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By Rachel Scales, Education solicitor specialising in special educational needs (SEND) tribunals
The white paper that sets out the government’s long-term plans to reform the education system, Every Child Achieving and Thriving, has finally been published.
As expected, this paper sets out a dramatic shakeup of the SEND system. The reforms aim to create a more standardised, nationally defined structure with greater responsibility placed on mainstream schools, and stronger financial control through nationally banded packages.
The key proposed reforms to SEND will be staggered, starting with a greater focus on inclusion, followed by reforms to EHC Plans.
A national three-tier framework
There will be three layers of need: Targeted, Targeted Plus, and Specialist. Only children in the specialist tier would have EHCPs. Children with an EHCP will be reassessed at the end of each phase of education and may be moved to Targeted or Targeted Plus at that point.
The Education Secretary has clearly stated that children will not be required to start at Targeted and “fail” before moving to higher tiers. They can be allocated to a higher tier immediately.
Targeted and Targeted Plus
Children in these tiers will attend mainstream schools and will have an ISP. There will be a statutory duty on schools and nursery schools to draft and review these plans in collaboration with parents, although the exact scope of these duties remains to be seen. Crucially, parents cannot appeal the contents of ISPs.
There are significant concerns about accountability here. If schools don’t provide what is in an ISP (or what should be universally available), the only way to challenge this would be the complaints procedure, or (as a last resort) judicial review. At the moment, it is unfortunately not unusual for parents to bring judicial review challenges against local authorities to enforce EHC Plans. The process is time-consuming, and it is very rare for a parent (or a school) to be able to do it without lawyers. It also ends up being extremely expensive for the losing party.
One option (not in the White Paper) is to expand the role of the Ombudsman to deal with these complaints. Whilst this route is quite slow, it is relatively simple and cheap, and certainly a better option than schools facing large numbers of JRs.
The specialist tier will be for children who need one of 7 specialist “packages”
Children assessed as requiring specialist support will be allocated one of 7 nationally standardised packages setting out the specific interventions, resources, and standards required. These Packages will be drafted by an independent expert panel. Some packages will be delivered in mainstream schools, others in special schools (although all parents will retain the right to request mainstream if they wish). Children will also have an ISP that will be developed by the setting, which will outline day-to-day support.
These pre-defined packages aim to achieve greater national consistency and give cost predictability for local authorities; however, it reduces flexibility to tailor provisions outside of this, which risks children being fitted into packages rather than packages being shaped around children.
Packages will depend on need, not diagnosis (so children with autism might be assigned any of a number of packages, depending on presentation). At the moment, the proposed packages are:
- Profound and multiple learning difficulties.
- Significant executive function (currently known as severe learning difficulties);
- Complex executive function and communication: for children with a significant learning difficulty, often combined with challenging behaviour.
- Social and emotional development focused on externalised behaviour: for children whose social and emotional needs manifest in behaviour that challenges. Children may have autism, ADHD, or other needs.
- Social and emotional development focused on internalised behaviour: children whose social and emotional needs manifest as withdrawal, disengagement, or “shut down”.
- Sensory impairment: children who are deaf, have a visual impairment, or a multi-sensory impairment.
- Physical disability (without significant learning difficulties)
The proposals acknowledge that there will be overlap between the packages and some children may need elements from several packages.
The packages seem to be very wide in terms of the needs that each is supposed to meet, which raises questions about the allocation of placements and provision
Two of the packages are defined by the behaviour displayed (externalised/ internalised behaviour). Many children will display a combination of both. Also, when a child is well supported, such behaviours would be expected to decrease. Will this lead to children being judged as not needing the support anymore?
Placement decisions will be made after the child has been allocated to a package
When a child is assigned a package, the LA will provide a list of schools that can deliver the package. Parents can choose any of the schools on the list or request an alternative. However, LAs will not be required to name a setting if it is full (removing the need to show that admitting the child would be incompatible with the provision of education of others) and can also take into account evidence of the placement’s effectiveness, value for money and the effect on future placements (which may include the effect of a high-cost placement on funds available for other children in the area).
Some packages will only allow parents to request mainstream schools.
It appears that special schools will be expected to support all children on a particular Package. This is concerning, given how wide the packages are, as they will encompass children with very different needs.
Once a placement is identified, it will identify which elements of the national package are included in the EHCP. There does not appear to be any right of challenge to this, even though children on the same package may need very different support. It’s also not clear how this will work for children who need elements of different packages.
Children will also have an ISP, which will set out day-to-day support. This will be drafted by the school.
Independent special schools
Independent schools will have to align with nationally determined cost banding and admission criteria, or LAs will not be able to fund a place there. Independent specialist schools may face funding pressure, which could in turn reduce placement diversity if some providers withdraw from LA-funded placements if they cannot align with banding.
The consultation paper expresses concern about private equity firms making excessive profits. However, there are also many schools in the sector run by charities. The most expensive independent schools are providing places for children with exceptionally challenging needs, for whom no other place can be found. Families and local authorities have often spent years desperately searching for placements. I can say with certainty that no Tribunal panel, and certainly no local authority, would name such an expensive school if there were a cheaper alternative. Other schools in the sector provide “niche” placements for children who are not well served by other specialist schools (in particular, children who are academically able but cannot manage in mainstream often struggle to find places outside the independent sector). If independent special schools are required to support all children on a particular package, these “niche” placements could be lost.
Tribunal reform
One very concerning leak suggested that the SEND Tribunal would be abolished. This is not the case, but its powers will be limited. It can hear appeals:
- Against a refusal to assess for specialist support
- Against the package that has been assigned
- Against the school placement decision – but the Tribunal will only have the power to require the LA to take the decision again, not to name a new school
Crucially, it doesn’t look like there will be a right of appeal against the contents of the EHC Plan itself (i.e., the aspects of the package that have been selected for that child), so less ability to challenge detailed provision wording.
Uncertainty regarding EOTISC
EOTISC does not seem to be mentioned at all. Presumably, the government is hoping that once schools become more inclusive, fewer children will require education outside of schools. I have certainly seen children who might have thrived in school with the right support, but who end up needing EOTISC because their needs were managed so badly that they are simply too traumatised to try another school. These are tragic and upsetting situations, and I very much hope that they become a lot rarer.
There are other children who simply cannot manage in school, however inclusive it is, and the option of EOTISC needs to be retained for this cohort.
What next?
The implications of the reforms are significant, with statutory safeguards potentially narrowing, reduced Tribunal oversight, and a greater operational and administrative responsibility on schools. Families will see a move away from individually negotiated provision and towards nationally defined packages, with fewer statutory safeguards for children outside the specialist tier. However, if these reforms are managed well, they could provide a way to fix a broken system. The crucial question is whether the government’s promises about improved inclusivity are deliverable. If not, there will be a lot of children who no longer have a legal route to get the support they need.
If you have an education issue, please get in touch with Rachel Scales at Scott-Moncrieff & Associates Ltd: Email [email protected] or phone: 020 3972 9011.
