15.In Part 2 we set out the experiences of many of the people we have heard from, and the experiences of many more have informed our thinking throughout this inquiry. We have set out what we have heard about the implementation of the 2014 Act, and also the experiences of those who work and live within the system. The experiences and opinions presented to us in our oral and written evidence has helped us consider the extent to which the system today is operating as intended and inform our views, which are set out below.
16.Many people and organisations welcomed the reforms, with some welcoming specific aspects, while others were broadly supportive of the reforms and their principles and aspirations, albeit often with caveats relating to implementation. Despite some views that the legislation or system is inadequate, we have not been persuaded that the 2014 reforms are anything but the right ones. The reforms were introduced during a period of financial strictures and systemic change, but also a period of great aspiration and ambition by the Department for Education. We acknowledge that schools and local authorities were and are under great strain and this can result in them struggling to provide the support that children and young people with SEND and their parents and carers have every right to expect.
17.We are confident that the 2014 reforms were the right ones. We believe that if the challenges within the system—including finance—are addressed, local authorities will be able to discharge their duties sufficiently.
18.We recommend that when the Government makes changes to address these challenges, it should avoid the temptation to address the problems within the system by weakening or watering down duties or making fundamental changes to the law.
19.We addressed the funding shortfall in our tenth report, A ten-year plan for school and college funding, which set out the challenges and inadequacies with the current funding, for both local authorities and the education sector. We heard throughout this inquiry, and our inquiry into school and college funding, about the enormous pressures facing local authorities to meet needs and fulfil their statutory duties. However, decisions by the Department for Education to allow local authorities to spend their implementation grant with little or no oversight or safeguards was at best naïve, if not irresponsible and misguided. Significant errors were made. The money that was intended for systemic change appears to have been spent merely on business as usual and maintaining the status quo. The way in which funds were given on a non-ringfenced basis to local authorities at a time of reducing local authority budgets by the Department for Education created an opportunity for the money to be used in ways other than supporting the transformation of the system. This in our view represents a serious failure of administration, policy and expenditure.
20.The Department for Education set local authorities up to fail by making serious errors both in how it administered money intended for change, and also, until recently, failing to provide extra money when it was needed.
21.The significant shortfall in funding is a serious contributory factor to the failure on the part of schools and local authorities to meet the needs of children and young people with SEND. However, unless there is a systemic cultural shift on the part of all parties involved, additional funding will make little difference to the outcomes and experiences of children and young people with SEND.
22.These financial challenges have been exacerbated by creating a duty to maintain EHCPs for young people until their 25th birthday, and clear problems with a lack of ownership or responsibility being taken for paying for interventions. We accept that the Department for Education made some effort to fund these changes, but the Department failed to fully consider the increased costs and pressures that the duty to maintain an EHCP to 25 would place on local authorities and their staff, and schools and colleges. We do not necessarily think that significant extra costs were created, but rather funding has not been transferred from the adult social care budget along with the duty to support young people to 25. These broader funding challenges are compounded by an apparent lack of clarity about who is responsible for paying for what, with some schools and local authorities footing the bill for interventions that should be provided by the health services. This has resulted in budgets becoming stretched across schools and local authorities, therapies not being provided, local authorities avoiding discharging their duties to young people post-19 and, critically, children and young people unable to access the support they need and are entitled to.
23.We recognise that the adult social care budget is also stretched and so any transfer of money from the adult social care budget may take money away from older, vulnerable adults. Nevertheless, that does not detract from the fundamental necessity of ensuring that all adults in need of social care support receive good quality provision, and the wider responsibilities across Government to ensure that the financial burden is shared.
24.While we acknowledge the extra money provided in the spending review, both for schools and social care, we deeply regret that this spending review process was insufficient in tackling the fundamental challenges facing both children and adult social care. We acknowledge the Government’s recent Budget announcement and hope that this will be tackled at that point.
25.Nobody benefits when Departments avoid accountability and try and pass the buck. The Department for Education, together with the Department for Health and Social Care, should develop mutually beneficial options for cost- and burden-sharing with the health and social care sector.
26.We asked the Department for Education how it is measuring the success of the SEND system. We are troubled by the inability of the Ministers to clearly explain how they are using the document published in 2015 which set out how the Department was going to hold the system to account, both locally and nationally. In a follow up letter, following our ministerial oral evidence session, the Minister for Children and Families listed the analysis and data that is available and uses to create accountability within the system. In addition, during the evidence session, the Minister for Schools, Rt Hon Nick Gibb MP told us:
The new Ofsted framework that comes into force this September has a greater emphasis on the progress that children with special educational needs are making. We have also had a greater emphasis on the progress pupils make in school, so that a school will be rewarded and credited for the progress children with special educational needs make, not simply those children on the threshold of a C/D or a 3/4 borderline.
