Special educational needs and disabilities Contents

Conclusions and recommendations

1.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. (Paragraph 17)

2.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. (Paragraph 18)

3.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. (Paragraph 20)

4.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. (Paragraph 21)

5.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. (Paragraph 24)

6.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. (Paragraph 25)

7.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. (Paragraph 27)

8.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. (Paragraph 28)

9.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. (Paragraph 29)

10.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”. (Paragraph 31)

11.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. (Paragraph 33)

12.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. (Paragraph 34)

13.Additionally, we expect the Department’s SEND review to fundamentally address the relationship between need and available provision. (Paragraph 36)

14.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. (Paragraph 38)

15.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. (Paragraph 41)

16.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. (Paragraph 42)

17.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. (Paragraph 43)

18.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. (Paragraph 45)

19.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. (Paragraph 46)

20.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. (Paragraph 48)

21.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. (Paragraph 50)

22.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. (Paragraph 52)

23.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. (Paragraph 54)

24.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. (Paragraph 57)

25.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. (Paragraph 58)

26.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. (Paragraph 62)

27.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. (Paragraph 65)

28.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. (Paragraph 66)

29.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. (Paragraph 67)

30.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. (Paragraph 68)

31.Government should bring forward legislative proposals to place the role of the Designated Medical Officer/Designated Clinical Officer on a statutory footing at the earliest opportunity. (Paragraph 70)

32.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. (Paragraph 72)

33.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. (Paragraph 73)

34.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. (Paragraph 77)

35.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. (Paragraph 78)

36.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. (Paragraph 79)

37.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. (Paragraph 82)

38.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. (Paragraph 83)

Published: 23 October 2019