Children and Families Bill

Memorandum submitted by Dr Rona Tutt OBE (CF 97)

Part 3: Children and Young People in England with Special Educational Needs

Individual Response by Dr Rona Tutt OBE, Past President of the National Association of Head Teachers (NAHT), former head teacher of a special school, currently working as an education consultant, speaker and writer.


This Bill provides an opportunity to overhaul the SEN Framework, in order to give families a more positive experience of the SEN system, and to improve outcomes for children and young people with SEN. Whether or not the Bill makes a significant difference will depend largely on: clarity around the terms ‘SEN’ and ‘Inclusion’; giving parents an equal right to express a preference for a mainstream or a special school place; ensuring that health and social care play a full part alongside education in making EHC Plans more effective than statements; and making early intervention a reality by a more flexible use of all types of provision and support.

In addition, the extension to 25 years of age needs to be accompanied by sufficient opportunities and resources for the post-16 age group. Some special schools, for instance, are having difficulty in extending their provision to post-16, meaning that students may have to leave a school environment sooner than their mainstream peers, despite needing longer to develop and to learn skills. With the Raising of the Participation Age, there should be an increased range of opportunities for this age group. Furthermore, throughout the Bill, there are references to further education, but some students with SEN, such as those with high-functioning autism or Asperger’s syndrome, are capable of making a success of higher education, but they need varying amounts of support to do so. In fact, it is the right support, which, in some cases is quite minimal, that will determine whether or not they complete their course and move into employment.

Detailed comments

Clause 19 Local Authority functions: supporting & involving young people

Having local authority functions set out at the start of Part 3 of the Bill, signifies from the outset a shift in culture, which recognises the importance of involving families and respecting the views, feelings and wishes of parents and young people. It is, therefore, very disappointing that this shift in approach, which was signalled very clearly in the SEN Green Paper, Support and aspiration: a new approach to meeting SEN and disability (March 2012), is not carried through in all subsequent clauses (see comments on Clause 33).


Clause 20 When a child or young person has SEN

While the extension of SEN to 25 years of age is to be very warmly welcomed, it is a pity that there has been no attempt to rethink the definition of SEN. While the Green Paper had in its title ‘SEN and disability’, Part 3 of the Bill is headed ‘Children and Young People in

England with Special Educational Needs,’ with no separate mention of disability. More thought needs to be given, both to defining SEN more sharply than the current definition manages to do, and also to the extent of the overlap between SEN and Disability.

A further step might be to set SEN / SEND within the context of being a significant grouping within a range of vulnerable groups, on which there is an increasing focus in terms of the progress they are making. Taking this approach would help to recognise that many pupils will belong to more than one of the recognised groups, eg they might have SEN and be in care (looked after), or have a disability and have English as an additional language (EAL). Whether or not this might lead eventually to a more general description than SEN / SEND, such as Additional Needs, Additional Educational Needs or Additional Learning Needs, would need to be resolved through further discussions. But from the perspective of those teaching children and young people, there is a need to consider each pupil’s needs as a whole.

Clause 22 Identifying children and young people with SEN

While it would be very valuable for local authorities to have to identify all those who have, or might have, SEN, in order to aid early identification and the planning of provision, it is not clear how this will be achieved when numbers of staff in local authorities are continuing to decrease. It is unfortunate that the timing of the Bill means that changes are being brought in against a backdrop of severe financial restraint. This will need to be borne in mind, so that any strengthening of the SEN Framework is accompanied by identified sources of funding.


Clauses 25 - 28 Joint working between the services

A major factor in determining whether or not the Bill makes a real difference to children and young people with SEN and their families, will be determined by the extent to which there is a closer working relationship between education, health and social care, and a willingness to take joint responsibility for outcomes. Many children and young people with SEN will need the support of more than one service and some will need input from all three services if they are to thrive. This involves joint planning and commissioning, as well as securing the provision that is needed. It will be a major advance if there is an end to the arguments about who will provide eg speech and language therapy, physiotherapy and occupational therapy for those who need it, and how the cost of any provision, including any residential component, is to be agreed and shared.

Clause 30 Local offer for children and young people with SEN

The local offer could be a significant step forward in giving parents and families the information they need to play their part in the decisions that are made. It should help to ensure that local authorities are more open about what is available in their area. If there are both national standards laid down and a common format for presenting the information, it will help to achieve a level playing field across different areas of the country, for comparisons to be made, and for local authorities to recognise what more needs to be provided. Again, though, there is concern about whether they will have sufficient staff to collate the information and whether there will be any sources of funding to fill identified gaps and ensure provision improves over time, including having enough specialist advisory and support services available to schools and to families.

