Special educational needs and disabilities Contents

Implementation

The wider world

85.The Children and Families Act 2014 became law at a time when the country was still feeling the effects of the financial crisis, with savings being made across local and national governments. We took evidence from Stephen Kingdom, Campaign Manager at Disabled Children’s Partnership. He was the lead official on the special educational needs and disability reforms at the Department for Education between 2011 and 2014. He told us:

The wider environment in which the legislation was introduced was the hardest and worst time to do it, but the alternative of not doing it would have been even worse.100

This was echoed by Brian Lamb, Chair of the Inquiry into Parental Confidence in SEN, who told us that there was a momentum behind the reforms, and that had the reforms not been introduced at that time, both momentum and possible legislative space would have been lost.101

86.The 2014 reforms were brought in and implemented while the education sector was grappling with wide-ranging reforms. These reforms affected schools’ finances, curricula and structures:

87.The implementation of these policies has seen perhaps unintended consequences—the creation of free schools and academies meant that the Department for Education introduced new rules that have meant that local authorities are, in most circumstances, unable to plan or build new maintained schools and local authorities are unable to direct an academy or free school to expand. In our report Forgotten Children: alternative provision and the scandal of ever increasing exclusions we set out how we had heard that the accountability system of Progress 8 and the focus on Ebacc subjects were a major factor in off-rolling and an incentive for exclusion.109

88.The education sector was not the only sector feeling the pressure of change and the lingering effects of the financial crisis. The NHS and adult social care sectors were also facing challenges, which then impacted on the support that they could provide to children and young people with SEND. Health conditions and SEND often overlap, and waiting times for diagnoses can affect educational experiences and outcomes. In 2013, NHS England said that it faced a funding gap of £30 billion by the end of the decade,110 and in 2016 the National Audit Office reported that savings of £14.9 billion needed to be made by NHS trusts, NHS foundation trusts and clinical commissioners by 2020–21 to close the funding gap between the needs of patients and the resources available.111 The Government announced a five year funding plan for the NHS in 2018, setting out that by the end of five years, the NHS would receive an increase in funding of £20.5 billion per year.112

89.Local authorities were also facing cuts and increasing pressures on their services. Since 2010, the number of children in care has been steadily rising and the pressures on adult social care has been increasing. The Local Government Association has announced that councils face a £3.1 billion funding gap for children’s services by 2025.113 Staffing in local authorities has been affected: the number of educational psychologists employed by local authorities dropped 13% between 2010 and 2015.114 Meanwhile, the adult social care sector also faces a funding gap.115 It is still awaiting the adult social care green paper, delayed from summer 2017, with its current status unknown, but it has been reported that the green paper has been scrapped, to be replaced by a white paper in the autumn.116 In June 2018, the Housing, Communities and Local Government and Health and Social Care Committees wrote in their joint report, Long-term funding of adult social care, that the social care system is “not fit to respond to current needs, let alone predicted future needs”.117

Implementation grant

90.The Government recognised that the changes to the SEND system were significant and required not only a change in legislation, regulation and guidance, but also considerable investment in provision and staffing in order to create the necessary culture and conditions for the reforms to be delivered successfully. To that end, the Department for Education allocated at least £550 million to the implementation of the reforms,118 and is spending a further £300 million on the SEND system.119 More specifically, the Department issued £223 million in the form of five distinct SEND reform grants to local authorities between April 2014 and March 2018, followed by an additional £29 million in the financial year 2018–19.120 Matt Keer, a parent of two deaf young people and blogger for Special Needs Jungle, conducted analysis of local authority spending of the Department’s grant money using data collected from over 300 FOI response documents and 8,370 line items of collated council expenditure.121 From this analysis, we heard that by the spring of 2016, at least £483 million had been spent by the Department:

This included nearly £17 million spent on the SEND Pathfinder pilot process that ran from 2011 to 2015, and £465 million allocated in payments to (and through) local authorities to implement the SEND reforms through to the 2016–17 financial year. Since then, the DfE has injected around £70–120m of further funding into the SEND reform implementation process from early 2016 through to the end of the 2017–18 financial year.122

91.However, we heard that the grant money distributed to local authorities, deemed necessary to implement “the biggest changes to the SEN system since [ … ] 1981”,123 was disbursed out with relatively little oversight, accountability or guidance.124 We were told that local authorities’ use of the money included hiring staff to work on the conversion of Statements to EHCPs and external firms to write EHCPs and the increasing of specialist staff, although it was suggested that predominantly temporary workers and agency staff were employed.125 We also heard that very little was spent on training staff for the incoming reforms. Matt Keer told us:

For a grant that was delivered to enable system change, it appeared that a surprisingly small percentage was spent on training. Out of £140 million of spending over four years, we were able to track 1.5%—£2.3 million was spent on training. That was for a system that required one part of a new Act of Parliament, two Statutory Instruments, a 300-page code of practice and various ways in which the administration of SEND and the understanding of new statutory responsibilities had to be delivered.126

92.We asked the Department for Education about the accountability for the implementation grant. Dr Imich, SEN and Disability Professional Adviser, told us:

[ … ] the ultimate accountability is, as the Minister says, in the outcomes from the inspections, because the intention behind that implementation grant was that they got the basic building blocks in place, they got the local offer in place, they got the new way of assessing children and creating education, health and care plans, they got new ways of working with health and social care in place and, most importantly, the transfer process of over 225,000 statements within a four-year period. That money was designed to help that process along.127

93.Change was happening on an immense scale. Significant amounts of money were being poured into a system in order to effect this change. However, the scale of the changes appears not to have been met with the oversight to ensure that the resources were appropriately directed to ensure that local authorities and their partners were able to meet their statutory duties when they came into force. And fundamentally, if the inspection outcomes of local authorities that we cover later in this report were the ultimate test of accountability, the Department’s approach was inadequate.

Legislation

94.The legislative process began on 4 February 2013 with the first reading of the Children and Families Bill. By the time the Bill received Royal Assent on 13 March 2014, thirteen months had passed and many parliamentarians, organisations, parents and carers had scrutinised the Bill as it made fundamental changes to the SEND system in England.

Transition from Statements to Education Health and Care Plans

95.Education Health and Care Plans replaced Statements of SEN (Statements) and Learning Difficulty Assessments (LDAs). Local authorities were working to the deadline of 1 April 2018 for all Statements and LDAs to be transitioned over to EHCPs. However, this deadline was not met by all local authorities, and even when it was, we were told that the quality of many of the plans was poor.128 Some were copied and pasted; some did not have needs assessments undertaken; some did not have health or social care input; and many resulted in parents taking the local authority to court. This was attributed in written evidence submissions to the fact that local authorities were simply being measured against a deadline with no regard to quality. It appeared that some local authorities were expecting to rewrite recent Education Health and Care Plans.129 We heard how the lack of standardisation meant that local authorities had to develop their own ways of working, and this has meant that schools and colleges have had to deal with variations of bureaucracy, templates and processes.130

SEN Support

96.SEN Support combined School Action131 and School Action Plus,132 addressing a need expressed in the Public Bill Committee to focus less on the labels a child is given and ensure a greater focus on outcomes.133 It could be argued that the intention was to reduce the number of children who were labelled as having special educational needs, with the then Minister for Children and Families, Edward Timpson, telling the Public Bill Committee:

The Lamb inquiry and the Ofsted report of 2010 clearly showed that the current two-category school-based SEN system was not working as well as it should; in particular, about 50% of children identified as requiring School Action would not, if they had been provided with the right support earlier, have fallen into that category.134

However, this idea was refuted, and Sharon Hodgson MP, the then shadow Children and Families Minister told the Committee:

I am also pleased and reassured to hear the Minister say that this is not about getting rid of School Action and School Action Plus. It is not about suppressing the numbers of children and young people identified as having an SEN, which was one of the early worries. Some of the maybe misguided press at the time hinted that that was what the Green Paper and ultimately the legislation would be about. I was pleased to hear the Minister say that it is about ensuring that needs are assessed and then ultimately met. We are in total agreement with him and hope the Bill will achieve that.135

97.There was a discussion in the Public Bill Committee about the best way to support pupils who would receive SEN Support level interventions,136 with questions raised about ensuring that pupils still have access to specialist external interventions that they would get under School Action or School Action Plus.137 The then Minister for Children and Families explained that the local offer was intended to help enable parents to access specialist help.138 Evidence to our inquiry suggested however, that this, and other reforms, had not been sufficient to ensure that the needs of children who do not have an Education Health and Care Plan (EHCP) are fully met.

