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

6  Local Offer

131. According to the draft clauses, Local Authorities will "be required to set out a local offer of the services available to children, young people and their families." This will cover services that are normally available to children and young people who have disabilities or special educational needs and will provide details of how to apply for more specialist support. The stated aim is to allow parents and pupils to make informed decisions based on clear and consistent information, and so to improve satisfaction with the local authority and reduce disputes.[162]

132. In relation to schools, the Green Paper says the Local Offer will cover curriculum, teaching, assessment (relating to barriers to learning for children and young people with SEN and disabilities), and pastoral support. There will be a duty on other relevant service providers to co-operate in drawing up the Local Offer.

133. The Local Offer attracted much attention and comment from our witnesses. Reflecting the majority view, consultant Peter Gray told us that the Local Offer "needs to be much clearer about what it is going to be. At the moment it is being interpreted by some authorities as really just a directory of services. It needs to be clearer about whether it is really about parental entitlements and expected pathways in a particular area for children".[163] Mr Gray added that "it is unclear, for example, whether that local offer extends to schools in terms of their ordinary activity for special needs".[164] Janet Thompson of Ofsted agreed that "we need to be much clearer about what every school should be offering".[165]

134. A recurring theme in the evidence submitted to our inquiry was how "ordinary practice" on SEN in schools should be defined. Several witnesses argue that a clearer definition of SEN and disability within the draft legislation would have addressed this. Professor Brahm Norwich, Professor of Educational Psychology and SEN at the University of Exeter points out that

The draft legislation only refers to children and young people with SEN with and without a Plan. It leaves to Regulation the critically important details about how this distinction will be defined and the scope of who is defined as having/not having SEN/disability.[166]

135. Peter Gray told us that, in the absence of any such definition of SEN and disability, the definition of what should be "ordinarily available" in schools in terms of support to pupils with low to moderate SEN becomes "critical". He said

If you have ordinary provision right and everybody clear about that, then special educational needs is what needs to happen over and above that [...]I personally would expect and want to see much more in the regulations and guidance about what parents can reasonably expect from every school [...]If parents felt that there was a stronger entitlement in terms of what was available ordinarily, then they may be less dependent on pieces of paper [i.e. Statements].[167]

The NASUWT backs this up, saying "the issue is not about identification [of pupils with SEN], but about the definition of SEN set out in the SEN Code of Practice and that the interpretation of SEN is dependent on context. For example, whether a pupil's needs are additional to those normally provided to all pupils will depend on the provision for all pupils [...] Education policy reforms mean that school diversity is increasing and that context is likely to become even more significant".[168]

136. The Local Offer is therefore of crucial importance in outlining what is ordinarily available in schools and what will be provided as additional above and beyond this. For this to work properly, schools must co-operate but at present there may be incentives for certain schools not to do so. The NASUWT teaching union pointed out that, "as the recent case involving Mossbourne Academy illustrates,[169] some schools are likely to restrict their intake [of pupils with SEN]". The NASUWT adds "teachers working in schools that are seen to be inclusive report that neighbouring schools will sometimes discourage prospective parents from applying to the school by suggesting that 'the school down the road' will be better able to meet their child's needs".[170]

137. Because of these concerns, many witnesses would like to see within the legislation a clearer role for schools in relation to the Local Offer. This involves a particular school not only setting out what it provides itself but also co-operating with other schools to ensure effective SEN provision. Dr Charles Palmer of Leicestershire County Council viewed as a top priority "[an extension] of the duty to co-operate, in clauses 8 to 10, to include a duty for schools to co-operate with each other, together with the power for local authorities and parents to cause schools in the local area to work together to provide for all children in the locality, through local special educational needs partnerships".[171] In oral evidence, witnesses from educational establishments agreed that a duty for schools to co-operate with each other on providing local SEN provision would be welcome.[172] The Association of Directors of Children's Services and the Local Government Association, amongst others, believe that the legislation "should describe the role of Schools Forums in assisting the dialogue between schools, colleges, and local councils, placing a duty on local authorities and the Schools Forum to work together on SEN issues".[173]

138. In considering whether there should be any specific duties for schools to co-operate with each other in drawing up a local offer of services, the Minister pointed out that

it is worth being clear that the duties on local authorities to provide a place at a named school—and all of the other reciprocal duties that would be across other state schools—will flow through into academies and free schools as well. It will not just be through their funding arrangements; it will also be through specific duties that will be the same as they would elsewhere.[174]

Indeed, in answering our direct question as to whether academies, free schools, local comprehensives or independent schools will all have the same duties and responsibilities as each other under the legislation, the Minister simply said "Yes".[175] He added that "all schools will have a vested interest in ensuring that the services that they have available are part of the local offer. Parents will be able to hold them to account for whether they do or they do not".[176]

