Overview
- The government has announced a new review into special educational needs and disabilities (SEND) support, and has pledged additional funding for pupils with SEND. Substantive policy changes, however, are needed to address previously identified problems.
- Rising numbers of children with more complex needs and a growing number of appeals in the SEND system have led to challenges in high needs funding.
- Schools have cited growing funding and accountability pressures, and have faced difficulties in providing adequate support for SEND pupils. This has taken place alongside a rise in the number of exclusions, home schooling, and children missing in education.
- High needs funding is also inconsistent among local authorities. The government’s new review seeks to end the ‘postcode lottery’ in SEND – an issue has that has surfaced several times over the last decade but has not previously been acted upon.
- Research and policy addressing pupils’ specific SEND needs is required to improve policy and practice, in addition to addressing the disparities in provision, parental satisfaction, and inclusion.
- Further consideration also needs to be given to the joining up of education and health and social care services, along with a review of staff training: regulations currently fall short, and guidance often fails to reflect the complex needs of pupils.
- Alternative provision (AP) is loosely regulated, and information on pupil moves into AP and the reasons for these moves is often scarce. Improving the quality of available alternative provision is difficult as a result of this.
- However, there are several risks to the further expansion of AP, including increasing perverse incentives for schools. Expansion may encourage schools to move more pupils into AP, when it may not necessarily be in a pupil’s best interests. Such a policy could easily undermine existing SEND support in mainstream schools and reduce the inclusion of vulnerable children.
Introduction
Earlier this month, a cluster of announcements about arrangements for pupils with additional needs emerged from Sanctuary Buildings. A new review of support for special educational needs and disabilities (SEND) was accompanied by a commitment to make additional new alternative provision the focus of the next free schools application round. Alternative provision in this context means places that provide education for children who, because of exclusion, illness or other reasons, would not otherwise receive suitable education.
The news followed closely on the heels of the previous week’s funding announcements which included an additional £700m for special needs, and prior to the change of Prime Minister, earlier commitments to review SEND funding and to follow up on some (but not all) aspects of the Timpson Review of school exclusions.
The latest announcements appear simple at first glance – a progress checkpoint following the 2014 SEND reforms to tie up some loose ends, and additional capacity in specialist provision reflecting shortages of places in special schools as well as increasing demand for alternative provision. The reforms in question aimed to extend rights and services to age 25, give families greater choice, and simplify the process of assessing needs. But there is much to unpack beneath these headlines, and some of the detail raises deep questions about the direction of education policy.
Another SEND Review
Turning first to the review of SEND. Concerns about the functioning of the SEND system have become increasingly urgent over the five years since the reforms were phased in. The concerns of parents and schools have increasingly spilled over from social and local media into national news media and the courts. Corroboration for the cacophony of stories of support delayed and denied can be found in the official statistics on SEND tribunal decisions, which show the rate of decisions appealed rising each year since 2015.
Perhaps even more tellingly, the proportion of tribunal appeals that are upheld stood at 89% in the latest year. Appeals can be made against local authority decisions, including refusals to assess or re-assess needs, to create or maintain an Education Health and Care Plan (EHCP), or to change what is in a plan. Given the appeals success rate, we can only guess at how many more decisions that were not appealed may have merited further scrutiny.
As we await judgment in a high court case challenging the government’s funding of special needs and DfE has since committed to review both funding and the overall system for SEND, the ‘high needs block’ is an obvious focus for policy change. This is the allocation mechanism through which funding for local authority SEND services, special schools, alternative provision, and top-up funding for schools educating children with greater needs, flows. We have recently reviewed the pressures on high needs funding, which arise from three main sources. The first source of pressure is rising need, driven by a combination of increasing numbers of children with complex needs and those with autism, and the extension of SEND services to age 25.
Linked to and exacerbating rising need is the tendency of funding and accountability pressures in mainstream schools, which those schools say are making it more difficult for them to provide adequate SEND support. One sign of this is rising numbers of permanent exclusions increasing the pressure on specialist places, and increases in home schooling or missing education where specialist provision demand cannot be met. The third source of pressure is the inability of the current high needs allocation formulae to deliver funding that is reasonably consistent from one local authority to another and also flexible in the face of changing needs profiles.
Another review, or a re-run of 2014?