98.The implementation of Education Health and Care Plans impacted on the ability of teachers and other professionals to meet their needs. Schools told us that Special Educational Needs Co-Ordinators (SENCOs) and other staff were being taken away from supporting children in school and advising teachers in order to focus on the EHCP transfer process;139 educational psychologists and other support, including speech and language therapists, were focusing on undertaking needs assessments and the EHCP process as opposed to providing specialist support and advice to pupils who need it;140 and local authorities were diverting their resources into the transfer from Statements to EHCPs and fighting tribunal cases, as opposed to providing guidance and support for pupils at SEN Support level.141

Post-19

99.One of the biggest reforms was the expansion of support for young people with SEND beyond school, particularly the extension of Education Health and Care Plans to young people up until their 25th birthday.142 This was a fundamental change, ending Learning Difficulty Assessments,143 and rolling out EHCPs to students in further education, apprenticeships or other training. However, this seems to have been one of the biggest sticking points of the reforms. We were told by local authorities and other individuals and organisations that this had not been adequately funded,144 or was even unfunded.145 The Department for Education disagreed, telling us that in fact it had been funded, by £272 million being added to the high needs funding block in 2013–14, and £390 million in 2014–15. We were told that the increase in the two financial years was then amalgamated in the funding baseline that informed the spending review settlement in 2015, and the successive distributions of high needs funding from 2015–16.146

100.While the reforms have been broadly welcomed, we have heard that they were imposed on the further education sector without proper care and consideration, with one submission suggesting that needs of 16–25 year olds “frequently appeared to be an afterthought during the drafting of the legislation and the code of practice, despite this being a vital stage in any young person’s life.”147 The extension of support to 25 was debated in Public Bill Committee, where the Minister told the Committee that the Government was “not creating a statutory entitlement to education until the age of 25 for young people with SEN [ … ] because doing so would not be in the best interests of many young people with SEN who, like their peers, want to complete their education and progress into adult life and work.”148 This intention was repeated in the Department’s non-statutory guidance SEND: 19 to 25-year-old’s entitlement to EHC Plans which states that the “majority of young people with EHC plans complete further education with their peers by age 19, and our expectation is that this will continue. However, we recognise that some young people with SEND need longer to complete and consolidate their education and training.”149

101.This position is further reinforced in the Code of Practice, which states that while young people with SEND might need longer in education and to make a good transition to adulthood “this position does not mean that there is an automatic entitlement to continued support at age 19 or an expectation that those with an EHC plan should all remain in education until age 25.”150 However, we were told that “[t]he non-statutory guidance that has been published to date is being relied upon by local authorities as creating a presumption that EHC plans for those aged 19 to 25 are the exception rather than the rule. Of course, that is not what the law requires, so there should be greater clarity on that.”151

102.We also heard criticism that outcomes can often be too focused on education,152 that progression is often seen as academic achievement and progress from level to level, even though for some students their success lies in maintaining their ability.153 Dame Christine Lenehan, Director of the Council for Disabled Children, told us that there is a lack of clarity around what an educational outcome looks like:

The whole issue about what an educational outcome looks like for a 22-year-old is not clear. The Code of Practice on this is not clear.154

103.Unfortunately, it appears that infrastructure did not meet aspiration. Along with higher aspirations of support for young people who needed it beyond the age of 19, we heard that the reforms brought an increase in students, assessments, paperwork, bureaucracy and needs to be met.155 We heard conflicting accounts about how prepared the further education sector was for the reforms. Di Roberts, chair of the Association of Colleges’ SEN group, told us that the Association of Colleges had been consulted at an early stage.156 In contrast, Imogen Jolley, Head of Public Law at Simpson Millar, told us that the reforms were sprung upon the further education sector, with no additional support or resources.157 In 2015, colleges were also bearing the additional burden of the increase in students brought about by the requirement that all young people are in learning or training until their 18th birthday.158 Perhaps as a result of this lack of infrastructure and preparation, we heard that students were experiencing part-time timetables, a lack of opportunity to do the classes and subjects of choice, and a lack of opportunity to undertake supported internships, apprenticeships and other employment opportunities.159

104.Debbie Jones, the then President of the Association of Directors of Children’s Services and Director of Children’s Services at the London Borough of Lambeth, warned the Public Bill Committee that there were a number of issues that needed to be dealt with, including the rise in participation age and the fact that many of the young people who were previously not in education or training were more likely to have special educational needs than those already in education, and the transfer of the responsibility for the funding of FE to local authorities:

There is a number of issues. The simple answer is yes, [the amount of FE funding] is a major and critical concern for us, and it is one that we have taken up with the Education Funding Agency and the Department for Education. The money that has transferred is obviously based on lag numbers, and there is a number of queries about data. In relation to the raising of the participation age and the identification of need that colleagues have already expressed, immediately, before we even pass ‘Go’, there are likely to be significant difficulties. This area, the whole area of funding in general and the issue of the very complex arena of funding for pre-16 and post-16 are things that all agencies are particularly concerned about. We have made that clear to the Department for Education and to Ministers.160

