Pre-legislative scrutiny: Special Educational Needs - Education Committee Contents

2  The draft clauses: process and context

Detail, timing and context

11. The draft clauses are designed to provide a broad legislative framework, leaving detailed changes to be set out later in regulations. The Government has undertaken to provide draft regulations to assist parliamentary scrutiny during the public Bill stage of the Bill but this information is not currently available to us, nor to the witnesses to this inquiry. One reason for this is that the regulations are expected to draw upon the experience of the 20 Pathfinders which were originally intended to report by March 2013.

12. The lack of detail in the draft clauses was a source of much concern to our witnesses. A clear majority of the evidence we received during our inquiry concurs with the view of the SE7 Pathfinder—the largest Pathfinder[4]—which is "concerned that in many ways the draft clauses do not go far enough and do not fully reflect the inspirational vision in the Green Paper".[5] In the first session of oral evidence for our inquiry, Liverpool Council added that "some of the lack of detail within the draft Bill does not leave us with the confidence that actually things are going to be significantly improved for children and young people, or for the profound or significant improvements that we had the optimism for with the Green Paper".[6]

13. We discuss in greater detail where this lack of detail is particularly problematic in subsequent chapters of our report. However, in general terms, our witnesses agree that the fact that the draft legislation is "designed as a high level enabling document"[7] means that they are unable to comment effectively on to how likely it is to bring about improvements in provision for children and young people with special educational needs. When we suggested to the Minister, Edward Timpson MP, that the draft clauses lack substance, he replied

of course the Green Paper did not appear out of thin air. It was a product of a lot of close work with the sector, young people and parents, who have a strong and vested interest in ensuring that we have a system of support for children with special educational needs and disability that delivers the outcomes that we all want to see. In the spirit in which the Green Paper was developed, written and then consulted upon, I am confident—and it is borne out in many of the conversations I have already had with many of those who played a part in bringing it together—that it does illustrate, very clearly, the ambition of this Government and many other people to ensure that the system we move to is a vast improvement on the previous system.[8]

14. The majority of witnesses commented that the legislation is being brought forward too hastily, because there will not be time for the Pathfinders to report and inform consideration of the draft Bill. The SE7 Pathfinder warns "it is important not to underestimate the ground work needed to put in place such significant cultural and working practice changes as envisaged in the Green Paper".[9] The City of Bradford Metropolitan District Council, in its written evidence to the Committee, identified the short timescale as representing "a significant risk."[10]

15. As to the effectiveness of the Pathfinders themselves, the charity IPSEA (Independent Parental Special Educational Advice) commented that "IPSEA is still finding it hard to determine what is actually being piloted, by who and with whom. From what we have been able to gather from parents and the limited information available, Pathfinder pilot schemes are not piloting common systems or Plans, so that any outcomes are not likely to be generalisable."[11] Individuals working on the North Yorkshire Pathfinder support these concerns, saying "the families going through the new processes are not a representative sample of the potential SEN population in most cases. Many of the Pathfinders are concerned about how to scale up from the small trials to a whole Authority approach".[12]

16. In response to these concerns, the Minister referred to the August report by the SEND Green Paper Pathfinder Programme Evaluators, SQW:

We had the interim report back in August from SQW, which pointed to some good work that has been done by some local authority areas—including the 31 local authorities that are taking part in the 20 Pathfinders—particularly around the development of a single assessment and the Education, Health and Care Plan. But there are some other areas where there is still some embryonic—if I can put it that way—work that is taking place, for instance around personal budgets, which would be helpful to have as we go through the passage of the Bill to continue to learn from the development of that work.[13]

The Minister did not refer us to the findings of the most recent evaluation report published by SQW in October 2012, which does not make for very encouraging reading. It found that:

The current pace of progress and associated recruitment of families and young people is behind that expected at scoping and unlikely to provide sufficient evidence to provide comprehensive responses to the four evaluation objectives[14] within the 18-month evaluation timescale. This could limit the extent to which the findings can inform any transitional process. Unless current recruitment profiles can be increased or the evaluation timetable extended, it may be the case that the evaluation can only report the Pathfinder approaches that have been developed with only limited comment on their effectiveness.[15]

