Children and Families Bill

Memorandum submitted by the Association of School and College Leaders (ASCL) (CF 18)

1. The Association of School and College Leaders (ASCL) represents over 17,000 head teachers, principals, deputies, vice-principals, assistant heads, business managers and other senior staff of maintained and independent schools and colleges throughout the UK. ASCL has members in more than 90 per cent of secondary schools and colleges of all types, responsible for the education of more than four million young people. This places the association in a unique position to consider the bill from the viewpoint of the leaders of secondary schools and colleges.


2. There is much in the bill that we welcome. On Part 3 ASCL’s main areas of concern are; what will happen to the children and young people with low level SEN who do not qualify for Education Care and Health Plans, particularly in light of the loss of School Action and School Action + (paragraphs 8 – 14), the lack of duties on the NHS (paragraph 15), the lack of clarity around the operation of Personal Budgets (paragraph 16 - 22), the definition of SEN (paragraph 23 – 25), the duty to ‘consult’ the head teacher when naming a particular school in an ECHP does not go far enough (paragraph 29) and the overall capacity of schools to make excellent provision in a time of squeezed budgets and reduced funding for schools and colleges.

3. It is important that the debate about accountability, the curriculum and the qualifications system is not seen in isolations from SEN. All children and young people need an appropriate and engaging curriculum, opportunities to work towards qualifications that will help them to find work or move on into further or higher education or training that may lead to work. Schools and colleges need a method of intelligent accountability that takes into account the work they do for some of our most vulnerable children and young people. This needs funding that is fit for purpose.

4. On the role of the Children’s Commissioner while we support the changes brought about in Part 5 we would like to see the Commissioner’s remit widened to include regard to children’s need for protection and guidance to encouraging a culture of responsibility (paragraph 53).

Part 3; Children and young people in England with special educational needs

5. ASCL broadly welcomes Part 3 including the new single assessment process, Education, Health and Care Plans (hereinafter referred to as ECHPs or ‘plans’) and raising the age that a plan can last for those in further education or training up to the age of 25. ASCL is concerned that most of the detail and practicalities of how the SEN provisions will work will be contained the new Code of Practice and Regulations. Whether the new provisions and duties on local authorities and education are sufficiently coherent to protect provision for children and young people with SEN will depend on the Code of Practice and regulations.

Low level SEN, loss of School Action and School Action +

6. We remain very concerned about who will qualify for an ECHP. All children and young people who currently hold statements should be those covered by an ECHP in the future. If there are fewer ECHPs than the present number of statements there will be a net decrease in funding for SEN in mainstream schools and colleges, which as well as impacting on individuals will have a knock on effect of downgrading SEN expertise in mainstream schools and colleges.

7. SEN is defined in Clause 20(2) (a) as ‘a significantly greater difficulty in learning than the majority of others of the same age'. How will significant be defined? Under the current system each local authority applies its own criteria in assessing SEN and awarding statements, which means that some local authorities have a much greater proportion of children and young people qualifying for statements than others. We understand that more detail on the criteria and levels of assessment for ECHPs will be contained in regulations. We seek detail on how this will be moderated throughout the country?

8. Further, how is it proposed to respond to disabilities such as dyslexia or Asperger’s which are on a continuum? In such diagnoses the level of support needed by different children varies greatly. The definition in Clause 20 gives no indication as to where to draw the line and makes no reference to how classroom differentiation and the least well performing 20% of children relate to the definition of SEN.

What funding and support for those who do not qualify for ECHPs

9. ASCL members are extremely concerned that there could be a serious reduction in net SEN funding for mainstream schools.

10. How will schools and colleges support children with SEN who have mild or moderate levels of special needs, and who currently receive extra support in schools? There is great concern that in the future children currently covered by schemes such as school action or school action plus may fall through the net. Will mainstream schools be expected to meet the needs of children with mild or moderate levels of SEN and who do not qualify for ECHPs without dedicated funding to do so? How will schools fund extra support for those children who do not qualify for an ECHP?