We have also heard that while new legislation was created, other legislation has not been changed or joined up,161 creating absurd situations like students unable to attend their specialist college because the transport costs have not been agreed.162

Local offer

105.The 2011 Green Paper proposed that one of the ways parents could be given greater confidence was by giving them more control over the support available and more transparency in the provision of services. It proposed that local authorities and other services would set out a ‘local offer’ of all services available. The information would be easy to understand and would show what support was normally available in schools as well as the support for families who need extra help with caring for their child.163 A lot of weight was placed on the local offer. Not only were there promises made in the Green Paper, but the Public Bill Committee was told that pupils without an EHCP would use the local offer to access support,164 which seemed particularly important given the proposed changes to School Action and School Action Plus. The Public Bill Committee was warned about the weaknesses of the proposed local offer, with some people concerned that the local offer was only about signposting.165 Concerns were also expressed by Srabani Sen, the then chief executive of Contact a Family, about the lack of duty on local authorities to provide the services listed in the local offer166 and Wendy Lee, Professional Director at The Communication Trust, called for “a minimum standard nationally for the common framework for the local offer”.167 Indeed, the Public Bill Committee was told that the pathfinders’ local offers had only been directories of information, with nothing set out about expectations of schools.168

106.It appears that the warnings about the local offer came to pass. Brian Lamb told us that:

One of the mistakes when the local offer was introduced—I am a great fan of the local offer—was that there were not enough accountability measures in it to hold authorities to account when they did not do that joint commissioning and joint planning. What we need is more accountability within those measures. I think the local offer is great.169

We were also told that local offers were not delivering what they were meant to, that they had substantially changed since they had been first produced, or that it was more useful to use generic search engines than the local offer.170 We also heard criticism that even though services were listed on the local offer, access to services were sometimes limited or non-existent.171 Janine Cherrington, Head of Service at Transition2, felt that “the foot has been taken off the pedal of the local offer particularly”,172 and that the aspiration that had been promised through the Green Paper had not been delivered.173

The role of health and social care

107.The Children and Families Act 2014 introduced a joint commissioning duty,174 and enabled and required health providers to bring pre-school children with a possible special educational need to a local authority’s attention.175 Regulations required local authorities to seek advice and information from a health care professional and about social care.176 The legislation also created a duty to arrange the health care provision element of an EHCP, which the Minister for Children and Families told the Public Bill Committee:

requires clinical commissioning groups to provide the medical elements—the health elements—within the education, health and care plan, and for those to be in the plan, clearly there must have been an assessment of the clinical need for those health and medical interventions. So it fits in with the NHS constitution, but it places an additional duty to ensure that the provisions within the plan for health are provided, having been assessed as being a clinical need.177

108.This duty was announced in a letter sent by the Minister for Children and Families on 4 March 2013 and was welcomed in the Public Bill Committee the following day. One witness remarked on the hard work that must have gone on behind the scenes to make it happen.178 However, the London Borough of Hackney told us that partner agencies did not receive any additional funding to “respond to the pressures and expectations of the SEND Reform.”179 It also told us that in its experience health and social care professionals did not fully understand what their respective roles and responsibilities were or have the necessary infrastructure to cope with the EHCP transfer process.180

109.While aspects of the legislation were welcomed, the Public Bill Committee also heard concerns. Jane McConnell, the then chief executive of IPSEA (Independent Provider of Special Education Advice) criticised the notion of an Education Health and Care Plan:

I know that this morning the Minister talked about duties on health. When we get the details of that and we have looked at it, we may have an education and health plan, but I suspect that at the moment, if this Bill and this plan were put under the Trade Descriptions Act, for instance, the Government would be liable to a successful prosecution for calling it an education, health and care plan when it is not; it is an education plan at the moment. Our call to the Government is to be transparent about this. Is it a genuinely joined-up plan that goes across all three aspects of a child’s life, or is it still an education plan, very similar to the system that we have at the moment? I think that until we address that properly, you will always have issues with parents thinking that they are going to get one thing and something different being delivered under the Bill.181

