listed in these bullet points is important for parents but it also enshrines a set of important principles in relation to education for pupils with SEN. It recognises that teachers need training, advice and support and that schools should work together and collaborate to share good practice.

24. Clause 30 of the Bill provides that regulations ‘’may make provision about the information to be included in an authority’s local offer’’. The NUT believes that the information listed in the 2001 Regulations needs to be collected and publicised by LAs. The Local Offer should carry this forward into the new framework.

25. The NUT shares the concern of the Special Educational Consortium that the Government needs to ensure that the framework created by the Bill will support and not in fact undermine consistency. The current statutory duties to publish information are essential and the Bill is an opportunity to raise awareness of them, not to replace them with a weaker ‘Local Offer’. The Local Offer should build on these statutory information duties and the principles which underpin them.

Concluding comments

26. It is hoped that Ministers will not attempt to rush decisions on reforms as significant as these. Any evaluation of the pathfinders must be independent, thorough and transparent, and properly involve parents, local authorities, teachers and other special needs professionals. There is a danger that if the pathfinders see the ‘writing on the wall’ and believe that the Government is going to go down this road regardless, then this is not a genuine pathfinder process - the pathfinders will not take risks or feel able to report where things have not worked or suggest that there is not a strong enough case to bring in some elements of these extensive reforms.

27. It is also vital that there is widespread and comprehensive scrutiny of the revised SEN Code of Practice because it is on the efficacy of this document that the new framework will succeed or flounder.

March 2013

[1] The Special Educational Consortium came together in 1992 to protect and promote the interests of disabled children and children with special educational needs . SEC is a broad consortium of 33 professional, voluntary sector and provider organisations.

[2] The Costs of Inclusion, a report by the University of Cambridge in 2006 on inclusion in schools

[3] The impact of support staff on teachers, teaching and pupils, Institute of Education, P Blatchford and P Bassett, February 2013

[4] NUT survey of 187 special educational needs co-ordinators, 2011

[5] Graham Stuart MP during Second Reading debate [Official Report: 25 th Feb 2013: Col 84]

Prepared 6th March 2013