Children and Families Bill

Memorandum from The National Association of Head Teachers (NAHT) (CF 114)

1. Established in 1897, NAHT is an independent trade union and professional association representing members in England, Wales and Northern Ireland. Members hold leadership positions in early years; primary; special and secondary schools; independent schools; sixth form and FE colleges; outdoor education centres; pupil referral units; social services establishments and other educational settings.

This document outlines the NAHT’s current position on the Children and Families Bill.


2. Like many stakeholders, NAHT were comfortable with many of the aims and principles of the Children and Families Bill but has concerns with detail and implementation.

3. The changes in the Bill interact with a wide ranging reform of funding for both special needs and mainstream provisions. Our major concerns are that turmoil, opacity and shortfalls in funding will hamper schools from meeting the requirements of the legislation. This is particularly true of the top up funding between the core per pupil budget and the high needs component. Schools are finding it difficult to plan ahead at the moment and this is not helped by a lack of clarity on the part of local authorities and of course, no national consistency. Cuts to local authority services exacerbate this situation.

4. Although the bill imposes duties of co-operation, legislation has a poor track record of bringing forth meaningful integration between agencies with different priorities, boundaries and incentives. We see little in the bill that will overcome previous failures. It will remain difficult to get different agencies to agree on the type and severity of need or on the appropriate responses or on who takes responsibility for delivery. The power to engage health care remains weak. It is difficult to get expert medical diagnosis and it is particularly challenging where schools serving, for example, low incidence special needs must work with large numbers of different health authorities.

5. The default preference outlined in the bill is for inclusion in a mainstream setting. This does not reflect the modern and welcome trend to a flexible continuum of provision. Family preference and suitability of provision should be the sole arbiters of the appropriate placement.

6. It is a laudable aim to provide families more control over provision and personal budgets may promote this for those who want them. It will be vital to be clear about what is included and excluded in the funding and to ensure that families commit to a setting for an appropriate length of time to permit proper planning of resources, facilities and staffing. There is also an issue about who has responsibility for any staff employed through the personal budget element; the school or the parent?

7. Consideration should be given to co-ordinating local offers beyond local authority boundaries, particularly for low incidence provision and in dense urban areas.

Specific points on Part 1 – Adoption and Children Looked After by Local Authorities

Clause 9 Promotion of educational achievement of children looked after by local authorities

8. We support measures to promote and improve the educational outcomes for looked after children. We believe that it is essential for the success of the proposed ‘virtual head teacher’ that the post holder not only has qualified teacher status, but is recognised within the School Teachers’ Pay and Conditions Document.

9. Furthermore, we are supportive of the suggestion that the role of the ‘virtual head teacher’ should be expanded to cover children in or leaving custody.

Specific points on Part 2 – Family Justice

Clause 12 Child arrangement orders

10. Schools often find themselves in the middle of family disputes over parental contact and work hard to balance maintaining positive relationships with all parties, whilst ensuring that the best interests of the child are served.

11. Schools would appreciate revised guidance – both statutory and non-statutory (best practice) on how best to deal with contact issues directly affecting children at school.

Specific points on Part 3 – Children and Young People in England with Special Educational Needs

Local authority functions

12. We welcome the focus on co-operation between agencies and local partners and are pleased that overall responsibility for the coordination and monitoring of services is to remain within the local authority. However, we have reservations about the capacity of local authorities to undertake and manage such an undertaking in light of significant cuts.

Information and advice: the local offer

13. The idea of a local offer is much needed, as it will help parents to be aware of what is available in terms of SEN provision in their area – or beyond, if their child has a low incidence need. It is to be hoped that the Regulations mentioned in (8), will be sufficiently prescriptive to ensure that there is a common format and that local authorities must give a comprehensive account of the provision that is available, so that parents are fully informed when participating in discussions on the best arrangements for their children. It is also important that the local offer is set out in a similar fashion, making it possible to compare provision in different authorities. All types of schools and specialist support services will need to be fully involved in helping local authorities to compile accurate and up to date information. Making local authorities responsible for stating the provision they have may also help to mitigate against the cuts specialist services are experiencing

Mainstream education

14. NAHT was disappointed that the Children and Families Bill has moved away from the Green Paper’s commitment to providing parents with ‘identical rights’ to express a preference for mainstream or special schools and returned in clause 33 to a presumption of mainstream education.