110.This has been substantiated by our inquiry, as despite the hard work, we were told that in reality health and social care are still not equal partners in the process. We have heard that local authorities were not requesting input for assessments and where they were they often did not get a response and health staff are not attending reviews.182 We have been told that there continued to be disagreements about who provides speech and language provision, despite clear case law and the joint commissioning duties.183 We heard that schools were paying for health needs to be met, and there was a lack of clarity about responsibilities.184 We did not hear that health services were stepping in to support pupils who do not have an EHCP.185 Amanda Batten, Chair of the Disabled Children’s Partnership, told us that integration between the three areas was a crucial aspect of the reforms, but has not really happened. She said that she felt that cuts to health and social care were often unnoticed and unmentioned, and they were undermining the reforms.186

111.Social care appears to have followed a similar journey to health services. We heard that social care is rarely consulted, rarely ‘at the table’, and rarely joined up.187 We were told that there are often poor transitions between children’s and adult social care. We heard that the adult social care offer is often poor and not in line with the opportunities and support that are provided through the educational route of college and the benefit and safety net of an Education Health and Care Plan.188

112.Brian Lamb explained that the bodies responsible for delivering health and social care did not have the same level of accountability as local authorities, and that was a reason why the health and social care aspects of the reforms are facing challenges. He said:

The challenge is simply that the protections in the education bit of the plan are quite unique across the whole system. My understanding of the debate at the time when there was an attempt to include this in the legislation was that health and social care will always resist because they feel if they have to do it for this particular group of children, they would have to do it for other people and it would extend across the system. That is the particular challenge there.189

Stephen Kingdom said that while there were obvious implementation issues he felt that “a good fist had been made of it”.190 He explained that the laws around health and social care for disabled children were complex and not straightforward.191

113.The Minister of State for Care, Caroline Dinenage MP, told us that the situation across the country is much like the siloed working in Government. She said that growing collaboration and joint working between Clinical Commissioning Groups and local authorities was difficult.192 When questioned the Minister reaffirmed her and her Department’s passion and commitment to getting this right. However, it appeared that the Minister and her Department were monitoring progress primarily through the Ofsted and CQC inspections, disseminating good practice, issuing guidance,193 and hoping for the best.

Accountability structures

Holding to account

114.In March 2015, the Department for Education published a document entitled Special educational needs and disability: supporting local and national accountability which set out roles and responsibilities at local and national level.194 The document also set out the measures of success of the SEND system. When the Ministers were questioned about how they were measuring the success of the SEND system, we asked about a range of ways that this may happen, including data capture of SEN appeals and outcomes and the number of EHCPs which are completed in time and the Minister for Children and Families gave us some data against these criteria.195 However, some monitoring did not appear to be happening robustly, or being driven from the Department, as there had not been a national survey of parents and local authorities since 2016 and there was no plan for another one yet,196 and the use of the Personal Outcomes Evaluation Tool was in use in some areas, but not all.197 The then Minister for Children and Families also told us that the Department has:

a longitudinal study, the SEN Futures study, that we are effectively doing that evidence gathering. That is central versus local evidence gathering, which is required. It is a requirement that locally those consultations take place. Plus then you have the inspection regime, so there are several layers of accountability.198

115.However, we were disappointed with the answers to our questions about measuring the success of the SEND system and requested that the Ministers send further information to us following the evidence session. In response to our request, the then Parliamentary Under-Secretary of State for Children and Families wrote to us on 1 July 2019 setting out further information about the accountability measures that the Department was using.199

116.Accountability was a strong feature of discussion in the Public Bill Committee. Views were expressed that the reforms could remove the conflict from the system,200 while others felt that it had the potential for the combative system to continue.201 Witnesses to the Public Bill Committee expressed concern that someone needed to ensure that there was proper oversight of the system to ensure parity of provision across the country. On 5 March 2013 Di Roberts, Principal of Brockenhurst College, said:

Who will ensure that the legislation operates so that a young person in Yorkshire has the same level of provision and the same rules applied to them as a young person on the Isle of Wight? My real concern is that if we do not have someone with that overview, everything will end up going through the tribunal system and it could be overloaded. Someone must make sure that local authorities are doing this coherently and in a way that is fair across the provision.202

117.Special educational needs and disability: supporting local and national accountability was published in March 2015 and included information about inspections by the Care Quality Commission (CQC) and Ofsted that would independently assess the reforms, which had been given Royal Assent the previous year.203 The inspection regime however appears to have been an afterthought. According to the document, advice was provided to the Department for Education by Ofsted and CQC in December 2014 on local areas’ preparation for the SEND reforms, and it was after this information was provided that the then Parliamentary Under-Secretary of State for Children and Families, Edward Timpson asked Ofsted and CQC to inspect local areas’ implementation of the new reforms. Proposals were set to be put out to public consultation in the Spring of 2015 and two sets of pilots were proposed for late Spring and Autumn 2015.204 Inspections began in May 2016, a full two years after the 2014 Act received Royal Assent.205