27.However, accountability is not just counting and measuring, it is being held responsible for actions taken. Nobody appears to be taking any action based on the counting and measuring that is taking place, but even worse, no one appears to be asking anyone to take responsibility for their actions. There appears to be an absence of responsibility for driving any change or holding anyone accountable when changes do not happen. We think that delaying the introduction of an inspection regime, and creating one that was initially time-limited, perpetuated the idea that the inspections were an improvement tool, rather than creating a rigorous system of accountability.
28.We are pleased that the Department for Education has asked CQC and Ofsted to design a second round of inspections for beyond 2021. However, simply designing “a revisit programme” to “keep going on that improvement journey” is insufficient.
29.The joint CQC and Ofsted inspections should not continue to be one-offs but should become part of an annual inspection process to which all local authorities and their partners are subject. CQC and Ofsted should be funded to be able to deliver this rigorous inspection timetable. CQC and Ofsted should design and implement an inspection regime that not only improves practice but has a rigorous framework that enables local authorities and their partners to be held to account and sets a clear timeframe for re-inspections. Ofsted and CQC should also clearly set out the consequences for local authorities and health bodies that fail their annual inspection.
30.We were told by Dr André Imich, SEN and Disability Professional Adviser for the Department for Education, that “the ultimate accountability is, as the Minister says, in the outcomes from the inspections”. However, we heard about the limits of the inspection regime and complaints process, and that it is not in the remit of the Local Government and Social Care Ombudsman to investigate what goes on inside the school gates. We were pleased that the Minister for Schools committed to looking at the extent of the powers of the Ombudsman, but have subsequently been disappointed to see that the Minister wrote to the Chair of the Housing, Communities and Local Government Committee to set out the different ways parents can escalate complaints, but did not commit to extending the Ombudsman’s powers. It is clear to us that the Local Government and Social Care Ombudsman’s remit must be extended to cover internal school management and free schools and academies. The opportunities for redress as set out in the Minister’s reply to the Chair of the Housing, Communities and Local Government Committee are frustratingly disparate.
31.Two select committees have independently identified a problem with the current extent of the powers of the Local Government and Social Care Ombudsman: It is now up to the Government to act. The Department should, at the earliest opportunity, bring forward legislative proposals to allow the Ombudsman to consider what takes place within a school, rather than—in his words—only being able to look at “everything up to the school gate”.
32.We were surprised that Ofsted and the Care Quality Commission (CQC) told us that it was not in their remit to report on compliance with the law. We were surprised by their apparent lack of conviction: Ofsted is prepared to act proactively and make judgements about unlawful practice in relation to—for example—extremism and unregistered schools, and we see no reason why it should not do the same in relation to unlawful actions regarding special educational needs and disabilities. We considered whether, in reaction to the apparent lack of accountability within the system, creating a regulator would solve the problem, but we warned by the LGSCO that the SEND system is difficult to draw boundaries around and doing so would cause problems, and Alison Fiddy, chief executive of IPSEA (Independent Provider of Special Education Advice) told us:
I would like to see more robust accountability from Government, I suppose, where local authorities are not complying with the law. I often think that the only way to make local authorities accountable is to really hit them where it hurts. Often, that means it is about tackling those who hold the purse strings, unfortunately.
We do not think that financially penalising local authorities is necessarily the most appropriate form of action, partly bearing in mind the evidence we have heard about the financial constraints of local authorities, but ultimately because financial penalties would risk more children missing on out on the support that they need in order to meet their needs. However, more needs to be done by Government to ensure that local authorities are complying with the law, given that many local authorities are not.
33.We do not think that the Department for Education is taking enough responsibility for ensuring that its reforms are overseen, that practice in local authorities is lawful, that statutory timescales are adhered to, and that children’s needs are being met. We are concerned that the Department has left it to local authorities, inspectorates, parents and the courts to operate and police the system. There is a clear need for the Department to be more proactive in its oversight of the way in which the system is operating. However, ultimately, local authorities must ensure that they are compliant with the law as opposed to waiting to be caught out by an inspection regime, parents or other professionals.
34.The Government should introduce a reporting and accountability mechanism for non-compliance so that parents and schools can report directly to the Department for Education where local authorities appear not to be complying with the law. It should also implement an annual scorecard for local authorities and health bodies to measure their success against the SEND reforms including, but not limited to, reports of non-compliance; the school placement of children and young people with SEND, including those without a school place; Tribunal hearings, and how local authorities meet statutory timescales. These scorecards, along with a summary document, should be placed in the House of Commons library no later than three months after the end of the year to which they relate.
