SEND Green Paper, 29 March 2022

On 29 March the Government published the SEND Review: Right support, right place, right time, a consultation on the special educational needs and disabilities (SEND) and alternative provision system in England. The consultation sets out proposed reforms to the SEND and alternative provision (AP) system that seek to address three key challenges:

• poor outcomes for children and young people with SEN or in alternative provision
• navigating the SEND system and alternative provision is not a positive experience for children, young people, and their families and;
• despite unprecedented investment, the system is not delivering value for money for children, young people and families.

The LGA published an initial media statement responding to the publication of the Green Paper.

Councils share the Government’s ambition of making sure every child with special educational needs and disabilities (SEND) gets the high-quality support that meets their needs. We welcome the Government’s review of the SEND system and believe that the proposals set out in the consultation will help improve the way that SEND support is delivered to the benefit of children and young people with special needs.

The previous reforms to the SEND system set out in the Children and Families Act 2014 have failed to achieve the goal of improving provision for children with special educational needs and disabilities (SEND). Placing children and young people at the centre of the SEND system was right, but the reforms set out in the Act were not supported by sufficient powers or funding to allow councils to meet the needs of children with SEND or hold health and education partners to account for their contributions to local SEND systems.

It is positive that the Green paper acknowledges that councils are ideally placed to act as convenors of local SEND systems, bringing together health and education partners to develop local inclusion plans. The Green paper rightly recognises that getting the accountabilities, accompanied by the right levers will be crucial. We look forward to working with the Department for Education (DfE) to ensure councils have the powers to hold partners to account for their contributions to meet the needs of children and young people with SEND.

Improving mainstream provision and inclusion levels are central to the success of the proposals set out in the Green Paper. We would like to explore the development of a more contractual relationship between councils and schools in the provision of high needs funding, focused on outcomes and holding all schools to account for the successful delivery of those outcomes.

It will take several years for the proposals set out in the Green Paper to be taken through the legislative process, before coming law. In the meantime, making additional high needs funding available via the ‘safety valve’ and ‘Delivering Better Value in SEND’ programmes is welcome, but the Department must go further and develop a plan that eliminates every council’s Dedicated Schools Grant deficits.

Parental confidence in a new SEND system will be crucial if it is to work effectively and we are keen to work with parents, families, and the Government to ensure a reformed system meets the needs of all children and young people with SEND.

The Green Paper sets out the findings of the SEND review, which are summarised as:

• Children and young people with SEND and those in alternative provision have consistently poorer outcomes than their peers.
• Experiences of the SEND and alternative provision system are negative.
• The SEND and alternative provision system is financially unsustainable.
• There is too much inconsistency across the SEND system in how and where needs are assessed and met.

LGA view:

We welcome the Government’s review of the SEND system. The reforms set out in the Children and Families Act were not backed by sufficient funding or powers to allow councils to meet the needs of children with SEND or hold health and education partners to account for their contributions to local SEND systems. Since 2014 demand for SEND support has increased year-on-year and there are now over 430,000 children and young people with an Education, Health and Care Plan (EHCP) in England, an increase of 10 per cent or 40,000 in the last year alone.

The increased scope of council responsibilities post-16 was the most cited factor contributing to rising demand and costs for councils. LGA-commissioned research shows that the post-16 cohort now accounts for 23 per cent of EHCPs and around 17 per cent of spending.

Almost half of all children and young people with an EHCPs are being educated in settings other than mainstream schools. Special and non-mainstream settings are, by their very nature, more expensive than mainstream provision. While only 7 per cent of children and young people with EHCPs are in independent and non-maintained special schools, our research found that these placements account for an average of approximately 14 per cent of expenditure.

Existing arrangements do not work to meet the needs of every child and young person with SEND. We look forward to using the proposals set out in the Green Paper as the basis for discussion on the shape of a SEND system that does meet their needs.

