Children and Families Bill

Memorandum submitted by NASUWT (CF 60)

Children and Families Bill Committee

Children and Families Bill Part 3: Children and young people with special educational needs (SEN)

March 2013


NASUWT evidence to the Children and Families Bill Committee


The NASUWT’s submission sets out evidence that relates to Part 3 of the Children and Families Bill. This evidence draws on the findings of independent research commissioned by the Union and from representative committees and other structures, made up of practising teachers and lecturers working in all relevant sectors of the education system.

The NASUWT is the largest union representing teachers and headteachers in the UK, with other 280,000 serving teacher and school leader members.

Background and context


1. The NASUWT welcomes the opportunity to submit evidence to the Children and Families Bill Committee. This evidence relates to Part 3 of the Children and Families Bill: Children and young people with special educational needs (SEN). In particular, it addresses the following issues: the definition of SEN; the need for the special educational needs co-ordinator (SENCO) to hold qualified teacher status (QTS); inter-agency working, the duty to co-operate and the role and responsibilities of the local authority; the Education, Health and Care (EHC) Plan; the SEN Code of Practice; personal budgets; and the Local Offer.

Definition of SEN

2. The NASUWT has commissioned and published research that looks at interpretations of SEN and inclusion. [1] This research highlights that SEN and inclusion can be defined in a number of ways. For example, inclusion may be seen as an ideology (usually linked to a human rights agenda), a place (usually a mainstream school versus a special school), a policy (normally from central or local government), a professional practice (such as inclusive teaching), or a personal experience (such as how the pupil experiences inclusion). The research also points to the confusion that can arise as a result of these interpretations and emphasises the need for teachers to have a workable version of the different terms and agendas. This indicates the need for a radical review of the definition of SEN.

3. The NASUWT believes that all children and young people should have their needs met so that they are able to achieve their potential. It is vital that a label of need does not prevent them from receiving the help that they need. Therefore, the definition of SEN should be linked to and located within a wider definition of ‘additional needs’. Defining SEN in this way would support a holistic approach to meeting needs. It would also provide the legal framework for ensuring that services such as the health service can be held to account for meeting needs of children and young people.

4. The definition of ‘need’ set out in the Bill should be amended to define SEN within the broader definition of ‘additional needs’.

5. One of the reasons for the proposal in the pre-legislative scrutiny that the term SEN should be changed to ‘learning difficulties and disabilities’ was that SEN is a term associated with school. It was suggested that the term SEN is not appropriate for young people between 16 and 25 years of age. The Bill does not address this concern. Locating the definition of SEN within a broader definition of additional needs would allow for other definitions of need to be added, including a definition that more accurately reflects the needs of young people between the ages of 16 and 25.

Qualified Teacher Status and the role of the SENCO

6. Current legislation requires that the SENCO must be a qualified teacher. It is essential that this requirement is retained and set out in legislation. The Bill should be amended to make it clear that a SENCO working in any setting, including a maintained school, non-maintained school or academy, must be a qualified teacher.

7. SENCOs play a key role in supporting other teachers within the school or institution, including providing advice on pedagogy. These are responsibilities that can only be undertaken effectively by a qualified teacher.

8. The SENCO needs to hold a position of authority within the school. The SENCO needs to be able to influence decisions about teaching and learning made by individual teachers and by departments. Further, they need to be able advise on approaches to planning and assessment, and influence strategic decisions about planning and assessment, including the use of strategic approaches such as provision mapping. Large schools are likely to employ a team of SEN specialists, so SENCOs in these schools will manage a team. These are tasks that require the professional knowledge and expertise of a qualified teacher.

9. The term ‘member of staff’ used in the Bill should be replaced by ‘qualified teacher’.

10. It is essential that every SENCO is appropriately trained and that they have access to ongoing professional development. However, some SENCOs experience significant problems in accessing professional development and support, particularly specialist continuing professional development (CPD) and support outside of the school or institution. The NASUWT believes that this should be addressed through both legislation and regulations. Legislation and regulations need to make it clear that schools and other institutions must ensure that SENCOs are able to undertake CPD and access professional networks of support, and schools and other institutions provide time within the working day for SENCOs to undertake training and CPD and cover the costs of this training and development.