15. There is a danger in this position of returning to the divisive debates of the 1980s and 1990s, when special schools were treated as a second best option. As it stands, the Bill will not have moved forward from the present position. Instead, the wording harks back to a time when children with physical disabilities in particular, were likely to be educated in special schools, simply because of their physical disability. The situation today is very different, and there are likely to be as many, if not more, parents trying to get their children into special schools as there are those wanting a mainstream place. The vast majority of pupils with SEN have always been educated in mainstream schools, but with more children being identified with complex needs (due to a number of factors, such as a rise in very premature babies surviving, newer conditions such as foetal alcohol spectrum disorder, and autism going from a low incidence need to one of the five most common conditions), the continuum of specialist provision that all the main political parties have supported, is likely to be needed for the foreseeable future. For that reason, NAHT hopes to see clause 33 amended as below:

16. Amendment to Clause 33 on Children and Young People with EHC plans

Delete 33 (2) and replace with:

(2) In a case within section 39 (5) or 40 (2) , the local authority must secure that the plan provides for the child or young person to be educated in either:

a) a maintained nursery school,

b) a mainstream school

c) a mainstream post-16 institution

d) a maintained special school

in accordance with the wishes of the child’s parent or the young person unless doing so is

i) incompatible with the provision of efficient education for the young person

ii) incompatible with the provision of efficient education for others.

Sub clause 33 (3) substitute ‘exception’ with ‘exceptions’

Sub clause 33 (4) substitute ‘exception’ with ‘exceptions’

Sub clause 33 (5) substitute ‘exception’ with ‘exceptions’

Children with SEN but no EHC Plan

17. We welcome the clarification that it is permissible for a special school placement to be used to help with the assessment of a child’s needs before having an EHC Plan. Currently, although this is happening in some authorities, many resist special schools fulfilling this role, because the children do not have statements. Enabling special schools to be part of the assessment process, would be a tremendous step forward in terms of early intervention and making sure the right provision and support was identified.

18. We recognise in 34(6) an opportunity to clarify a growing role for short-term, part-time and dual roll provision. Over the years, the continuum of provision has increased in scope, with more resourced mainstream schools, or ones with special units or bases for different types of need, and more special schools which have developed highly specialised provision within the special school for sub-sets of pupils with particular needs. What has not been as well developed is using that provision more flexibly, particularly in the case of special schools, because of local authorities’ unwillingness to allow pupils without statements to attend them, even for a limited time. There is a growing role for the flexible use of all specialist provision, whether in mainstream, special schools, or both, not just to make it as cost effective as possible, but so that more pupils can benefit. A flexible continuum of provision should mean that short-term, part-time and dual role provision is accepted as a way of achieving early intervention, meeting individual children’s needs as they change over time, and providing individual packages of support to suit every child. Making it easier for children to move more freely between mainstream and special schools would be a very significant step forward in improving outcomes for children with and without an EHC Plan.

19. We are concerned that 34(9) appears to be giving Special Academies the opportunity to achieve this flexibility, including for students without an EHC Plan. There is no explanation as to why this would not be equally appropriate for pupils in special schools that do not happen to be Academies at the time. This right should be extended to ALL special schools, as argued above.

Code of practice

20. NAHT welcomed the publication of the draft code of conduct and is responding separately to its content.

Specific Comments on Part 5 The Children’s Commissioner

21. NAHT welcomes the strengthening of powers of the Children’s Commissioner, and hopes that sufficient funding will made available for the post to deliver the best possible service for children.

Specific Comments on Part 8 - Right to Request Flexible Working

22. Although we welcome the ability for all employees to be able to apply for flexible working, we are concerned that the requirement for employers to follow a formal procedure, including an appeals procedure, for considering each request may result in fewer successful applications. The employer has 3 months from the date of the application in which to give their decision and must deal with requests in a reasonable manner. The employer also has the discretion whether or not to allow an appeal.

April 2013

Prepared 26th April 2013