So it would seem that SEND support is in urgent need of review, both in terms of how it assesses children’s needs and delivers support, and in terms of how it is funded, which influences and constrains the former. But some have suggested that the government needs to get on and deliver solutions to the findings of previous reviews, rather than launch another one. For example, the official announcement states that the review aims to “…improve the services available to families who need support, equip staff in schools and colleges to respond effectively to their needs as well as ending the ‘postcode lottery’ they often face”. But Ofsted identified inconsistency between areas as a key problem in the last major review in 2010, and yet the 2014 reforms did not contain any elements that could credibly tackle this problem.
The government instead focused on empowering parents, where there remain many questions about whether this has been achieved, and introduced a “local offer” in each area – a move that suggests that special needs are somehow fundamentally different in different places. While the mix of needs does vary, it makes little sense to think of the response to particular needs as something that would not benefit from some degree of standardisation. It is hardly surprising that increasing localisation has done nothing to end the huge inconsistencies in the system. Indeed, a rapid evidence review for the government suggests that it is research and action on the specific needs of pupils with different types of SEND that is now needed to underpin better policy and practice.
Beyond reducing the postcode lottery and giving parents a better say in their child’s support, another of the concerns that prompted the reforms and is now being revisited is joint working across education and health and social care services. The NHS is developing a ten-year plan with new funding, but adult and children’s social care services are experiencing difficulties functioning on their own terms. This renders the provision of seamless services for children with SEND, perhaps, even more challenging than in 2014.
The mention of staff training and development in the review announcement is highly pertinent, but it also points to a longstanding weakness. It is critical that not just special educational needs coordinators (SENDCOs) but also school leaders should have a strong knowledge of SEND if the interests of children are to be protected. Regulations and guidance need to better reflect the needs of children with SEND. Weaknesses in this were highlighted by a 2018 court judgment that regulations on school exclusions are unlawful and incompatible with human rights law. This is because they do not require schools to justify the exclusion of children who exhibit aggressive behaviour as a result of a disability, such as autism. The regulations have not been amended to date, after the government said it would “carefully consider the judgment and its implications before deciding the next steps”. The concept of reasonable adjustments needs to be reinforced through changes in regulation, attitudes and practices.
A final word on high needs funding levels in light of the extra £700m announced for 2020-21. This is a single-year settlement, but assuming the government were to continue to provide the same cash value in subsequent years, this would fall £600m short of what the Education Select Committee considers is required within three financial years. It might therefore be considered as a down-payment rather than a resolution of funding shortages.
Focusing on the children in question
To recap, the commitment to making changes implied by a SEND review can only be a good thing, but arguably we already know about some major problems in the system and need a firmer commitment to changing the policy approach rather than simply reviewing the same problems again. Funding announcements ahead of the review imply that some of the “resulting” policies are already known.
On this note, it is concerning that the Schools Minister marked the announcement of the review by discussing longstanding policies on free schools and assessment when we have not seen improved outcomes recently for children with SEND, instead of focusing what needs to change. As we shall see in the subsequent discussion of the alternative provision (AP) announcement, the direction of reforms is pre-empting the review. But before we consider the AP announcement, it is worth pausing briefly to take stock of the Schools Minister’s comments.
The work of three individual school leaders is used to argue in favour of government policy. On a point of fairness, it is not uncommon for ministers to discuss what is happening in schools that they are familiar with. But while it would be preferable to focus on robust and generalisable research instead of case studies, the avoidance of SEND is also problematic here.
It is hard to justify that the schools singled out for mention in the announcement of a SEND review are neither special schools nor mainstream schools with especially high levels of SEND, and that the only policies highlighted are assessments (the phonics check and reformed GCSEs) that are not universally accessible by children with SEND. This is not a criticism of the schools named, or of having assessments, but of the approach to SEND policy.
A distraction, or a part of the problem?
School choice and accountability each plays an influential part in the education system, but one reason behind recent and ongoing inquiries into SEND, AP and school exclusions is that the current policy landscape, in which choice and accountability are held above all other considerations, has prompted many concerns about the consequences for vulnerable children. The justification for such a strong focus is elusive. We have known since the early 2000s that differences in school performance are dwarfed by the influence of differences between pupils within schools, including those associated with characteristics such as SEND and poverty, as well as unexplained individual variation.
To imply that the system, as a whole, is, or plausibly could become, shaped by a handful of school leaders is inconsistent with the evidence on school attainment. In addition, the concept of school choice might work, in theory at least, in densely populated urban areas, and to the benefit of children without complex or unusual additional needs. But the logic breaks down when we consider children accessing rationed and geographically sparse specialist placements.
