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 sectorincluding 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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