The role and responsibilities of the local authority, inter-agency working and the duty to co-operate

11. The Bill states that a local authority is responsible for a child or young person who is in the local authority area and has been identified by the local authority or somebody else as having SEN or possibly having SEN. However, there may be issues establishing who is responsible for some groups of children and young people. In particular, children and young people who are mobile, such as some Gypsy, Roma and Traveller (GRT) children, and children and young people who have recently arrived in the country, including refugees or asylum seekers, may be at risk of being overlooked or remaining outside the system. It will be important that the legislation makes specific reference to who is responsible for identifying and meeting the needs of such children and young people with SEN.

12. It is important to note that some of the children and young people with SEN from vulnerable groups may not have an Education Health and Care (EHC) Plan, meaning that individual schools and institutions will be expected to take responsibility for meeting their needs. This increases the risk that local authorities will not identify and take account of their needs. The issue is further compounded by the fact that many local authorities have cut services to these groups. For example, in the case of GRT children and young people, many of the specialist services that enable local authorities to provide support to children and young people who are mobile have closed.

13. It is vital that a local authority has a responsibility to identify all children and young people in its area who have or may have SEN as this is the means for ensuring that every child can access and receive an appropriate education. However, local authorities are likely to encounter serious difficulties in carrying out this function. The fragmentation of the education system, including the increasing number of free schools and academies that are independent of the local authority, changes to the funding arrangements, and the extent of cuts to local authority services increases the risk that local authorities will not be able to fulfil the responsibility.

14. Services must work together to ensure that provision is integrated and a child or young person can access the services that they need easily and promptly. The NASUWT is extremely concerned that the responsibility for promoting integration rests with the local authority. The legislation will require listed bodies (including clinical commissioning groups, an NHS Trust and youth offending teams) to co-operate with a local authority that has requested co-operation unless co-operating would be incompatible with its own duties or otherwise have an adverse effect on the exercise of its functions. However, cuts to budgets and services mean that organisations may not comply with the duty to co-operate. While the NASUWT notes that funding cannot be a primary reason for refusing to co-operate, it is likely to have a significant impact on practice and will be difficult to challenge. For example, many organisations have had to pare back services to an absolute minimum, meaning that any request for support is likely to have an impact on how other services are delivered. The NASUWT believes that the duty to co-operate needs to be strengthened and that the duty to promote integrated working should be a shared responsibility with health services and social care services having the same duty placed on them as that placed on the local authority.

15. Feedback from teachers and school leaders to the NASUWT indicates that many of the frameworks that supported inter-agency working under the Every Child Matters (ECM) agenda have disappeared, and that schools are encountering significant difficulties in identifying and accessing appropriate provision. Simply placing a duty to co-operate on the local authority and other listed bodies is not sufficient. Steps must be taken to ensure that services have the necessary funding and resources to establish and support integrated working. The task is immense. For example, feedback from SENCOs and other teachers and school leaders who were involved in inter-agency work as part of ECM indicates that difficulties arose because of differences in organisational/sector cultures, sector priorities, policies and procedures, and even in language and terminology.

16. The local authority and clinical commissioning groups will be required to work in partnerships and make arrangements for commissioning SEN provision, healthcare provision and social care provision for children and young people with SEN. This includes arrangements for considering and agreeing the ECM provision that is reasonably required. There is a danger that financial considerations will influence judgements about what is reasonably required. This could mean that a child or young person’s needs are not met, something that will impact adversely on the child/young person but also on the school/institution that they attend. This is likely to affect the education of other pupils/students at the school/institution and will almost certainly place considerable pressure on teachers and other staff. Therefore, it is vital that a child or young person’s needs are identified appropriately, appropriate provision is put in place to meet those needs, and provision is properly resourced. Regulations supporting the legislation and broader education policy will need to address these points.