In addition to the poorness of fit between some of our schools policies and the needs of children with SEND, we must acknowledge the problematic incentives faced by mainstream schools trying to balance budgetary and accountability pressures with the SEND Code of Practice in a competitive landscape. The truth is that oversubscription leading to selective admissions and unexplained movements of vulnerable pupils out of the school become pressure release valves. At this point it is helpful to turn our attention to the alternative provision announcement that was paired with the new SEND review.
Making alternative provision the focus of free schools
As with the SEND review, one of the problems with the reporting of the AP announcement is about presentation – or rather prejudice. The former Secretary of State for Education, Michael Gove, used to warn against a ‘soft bigotry of low expectations’, but the latest stage in the reforms he kicked off in 2010 has been described in the press as a focus on ‘troublemakers’. We should not forget that the group of children described here in fact includes those who are vulnerable for a variety of reasons including mental health difficulties, poverty and SEND, and disproportionately includes boys and children of black heritage.
Setting this unhelpful use of language to one side, there are substantive questions about the policy that need to be asked. There is no question that improving the quality of available alternative provision is clearly both necessary and a priority. However, it is important to tread carefully with the implementation of this because there are some big risks hidden in the detail.
Before we proceed, we should first clarify that applications for new special schools will also be prioritised in the next free schools round, in addition to AP free schools. This receives little fanfare compared with the AP expansion but presents important policy trade-offs, which we will discuss.
Entry to special schools
The first point to note is that for alternative provision, no objective basis for determining the “right” number of places has been proposed. By contrast, there is a clear – albeit imperfect – regulated process that controls the flow of children into special schools. And it has been clear for some time that special school places are in shortage. The number of children with SEND who are out of school has at least doubled since 2010, to approximately seven-and-a-half thousand, counting those either awaiting a suitable place or for whom the LA or their parents have made educational arrangements other than a school.
These numbers exclude older children and young people newly eligible for SEND support since 2014 from the latest figures for the purposes of making a reasonable comparison over time, but a similar number of young people over age sixteen are either awaiting a place or not in education, employment or training (NEET).
The regulation of entry to special schools through the SEND Code of Practice performs an important function that is missing from alternative provision, by regulating the demand for places such that children’s best educational interests must be considered before removing them from mainstream school. By contrast, school exclusions have very weak regulation with the decision vested almost entirely in the hands of the head teacher, who by definition is an interested party, and faces incentives other than the interest of the individual child concerned. As described above, the regulation of school exclusions does not adequately protect children with SEND as a matter of law.
Managed moves
It is also important to note that many children enter alternative provision without having been officially excluded, via a process which varies locally, but is known generically as ‘managed moves’. The decision to move a child into AP via managed move is even less transparent than official exclusion as it is only recorded locally, and is unlikely to face any effective challenge from parents because it purports to have taken place with their consent.
The line between a managed move by parental consent and an illegal exclusion by coercion is difficult to distinguish due to a paucity of case law. The net result is that we are in the dark about the volume and appropriateness of managed moves, including those into AP. Partial data systems and incomplete regulation mean that complete information on this cannot be extracted from administrative data.
We have heard from parents who were coerced with the threat of permanent exclusion if they did not sign a managed move agreement, but nobody knows how common this is precisely because it is likely to be illegal but is not effectively regulated.
Different models of provision
The current system includes routes into two kinds of specialist education provision, one more tightly regulated than the other, but each often providing for children with similar underlying needs. The SEND and special school route provides a place until age eighteen and, at least in theory, support until age twenty-five. The alternative provision without EHCP route can result in loss of support after age sixteen and difficulty continuing in education. This is a simplification: there are children with EHCPs without places or placed in AP, and some children in AP do transition to further education. But it is a reasonable simplification of what is typical in a complex system. In addition to these two main forms of specialist school provision, a third option exists for pupils with SEND and/or behaviour difficulties: mainstream schooling with additional support and reasonable adjustments.
To set these options in historical context, the 1978 Warnock Report and the resulting provisions of the 1981 Education Act established a qualified duty to include children with disabilities in mainstream education, and set the expectation that most children with SEND are educated in mainstream schools. Children with SEND were frequently labelled as “ineducable” prior to these reforms, and the removal of this language, along with the integration of many more children in mainstream schools, was an important step towards a modern policy framework.
A fuller incorporation of behaviour difficulties and disorders into this approach may be the next frontier in the progression of SEND policy. The weaknesses in the regulation of exclusions and managed moves that currently allow increasing numbers of children to slip out of mainstream schooling fail to reflect the reality that unmet special needs are an extremely common underlying cause for challenging behaviour.
