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

7  Extending choice and direct payments

Choice of school

157. Clause 18 of the draft legislation makes provision for young people and parents of children with Education, Health and Care Plans to express a preference for Academies, Free Schools, further education colleges and non-maintained special schools in the same way as they can now for maintained schools (special or mainstream) and have their preference met unless it would not be suitable for meeting their special educational needs, or would be incompatible with the efficient education of others or the efficient use of resources. Clause 20 makes clear that where a school or further education college is named in an EHCP they will be required to admit the child or young person. This proposal has met with widespread support in evidence submitted to our inquiry.

158. Our evidence shows a great deal of support also to include independent special schools and colleges in the list of schools for which parents have the right to express a preference. The National Association of Independent Schools and Non-Maintained Special Schools (NASS) points out that, currently, 1 in 10 children with Statements of SEN in special schools are in independent provision and that a high percentage of specialist autistic spectrum condition provision is within the Independent sector—including schools run by the National Autistic Society.[197]

159. Josh Pagan, a young person who gave oral evidence to our inquiry told us that his experience in an independent special school for pupils with significant behavioural, emotional, social and complex learning difficulties was good. He added, "I thought it was a lot better than a mainstream school. It helped me a lot more than the teachers at the normal, mainstream schools did".[198]

160. The Royal National College for the Blind adds weight to the case for including independent specialist colleges (ISCs) in the legislation:

ISCs are not listed as an option for young people aged 16-25. The Bill hopes to offer those with a special educational need or disability 'the same life chances as every other child.' Yet most young adults have the opportunity of mobility, to move away from home and experience independent living. As drafted the Bill restricts the freedom of movement of young people with a disability as it restricts their options to their own local area. As drafted the Bill does not contain a mechanism to ensure that local authorities meet their obligation to offer young people aged 16-25 and their parents a meaningful choice and transparency of options. [...] ISCs have a focus on achieving independence and developing key lifeskills. The loss of this provision from the sector will increase the demand for adult services as more people with a disability will be reliant on ongoing care and support. This will lead to a drain in resources, additional expense for local authorities and potential bottlenecks as the first generation affected reach adulthood.[199]

161. NASS refers to former Minister Sarah Teather's letter to the Committee in which she claimed there was a mixed position from the independent sector on whether to be included in the draft provisions. NASS disputes this assertion and states that "we are united alongside the Children's Services Development Group and the Independent Schools Council in calling on the Department for Education to clearly define what constitutes an "Independent Special School" for the definition of the Bill".[200] It calls for the Department to include those schools in the list of schools for which parents can express a preference. NASS believes that "the DfE could make a clear distinction between schools to be included within the proposed duty and schools to remain outside by basing the definition of Independent Special School on the percentage of students publically funded (we suggest a figure of 90%) and/or the percentage of students with Statements of SEN (we suggest a figure of 75%)".[201]

162. Both the Association of Colleges[202] and The Association of National Specialist Colleges put forward the case for the inclusion of independent specialist colleges, the latter arguing that

we strongly believe that young people should have the right to request a place at an independent specialist college when this will best meet their learning and support needs. [...]

The specialist colleges that Natspec represents wish to be included in clause 18 (2) and are prepared to take on the consequent duties, including the duty to admit and the duty to co-operate with the LA. These colleges are included along with other types of provider in respect of the funding reforms, which are intended to produce a more equitable system, so it does not make sense for them to be excluded from these proposals.

We know that one area perceived to be problematic is the lack of a definition for specialist colleges. In fact, they all share two common characteristics, which is that they are all approved for EFA funding and they are all inspected by Ofsted under the common inspection framework for learning and skills. Colleges are also listed on Edubase, for which purpose a definition was agreed with the then YPLA.[203]

163. We asked the Minister if he would change his mind as to whether independent special schools should be included in the list of schools for which parents can express a preference and if he would provide a definition of "independent special school" in the legislation. He replied:

we are and have been speaking regularly, and in quite a lot of detail, with independent special schools providers to see whether we can find a way to include them as one of the named educational establishments, which would enable parents to name them within the Education, Health and Care Plan. Although I cannot give you a categorical guarantee, which is never a good thing to do in any event, I am hopeful we will be able to resolve it productively.[204]

164. We welcome the extension of the list of schools for which parents can express a preference in an EHCP to include academies and free schools. The case for also including independent special schools and colleges is well made. We recommend that the Government prioritise agreeing definitions so that these schools can be included in order for pupils with SEN to have access to appropriate educational provision.

Personal budgets and direct payments

165. A further proposal aimed at improving choice for young people with SEN and their parents is contained in draft Clause 26, which requires local authorities to prepare a personal budget for children or young people with an Education Health and Care Plan if asked to do so by that young person or their parent. Pathfinders were set up to advise on the operation of personal budgets which, in turn, will advise on regulations governing the operation of the scheme. As this stage, very little is understood as to how direct payments will operate in practice and the Pathfinders are still at early stages of developing approaches to operating the scheme.

166. Whilst the majority of witnesses support the principle of personal budgets, the National Union of Teachers is opposed because of the risk that it might lead to a reduction in the range of services available. It reports that "teachers feel strongly" that parents should not be able to use direct payments and personal budgets in relation to education provision and that decisions on the appropriate type of educational provision must stay with the school.[205] The regulations which set up the pilot scheme to trial direct payments give head teachers a veto over whether students or parents can use personal budgets in relation to their school. The NUT wants to see this veto replicated in the draft clauses.

167. The Association of School and College Leaders also sees difficulties in the introduction of personal budgets:

School leaders are also very concerned about the implications for school budgets, it is important that schools do not lose funding to help target the special support they have identified as being necessary for their students because that child's parents have decided that the funding for their child would be better spent other than through the school.[206]

168. Several submissions to our inquiry also highlight serious potential pitfalls which the Pathfinders are starting to uncover. The largest Pathfinder, SE7, warns:

The current regulations allowing Pathfinders to make education direct payments are significantly flawed and it will be essential for future regulations on these matters to better crafted based on an understanding of the Pathfinders' experiences and learning.[207]

169. We recognise the critical importance of learning from the Pathfinders when formulating regulations on personal budgets and direct payments. It is essential that Ministers take these lessons fully into account.

197   Ev w444 Back

198   Q179 Back

199   Ev w497, paras 7, 15 Back

200   Ev w444, para 2 Back

201   ibid., para 20 Back

202   Ev 74 Back

203   Ev w50, para 11 Back

204   Q273 Back

205   Ev w519  Back

206   Ev w50 Back

207   Ev w526, paras 19-20 Back

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Prepared 19 December 2012