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

3  Provision from birth to 25

38. During our inquiry, we heard widespread and enthusiastic support for a statutory framework for SEN that works for children and young people from birth to 25 years of age. As parent witness Carol Dixon said, "absolutely, it is fantastic that it goes up to 25", explaining that "At 16, [my daughter] had to leave school. Her school did not have a sixth form that could cater for her needs; therefore, the local authority had no responsibility for her whatsoever after that time".[49] Notwithstanding this general welcome for the extension, witnesses expressed a certain degree of concern regarding funding for the new framework and the impact it may have on finances for post-16 education, and provision for 19-25 year olds. We examine these concerns below.

Funding and post-16 education

39. We questioned the Minister as to how a new birth to 25 system for SEN would be funded He told us:

we have two systems. We have the SEN system up to 16; then we have the LDA system from 16 onwards. They are all currently funded and that money will still be available for the new system. It is not trying to have less funding available for a longer period of a young person's need. Ultimately, this is about ensuring that more work done early ensures better outcomes for young people with special educational needs and disability, and therefore makes important savings.[50]

He added:

the purpose of these reforms is not to save money; in fact, the spending on SEN funding has gone up from £2.7 billion in 2004-05 to £5.7 billion in 2010-11. There is a significant amount of money being spent—all the way through from nought to 25 [...] It is also right to point out that post-16 funding has actually increased in the last few years. We have made commitments to the early years in relation to the two­year-old offer and the early support.[51]

40. The Association of Colleges pointed out that "the legislation is being introduced at the same time as the DfE is carrying out a major overhaul in the way that 16-18 education is being funded and a £640 million budget for 16-25 year olds with a disability is being used. Colleges have some concerns whether these changes will leave them unable to meet the needs and expectations of their existing students, particularly as there is also a significant change to the way in which additional learning support funds are allocated for those with lower level needs".[52] Di Roberts—Principal of Brockenhurst College—clarified this, explaining that the £640 million

will go into the block of funding for 'high needs'. It will not, however, be ring-fenced for young people aged over 16. The legislation says that local authorities will have to take into account someone's age if they are aged 18 or over when assessing their needs and developing an Education, Health and Care Plan. This lack of ring-fence and legislative 'get-out' means we have real fears that young adults will lose out, and that Colleges will be left with reduced funding with which to meet the needs of students with learning difficulties and/or disabilities.

Di Roberts added: "this is happening alongside changes to the 16-18 funding methodology and changes to the way in which money is allocated for students with lower schools qualifications. We have very real concerns that these two changes taken together and without any trialling, could destabilize provision for vulnerable young people". [53]

41. Di Roberts also shared Blackpool Council's concern that, whilst funding for post-16 provision is being provided, there is no funding to support the increased capacity that will be required to deliver these functions in local authorities.[54] The Association of Colleges points out that the administration of a system which operates from birth to 25 will create additional bureaucratic burdens on colleges as "they will be required to deal with multiple local authorities, each of which will have their own systems and processes".[55]

42. The Association of Colleges concludes that "it is crucial that Further Education and Sixth Form Colleges are fully involved in all aspects of trialling the reforms. There is little evidence that the Pathfinders are working with Colleges and this must be rectified as a priority".[56]

43. We commend the Government's increased spending on supporting pupils with SEN but are concerned at claims that the SEN Pathfinders are failing to involve colleges adequately in trialling the approaches for 0-25 provision described in the draft clauses. We seek reassurances that this shortcoming will be addressed in the extended Pathfinder schemes so as to understand fully the financial and administrative impact the proposals will have on colleges and local authorities in securing provision for pupils with SEN up to the age of 25. The Government must ensure that the extension of the statutory SEN framework from 16 to 25 is not allowed to extend provision for some at the expense of the quality and quantity of provision for all.