Should expansion of alternative provision be the goal?
To recap, in the absence of a major policy shift, mainstream schooling is supposed to be the default unless a child’s needs and best interests are more effectively met in a specialist placement. In terms of regulatory safeguards and transparency, special school provision has advantages over alternative provision, but they are often used interchangeably for educationally vulnerable groups of children.
In advance of the new review of SEND, the Education Secretary has argued for the expansion of alternative provision (this is emphasised above new special schools although these are envisaged too) on the basis that there is increasing demand for AP from schools and local authorities. There has since been some confusion as to whether this was a government commitment or an opinion.
However, schools face incentives to demand ever more places in alternative provision as a release valve for pressures in school funding and increased attainment expectations and accountability, and there is no regulation to act as an effective brake on this demand, unlike for special schools. If alternative provision is expanded significantly, there will be little incentive for schools to improve the support for the inclusion of children with SEND. Why struggle in the face of budgetary arithmetic and increased attainment expectations if there is a ready-made solution that rids the school of both challenges? The risk of expanding alternative provision is that if we build it, they will come.
With this in mind, an important point is mentioned in a recent article covering the government’s announcement : “fewer than 50 of the 507 free schools now open are for excluded children, and none has received approval since 2017. This is partly because of an extra bureaucratic hurdle, which demands that the local authority back the application and essentially lead the bid. This rule is likely to be reformed.” It’s understandable that proponents of AP expansion would see removing this rule as a positive step, but we must consider what would then stand in the way of over-expansion.
Creating deliberate oversupply of AP places may sound like a good way of “competing” low quality provision out of the system, but what if the new provision just fills up with additional pupils squeezed out of mainstream schooling, and all the existing provision remains in use too? The answer to what would stand in the way of this is very little, as local authorities can only propose the closure of their own pupil referral units (not other AP) and a handful of areas no longer have any to close.
Alternative provision comes at the expense of mainstream support
A little-known feature of the high needs funding formula is that when new special schools are approved, corresponding extra place funding is channelled to the local authority in question – it is not ‘out of pocket’. However, the same is not true of new alternative provision. Free school AP places are direct-funded by central government without recourse to the LA for the first two years, but after that £5,833 per place is deducted from the LA high needs budget. This is one reason why LAs have had a say in new provision – over time it drains their budget and those funds are then not available for providing top-up funding and other support for mainstream schools. With less support available in mainstream, the more AP you have, the more you are likely to need.
High needs funding sits with local authorities, and is not (yet) devolved to schools, as previously envisaged. This means that schools do not have to budget for it when moving pupils into AP, which would constrain them to limit their demand. They only have to convince the local fair access panel that the child is at risk of exclusion; and if a school says a child is at risk of exclusion, then by definition they are, whatever the rights or wrongs of that assessment.
These conflicts of interest become even worse if one considers, hypothetically, a multi-academy trust (MAT). Under the new policy, that MAT can bid to open new alternative provision under the free schools programme. The local authority wouldn’t be able to block this even though they will be paying towards it from their high needs budget. There is no regulation that restricts children from being moved inappropriately from mainstream schools into this provision. When those children are moved to AP they no longer count in the school performance tables for that MAT and they are then funded at a higher rate than they were previously, with no checks or balances.
That new provision may be good or it may be bad, but that isn’t the main issue here. The main issue is that we have created a blueprint for the erosion of the inclusion of children with SEND, mental health difficulties and other additional needs in mainstream schooling. The only people who can restrain this flow out of mainstream are the government, through the free schools approval process. This is a policy that effectively socially cleanses mainstream schools, which plays well with many parents of children without SEND (see grammar schools). In pursuing a popular policy like this, it can be easy for policymakers to overlook costs, and the fact that it may create more problems than it solves.
Conclusion
The Secretary of State is right to state that ‘a society that writes children off is not solving anything’ and is ‘shoring up problems for the future’. But we must keep our eyes firmly on the best interests of the children concerned when shaping policies to tackle these issues. The children this concerns are somebody’s children and there is a real risk that introducing regressive policies could take us back to the 1970s, a time when children with SEND were even more marginalised than today. What we need is not only ‘innovators and trailblazers’, though these are welcome if they support inclusion. We need the careful development of policy based on empirical evidence, and mindful of the social selection and segregation of children that is already too prominent in our schools.