11. With regard to the loss of ‘school action’ and ‘school action plus’ school leaders have made the point that teachers and other professionals working with children and young people will in all likelihood still keep a register of children and young people with SEN within their institutions which will be greater than the number of children with an ECHP; they warn against the loss of a common language and consistency of approach that is understood across the profession and from one institution to another.

12. The government is hoping that one of the ways that the increased costs will be offset is by children and young people securing paid employment in adult life and we commend this aim, but some of the anticipated savings made from reduced lifetime support need to be brought down to school level now.

Duties on health need strengthening

13. ASCL is concerned about the lack of specific duties on health and potential difficulty in securing services such as speech therapy, which could be defined as supporting educational or health needs. We note the Minister’s promise that "Government is doing all it can to make sure that the health service contributes fully" [1] and we await further detail of this. We will be pushing for stronger requirements on health and social care throughout the passage of the bill.

Capacity and funding of local authorities and local authority specialists and therapists

14. With regard to getting the best early specialist support for individual children and young people, schools are concerned that as the functions and capacity of local authorities are being diminished there may be less expertise and fewer expert professionals to call upon. For example some have concerns about the reduced number of local authority child psychologists and the potential for this gap to be filled by private child psychologists who are only an option for wealthier families.

15. The American experience suggests that there is a danger of over-diagnosis of disorders such as autism, especially when the observational analysis is carried out by people who are not always fully qualified or who have a particular focus in their work [2] . We need experts such as educational psychologists to have a practical understanding of what is possible within a standard mainstream educational setting and who direct their proposals to that. The danger of, for example, private educational psychologists, is that they are not regularly engaged in educational work and may make recommendations that are achievable in ideal circumstances but not in the real world.

Concerns about Personal Budgets

16. We support the Education Committee’s recommendation that lessons from pathfinders are taken fully into account when regulations are formulated on personal budgets and direct payments. We understand that the Minister has given a ‘firm assurance that this will be done’ but we are concerned that the bill has been written before sufficient time has elapsed for the experiences of the pathfinders to be properly felt, analysed, or understood. We would like to see some evidence of how personal budgets are working.

17. School leaders are concerned about the implications on personal budgets for school budgets, it is important that schools do not lose funding to help target the special support they have identified as necessary for their students because that child’s parents have decided the funding for their child would be better spent other than through the school.

18. We seek clarification as to how local authorities will deal with situations where the parents’ views regarding the funding of parts or all of the needs identified in their child’s ECHP do not concur with the opinion of the best use of resources by teachers and other professionals?

19. We seek greater clarity on the operation of the education element of personal budgets The SEND Pathfinder Programme Report for March 2013 [3] has a profound lack of case studies about the operation of the educational offer. Will educational elements of the personal budgets within the school day be limited to notional budgets? Who will be responsible for staff such as teaching assistants paid for by personal budgets to support individual children in within school time? Who will line manage them? What will happen if there is a safeguarding issue or if there is a disagreement between the teaching assistant or the parents and the school/college?

20. It is hard to see how budgets will be sufficiently flexible to enable parents or young people to make real decisions when there are specific needs identified in the ECHP which require funding. How this will work in practice needs clarification.

21. The quality assurance of the different options of support that will be open to parents is also of concern, especially when the consequences for children’s learning and future development are so high. If, for example, several different providers say that they can provide the support needed at varying costs how will parents decide which option provides the right support and best value for money?

22. Many parents will be vulnerable themselves (and some may also have special needs), and may not always have the skills and experience to make the best decisions for their child. Many parents will not have the financial experience or skills to make complex decisions about spending funds they are allocated. How will local authorities ensure that parents are well equipped and able to make these complex and sophisticated decisions?

23. We also seek clarification on the position of children and young people educated other than at school including those who are home educated. What are the plans to monitor this kind of provision and how will this be affected by the introduction of personal budgets?

Definition of SEN and behavioural, emotional and social difficulties

24. ASCL is pleased to see that the ‘term special educational needs’ (SEN) has been retained. SEN is a generic term that encompasses all sorts of different conditions and needs and sits well with more tailored and personalised learning.