118.As of 11 October 2019, there have been 100 Local area SEND inspections with findings issued. To date, 50 local authorities have been told to write a Written Statement of Action (WSOA).206 In 2016, 25% of local areas were instructed to write a WSOA. In 2017, 51% had to write one and in 2018 almost 60% of inspected areas had to submit a WSOA.207 In 2017, Ofsted and CQC published Local area SEND inspections: one year on,208 a summary of the first year of the SEND inspections, but unfortunately this has not happened for subsequent years.. Five local authorities, Bury Metropolitan Borough Council, Hartlepool Borough Council, Sefton Metropolitan Borough Council, Suffolk County Council and Surrey County Council, have all failed their re-inspections. This means that the Department for Education and NHS England became involved in supporting the local areas to improve. There has been criticism of this approach, with parents from Suffolk reportedly being refused access to meetings about next steps, and there are concerns that this reflects the Government’s approach to co-production.209 It took a further two years from the start of the inspection cycle for the Department for Education to announce that CQC and Ofsted would monitor the areas where there is a WSOA. This announcement was made at the same time that it announced that Ofsted and CQC would be asked to design a second cycle of inspections to follow when the current cycle finishes in 2021.210

Mechanisms for resolving disagreements

119.The Code of Practice sets out the different avenues for complaint and redress.211 Parents and young people over 16 have, among other avenues, access to disagreement resolution services, mediation, the local authority’s complaints processes, ombudsmen, and the First-tier Tribunal (Special Educational Needs and Disability). The rights to appeal to a tribunal, access mediation and disagreement resolution services are set out in the Children and Families Act.212 During the development of the legislation the Government also looked at whether the Tribunal should be able to look at the health and social care parts of provision.213 The Government commissioned research and piloted the approach between June 2015 and August 2016.214 A two-year national trial began on 3 April 2018, extending the power of the First-tier Tribunal, allowing it to make non-binding recommendations on the health and social care parts of EHCPs.

120.Appeals to the First-tier Tribunal have been increasing, with 6,374 appeals received in 2018/19, up from 5,039 in the previous year.215 This represents a 26% increase, and while the number of EHCPs is also increasing, the number has only increased by 11% in the past year. The Tribunal appears to be struggling, postponing 77% of its listed hearings in 2018/19, and 76% in the previous year. The Ministry of Justice’s Quarterly Tribunal Statistics report states that the number of postponements has increased year on year since 2013/14, when there were 624 postponements, compared to 2,900 in 2018/19.216 Around 89% of cases decided by the Tribunal were determined in favour of the appellant between September 2017 and 31 August 2018.217 The Local Government and Social Care Ombudsman has also seen an increase in its caseload and the number of complaints about EHCPs have risen by 150% between 2015/16 and 2017/18.218 In comparison, the number of EHCPs rose by 12% in 2017/18 and 7% in 2016/17. Michael King, the Local Government and Social Care Ombudsman, told us:

We now uphold 87% of the investigations we carry out. That is an unprecedented amount in our work. Our average across the whole of local government is 58%, so 87% is probably the highest category of fault we find in any area of our jurisdiction.219

121.In 2013, Robert Buckland MP told the Public Bill Committee:

My concern if we rely on parents to self-police available services is that the age-old battle that families often face will not be reduced and the adversarial nature of the complaints process will remain.220

Events have proven him and others right, not just in relation to parents holding local authorities to account, but in other areas too. Parliament and Government were warned about many of the risks in the proposed system, and both Parliament and Government failed to heed those warnings.


102 School funding: annual settlements under the Coalition Government, Standard Note 06701, House of Commons Library, August 2013, pp 5 and 8

103 Department for Education, ‘Reading at an early age the key to success’ accessed 29 August 2019

104 English Baccalaureate, Standard Note 06045, House of Commons Library, p 4; The Ebacc is a performance measure for schools. Schools are measured on the number and performance of pupils in maths, English language and literature, the sciences, a language and either history or geography at GCSE.