35.The intense focus on Education Health and Care Plans and the transition date has led to children on SEN Support being neglected. Children are unable to access appropriate support at this level, which has led to a lack of early intervention, and an increase in parents applying for Education Health and Care Plans because they appear to be the only way to open doors for access to support that has become rationed and difficult to access. This has led to an increase in applications, which has further strained a system already under pressure from the introduction of Education Health and Care Plans and the transition process which was much more complex than had been imagined. This has led to practices of rationing, gatekeeping and, fundamentally, children and young people’s needs being unidentified and unmet. Much of this is unlawful, goes wholly against the intentions of the Act and contributes to a lack of faith in the system.
37.In our report A ten-year plan for school and college funding, we discussed the use of the notional budget and its importance in early intervention and inclusion, including the perverse incentives of the current funding system. We called on the Government to review and revise the high needs funding formula, and “assess the extent to which notional budget allocations take sufficient account of future trends, and facilitate adjustments to the notional budget allocation methodology to make funding arrangements more forward-looking.” We think that the principles underpinning the notional budget are correct and promote an inclusive school environment. But at the moment it just is not happening.
38.We call on the Government to make the notional budget a focus of its review into the financial arrangements of provision for pupils with SEND, and for those in alternative provision. The Government should pay particular attention to ensuring that the funding system works for children and young people with SEND who do not need EHCPs so that they are not inevitably dragged into that part of the system. This issue must be sorted as soon as possible and not kicked into the long grass. As part of its SEND review, the Department should identify local authorities with excellent examples of early identification and preventative measures and the spending of budgets upstream and ensure these examples are shared.
39.In addition, a lack of standardised paperwork meant that the vast majority of local authorities had to create entirely new paperwork. A lack of standardisation of the EHCP process and paperwork has created and continues to create a huge burden on schools and other professionals and sense of confusion, further putting pressure on a strained system.
40.SEN Support has been a neglected area of focus since 2014. We heard calls for greater strength and clarity in the Code of Practice, to help parents make sure that those responsible are accountable. Children whose needs are met through SEN Support often only have the Code of Practice to rely on, and we are pleased that the Department for Education has committed to reviewing the Code of Practice by the end of 2020, in response to the Timpson Review of School Exclusion. We also heard that a lack of standardised practice, forms and an increase in bureaucracy has moved SENCOs away from the classroom, which again leaves pupils unsupported. We also heard about a lack of therapy services contributing to the reduction in support for pupils on SEN Support. We understand the importance of enabling local authorities and their partners to meet local need. However, this should not be at the expense of local authorities and schools being able to meet children’s needs.
41.We heard a lot about local authorities’ poor performance. But for children who receive SEN Support, they rely primarily on their school to get their support needs right. If, for whatever reason, a school fails to provide high quality SEN Support, the child is failed. We are pleased that Ofsted’s new framework includes a focus on children with SEND.
42.As the Office for Standards in Education, Children’s Services and Skills, Ofsted is responsible for ensuring that “organisations providing education, training and care services in England do so to a high standard for children and students.” We do not think enough is being done to ensure that every pupil with SEND receives a high standard of education and that all schools are inclusive. Ofsted must deliver a clear judgement, and through this assurance to parents, that schools are delivering for individual children with SEND. It should either seek to do this through its existing programme of inspections, or alternatively develop a separate type of specialised inspection focusing on SEND, with a particular focus on the school’s responsibility to deliver for pupils on SEN Support and that inclusive schools get the recognition that they deserve. If this requires legislative change, the Department should work with Ofsted to bring forward proposals at the earliest possible opportunity.
43.We recommend that the Department for Education strengthen the guidance in the Code of Practice on SEN Support to provide greater clarity over how children should be supported. The Department should also amend the guidance on Education Health and Care Needs Assessments and Plans to create a clearer and more standard interpretation of the process that should be followed for Education Health and Care Needs Assessments, with the aim of reducing paperwork and simplifying processes for all involved.
44.The system is only as strong as the professionals who make up its system, and we want to see greater support provided to them. We heard that SENCOs can be part-time or diverted from their SEND responsibilities by other duties, taking them away from supporting teachers and pupils. SENCOs play increasingly important roles in schools. As the number of children with SEND increases, and as pressure on teachers also rise, they need expert advice from other professionals. We consider that the role of the SENCO is of such importance that those undertaking that role should have enough dedicated time, pay and knowledge to enable them to do their job well. However, not all schools will be large enough to require a full-time dedicated SENCO. In addition, while we acknowledge that currently SENCOs should undertake the NASENCO training within three years of taking on the role, we think that this should be done sooner.