The Green Paper proposes:

• establishing a new national SEND and alternative provision system setting nationally consistent standards for how needs are identified and met at every stage of a child’s journey across education, health, and care.
• reviewing and updating the SEND Code of Practice to ensure it reflects the new national standards to promote nationally consistent systems, processes, and provision.
• establishing new local SEND partnerships, bringing together education (including alternative provision), health and care partners with local government and other partners to produce a local inclusion plan setting out how each local area will meet the national standards.
• introducing a standardised and digitised EHCP process and template to minimise bureaucracy and deliver consistency.
• supporting parents and carers to express an informed preference for a suitable placement by providing a tailored list of settings, drawn from the local inclusion plan, including mainstream, specialist and independent, that are appropriate to meet the child or young person’s needs.
• streamlining the redress process, making it easier to resolve disputes earlier, including through mandatory mediation, whilst retaining the tribunal for the most challenging cases

LGA view:

We understand the need for greater consistency of approach across the SEND system, including through a single, digitised Education, Health and Care Plan (EHCP). The Green paper does however acknowledge that even in such a system there will be a need for some flexibility to reflect available provision and differing levels of need. We are concerned that too great a focus on the ‘national’ part of the system could raise expectations amongst parents and carers that the same support will be available in every area and delivered in the same way.

The establishment of local SEND partnerships, convened by councils is welcome. For these partnerships to work effectively, councils must have backstop powers to hold partners to account if they fail to make appropriate contributions to meet the needs of children and young people with SEND.

The LGA supports the proposal to introduce mandatory mediation with the aim of resolving disputes earlier. This supports findings of LGA-commissioned research, which found that the increased proportion of mediation cases going to Tribunal appeal reflected the trend of increasing proportions of appeals relating to the contents of EHCPs, specifically Section I and that it was more difficult to resolve such disputes through mediation.

The Green paper proposes:

• Increase our total investment in schools’ budgets by £7 billion by 2024-25, compared to 2021-22, including an additional £1 billion in 2022-23 alone for children and young people with complex needs.
• Consulting on the introduction of a new SENCo National Professional Qualification (NPQ) for school SENCos and increase the number of staff with an accredited Level 3 SENCo qualification in early years settings to improve SEND expertise.
• Commissioning analysis to better understand the support that children and young people with SEND need from the health workforce so that there is a clear focus on SEND in health workforce planning.
• Improving mainstream provision, building on the ambitious Schools White Paper, through excellent teacher training and development and a ‘what works’ evidence programme to identify and share best practice, including in early intervention.
• Funding more than 10,000 additional respite placements through an investment of £30 million, alongside £82 million to create a network of family hubs, so more children, young people and their families can access wraparound support.
• Investing £2.6 billion, over the next three years, to deliver new places and improve existing provision for children and young people with SEND or who require alternative provision. We will deliver more new special and alternative provision free schools in addition to more than 60 already in the pipeline
• Setting out a clear timeline that, by 2030, all children will benefit from being taught in a family of schools, with their school, including special and alternative provision, in a strong multi-academy trust (MAT), or with plans to join or form one, sharing expertise and resources to improve outcomes.
• Investing £18 million over the next three years to build capacity in the Supported Internships Programme, and improve transitions at further education by introducing Common Transfer Files alongside piloting the roll out of adjustment passports to ensure young people with SEND are prepared for higher education and employment

LGA view:

The LGA welcomes the focus on improving levels of mainstream inclusion. Councils want to see more children and young people with SEND in their local mainstream wherever possible and it is crucial that parents have confidence in the quality of local provision. This will result in both improved outcomes and a reduction in the use of special and independent and non-maintained special school places that are by their very nature more expensive than mainstream provision.

Further detail is needed on how schools will be incentivised to become more inclusive however. We are concerned that every school becoming part of a strong Multi-Academy Trust (MAT) by 2030 will not of itself drive a sufficient increase in mainstream inclusion. More detail is also needed on how incentives to be inclusive will be aligned with higher expectations on all schools to increase levels of achievement numeracy and literacy for all children, as set out in the Education White paper.

We support the proposed introduction of a SENCo National Professional Qualification (NPQ). This reflects the complexity of the system in which SENCos work and will help equip them with the skills needed to lead on the delivery of SEND support within schools.