Clause 33 Children & young people with an EHC Plan

The Green Paper and its successor, Support and aspiration: a new approach to meeting SENProgress and next steps (May 2012) held out the promise that the new SEN Framework would move on from the divisive debates of the 1980s and 1990s, by recognising that inclusion is not about a place, but about including every child in the environment that enables them to be most fully included in the life of their school. Although it was unfortunate that the Green Paper referred to ‘removing a bias towards inclusion’ rather than saying ‘a bias towards inclusion in mainstream schools’, it did make it clear that what was meant was that parents of children with statements of SEN / EHC Plans ‘ will be able to express a preference for any state-funded school – including special schools.’ (paragraph 20). The Progress and next steps document followed this up by saying that all those who responded to the Green Paper supported a change in the law, so that parents would have ‘identical rights to express a preference for any state-funded school, including mainstream or special schools’, (paragraph 2.17). As there was 100% agreement to this proposal, it is difficult to understand why the Bill has reverted to the law as it stands, which means that the presumption of mainstream schooling is retained and the talk of giving more control to parents and ‘respecting the views, feelings and wishes of parents and young people’ (as laid out at the beginning of Part 3 of the Bill) is undermined.

Although there may have been a time in the last century, when some parents found it hard to get their child with SEN admitted to a mainstream school, the situation has changed so that now parents often talk of the fight to get their child into a special school. Giving parents an equal right to express a preference for either type of school not only fulfils the Bill’s aim of giving parents more control, but recognises that for a minority of children with SEN, a special school is not a second best option, but the place where they can be most fully included, because the environment and the curriculum can be adapted to their needs, rather than expecting them to fit in with what is provided for the majority. All the main political parties have recognised the need for a continuum of provision and it would set back the cause of special education if the promises made in the documents that preceded the Bill were watered down in this way. There has been much progress in creating a more inclusive education service, (which includes all pupils and all types of schools), with special schools embedded in the system alongside mainstream schools as academies, specialist schools and teaching schools, or as part of co-locations, partnerships and federations that run across previously separate sectors and phases of education.

It is extremely concerning, therefore, that the significant step forward heralded in the preceding documents has not been followed up in the Bill, which runs the risk of special schools being seen as a second best option, arguments about inclusion continuing and local authorities interpreting it in different ways. If parents are to be placed at the centre, their views should be listened to, whatever they want for their children and wherever they live. It is essential that this Bill eradicates the present situation where the views of local authority officers, who may not even have met the child, can determine the provision.

Clause 34 Children and young people with SEN but no EHC Plan

This clause is helpful in moving towards a more flexible use of special schools, as part of the continuum of provision. This was the original intention when the phrase ‘ a broad range of flexible provision – including special schools’ was introduced (House of Commons Education and Skills Committee’s Report on Special Educational Needs 2005-06) . While some local authorities do allow special schools to help with assessing the needs of children before they are statemented, other LAs will not allow this to happen, because of the expectation that children admitted to a special school will first have a statement. This clause and its subsections clarify that special schools do have a role to play in early intervention and in helping to ensure that the child’s needs are identified and met as soon as possible, whether or not that means a special school place. It also indicates that pupils without an EHC Plan may be placed in a special school for other reasons as well.

Subsection 9, however, takes this much further by recognising the benefits of using special schools more flexibly in other ways, but only if they are academies. Over time, it is likely that more and more special schools will become academies and there seems no point in limiting this more flexible role to special schools which happen to be academies when the Bill becomes law. If all special schools were able to offer part-time, short-term and dual roll provision, far better use would be made of a scarce resource and far more pupils would be able to have individualised packages of support that could be adapted as their needs change. Not only would this improve outcomes for pupils with SEN and reach far more of them by giving them access to more specialist teaching, specialised equipment and resources, it would also raise standards in mainstream schools as well. By working together in a more flexible way, mainstream and special school staff would combine their knowledge and take shared responsibility for the education of pupils with more complex needs. In addition, it would give mainstream staff more time to focus on pupils without SEN as well.

Clauses 37- 46 Education, health and care plans

The change to allowing young people to have a Plan up to the age of 25 is most welcome and will help to ensure that there is a more seamless transition to adult services, education beyond school, and employment. It is important that the upheaval caused by moving from statements to EHC Plans is worth the cost and effort of the changes and they do not become the same procedure under a different name. One of the key factors will be whether or not health and social care take joint responsibility with education for providing the services and support itemised in the Plan. The majority of children and young people whose needs are significant enough to require a Plan, will need the support of at least two services, and, in some cases, all three. Therefore, it is essential that the services work together and parents and families are fully involved and clear about where the responsibilities lie for the delivery of each element of the Plan.

It is assumed that the work of the Pathfinders will contribute to a national format for an EHC Plan and that there will not be variation by geographical area, but only, perhaps, adaptations for different age groups within the 0-25 age range.

Clause 48 Personal budgets

Although it is right to give families more control over what happens, and the Pathfinders may be able to clarify the parameters for using personal budgets, it will be very important for everyone to clear about how the money can be spent. For instance, difficulties could arise from parents deciding how they wanted additional support to be provided in a school context  and who would carry it out, when head teachers need to be able to organise the work that goes on in their schools and have responsibility for the quality of what is delivered.

Clause 51 Mediation

Having mediation available should help to make the system less adversarial and to sort out some of the disagreements at an earlier stage. At present, a great deal of time is spent by all concerned preparing for tribunals that never take place, because the local authority, for instance, gives in just before the tribunal is due to take place.

Clause 62 SEN co-ordinators

It is essential that the current arrangements for ensuring that SENCos are i) qualified teachers and ii) undertake additional training for their role, are not watered down.

April 2013

Prepared 24th April 2013