45.The Department for Education should, within six months of the publication of this report, issue updated guidance setting out that all SENCOs should undertake the NASENCO course upon taking on a SENCO role. It should also commission an independent reviewer to examine the cost implications of requiring all schools and colleges to have a full-time dedicated SENCO and recommending the size of school which should only be required to employ a part-time dedicated SENCO.
46.The Government should encourage local authorities, and if necessary provide them with the relevant powers, to bring all SENCOs from all schools in their area together, in order to share best practice, knowledge and training.
47.We have heard that there is a lack of knowledge about SEND law and local authority procedures which are, in some cases, abused or taken advantage of. This ignorance, wilful or otherwise, serves no one well, least of all the children and young people who the system is intended to support. Those who work in SEND teams in local authorities have an important but difficult role. Staffing has been impacted by the reforms, and the change in legislative framework and local policies and procedures along with the increase in workload created uncertain and difficult working environments. We are not convinced that all local authorities have sufficiently invested in training for these front-line staff. Where staff are unsupported or poorly trained, mistakes may be made that let down young people and their families.
48.When developing its new framework for inspections, Ofsted and CQC should ensure it includes a requirement to inspect the availability, take up, quality and provision of the training and continuing professional development regarding SEND law of all local authority professionals who are engaged in Education Health and Care Needs Assessments, plan writing and reviewing and Tribunal work. This should be explicitly reported on in inspection reports.
49.The lack of therapists is causing problems for local authorities in their assessment and review processes, schools for their ability to provide support for teachers and pupils, for the therapists themselves, and ultimately the children and young people who need their support. They are unable to spend appropriate time with children and young people, provide the expert advice that is relied on for needs assessments and for pupils who receive lower level support, and attend annual reviews. In some cases, they are unable to provide the specified interventions because there is insufficient staff. We welcome the Department for Education’s announcement of £300 million to train more educational psychologists, and the NHS Improvement and Health Education England’s review of the workforce, and urge both Departments to ensure that ensuring that there are sufficient professionals to meet children’s needs remains a focus of their work. However, more needs to be done to address this serious shortcoming in the Government’s SEND policy.
50.As part of the Government’s SEND review, it should map therapy provision across the country and identify cold spots. This should be a priority and the results of the mapping published as soon as it is completed. Separately and subsequently, the Government should set out a clear strategy to address the problem.
51.We heard many times about the conflicts of interest, or challenges, that appear to exist with the local authority as both the assessor and the commissioner. That is a tension that is difficult to overcome—we heard arguments about why the local authority is best placed to play those dual roles, while we also heard how professionals make decisions that are overridden by budgetary constraints or a lack of commissioned provision. This in turn creates distrust between local authorities and parents and carers, moving us even further away from the concept of local authorities as allies. However, we are not convinced that separating the two roles would necessarily be the right thing to do. We are however convinced by the need to create some neutrality in the system, and someone to act as an ally of the family in the process. Steve Innett from Healthwatch Kent described how parents felt alone in negotiating the system and that there was no co-ordinator role within the system. We also heard that advice and support services could be postcode lotteries, and some charities were unable to help all those who seek their help, but we were also told that not all parents access support because they do not know that it exists or where to go for help. Furthermore, this complex, awful and often unnecessarily antagonistic experience for parents can prevent them from accessing their entitlements.
52.We recommend that the Department for Education explores the potential for creating a neutral role, allocated to every parent or carer with a child when a request is made for a needs assessment, which has the responsibility for co-ordinating all statutory SEND processes including the annual review, similar to the role of the Independent Reviewing Officer for looked-after children.
53.Getting children help and support in school and college places a heavy burden on parents and carers. It can be a lonely and isolating process that can, and often does, put significant strain on all aspects of a family’s life. We think that the reforms did raise parental expectations, and rightly so. Parents were told that the reforms would make a real difference. They were told that they would only have to tell their story once and were promised greater and more co-ordinated support. The reality for many appears to be far from this. Creating a system with such promise has meant that parents know that their children are entitled to something, but they have to work too hard to access this entitlement and are left exhausted in the pursuit of it.
54.Navigating the SEND system should not be a bureaucratic nightmare, difficult to navigate and requiring significant levels of legal knowledge and personal resilience. A child’s access to support should not be determined by a parent’s education, their social capital or the advice and support of people with whom they happen to come into contact. In some cases, parental empowerment has not happened. Children and parents are not ‘in the know’ and for some the law may not even appear to exist. Parents currently need a combination of special knowledge and social capital to navigate the system, and even then are left exhausted by the experience. Those without significant personal or social capital therefore face significant disadvantage. For some, Parliament might as well not have bothered to legislate.
