Council bodies want shot of SEND legal duties

For many people, when they are proved wrong on something, or shown to have acted badly, their first response is to double down on their position. They may show anger at how you’ve made them feel.

And so to a report on special educational needs released today by the County Councils Network (CCN) and the Local Government Association (LGA), which for me falls into a bucket marked ‘oh no, not again’.

The snappy title is Towards an effective and financially sustainable approach to SEND in England.

It is 166 pages long, but it is not terribly hard to decode, or indeed to summarise. It is remarkably similar to a March 2022 report, and is written by the same consultancy ISOS Partnership.

The take home points are best summarised, with one point leading to the next, as: -

• Many councils are in danger of bankruptcy
• SEND costs councils a lot, and much SEND provision is supported by children’s legal rights
• SEND costs councils more than they budget for, so they have a SEND deficit
• People aren’t happy with current provision
• Reform is ‘unavoidable’
• So reduce legal rights to educational provision, so councils can spend less without being challenged

The research element of this leaves much to be desired. ‘The overwhelming consensus from this research is that the current national policy arrangements relating to children and young people with SEND are not functioning,’ it says.

The ‘consensus’ comes from who?

Council leaders and managers in councils – groups of people who determine practice and policy in their own local authorities, who are so far from the law that councils lose 96% of tribunal cases where their decisions are challenged.

‘In terms of whether the SEND system is working well and supporting children and young people with SEND to achieve good outcomes,’ ISOS relates ‘97% of respondents in total disagreed.’

There is an almost pleasing aspect to the per centage symmetries here – losing 96% of cases they fought to tribunal, 97% of those surveyed weren’t happy.

A third of those lost cases are a refusal to assess a child. Does Schrodinger’s child have special educational needs or not? Best not open the process to find out.

The report uses the language of empowerment to argue for cuts. In a poorly functioning system, it notes ‘the cost of missed opportunities and negative experiences for families’.

But there is no attempt to interrogate the reason for dissatisfaction with the system. The council leaders who superintend a system and services that consistently illegally ration provision are asked what would be best for the children and families they let down.

A case of loser knows best.

In its 2022 report, ISOS rather stylishly blamed ‘affluent’ families for successfully challenging councils’ decisions. ‘Nice’ is too small a word. Many are supported by free legal advice or support. Others self-represent – not uncommonly facing a local authority instructed barrister.

Instead, the invitation in this year’s report is to agree that, ‘Leaders in local government and local health services should not be blamed where they are caught between delivering on their statutory and strategic responsibilities, responding to increasing need and demand for support, being held responsible for managing within finite resources, all the while without the means to influence what is driving these trends’.

Send in the violins? They’re already here.

The way in which councils manage ‘finite resources’ in SEND is often brutal. Whereas best practice that might reduce long term costs includes help ‘at the earliest opportunty’, ISOS notes, a default position in many councils to refuse assessments at first request would seem to any sensible observer to be part of the problem.

‘The volume challenge is being driven by both changes in need and demand,’ ISOS explains. ‘A future approach to SEND must, therefore, address both.’

Need and demand – together at last.

Autism is a focus. It is already a popular whipping boy for politicians who profess to not understand why there’s so much of it about these days.

‘LA and health leaders said that they were seeing increases in young people with autism, SEMH and SLCN, often in combination and with wider needs. They argued that it was these trends, rather than increases in children with profound and potentially life-limiting conditions now surviving birth and early childhood, that was characterising the increased volume of the SEND system.’

This report uses terms for political effect. Councils acting illegally ‘should not be blamed’; need is demand; councils could intervene earlier if only the right to early intervention was removed.

A non-specific language has been developed by CCN, the LGA and ISOS over the past few years. It includes sad-sounding words with non-precise meaning: misaligned; unbalanced; distorted.

And ‘deficit’. The notion of a ’SEND deficit’ has wide currency among council leaders and in parliament, and at the DfE. Deficit appears 91 times in the ISOS report.

There are many authoritative UK websites that offer a guide to accounting terms. I checked the four lead ones. None of them use the word deficit. It’s not an accounting term.

Here it means councils spent more than they ideally wanted to, knowing full well they had not budgeted enough. ‘Overspend’ is also not a UK accounting term.

The report’s ‘word about terminology’ yields nothing on such tone-setting language.

Are the voices of ‘young people, parents and carers’ featured? They appear as gobbets marked ‘fieldwork’. Charities working with children and young people, and their families, have their reports referenced when it suits, but their input was not sought. There is a list of ‘national organisations engaged in research’, but that does not denote direct input or collaboration. It does not connote endorsement of the report’s findings.

The ‘Safety Valve Agreements’ some councils have entered into with DfE, whereby they agree to supress the upward trend of Education Health and Care Plans (EHCPs) in return for cash, are described as ‘helpful’ by… councils. I’m sure they are. No fieldwork gobbets attach to the impact of SVAs on families seeking or contesting an assessment at SVA councils.

In all, 89 pages build up to the ISOS conclusions on where all this points.

‘In a future SEND system, LAs and local health services are best placed to assess which children and young people need support beyond what is available in mainstream, using their budgets to provide support that meets the needs of their local population.’

And all should have the ‘chance’ to move away from specialist provision.

Parents’ and carers’ ‘voice’ should be strengthened, though ‘parental preference’ on education setting, criticised earlier in the report, is implicitly weakened.

There’s a demand for ‘a new, independent, non-judicial mechanisms for dealing with disagreements about decision-making’. So, no more inconvenient judgments agains LAs.

Am I too cynical in my assessment of what I see as a partial, self-serving report, whose conclusions were never in doubt?

I asked the Independent Provider of Special Education Advice (IPSEA), which supports families with advice and information as they negotiate the SEND system for an assessment.

‘Talking about disabled children and young people as “an existential threat” to local authorities’ finances tells us everything we need to know about how our children are perceived by local decision-makers and makes clear that their main ambition is to cut costs. In case of any doubt, there are admonitions about the ‘limits of individual entitlement,’ policy manager Catriona Moore says. ‘Children’s rights and entitlements are apparently not compatible with the new way they’d like to do things… there are assertions about children and young people receiving unnecessary levels of specialist support that are simply not backed up by evidence.’

The proposed solution ‘is to dismantle the existing statutory framework, and try by every means necessary to reduce the number of children and young people who have a statutory right to provision that meets their needs’, she points out.

‘The inconvenient situation where the SEND Tribunal applies the law by overturning unlawful local decision-making and making sure individual children and young people receive the provision they need would, according to this blueprint, be addressed by simply removing the Tribunal’s role in SEND appeals. But the report misunderstands the role of the Tribunal. Children and young people with SEND will always need a judicial route of redress when their rights are disregarded.’

 

Read: Council bodies demand end to SEND tribunal role