105 HC Deb, 12 September 2013, col 54WS

106 GCSE, AS and A Level reform, Standard Note 06962, House of Commons Library, March 2017, p6

107 GCSE, AS and A Level reform, Standard Note 06962, House of Commons Library, March 2017, p14

108 Department for Education, ‘Unprecedented number of new schools opened since 2010’, accessed 29 August 2019

109 Education Committee, Fifth Report of Session 2017–19, Forgotten Children: alternative provision and the scandal of ever increasing exclusions, HC 342, paras 29–31

110 NHS England, The NHS belongs to the people: a call to action (July 2013), p15

111 National Audit Office, Financial Sustainability of the NHS, Session 2016–17 HC 785, 22 November 2016, p4

112 Department for Health and Social Care, ‘Prime Minister sets out 5-year NHS funding plan’ accessed 30 August 2019

113 Local Government Association, ‘Children’s services funding - facts and figures’ accessed 30 August 2019

114Educational psychologists stripped from schools”, Schools Week, 28 January 2017

115 Local Government Association, ‘Council tax will fail to protect adult social care services this year’ accessed 30 August 2019

116 Adult social care: the Government’s ongoing policy review and anticipated Green Paper (England), Briefing paper CBP-8002, House of Commons Library, p32; “Boris Johnson set to pledge billions for new hospitals and social care”, Financial Times, 30 July 2019

117 Health and Social Care and Housing, Communities and Local Government Committees, First Joint Report of the Health and Social Care and Housing, Communities and Local Government Committees of Session 2017–19, Long-term funding of adult social care, HC 768, p 3

118 Matt Keer (SCN0167) para 1

119 Matt Keer (SCN0167) para 6

120 Matt Keer (SCN0167) para 21

121 Matt Keer (SCN0167) para 31

122 Matt Keer (SCN0167) para 17

123 Q773 [Dr Imich]

124 Matt Keer (SCN0167) paras 23–24

125 Matt Keer (SCN0167) paras 32–34 and 58

126 Q49 [Matt Keer]

128 See paragraph 136

129 Nottinghamshire County Council (SCN0484) para 15

130 See paragraph 143

131 The 2001 Special Educational Needs Code of Practice set out that a child receiving School Action support was receiving interventions that were “additional to or different from those provided as part of the school’s usual differentiated curriculum offer and strategies.”

132 A child receiving School Action Plus support was receiving support from external agencies.

133 PBC (Bill 131) 2012–13, Children and Families Bill, 5 March 2013 (morning), Col 3 [Mr Timpson]

134 PBC (Bill 131) 2012–13, Children and Families Bill, 5 March 2013 (morning), Col 3 [Mr Timpson]

135 PBC (Bill 131) 2012–13, Children and Families Bill, 16 April 2013 (afternoon), Col 564

136 PBC (Bill 131) 2012–13, Children and Families Bill, 5 March 2013 (morning), Cols 53–54 and 56–57

137 PBC (Bill 131) 2012–13, Children and Families Bill, 5 March 2013 (morning), Cols 5–6 [Bill Esterson]

138 PBC (Bill 131) 2012–13, Children and Families Bill, 5 March 2013 (morning), Col 6

139 See paragraph 140

140 See paragraph 145

141 See paragraph 149

142 The Children and Families Act 2014 states that a local authority may continue to maintain an EHC plan for a young person until the end of the academic year during which the young person turns 25.

143 LDAs were issued to students under 25 who were either in or about to enter post-16 education and who the LA judged as being likely to need additional support and would benefit from an LDA.

144 Steve Haines (SCN0650) para 9;

145 Q97 [David Clarke]; IPSEA, IPSEA’s response to the Education Committee’s Special Educational Needs and Disability Inquiry (June 2018), para 7.3; Mr Simeon Elliott (SCN0059) paras 1 and 4.1; East Sussex County Council (SCN0416) para 5.1; Telford and Wrekin Council (SCN0429) para 6.1; Warwickshire County Council (SCN0479) para 22; Herefordshire Council (SCN0509) para 4.1; Mr Paul Silvester (SCN0198) para 2.3; Coventry City Council (SCN0394) para 4.3

147 Royal National College for the Blind (SCN0502) para 11.1

148 PBC (Bill 131) 2012–2013, Children and Families Bill, 16 April 2013 (afternoon), Col 532

149 Department for Education, ‘SEND: 19- to 25-year-olds’ entitlement to EHC Plans’ accessed 30 August 2019

150 Department for Education and Department for Health, Special educational needs and disability code of practice: 0 to 25 years, (January 2015), para 9.151