17. SQW's conclusion reflects the findings of a 2003 review of Government pilots commissioned by the Cabinet Office which recommended that "although pilots or policy trials may be costly in time and resources and may carry political risks, they should be balanced against greater risk of embedding preventable flaws into a new policy". It also advised that "once embarked upon, a pilot must be allowed to run its course. Notwithstanding the familiar pressures of government timetables, the full benefits of a policy pilot will not be realised if the policy is rolled out before the results of the pilot have been absorbed and acted upon. Early results may give a misleading picture".[16]

18. It is not only the short timescales for the Pathfinders which cause concern. The timing of the legislation alongside major reforms in education and Health is brought into question by most witnesses. Jo Webber, representing the NHS Confederation, told us:

We would welcome the aspirations that are in the Bill, but we think that some of the underpinning needs further consideration, particularly how it links across to the Health Service, the reforms that have just gone on in the Health Service and how we make the system work within the reformed Health Service, not the Health Service that was here before.[17]

19. Solicitors SEN Legal add, "the Department of Health is currently consulting on a draft Care and Support Bill which will deal with social care support for adults (defined as those over 18). There appears to be a complete lack of joined-up thinking here over how [Education Health and Care] Plans will move into Care and Support Plans for those over 25".[18] Learning disability charity Mencap highlights how a lack of joining up in this area could impact on the ground:

In the light of the fact that there is no duty on health and social care providers to deliver what is set out in an Education Health and Care Plan, Mencap is unsure how this would work if a Care and Support Plan is to make up the care element of an EHCP. We are concerned that, with a duty to provide social care support as part of the Care and Support Bill provisions and no duty to provide social care support as part of the Children and Families Bill provisions, this could create a divide in someone's social care support based on whether there is a statutory responsibility to provide it or not. This has implications for the ability of a CSP to be integrated into an EHCP. It might also lead some cash-strapped authorities to use this anomaly to justify a refusal to provide a certain service on the basis that it comes under an EHCP.[19]

Mencap concludes that the "Care and Support Bill includes provision to develop a new national eligibility and assessment framework and that this is still in development. We therefore appreciate that it is not possible to determine the likely numbers of children and young people who will be eligible for both children's and adult's services. However, this means that decisions about matters which affect EHCP provision will be made after the Education Select Committee has considered the draft SEN provisions. Mencap does not, therefore, believe that it is possible to consider the full ramifications of the various components of an EHCP at this stage".[20]

20. With regards to education reform, the Association of Directors of Children's Services (ADCS) warns that the new proposals are being introduced at a time of "significant flux in both the Health and education systems, and at a time when the school leaving age is to increase incrementally to 18 by 2015".[21] The National Union of Teachers adds:

Schools will not understand the implications of the new funding system on their SEN budgets until 2013. The way in which funding changes drive behaviour in terms of school admissions for pupils with SEN, provision and numbers of applications for Statements/EHC Plans remains to be seen. There is a huge black hole of knowledge about how SEN budgets will be affected by the overall funding changes. The Select Committee should recommend that the DfE waits to introduce the SEN Green Paper reforms until September 2015. This will provide an opportunity for schools and School Forums to get to grips with the new funding system. It will also allow time to evaluate what the funding reforms have meant for SEN pupils. There is a likelihood that schools with high numbers of pupils on the SEN Register and with high deprivation indicators are going to lose out under the new funding system.[22]

21. Witnesses also point to particular challenges for local authorities in "undoing" complex arrangements already in place for supporting children with SEN. Blackpool Council explained that:

Potential issues exist for a local authority such as Blackpool. Historically the borough has delegated significant SEN resources to schools. This lowered the number of Statements, whilst meeting needs without bureaucracy, as seen by the low number of Tribunals. However, this finance cannot be recouped from schools because of the minimum funding guarantee, to fund EHC plans. If there are to be less EHC plans nationally than the current levels of Statements, or the decision re criteria is a local one, this will not be an issue. However, if not, there will be extra costs in a number of authorities who have historically delegated more SEND finance to schools than the national average.[23]

22. In oral evidence, we asked the Minister how he would guard against "punishing" those local authorities which have been particularly good at delegating SEN funding to schools in the past. We subsequently received a written response from the Minister explaining that:

In the new funding system which begins in April 2013, we have asked local authorities to move towards standardising the amounts they delegate to mainstream schools for pupils with SEN, so that schools are expected to provide support for pupils up to roughly £6,000, while top-up funding from the local authority will kick in above that. This will require some local authorities to delegate more funding than they do at present, and others to delegate less. The funding remains within the local authority's Dedicated Schools Grant in either case—it simply moves between the funding delegated to schools and the funding retained centrally by the local authority to support children with high needs.