25. There are children whose behaviour makes them unsuitable for mainstream schooling and a large number of behavioural, emotional and social conditions have in recent years been identified by health professionals. It is questionable whether the definition of SEN in Clause 20 may be applied to these children and young people. There needs to be explicit recognition of these children. These are the children and young people who are probably most at risk of becoming NEET and for whom short term funding savings would be most greatly outweighed by long term, possibly lifelong, benefit costs.

26. The Warnock Report suggested that nationally there would be 20% of children with SEN. Only 2% would have SEN throughout their school days. The latter group would have ‘long-term’ (more than twelve months) impairment (disability), as defined by the Equality Act 2010. In recent years the only children with statements are those with such long-term impairments. It would be possible to cease to use the term SEN for these children and to use it only for those children whose difficulties are transient and for whom schools must make provision. However, there is a cost implication since this is likely to include more children than at present have statements.

Individual school/college named in the ECHP

27. We support the ambition for parental preference to name a school in an ECHP and we support the change in Clause 41 but we are aware that some local authorities no longer have special schools or units available and also that parental preference can be extremely expensive.

28. Residential provision has been a major area of litigation in recent years. Some parents have sought a comprehensive care package for their child provided in a residential setting. This sort of provision is costly and local authorities resist it on the grounds of ‘inefficient use of educational resources’; Clause 39 (4) (b). Recent judgements conflict over whether, in calculating the cost, the cost of the maintained school should be the whole cost of a pupil (the total running costs of the school divided by the number of pupils) or the marginal cost of one extra pupil (albeit with special needs). The latter means that residential care is ruled out in most cases. We seek clarification as to how this issue will be resolved in the future?

29. Members tell us that in some cases the education budget has been used to pay for residential provision elements that should have come out of health or social care budgets, for example the residential element of a school place. Only the daytime education provision equivalent should be funded by the education budget. School leaders are also concerned that in some cases the quality of placement is not very high. Schools must not pay for expensive residential placements without the opportunity for review or to insist on high quality educational outcomes.

30. Although local authorities would be required to ‘consult’ the head teacher when naming a particular school in an ECHP this does not go far enough and could give rise to occasions when the local authority names a particular school against the better judgement of the head teacher. There needs to be a clear duty on the local authority (through regulation or within the body of the bill) to give reasons if it decides to disregard the judgement of the school.

Integration and joint commissioning, cooperation and assistance

31. ASCL strongly supports collaborative working across educational institutions and with other agencies. We seek clarification on the funding that will be available to make a success of integrated planning and assessment. Increased joint working and collaboration generally means an increase in cost for all involved, although most of this extra cost will need to be borne by local authorities.

32. Regarding the joint commissioning arrangements and cooperation Clause 31(2) says bodies must comply with requests made by local authorities unless doing so would be 'incompatible with its own duties' or 'otherwise have an adverse effect on the exercise of its functions'. Clause 31 (3) says the agency concerned must give reasons within a prescribed period. This must not be used as a get out clause for non-cooperation; the Code of Practice and regulations should specify the situations that may fall within Clause 31(2) if the cooperation requirements are to have teeth.

33. Assessment and planning processes must be best utilised to achieve the aim of integrated support, and local authorities must be made accountable for outcomes of young people. We would like to see clear processes to track destination of young people. Are some local authorities more successful in getting potential NEETs into training and eventually into work? We would like to see research into what good practice looks like.

34. ASCL strongly supports joint working but there is a danger that schools may be constrained by health and social care priorities, we are pleased to see concerns about health taken on board, see paragraph 13. Clause 59 will assist schools in dealing with the ‘ancillary aids’ provision under the Equality Act 2010 but it is not sufficiently clear in its wording; the local authority ‘may’ supply goods and services but will not have a duty to do so. We think that the clause should create a duty on the local authority. In a period of scarce resources this provision is otherwise likely to be ignored.

35. We also seek confirmation that children with no health or care component to their special educational needs will not lose out and will be eligible for an ECHP.

36. Joint working and in particular joint decision making is by its nature a slower process than unilateral decision making. The Common Assessment Framework (CAF) has provided much evidence that working together requires careful and efficient organisation. School and college leaders’ experience of the CAF is that they are very often expected to lead the process, even when the main issues are social or medical. This has placed a huge burden on educational resources and personnel which is not sustainable in a time of diminishing budgets. The CAF experience also shows that the role of a key worker is crucial.