151 Q598 [Alison Fiddy]

152 See paragraph 192

153 Q297 [Pat Brennan-Barrett]

155 See paragraph 143 and 189

158 This was brought in through the Education and Skills Act 2008.

159 See paragraph 198

160 PBC (Bill 131) 2012–13, Children and Families Bill, 7 March 2013 (afternoon), Col 144

161 For example, the Education Act 1996 (s 508G) refers to Learning Difficulties Assessments for post 16 pupils, and LDAs no longer exist. Imogen Jolley told us in correspondence that “The Education Act 1996 (as amended by the Education Inspections Act 2006 and the Apprenticeship, Skills, Children and Learning Act 2009)) still governs transport for compulsory school age pupils and post 16 students. There is a ‘gap’ in relation to defined arrangements for some 16–19 year olds that has not been addressed that allows LAs to decide on what transport they will put in place”. (Imogen Jolley (SCN0720)

162 Q584 [Imogen Jolley]

163 Department for Education, Support and aspiration: A new approach to special educational needs and disability, Cm8027, March 2011, p5

164 PBC (Bill 131) 2012–13, Children and Families Bill, 5 March 2013 (afternoon), Cols 47– 8 [Srabani Sen], 52 [Brian Lamb], 56–7 [Jane McConnell]

165 PBC (Bill 131) 2012–13, Children and Families Bill, 5 March 2013 (afternoon), Col 48 [Bill Esterson and Srabani Sen]

166 PBC (Bill 131) 2012–13, Children and Families Bill, 5 March 2013 (afternoon), Cols 47–8

167 PBC (Bill 131) 2012–13, Children and Families Bill, 5 March 2013 (afternoon), Col 73

168 PBC (Bill 131) 2012–13, Children and Families Bill, 5 March 2013 (afternoon), Col 57 [Jane McConnell]

170 See paragraph 208

171 See paragraph 216

174 Children and Families Act 2014, section 26

175 Children and Families Act 2014, section 23

176 Special Educational Needs and Disability Regulations 2014 (SI 2014/1530)

177 PBC (Bill 131) 2012–13, Children and Families Bill, 5 March 2013 (morning), Col 3; This resulted in s. 42(3) of the Children and Families Act 2014.

178 PBC (Bill 131) 2012–13, Children and Families Bill, 5 March 2013 (afternoon), Cols 46–7 [Christine Lenehan]

179 London Borough of Hackney (SCN0422) para 2.3

180 London Borough of Hackney (SCN0422) para 2.2

181 PBC (Bill 131) 2012–13, Children and Families Bill, 5 March 2013 (afternoon), Col 53

182 See paragraphs 165 and 184

183 See paragraphs 166 and 182

184 See paragraph 166

185 See paragraphs 130, 131 and 175

187 See paragraphs 164, 165 and 184

188 South East Region of National Network of Parent Carer Forums (SCN0399) para 13; Mrs Sarah Riley (SCN0351) paras 23 and 25; Sixth Form Colleges Association (SCN0402) para 24; Hampshire County Council Children’s Services (SCN0452) para 5.6

200 PBC (Bill 131) 2012–13, Children and Families Bill, 5 March 2013 (afternoon), Cols 42–3 [Christine Lenehan]

201 PBC (Bill 131) 2012–13, Children and Families Bill, 5 March 2013 (afternoon), Col 42 [Srabani Sen]

202 PBC (Bill 131) 2012–13, Children and Families Bill, 5 March 2013 (afternoon), Col 79

206 Where inspectors have significant concerns about how effectively the local area meets its duties or secures better outcomes for children and young people who have SEND, local authorities are required to outline in a WSOA how they will tackle the areas raised as being of significant concern, including setting out timescales.

207 Special Needs Jungle, ‘An Inspector Calls. Again. But are they improving SEND provision?’ accessed 2 September 2019

209 Special Needs Jungle, ‘An Inspector Calls. Again. But are they improving SEND provision?’ accessed 2 September 2019

210 Association of Educational Psychologists, ‘Revisits to local areas with a Written Statement of Action (WSoA) for SEND’ accessed 2 September 2019

211 Department for Education & Department for Health, Special educational needs and disability code of practice: 0 to 25 (January 2015), pp 246–7

212 Children and Families Act 2014, sections 51–9

213 Department for Education, SEND Tribunal: single route of redress national trial, (March 2018) pp 5–6

214 Department for Education, SEND Tribunal: single route of redress national trial, (March 2018) pp 5–6

216 Ministry of Justice, Tribunal Statistics Quarterly, January - March 2019, (June 2019), p 10

218 Local Government and Social Care Ombudsman (SCN0163) para 13

220 PBC (Bill 131) 2012–13, Children and Families Bill, 21 March 2013 (morning), Col 410




Published: 23 October 2019