Our information from local authorities is that the great majority of them will be moving to the £6,000 threshold from April 2013. Some will be moving more gradually over two or three years.

Schools are not funded by local authorities on the basis of the number of pupils they class as being at School Action or School Action Plus. To do so would create a perverse incentive to over-identify such children. Rather, local authorities use proxy indicators to create a notional SEN budget for schools—they often use indicators of low prior attainment and deprivation, among others. This system will continue from 2013. We have asked local authorities to explain carefully to schools how they are arriving at the notional SEN budget and how it reflects schools' responsibilities to provide from their own resources for pupils with SEN.[24]

23. In oral evidence, we asked witnesses outright whether their concerns about the timetables for the draft legislation were sufficient as to recommend a delay in the process of legislation. Some witnesses felt this would be advisable—for example Jo Webber representing the NHS Confederation told us "I would agree that we need more time to see what the Pathfinders are coming up with. Particularly given the Health element of this, it is going to be difficult to really assess until the system is completely in place, which will not be until April next year".[25] Other witnesses, such as consultant Peter Gray, pointed out that, due to the very general nature of the draft clauses and them being "not hugely different from our existing statutory framework"[26], this may not be necessary. Brian Gale of the National Deaf Children's Society advised delaying the "riskier" elements of the draft legislation and progressing with the rest.[27]

24. Dr Charles Palmer of Leicestershire County Council suggested that there was a great risk of failing the high expectations of parents and young people, advising "a delay [in the process of legislation] on the grounds that expectations have been raised very high amongst parent groups. There is a real danger now, with the restriction in resources in local authorities, that we simply will not be able to meet those expectations".[28] The same concerns and recommendations are aired in other evidence, including that from the Association of Directors of Children's Services.[29]

25. In the light of widespread concern about the immaturity of Pathfinders and the short timetables for bringing the legislation forward, we were encouraged by the Minister's response:

I am keen to ensure that we continue to learn from the Pathfinders as we move through the passage of the Bill; but also, beyond that, I am keen to ensure that those local authorities that are not part of the Pathfinder programme have the opportunity to learn from those that have been. What I have decided is that we should extend the Pathfinders for a further 18 months beyond March 2013—through to September 2014—so that the useful and productive work that has already been done can continue to help ensure that we get this legislation right.[30]

On the question of timing of the legislation, he added that: "It is still very much my intention to have this legislation on the statute book by early 2014, but […] I want to make sure we get the legislation right."[31] Reflecting on meetings that he had held with members of the special educational needs groups, parents and those taking part in the Pathfinders, he recognized that "it is clear that there are some issues that have been raised about whether the legislation is clear enough, sharp enough and whether it sets out in a robust form what the rights of parents and young people will be going forward". However, he was "reassured that the overwhelming view is that we are moving in the right direction."

26. We agree that the draft legislation is moving in the right direction and we support the Minister's ambition to keep up the momentum in finalising this legislation by 2014. We do not recommend any significant delay in introducing the Bill, but more work is needed and we welcome the Minister's emphasis on getting it right rather than sticking to a self-imposed timetable. For this reason, we strongly support the Government's decision to extend the Pathfinders for a further 18 months and we seek assurances that the findings from the Pathfinders will be drawn upon in detail to inform the final make-up of regulations and the Code of Practice to accompany the legislation.

Joined- up thinking? Co-operation between agencies

27. Whilst the draft legislation provides separate definitions for "special educational provision", "health provision" and "social care provision", all responsibility for identifying, and making provision for, young people with SEN remains with the local authority. The new system will not introduce a duty on Health or other services to provide the support described in Education Health and Care Plans. The only duty on Health and social care is in Clause 6 which requires the joint commissioning of education, Health and care provision. The vast majority of evidence to our inquiry views the lack of statutory duties on Health as a major failing of the draft legislation. The ADCS, for example, was "concerned that although local authorities are, rightly, established as champion for the most vulnerable children, young people and their families, the lack of levers for local authorities in the draft legislation to hold partners to account for their contribution and the quality of their provision could undermine our capacity to secure appropriate and high quality provision across education, Health and social care".[32]