55.While we heard a lot of evidence about the failure of mainstream schools to be inclusive, this seems to be exacerbated by special schools no longer fulfilling their function. As mainstream schools are struggling, or refusing, to meet the needs of children with lower-level needs, their parents and carers are seeking help and support in more specialised provision. This in turn is having an impact on local, maintained specialist provision, as children whose needs may be met locally are unable to access these placements, or their needs are no longer able to be met there. This in turn pushes these children towards costlier, often independent specialised provision.
56.If many of the challenges within the system were addressed, such as increased funding for schools, better and more consistent SEN Support, greater access to therapy for all pupils, and easier access to specialist advice for schools, there would be less need for so many children to attend expensive independent schools and more children would be able to remain in mainstream provision. We also think that local authorities are hampered by their inability to develop new specialist provision. Currently, there are restrictions on local authorities’ abilities to open maintained schools, and where it invites proposals for free schools, it is expected to meet the capital costs of the school. The Department for Education/Education and Skills Funding Agency (ESFA) free school application process enables new free schools’ capital costs to be funded through the ESFA, and in March 2019, the Department announced 37 successful areas that will get new special free schools. However, the free school application process requires local authorities to bid for new free schools, before organisations can then bid to open the school in the successful area. The process is too limiting and short-sighted as it does not allow local authorities to build to meet demand and to make cost-effective decisions in the future. We accept that there is a cost to the Treasury, but we believe that unless local authorities are given greater freedom to build provision where and when they need it, including being able to build specialist colleges, local authorities will be required to spend significant sums of money on independent provision when children’s needs could and should be met locally.
57.The Government must see support for special educational needs and disabilities as a system-wide issue and ensure that all policies are ‘SEND proof’. Central Government has introduced legislation which gives significant duties to local authorities and serious freedoms in how it can deliver them, but unintended consequences of other education policies, however laudable the original policy may be, have unfortunately limited local authorities’ abilities to uphold these duties and meet all children and young people’s needs. Ultimately the Government must decide whether it wants local authorities to retain the statutory duties it set in place in the 2014 Act. If it does, it must give them the necessary funding and freedom to meet their local population’s needs, with the appropriate accountability to ensure that they do so.
58.The Department for Education should, in the absence of other plausible solutions, enable local authorities to create new maintained specialist schools, including specialist post-16 provision outside of the constraints of the free school programme. It should amend the capacity building guidance to ensure that local authorities are able to be more responsive to their local population’s needs and address the unfortunate unintended consequences of the programme. This should not detract from the principle of inclusion and right to mainstream schooling. If necessary, local authorities should also be able to build more mainstream schools outside of the free school programme. This would create a level playing field for provision within and beyond local authority structures.
59.The greater focus on support for young people post-19 has placed a burden on the entire system. It has increased financial and administrative burdens and put staffing levels under pressure by creating an increase in demand for support, which is, in part, caused by the weakness in provision for young people in the adult social care system. This pressure has had an impact further down the system, as limited capacity and resources have been spread thinly across a wider age range, while the ambition of the reforms raised expectations for wider, and better outcomes. However, the ambition of the reforms does not appear to have been matched in terms of planning, funding and capacity development. There is a disconnect between legislation, the Department’s intention and expectation, wider expectation and interpretation, and the capacity of the system. We do not think that the issuing of non-statutory guidance when the statutory Code of Practice exists, is helpful given this adds further ambiguity to a system that we hear is already unclear. We would expect this to be addressed when the Department reviews the Code of Practice.
60.However, we are unconvinced that a review of guidance alone will solve the challenges that are in this area. Colleges need more funding, which we have addressed in our school and college funding report, and we hope that with an increase in funding, colleges will be better able to meet the needs of young people with SEND. We would hope that with more standardisation of the local authority’s processes and paperwork, colleges would have a reduced bureaucratic burden which would mean they could increase their focus on meeting needs. We would hope that an independent review of the role of the SENCO in schools and colleges would also help to increase the specialist support that is available in FE colleges.
61.The 2014 reforms were not just about education. We are particularly concerned to hear that there is a lack of support and development for wider outcomes than just education and employment opportunities. We heard a significant amount of evidence, particularly from children and young people, about the importance of their support addressing their life goals and future plans. We were disappointed to hear that these important aspects of children and young people’s lives were not suitably addressed in the support and plans for children and young people with SEND.
62.More needs to be done to include children and young people in the writing of their Plans and decision-making about the support they receive. The Department for Education’s SEND review should identify best practice for including all children and young people’s views in the support that they receive for their SEND. The recommendations and actions from the review should ensure that there is greater support for professionals to enable them to include their views and ensure they are central to the process.
63.While in some areas there are projects like supported internships or apprenticeship opportunities that allow young people to gain employment experiences and ultimately employment, there are not sufficient opportunities to meet demand. We are specifically concerned to hear that many young people are ineligible for help because they do not have an Education Health and Care Plan.