139. We welcome the fact that the legislation will give Free Schools and Academies the same duties and responsibilities as mainstream schools with regard to pupils with SEN, and believe that these responsibilities need to be spelled out more clearly in primary legislation. We remain concerned that there is a risk that some schools may not contribute to a Local Offer so as to discourage pupils with SEN and their parents from choosing their school as being best placed to meet their needs. The schools accountability system is based on exam results which means that there is no incentive for schools to admit pupils with SEN. At present, there is no alternative way of measuring schools in relation to the effectiveness of their SEN provision. Janet Thompson of Ofsted accepted that "we have issues around the lack of what I would call performance data, the lack of data about outcomes, for some of the young people [with SEN and complex needs]. There is no national structure for that, so Ofsted needs to do some more work around that, which we are willing to do with the Department".[177] We encourage the Minister to take up the offer from Ofsted to work together with the Department to create an improved accountability framework for achievement of SEN pupils based on outcomes.

140. Brian Lamb further suggested that "as there is no legal protection for children who do not receive an Education, Health and Care Plan, it is fundamental to the success of the local offer that there is a legal duty to provide what is set out in the Offer".[178] This was backed up in oral evidence by parents and young people who linked a legal duty to deliver to setting national minimum standards or requirements for Local Offers.[179] Sharon Smith said:

It is particularly important for children and young people who are not currently eligible for a Statement. That means those who are on School Action and School Action Plus. In what this new draft legislation delivers, the core of what is going to be there to support them will be the local offer. [...] We really need to see some national minimum standards of provision for children with special education needs, and for there to be a duty for the authorities to actually deliver those as well. It has to be realistic about what is published.[180]

141. We asked the Minister whether he had considered creating a duty for local authorities to provide the contents of their Local Offer. He told us

that is not our intention in the current legislation, as we have drafted it. The duty is on local authorities to produce a local offer, having done it in consultation with parents and young people within their local area. There is often a tension between national consistency and local determination. Certainly, the experience in the SE7 Pathfinder area has shown that having parents and young people involved from the very outset of developing the local offer makes it a far more powerful document to hold local authorities to account.[181]

142. With regards to setting minimum standards in Local Offers, the draft legislation states that "regulations may make provision about the information to be included in an authority's local offer". The Minister explained "we are proposing that in the Code of Practice there are key areas that a local offer should cover in the right circumstances, but we do not want to be prescriptive about the local offer. It should be developed locally".[182]

143. Blackpool Council accepts the need for local areas to develop their approaches to SEN provision, saying, "this makes sense in terms of local decision-making, and the local context". However, the council warns that "it can also lead to some confusion for parents and young people. The local offer may help clarify what is available in each area, but a minimum offer to be made would be useful in the Code to improve consistency."[183]

144. In order to provide this consistency, Peter Gray recommended the creation of a national framework for the evaluation of local offers. He added:

There is nothing in the legislation about how local offers are going to be monitored and reviewed, so we could produce a local offer and, from parents' point of view, it could be not worth the paper it is written on unless it is evaluated and people have a chance to comment on how they have experienced that. If it is not possible to do a national offer, the framework for evaluating local offers and for monitoring offers could be strengthened in the regulations, and perhaps some of the individual bits like the schools aspect of it could be strengthened through developments in the Ofsted framework. I would again say the Ofsted framework is weak on this.[184]

145. When we asked the Minister if there was an intention to include in regulations governing the local offer a requirement that it is evaluated against a national framework, he responded "that is not currently the intention, but that is something that I will, now you have raised it, give some more consideration to".[185]

146. The importance of getting the Local Offer right cannot be overstated. Where this does not happen parents will seek EHCPs as they currently seek Statements in those local authorities where provision normally available is perceived as deficient. The weight of evidence received by our Committee clearly supported minimum standards and we recommend that the Pathfinders be used to inform what should constitute minimum standards for Local Offers, particularly to address the provision that will need to be made available in schools to support pupils with low to moderate SEN without EHCPs. We also recommend the establishment of a national framework for Local Offers to ensure consistency, together with accountability measures by which they can be evaluated.

Young people and parental involvement in designing Local Offers

147. The National Autistic Society sees it as "essential that local parents are consulted, along with other relevant bodies"[186] in reviewing local provision. However, Tom Schewitz, a young person who provided oral evidence to our inquiry, told us

I think a lot of parents are not listened to. I think parents should be treated as much as professionals as social workers and mental health teams. I do not feel that parents get enough say on their children's needs and aspirations. That could be changed a lot.[187]

148. A key strand of the Government's policy around SEN is the involvement of parents and young people. As mentioned earlier,[188] the engagement of parents and young people in developing Local Offers is seen by Government to be more powerful than, for example, placing duties on local authorities to provide the contents of Local Offers.