28. As the SEND Green Paper Pathfinder Programme Evaluators, SQW, concluded, "Much rests on the proposals for joint commissioning"[33] for integrated working to deliver on the ground. Our evidence suggests that many stakeholders do not see joint commissioning duties as sufficient to protect the needs of individuals. Indeed, SQW adds, there is a "high risk" that, "In the absence of sufficient Government direction, multi-agency working sees some improvement during the Pathfinder Programme and then drops back to the default position post this period".[34]

29. The National Union of Teachers asserts "there remain barriers to co-operation by education, Health and care which will not be removed merely by requiring by law that professionals co-operate around the education, health and care needs of children and young people with SEN."[35] Instead, the NUT calls for greater clarity on accountability for the delivery of specific services:

We have one major concern [...] about the absence of new duties on Health and social care in relation to delivering the provision set out in EHC plans. If health and social care needs are to be explicitly recorded in the EHC plan, there needs to be clarity about responsibility. There is a very real chance that the new plans will founder on how difficult it will be for the local authority to engage the Health Trusts and for agreement to be reached between the parties.[36]

30. In oral evidence, Jo Webber of the NHS Confederation agreed, saying "one of the areas where we would be seeking further clarity [is about] who has accountability throughout the system to ensure that what provision is decided upon is going to be delivered".[37] This view was further backed up by evidence from the SE7 Pathfinder—a powerful submission considering the weight of backing behind it. SE7 asserts:

We welcome the requirement for joint commissioning and the integration of services. There should also be a requirement for Health and care services to provide the provision set out in the EHC plan and they should be held accountable for this.[38]

31. The Government's reasons for there being no specific duties on Health in the draft legislation were explained to us by the Minister:

One of the reasons that we have proposed this legislation, moving on from the old system, is to ensure that Health plays a greater part in delivering all of the support that each individual child with special educational needs and disabilities has. That is why we have, for the first time, a duty of joint commissioning between education and Health.

In terms of any reciprocal duty, where that proves difficult is that, within the NHS constitution, any delivery of services has to be based on clinical need. [...] But what I am doing—and I am continuing to have discussions with my colleagues in the Department of Health—is to look at other ways we can strengthen the close working and accountability between education, Health and social care. For instance, the NHS Mandate—which the NHS Commissioning Board has to have regard to and, similarly, thereafter the clinical commissioning groups—makes it clear that the service that the clinical commissioning groups provide has to meet the needs that are put out clearly in the plan for each individual child who has special educational needs. That is an important Statement within the mandate, and of course, as of yesterday, we now have the NHS constitution that is out for consultation and will be looking at how we can improve redress for those who have complaints against the Health provision that they are receiving.[39]

32. As we will discuss in greater detail later in our report, our evidence suggests that, in the absence of any statutory duties on Health, there is a high risk of disengagement by the Health sector, with potential adverse consequences, including:

  • An incomplete Local Offer
  • Disjointed assessment processes
  • Parents not having an Education Health and Care Plan that they can discuss with the local authority and expect action or redress from all partners if there are concerns
  • Confusion over accountability for the provision of services.

33. To address some of these issues, we asked the Minister whether he had considered putting a duty to co-operate on the face of the Bill as regards all of the different functions within the Health services. He told us "I am happy to look at that and see whether that is something that would first of all be do-able and whether it would make any material difference."[40]

34. Our witnesses also put forward various suggestions to strengthen accountability for delivery of appropriate services. Philippa Stobbs of the Special Educational Consortium recommended that "there needs to be a structural link between the Children's Trust arrangements and the Health and Wellbeing Boards to complete the circle that should ensure that we get the appropriate services commissioned for children in schools". She also recommended a "functional link [by] tying schools in to the Joint Strategic Needs Assessment, which is the responsibility of the Health and Wellbeing Board. If that picks up, through that structural link, the needs of that group of children, we will actually have a better chance of commissioning the appropriate services so that they are available to meet the individual needs that are set out in a plan". UNISON similarly recommends "greater consideration be given to the role of local authority directors of children's services, particularly in regard to representing the views of schools on Health and Wellbeing Boards".[41] Strong links between local authorities and Health and Wellbeing Boards were also seen to be critical by Liverpool Council and Jo Webber of the NHS Confederation,[42] while Mencap drew attention to the new Clinical Commissioning Groups, calling for a "more robust duty on CCGs to ensure that the agreed commissioning arrangements are secured and delivered".[43]