64.Our report The apprenticeships ladder of opportunity: quality not quantity found that extra support for apprentices with learning difficulties and disabilities is not well understood and employers are wary of recruiting them. It also found problems with Access to Work. We recommended that the Equalities and Human Rights Commission should conduct a review into participation rates and suggest changes to inform practice and policy. It is clear that the problems we identified in this report remain the same, and we are disappointed that this is the case. We note that the Government committed to increasing apprenticeship starts by underrepresented groups by 2020, but the majority of the Government response to this recommendation focused on increasing gender and ethnic diversity among apprentices. We are concerned that the Government is failing to sufficiently grapple with challenges facing young people with SEND in relation to apprenticeships.
65.The ambitious zeal of the Green Paper has faded, and we are seeing too much wasted potential. The Department for Education, and the country as a whole, is not ambitious enough for its young people with SEND. A lack of focus by the Department on quality post-16 provision and opportunities for young people with SEND perpetuates this lack of ambition and impacts on the routes that young people are taking post-16. Unless there is a greater focus on supporting young people into meaningful and sustainable employment and independent living opportunities, we are letting down an entire generation of young people, putting greater pressure on the benefits and adult social care system, and creating long term costs that are unnecessary and unpalatable.
66.The Department for Education, the Department for Health and Social Care, the Department for Work and Pensions and the Ministry for Communities, Housing and Local Government should establish a ministerial-led cross-departmental working group, with representatives from the private sector, to develop and oversee a strategy to develop sustainable supported internship, apprenticeship and employment opportunities for young people with SEND. This taskforce should report regularly to the Education Committee on its work and strategy implementation.
67.The Department for Education, in partnership with the Department for Health and Social Care, the Department for Work and Pensions and the Ministry for Communities, Housing and Local Government, should review the capacity of local authorities to meet the independent living needs of young people with SEND. It should develop a shared action plan, setting out how it will increase capacity and opportunities as necessary and stimulate the market to enable all young people with SEND to live as independently as possible as adults.
68.We recommend that the Equality and Human Rights Commission conducts a monitoring review of apprenticeship participation by gender, ethnicity and by people with learning difficulties and/or disabilities every three years. Each review should recommend changes to improve Government policy and employer practice.
69.The absence of a full contribution from those responsible for health and social care has put further pressure on the system and that increased pressure has hindered its capacity to work as it was meant to. Other aspects of the reforms involving health and social care have also not worked. It almost seems inevitable that trying to merge two systems would lead to the situation that currently exists—health professionals focusing on their own health priorities and targets and problems accessing therapies when there are pressures on waiting lists and staff. We were pleased to hear about the success of the Designated Medical Officer/Designated Clinical Officer but are concerned that not all local authorities have one, five years after the Act was commenced.
71.Unless there is a specific person to co-ordinate the different systems, input from health and social care will remain reliant on parents or individual professionals. We expect that a co-ordinator role, working with families and with responsibility of co-ordinating needs assessments and reviews, would help to ease the challenges that we heard about regarding advice for assessments and arranging the correct attendance for review meetings, as well as helping to increase the number of outcomes that are focused on social care and health. However, the drive to overcome these barriers must come from the top. Rt Hon Anne Milton MP, the then Minister of State for Skills and Apprenticeships, told us that Government departments do not like working together, but should do so more:
Government departments are generally very bad at working together. It needs ministerial drive. Government departments do not like pooling resources because they always see this as a possibility for Treasury to cut the overall envelope. That might be the case, I don’t know, but that is not a reason not to work together.
The joint inspections by CQC and Ofsted go some way to show this joint working that should be done more often. We were heartened to hear about opportunities to learn from and disseminate best practice, but we do not think that this is happening enough.
72.The duties on health providers were referenced as being hard-won in public bill discussions. We do not doubt that there must have been significant work behind the scenes to bring this duty into the Bill. However, we think that once this hard-won duty was indeed ‘won’, the Department’s drive stopped and it relied on local authorities and their partners to maintain the momentum of joint-working and joint-commissioning.
73.There is not sufficient emphasis on joint working within the Government. We recommend that the Department for Health and Social Care, NHS England, and the Department for Education should design an outcomes framework that local authorities and CCGs are held jointly responsible for, to measure the health-related delivery of support for children and young people with SEND. Ownership of these outcomes should belong jointly to CCGs and LAs, as well as the Department for Health and Social Care, NHS England and the Department for Education. Monitoring of this outcome framework should sit within central Government, not an inspectorate or regulator, to ensure consistent monitoring and the ability for the framework to be implemented effectively.