17. The NASUWT believes that there is a particular risk for schools arising from joint commissioning and collaboration. Evidence from teachers and school leaders about reforms linked to the ECM agenda indicates that other agencies were placing clear expectations on schools and SENCOs, in particular, to co-ordinate meetings and to take on the role of lead professional. This placed considerable workload burdens on the teachers concerned and had significant cost implications for schools. However, in the absence of the clear framework for inter-agency working, established as part of the ECM agenda, there is a risk that the pressures on teachers and school leaders will deepen and become more widespread. It is essential that the Children and Families Bill does not exacerbate these concerns. Legislation and related regulations, along with guidance, must provide a clear message that schools, while working closely with other agencies, should focus on their core education responsibilities.

The Education, Health and Care Plan

18. The NASUWT has a number of significant concerns about EHC Plans and clauses in the Bill that relate to these plans.

19. The proposed legislation will allow the local authority to decide that an assessment is not necessary, even if a parent or a school requests an assessment. Feedback from schools in SEN pathfinder areas suggests that the EHC assessment process is complex and could only ever work if the number of children and young people receiving an EHC Plan is smaller than the number that currently receive a Statement of SEN. Combined with substantial cuts to local authority budgets and services, there is a danger that local authorities will limit the number of children and young people who are assessed for an EHC Plan.

20. The NASUWT notes that a local authority may only stop maintaining an EHC Plan if they are no longer responsible for the child or young person, or if they consider it no longer necessary for the EHC Plan to be maintained. This gives the local authority a large degree of autonomy. Also, NASUWT-commissioned research into interpretations of SEN and inclusion [2] highlights that local authorities have very different interpretations of inclusion and that this leads to very different policies and practices, including significant differences in how and where needs are met. There is a distinct danger that these factors, combined with the substantial financial pressures that local authorities face, will lead to some local authorities deciding that it is no longer necessary for some EHC Plans to be maintained. It should also be noted that, at present, the Government has no effective means of monitoring local authority practices in this regard.

21. The proposed legislation will allow a local authority to maintain an EHC Plan until the end of the academic year when the young person is 25. This is welcome as it will help to improve the coherence of provision, particularly coherence through transition to post-16. However, funding constraints and cuts to services may mean that local authorities will opt not to continue many EHC Plans for this age group.

22. It is vital that steps are taken to ensure that children and young people in the criminal justice system receive appropriate support while they are in custody. It is also essential that there is continuity of support. The NASUWT is extremely concerned that this does not happen at the moment. If a child or young person does not receive appropriate, consistent and coherent support when they are in custody, they are likely to regress and are more likely to drop out of education. The NASUWT believes that this is a moral issue that should be given much greater priority by government. However, not addressing the issue is also likely to cost society much more in the long term. While it may not be possible to address this issue through regulation and legislation, the Bill provides an opportunity to reflect on the sufficiency of current provision in this regard, and to consider ways in which provision in this critical area can be enhanced further.

23. The NASUWT welcomes the decision to require academies to admit a child or young person where the school is named in an EHC Plan. The recent legal case involving Mossbourne Academy illustrates how an academy may refuse to admit a child with SEN. It will be important to monitor the implementation of this clause to ensure that academies are fulfilling their responsibilities.

24. Linked to the previous point, it is important to be alert to the practice adopted by some schools of discouraging parents of a child who may be considered ‘undesirable’ from applying to a school. The NASUWT regularly receives feedback from teachers indicating that some schools tell prospective parents that they would be unable to meet the needs of their child and that the ‘school down the road’ would be far more suitable. This is not specifically an issue for pupils with SEN, but the practice appears to be having a disproportionate impact on this group.

25. The NASUWT has concerns about the proposal to allow independent special schools and institutions to be named in an EHC Plan. Some independent schools and institutions charge extremely large fees and this could encourage or increase the practice. At a time when local authority budgets are being slashed, local authorities cannot afford to meet these costs. Further, if local authorities are forced to cover the costs then other services are likely to be lost.