35. These concerns and recommendations were brought together by the ADCS which acknowledged and welcomed references to clinical commissioning groups but remained "concerned that the draft legislation does not reflect the totality of the emerging Health system". The ADCS suggested that the legislation may need to reflect:

  • the role of the Joint Strategic Needs Assessment in the identification and assessment of need in the local area
  • the role of the Health and Wellbeing Board and the Health and Wellbeing Strategy in setting local priorities for commissioning and monitoring progress
  • the role of the local, regional and national NHS Commissioning Board in commissioning provision
  • the role of Public Health England in commissioning provision.[44]

36. The active involvement of the NHS—in commissioning, delivery and redress —is critical to the success of the legislation. Despite the acknowledged difficulties, in order for this to work, the Government must ensure that the NHS is obliged to participate fully. We also make recommendations later in our report as to how regulations may make specific requirements on Health to ensure the legislation meets the needs of young people and their parents.[45]


37. In her letter to the Committee, former Minister, Sarah Teather, suggested that it would be helpful for us to gauge views on suitable alternatives to the term "special educational needs" under the proposed new system. Many respondents suggest alternatives, highlighting the fact that, with a system that runs from birth-25, an "educational" focus may not be appropriate. Other suggestions included "learning difficulties and/or disabilities" (as proposed by the Department), "additional needs"[46] and "individual education".[47] Quite a number of submissions, however, found this issue irrelevant and certainly less important than the proposed changes to the system itself. For example, the NDCS had "no response" to make to this question.[48] We recommend that, in the absence of any consensus or strong support for a change, the new legislation continue to use the established terminology of "special educational needs".

4   SE7 represents the views of Brighton and Hove, East Sussex, Hampshire, Kent, Medway, Surrey and West Sussex. These areas serve about 10% of the children in England. The 7 local authorities, PCT Clusters, Parent and Carer Forums and the Voluntary and Community Sector came together to submit a successful bid to become the largest SEND Pathfinder site. They had nearly 200 pilot Education, Health and Care Plans in place by the end of October 2012. This is nearly 50% of the national sample. Back

5   Ev w526 Back

6   Q1, Kathryn Boulton Back

7   Ev w4 Back

8   Q196 Back

9   Ev w526 Back

10   ibid. Back

11   Ev w108, Ev w559 Back

12   Ev w172 (Evidence from Michael Cotton, a Principal Educational Psychologist and Lynda Dyson, Head of Assessment and Commissioning (Education) expressing their personal views working on the North Yorkshire Pathfinder) Back

13   Q197 Back

14   Objective (1) Make the current support system for disabled children and young people and those with SEN and their parents or carer more transparent, less adversarial and less bureaucratic; Objective (2) Increase real choice and control, and improve outcomes, for families from a range of backgrounds with disabled children and young people and those who have special educational needs; Objective (3) Introduce greater independence into the assessment process by using the voluntary sector; Objective (4) Demonstrate value for money, by looking at the cost of reform and associated benefits. Back

15   DfE, Evaluation of the SEND Pathfinder Programme: Interim Evaluation Report, October 2012, Executive Summary, para 22 Back

16   Trying it out: The Role of Pilots in Policy Making, Cabinet Office, 2003, Recommendations 2, 6 Back

17   Q1 Back

18   Ev w356 Back

19   Ev w298 Back

20   ibid. Back

21   Ev w279 Back

22   Ev w519 Back

23   Ev 42, para 2.3.4 Back

24   Ev 78-9 Back

25   Q10 Back

26   Q10 Back

27   Q54 Back

28   Q54 Back

29   Ev w279 Back

30   Q198 Back

31   Q199 Back

32   Ev w279 Back

33   DfE, Evaluation of the SEND Pathfinder Programme: Interim Evaluation Report, October 2012, Executive Summary, para 21 Back

34   DfE, Evaluation of the SEND Pathfinder Programme: Interim Evaluation Report, October 2012, Executive Summary, para 21 Back

35   Ev w519 Back

36   Ev w519 Back

37   Q28 Back

38   Ev w526, para 12 Back

39   Q201 Back

40   Q206 Back

41   Ev w441, para 4.2 Back

42   Q19 Back

43   Ev w298, para 18 Back

44   Ev w279, para 1.3 Back

45   See paras 66, 67, 71 and 83 Back

46   Ev w4, Ev w13  Back

47   Ev w11 Back

48   Ev 48 Back

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© Parliamentary copyright 2012
Prepared 19 December 2012