74.Advice and information are in short supply for parents, but also teachers and other professionals. As the system bows under pressure, advice becomes in short supply and the system is difficult to navigate. As services fail to deliver, distrust of professionals grows, and advice is sought elsewhere. We hope that a co-ordinator role will help parents and carers to navigate the Education Health and Care needs assessment and review processes and help to remove the pressure on parents and carers to become legal experts. We also hope that a dedicated SENCO, removed from additional workload pressures, will also be able to provide greater support and advice to teachers and parents. We want to see local authorities as supportive allies and providers of honest information, not as adversaries, but we acknowledge that this will take time.
75.The local offer was seen as a solution to the problem of disparate information and services and as an important source of support for children without Education Health and Care Plans. However, we are concerned that the local offer appears to be difficult to create and difficult to use, and in some cases the content of the local offer is at the discretion of the local authority. We asked the then Minister for Children and Families about the quality of the local offer. He explained to us that where is it done well, it delivers better outcomes:
Why? Because if it is taken seriously and looked at as part of the assessment of that local authority, they can take advantage, for example, of our free special schools programme to build additional capacity if they need it. Also, if parents feel confident that their schools, their local authorities and their health professionals are all engaging, then they will feel that their children are getting what they need, not otherwise.
76.We are not persuaded that these better outcomes are in line with the original intention behind the local offer, although these outcomes are themselves laudable. The then Minister for Children and Families was keen to remind us of local authorities’ statutory duty to consult with children, young people and their parents and carers on the local offer. He also told us that CQC and Ofsted look at the local offer as part of their inspections. The Department also told us in written evidence that it expects “the quality of Local Offers and their use by families to improve over time; particularly as a result of the accountability provisions built into the legislation (i.e. the need for co-production).” However, the duty to consult does not necessarily result in the delivery of a product that works for parents and carers, and we do not think it should be used as an accountability measure. We were pleased to see that the Department told us that “[w]e believe strongly that the Local Offer is far more than just a directory of local services and provision. We continue to encourage local authorities to use the Local Offer as a way of informing their decisions over future commissioning of provision.” The responsibility of Ofsted and CQC to inspect the local offer is important, but we are concerned that the Department’s arms-length inspection regime has enabled the policy aims to become confused and Ministers to lose sight of the intentions and ambition of the local offer.
77.We agree with the Minister that co-production of the local offer is a positive thing. However, we are concerned that in many cases this is only symbolic and is used to suggest that parents endorse the local offer. We are concerned that Ministers are confused by the local offer’s aims and intentions and are concerned that the ambition of the local offer has been severely diminished. The lack of heed taken to the warnings during the legislative scrutiny process has resulted in the failure of the aspirations of this policy to be realised: instead, they remain where they started—in the words of a Green Paper and the hopes of parents and young people.
78.The Department should ensure that local authorities are producing local offers that are in line with the original intention of the local offer, and also demonstrate leadership and a grip on their obligations, including co-production, innovation, interactivity and accessibility. We also recommend that the Department for Education and the Department for Health and Social Care jointly conduct biennial reviews of each local authority’s offer to ensure that the Departments take central oversight of both policy intention and delivery. These reviews should be done in collaboration with children, young people and their parents and carers.
79.The Department should map provision available through each local authority’s local offer, identifying lack of provision available to children and young people with SEND and set out a plan for ensuring that all local authorities, through their local offers provide a minimum level of provision.
80.We are disappointed that Robert Buckland’s fear came to pass, and parents are still relied on to self-police the system. We heard repeatedly from parents who were forced to take a case to Tribunal in order to get appropriate support, navigate and exhaust a local authority complaints system before being able to take their complaint to the Local Government and Social Care Ombudsman, and in some cases judicially review the local authority, and in one case the Government. We heard countless examples of local authorities not meeting their statutory duties, and of schools deliberately or otherwise off-rolling, excluding and even discouraging parents from sending pupils to their schools. Many parents and carers are engaged in struggles with their LA. Some of these struggles are by-products of the challenges of the current system, which has led to the experience of an acutely adversarial system. In some local authorities this is particularly problematic, with a minority having acted appallingly, against both the spirit and the letter of the law.
81.We do not think that as a concept Tribunals themselves are unnecessary or a waste of money. There has to be a way to appeal decisions, bring test cases and ensure the correct balance of individual needs and the public purse. However, we are extremely concerned by the numbers of cases going to Tribunal, and the potential number of cases that are unable to go to Tribunal because of bureaucratic delays and mistakes. But we must help people learn from these poor experiences, particularly as local authorities face increasing pressures.