Transition from statements to ECHPs

37. Transition must be on a child to child basis and we anticipate that for many children and young people transition will be for the lifetime within a particular institution (at least five years) and in some cases longer. The new plans will need to be phased in gradually and schools and colleges will have to run both ECHPs and statements concurrently during the transition period. Our members point out that the statement review process is already a huge amount of work and anticipate that the EHCP reviews are likely to be even more time consuming. We await the regulations which will contain the detail on this.

SENCOs and future SENCOs need quality funded training but do not need to be qualified teachers

38. We understand that regulations will set out the requirements of those who hold the role in schools and will maintain the current requirement for the SENCO to be a qualified teacher. We see this as a missed opportunity. SENCO is the only post in schools now which has a mandatory qualification beyond first training. ASCL would prefer more flexibility. Many non-teachers are now on senior leadership teams in schools and colleges including high level pastoral staff, the idea that without a teacher qualification they will not have high enough status is no longer true. Specialised SENCO training is however absolutely vital. We would like to see the funded training currently available to already appointed SENCOs extended to those who aspire to take up a SENCO post in the near future as there is a real succession problem with this role.

Review at transition to secondary school

39. We are pleased to see that Clause 27(1) puts a duty on local authorities to ‘keep under review’ its special education and social care provision for the children and young people with SEN to whom it has a duty. Too often our members find that a child arrives in secondary school or college with incomplete records, and identification and assessment process has to start from the beginning; we hope that ECHPs will address this problem. Some young people however develop special needs later in their childhood or during teenage and early adulthood, particularly with issues such as mental health, and some children arrive at secondary school with special educational needs that have not been picked up by their primary school. While essential that the identification process can commence at any age and should be kept under review, it would be useful to create the opportunity for review at transition stages in education  such as the start of secondary school.

Children arriving from outside the UK

40. There should be particular consideration of the assessment of children arriving from outside the UK, particularly in light of Clause 20(4); while we agree with the wording of that clause there should be a caveat for vigilance for those children, as poor language skills may mask SEN.

Transition into adult services

41. Transition arrangements between school, college and employment need to be carefully managed. Young people generally benefit from being gradually introduced to a new environment through two-way visits, followed by part-time attendance and eventually full-time transfer. At present it is difficult to organise this because of funding and related attendance requirements, and such arrangements are often undertaken over too short a time. Flexibility and patience is required alongside a less rigid approach to funding. If possible, a staff member should be appointed as a link contact for the young person during and after their transfer. If feasible, a person who is disabled or has SEN themselves and who is already employed at the new place of work should be appointed as a workplace mentor and receive training to carry out this job. This would be advantageous to new and established employees.

42. The appointment of a key worker with particular responsibility for maintaining records and contact with the young person as they approach adulthood would assist continuity and provide an automatic single access point for enquiries.

43. The provisions in this bill relating to portability of social care support should reflect those for adults contained in the Care and Support Bill.

Part 5; the Children's Commissioner

44. ASCL welcomes Part 5. We believe it will improve the credibility of the Commissioner’s role and hope that it will strengthen the impact on the lives of children and young people.

45. We believe that the Children’s Commissioner will be most effective when it has a strengthened and independent remit with a clear emphasis on balancing children and young people's rights with responsibilities. For example, in schools the rights of individual children who frequently or seriously misbehave must be balanced against the rights of all the other children in the school who have a right to a peaceful life and an effective education. We think that as well as children’s rights the Commissioner should have regard to their need for protection and guidance. We would therefore like to see the Children’s Commissioner’s remit widened to include a function of encouraging a culture of responsibility as a counter balance to rights. We believe this will promote a greater understanding of the true value of the UNCRC to which the UK is rightly a signatory.

March 2013

[1] Annex C of Children and Families Bill 2013: Contextual Information and Responses to Pre-Legislative Scrutiny ;

[2] Current edition of ‘Diagnostic and Statistical Manual of Mental Disorders’, American Psychiatric Association

[3] SEND Pathfinder Programme Report co-written by the DfE and DH, can be found at

Prepared 8th March 2013