149. The National Network of Parent Carer Forums suggests that the Government's analysis is correct in this respect:

early lessons from pilot schemes and Pathfinder work would indicate that where local parent carer forums have been actively involved in the planning and design of pilot schemes from the earliest stages [rather than being consulted or involved at a later stage], the work of the pilot is more solution focused and more likely to gain the support and confidence of the families taking part.[189]

150. This was backed up in oral evidence by Sharon Smith, a parent taking part in the SE7 Pathfinder who said that "One of the areas that is vital for parents to be involved in [...] is around the provision of the local offer. That involves making sure the local offer, what it looks like and how it is delivered is done in conjunction with parents so it includes the information that parents need to have in a format that is suitable for them. That is one example where co­production with parents is vitally important".[190] Carol Dixon, another Hampshire parent added, "we are also noticing that it is opening doors to other areas of participation. In the past, we have had quite good parental engagement with social care; even before this happened, we were listened to in terms of the short breaks and Aiming High. Now people from Health are consulting us and saying they are thinking about reviewing their therapy provision and getting some parents involved in that right from the beginning. So it is really making a difference".[191]

151. However, in oral evidence, Brian Gale of the National Deaf Children's Society observed "there is a problem in the Bill at the moment because, if you look at part 7, where it says who local authorities need to consult when reviewing their SEN provision, it is all provider interest. The child, young person and parents are left out of that list, so there is something wrong with the Bill at the moment in that respect".[192]

152. The National Network of Parent Carer Forums says

[we are] concerned that there is no clear mandate for the active participation of parent carers in strategic planning, or the development of the Local Offer […] Our concern remains that without a mandate in relation to the participation of parent carers within the development of the Local Offer, some areas, due to their own internal pressures, may be more inclined to work in a tokenistic fashion with parent carer forums and parent carer representatives.[193]

Evidence from the Nottinghamshire SEND Pathfinder echoes this point and concludes that "the role of the voluntary sector and Parent Partnership Service should be defined further within the draft legislation, thereby acknowledging their role along with the role of schools and colleges in meeting the needs of children and young people with SEN and those young people not in education, employment or training".[194]

153. The Department of Education states that "draft clauses 11 (4) (c) and (d) would give the Government the power to make regulations setting out how a local authority must involve children, young people and parents in preparing its local offer". We support the Government's focus on engaging parents and young people in the development of Local Offers. However, given the importance of parents' and young people's roles in developing this aspect of the proposals, we would like to see them given a clearer mandate in the draft legislation. We therefore recommend that Parent Carer Forums be listed as partners under draft clause 8 (Co-operating generally).


154. Clause 12 of the draft legislation requires local authorities to make arrangements for advice and information about special educational needs to be provided for the parents of children, and young people, in its area with those needs. This represents an expansion on current duties for local authorities to provide information to parents through Parent Partnership Services, to provide information to young people. The draft clauses carry the assumption that young people will receive information from the same sources as parents.

155. Tom Schewitz—a young person who provided oral evidence to our inquiry— described how he felt the information and advice required by parents and young people with SEN was necessarily different:

I think parents should be supported in a different way from the person with special needs in education. Parents should have the right to be treated like professionals, but the person who has special needs and educational difficulties should be treated with a bit more respect. I think parents and the child should be helped in different ways. Parents are stressed with trying to help their children and so on, so it does vary.[195]

Tom's views are supported by evidence from the Manchester Pathfinder which is

concerned that Clause 12 proposes the provision of advice and information to young people becomes a parent partnership function: this could be a conflict of interest for the service—whose current responsibility is to represent parents, also parent partnership staff are not generally trained to work with young people. This should be the responsibility of staff trained and qualified to work with young people, such as careers adviser, Connexions personal advisers, young people's advocacy workers, who should have a duty to provide impartial advice and information.[196]

156. We recommend that the draft clauses make reference to fact that the information provided to parents and carers and that provided to young people needs to be tailored as appropriate to its audience.

162   CM 8438 Back

163   Q32 Back

164   Q21 Back

165   Q89 Back

166   Ev w155 Back

167   Q27, Q2, Q6 Back

168   Ev w312, para 18 Back

169   Parents successfully challenged Mossbourne Academy in Hackney in five legal cases with a sixth case adjourned for failure to admit pupils with SEN.The Academy argued it had a higher than average number of pupils with SEN. Back

170   Ev w312, paras 23, 24 Back

171   Q52 Back

172   Q100 [Graham Quinn]; Q101 [Christine Terrey] Back

173   Ev w188 (LGA), para 7.3 Back

174   Q209 Back

175   Qq209, 213 Back

176   Q211 Back

177   Q88 Back

178   Ev w237, para 8 Back

179   Qq149-50 Back

180   Q150 Back

181   Q264 Back

182   Q267 Back

183   Ev 42, para 3.1 Back

184   Q42 Back

185   Q268 Back

186   Ev w273, para 9 Back

187   Q144 Back

188   See paragraph 140 Back

189   Ev w348, para 10.1 Back

190   Q144 Back

191   Q143 Back

192   Q55 Back

193   Ev 348, para 11.1 - 17.1.2 Back

194   Ev w262, para 7.1 Back

195   Q154 Back

196   Ev w565 Back

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© Parliamentary copyright 2012
Prepared 19 December 2012