SEN Code of Practice

26. The SEN Code of Practice has a critical role to play in shaping SEN policy and practice in schools and other institutions. Therefore, it is vital that teachers, particularly SENCOs, are actively engaged in discussions about the content of the revised Code. The Code should draw on evidence about what works well and address the issues and challenges that schools and other institutions may face. It should also draw on evidence that emerges from the SEN Pathfinders. Therefore, the NASUWT is extremely concerned to learn that work to revise the Code of Practice is taking place without engaging teachers and before evidence from the SEN Pathfinders have concluded and their experiences properly evaluated. This suggests very strongly that the process is politically driven.

Personal Budgets

27. The NASUWT is opposed to the policy to allow parents and young people to have a personal budget if they want one. While the Union supports the wish to ensure that parents and young people have much greater involvement in discussions and decisions about their child or their child’s SEN provision, decisions about what provision and support is provided to individuals must form part of a planned, coherent range of provision. The introduction of personal budgets and the focus on individual choice will undermine local authorities’ ability to plan strategically and ensure a coherent range of provision to meet the needs of all children and young people with SEN. It will also lead to an increasingly fragmented system of provision.

28. The current wording of the clause in the Bill means that parents will have a statutory right to require a local authority to prepare a personal budget and make direct payments even where this would not be justified in terms of efficiency and economy of scale. There is also a possibility that the personal budget could be used to pay for provision which is inappropriate to a child’s needs or where the child’s needs might be better met in some other way.

29. The NASUWT is extremely concerned that the personal budget could be used to pay for a school or college place or to directly employ somebody to work with the child at school. This would create significant problems for schools, including issues about how that person is managed and how they work with the child in the classroom. For example, the parent may insist that the person only works with their child. The teacher may believe that it is more appropriate for the person to support other pupils so that they, as teacher, can spend time with the child in order to meet their particular learning needs.

30. Better-off parents may seek to supplement money in the Personal Budget with their own money in order to secure particular support or provision for their child. This would be extremely dangerous. It creates the possibility that some services will only be available to parents who have the means to pay for them. It could also mean that future policies start from the assumption that some parents will need to pay for services.

31. The NASUWT believes that the clause should be removed from the Bill.

The local offer

32. A local authority will be required to publish information about the SEN provision it expects to be available in its area and the Local Offer: the education, health and care provision, and the training provision that is available in the area. It will also be required to keep the Local Offer under review. Local authorities will be unable to fulfil this requirement unless they are adequately resourced. Further, the Coalition Government’s education policy reforms have created a fragmented education system which places responsibility for decisions about funding, for example, with individual academy schools and with parents. The Local Offer will only work if the various players within the local system co-operate and work to a common vision. This means that local authorities will need to invest a considerable amount of time and effort into encouraging schools and others to contribute to the development of the local vision and buy into that vision. This has massive implications for the allocation of already scarce local authority resources.

33. The Bill will allow for regulations to be introduced that set out the information to be included in a local authority’s Local Offer. The NASUWT believes that the clause should be strengthened to state that regulations shall be introduced that set out what information will be included in the Local Offer.

34. The current regulations, Special Educational Needs (Provision of Information by Local Education Authorities) (England) Regulations 2001, set out information that will be useful to include in regulations that relate to the Local Offer. The regulations also establish some important principles that underpin provision for pupils with SEN, including the need to identify and promote good practice, the importance of collaboration, the need for teachers and other staff in schools to access professional development and support, and the need for a strategic approach to SEN provision locally. The NASUWT believes that regulations relating to the Local Offer should build on these principles.

March 2013

[1] Ellis, Simon; Tod, Janet; and Graham-Matheson, Lynne, (2008), Special Education al Needs and Inclusion: Reflection and Renewal , NASUWT , Rednal; and Ellis, Simon; Tod, Janet; and Graham-Matheson, Lynne (2011), Reflection, Renewal and Reality: Teachers’ Experience of Special Education al Needs and Inclusion , NASUWT , Rednal.

[2] Ellis, S.; Tod, J.; and Graham-Matheson, L. (2008) Special Educational Needs and Inclusion: Reflection and Renewal .

Prepared 22nd March 2013