82.The Ministry of Justice should, as part of its reporting on SEND Tribunal cases, publish a yearly digest, setting out relevant trends and information to enable local authorities improve their service and ensure they are making lawful decisions. This should include information that assists with public accountability and scrutiny against performance.
83.These adversarial experiences are the products of poor implementation, the inability to access the right support at the right time, and services struggling with limited resources. We were warned: Parliament was told that if the reforms were not done properly, the system had the potential to become more adversarial. Not enough was done to prevent this happening. We have a system of unmet need and strain. This unmet need is creating poor broader experiences, for children, young people and their families, schools, colleges and local authorities.
30 Steve Rumbelow () para 6; Herefordshire Council () para 6.1; Parental Submission 130 () para 44; Parental Submission 138 () para ii; Herts Parent Carer Involvement () para Ia; Dr Jill Harrington (); para 7; Parental Submission 54 () para 3; Parental Submission 154 () para 7; Mr Myles Pilling () para 2; Action Cerebral Palsy () para 13; St Martin’s Governing Body () para II; Pre-school Learning Alliance () para II; Children’s Services Development Group () para 9; Kisimul Group () para 10; Telford and Wrekin Council () para 1.1; Together for Short Lives () para 16; British Dyslexia Association () para III; The National Autistic Society () para 15; National Governance Association (NGA) () para c; The Special Educational Consortium () para 3; The Milestone School, Gloucester () para 4; Mrs Kathleen Richardson () para 1
31 Parental Submission 76 () para 3; Pinpoint Cambridgeshire () para 1x; Parental Submission 150 () para 2
33 [Richard Flinton]; [Richard Flinton]; [Richard Flinton]; [Steve Rumbelow]; [Councillor Bramble]; [Charlotte Ramsden]; [Justin Cooke]; [Julie Cordiner]; Local Government Association ) paras 5.1 - 5.4; Association of Directors of Children’s Services () paras 12–17
34 See paragraphs 90–93
35 See paragraph 99 for further details about this specific duty
36 See paragraphs 166 and 182
38 NAHT, Empty Promises: The crisis in supporting children with SEND, (June 2018), pp 2 and 15; see also paragraph 166
39 See for example paragraphs 166 and 182
40 See for the full discussion of this point
43 See paragraph 117
45 See paragraph 222
48 [Jonathan Jones]
51 See for example paragraph 204
52 See Part 2 for a fuller discussion of these issues
55 See paragraphs 140 and 143
56 [Amanda Batten]
57 [Nadhim Zahawi]
58 See paragraph 140
59 See paragraphs 130 and 167
61 Ofsted, ‘’, accessed 1 October 2019
62 See paragraph 140
63 See paragraph 139
64 See Part 2 for a fuller discussion of this issue
65 See paragraph 150
66 See Part 2 for a fuller discussion of these issues
67 NHS Improvement published its interim NHS People Plan on 3 June 2019
68 Natspec, Natspec response to Education Select Committee SEND Inquiry, (June 2018), para 1.1; Parental Submission 26 () para 4; Parental Submission 161 () para 8; Ms Nancy Gedge () para 1.1; National Governance Association (NGA) () para 1.3; Parental Submission 17 () para 4.5; Parental Submission 120 () para 3; Unique and PWSA UK () para 8.2; Wraparound Partnership () para 1; Beams () 6.2; [George Holroyd]
69 See paragraph 226
70 [Imogen Jolley]; [Imogen Jolley]
72 [Alison Fiddy]
73 See paragraph 214
74 See paragraphs 124 and 125
75 See Part 2 for a fuller discussion of these issues
78 “”, Schools Week, 11 March 2019
79 See Part 2 for a fuller discussion of these issues
80 See Part 2 for a fuller discussion of these issues
81 See paragraph 162
82 See paragraph 201
83 Education Committee, Sixth Report of Session 2017–19, The apprenticeships ladder of opportunity: quality not quantity, HC 344, paras 84 and 86
84 Education Committee, Seventh Special Report of Session 2017–19, The apprenticeships ladder of opportunity: quality not quantity: Government Response to the Committee’s Sixth Report of Session 2017–19, HC 1814, para 25
85 See Part 2 for a full discussion of these issues
86 [Christine Lenehan]
87 Oral evidence taken on 23 July 2019, HC (2017–19) 341, [Anne Milton]
88 [Professor Dunkley-Bent]; [Nadhim Zahawi]
89 See Part 2 for a full discussion of these issues
90 See Part 2 for a full discussion of these issues
92 ; ;
94 Department for Education and Department for Health and Social Care () para 2.1b
95 Department for Education and Department for Health and Social Care () para 2.1b
96 See paragraphs 124 and 125
97 See paragraph 13
98 See for example paragraphs 156 and 158
99 See paragraph 124
Published: 23 October 2019