Provision for 19-25 year olds

44. In her letter to the Committee, former Minister Sarah Teather explained that "staying in education or training until they are 25 may not be in the best interest of a young person. But some people with special educational needs require longer than others to make the transition to adult life and it is important that local authorities are able to continue an Education, Health and Care Plan until a young person's 25th birthday if that is what they need".[57]

45. For these reasons, clauses 16 and 17 of the draft legislation state that "in forming an opinion [as to whether to undertake an assessment or prepare an Education Health and Care Plan] in relation to a young person aged over 18, a local authority must have regard to his or her age". The Association of National Specialist Colleges views these clauses as a potential "disincentive to continuing the EHC plan; we have concerns that young people and their parents will be put under pressure not to seek post-18 education placements. We understand the intention behind this clause, but we believe there are many good reasons for young people to stay in learning beyond 18".[58]

46. Along with several other witnesses, Hampshire County Council offers an alternative view, saying "although it is assumed that the new system is not intended to give an entitlement to education up to the age of 25 there is already evidence of parental assumption that it will. Independent providers are setting up 19-25 provision in anticipation of new business. LAs simply do not have the resources to meet this demand. If this section of the legislation is not clarified then more time will be spent in Tribunals arguing about placements. In times of financial constraint there will be tensions between Children's Services, Adult Services and Health Services if the anticipated client group for this extended period is not clearly defined in the primary legislation".[59]

47. Evidence from the Nottinghamshire SEN Pathfinder builds on Hampshire's analysis, explaining that:

Local authorities will wish to see [...] young people move on to independent living and work as quickly as possible and not to seek to remain in full-time learning without a clear reason and route towards independence and employment. Local authorities will therefore want to seek sufficient flexibility to provide access to education that promotes independent living and to supported employment where this is needed.[60]

48. The Association of Colleges pointed out some perverse incentives within the proposed system, arguing that "With regards to rights and protections for 19-25 year-olds, [...] the legislation does not clarify who is responsible for young people over the age of 18":

The issue of who is 'responsible' for 19-25 year olds requires clarification. Existing legislation states that the Department for Education, the EFA and local authorities are responsible if the young person has a Learning Difficulty Assessment. There are concerns that a) local authorities won't have to provide an EHCP and b) there will be an effort to secure EHCPs in order to ensure students fall under the remit of the DfE/EFA as this is more comprehensive than that provided by the Department for Business, Innovation and Skills, which funds adult education and training at a lower rate and fee remission rules apply which currently mean that students could be subject to fees if they can't progress to level 2 (equivalent of five A*-C grade GCSEs).[61]

49. The Association of College's written evidence also points out that "the proposed legislation needs to link with Raising the Participation Age legislation which says that the local authority is responsible for the young person to 18 or 25 with a learning difficulty assessment. The proposals will need, therefore, to include those in jobs with accredited training as well as apprentices".[62] This was supported by parents giving oral evidence to our inquiry.[63] We address the issue of apprenticeships later in this report.[64]

50. We are concerned that a potentially confusing picture is emerging over responsibility and rights for 19 to 25 year olds. Some stakeholders are interpreting the new system as providing guaranteed education for all young people with SEN to 25 years of age. This is doubtful. However, although it is more likely that the priority for the majority of young people with SEN (in particular, those with an EHCP) will be to move post-18 into independent living and employment, for some young people with an EHCP education will be the best route. It is vital that the responsibility, funding and, where appropriate, access to advocacy for these young people is clarified so that all those involved know what they can expect from the new provisions and who is accountable for providing it. If the purpose of the legislation is to extend education as a right to 25, then the Government needs to make that clear and fund that; if not, then that should also be made clear.

51. We seek reassurance that the extension of approaches for 0-25 provision will also address the needs of young people pursuing higher education.

49   Ev 26 Back

50   Q220 Back

51   Q221 Back

52   Ev 74 Back

53   Ev 77  Back

54   Qq35-6, Kathryn Boulton Back

55   Ev 74 Back

56   Ev 74;Q6 Back


58   Ev w489 Back

59   Ev w225 Back

60   Ev N119, para 12.2 Back

61   Ev 74 Back

62   ibid. Back

63   Q 173, Carol Dixon Back

64   See paragraph 97 Back

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Prepared 19 December 2012