We welcome the recognition of the importance of getting it right in the early years to ensure children are enabled to thrive, needs are identified early and staff have the skills and confidence they need to provide support to children. Providing training and support to staff is essential and the proposals setting out a review of Level 3 early years educator qualification is welcomed, as is a greater focus on specific support for SEND. However, the sector has experienced significant challenges which have been exacerbated by Covid-19 and recruitment and retention of skilled staff remains an ongoing concern. The LGA has conducted research looking into the Special Educational Needs Inclusion Fund and believe there are some quick fixes that could be made so the proposals set out to look at this is welcomed, however, we have long highlighted that early entitlements are underfunded and that the early years sector needs to be properly resourced to support the Government’s ambitions set out in this paper, therefore consideration of a wider review of early years funding is welcomed.

The Green Paper recognises the interconnection between special educational needs, emotional needs and mental health which is welcomed. However, the current system does not work for children and their families and this paper does not go far enough in recognising the steps that need to be taken, particularly for those young people with acute needs who require specialist support.

An additional £2.6 billion over three years for SEND capital is also welcome, as is the flexibility to spend this money on specialist units in mainstream settings, as well as new special schools. Feedback from councils is that the speed at which new special school places can be brought online is too slow. We are keen to work with the Department to identify opportunities to speed this process up.

The Government’s Education White Paper acknowledges that the existing education system is fragmented and, as evidenced by their work supporting all schools in response to COVID-19, councils have a continued role at the centre of local education systems with powers to match their duties around place-planning and ensuring pupils out of school return to the classroom as soon as possible.

Allowing councils to set up and lead their own Multi-Academy Trusts (MATs) is also welcome; this should be on offer in every area where that is the preference of schools and parents. We are pleased that the Department for Education (DfE) recognises that councils have an excellent track record in providing a high-quality education for pupils, with 92 per cent of maintained schools rated by Ofsted as outstanding or good – a higher proportion than any other type of school, and that this will continue in a fully-academised system.

The Green Paper acknowledges that young people with SEND may need additional support to navigate their ways through the post-16 education and training offer and may need flexible approaches to study including part-time or through a modular approach. At the same time, some Level 2 provision (BTEC and apprenticeships) have been removed resulting in a reduction of pathways to further learning. Young people need a broad offer with alternative choices that are not unduly restricted. This must be backed up by targeted and independent careers advice and guidance, but the system as it is, is fragmented. Councils have a key role in helping to join up the dots.

Work Local is the LGA’s blueprint for an integrated and devolved employment and skills service, which would enable councils and combined authorities to bring together information, advice and guidance alongside the delivery of employment, skills, apprenticeships and wider support for individuals and employers. By enabling this approach, local leaders would be able to design services that are targeted to local needs while meeting national skills priorities, and deliver significant social and economic benefits. 

The Green Paper proposes:

• making alternative provision an integral part of local SEND systems by requiring the new local SEND partnerships to plan and deliver an alternative provision service focused on early intervention.
• giving alternative provision schools the funding stability to deliver a service focused on early intervention by requiring local authorities to create and distribute an alternative provision-specific budget.
• building system capacity to deliver the vision through plans for all alternative provision schools to be in a strong multi-academy trust, or have plans to join or form one, to deliver evidence-led services based on best practice, and open new alternative provision free schools where they are most needed.
• developing a bespoke performance framework for alternative provision which sets robust standards focused on progress, re-integration into mainstream education or sustainable post-16 destinations.
• delivering greater oversight and transparency of pupil movements including placements into and out of alternative provision.
• launching a call for evidence, before the summer, on the use of unregistered provision to investigate existing practice

LGA view:

We support proposal to make alternative provision (AP) an integral part of local SEND systems and that their focus should be on ensuring that as many children as possible stay in or return to mainstream education as soon as possible. The Department must ensure councils are provided with sufficient, long-term funding to allow AP settings to meet the needs of children and young people as set out in local inclusion plans.

The Green Paper proposes:

• delivering clarity in roles and responsibilities with every partner across education, health, care, and local government having a clear role to play, and being equipped with the levers to fulfil their responsibilities
• equipping the Department for Education’s (DfE) new Regions Group to take responsibility for holding local authorities and MATs to account for delivery for children and young people with SEND locally through new funding agreements between local government and DfE
• providing statutory guidance to Integrated Care Boards (ICBs) to set out clearly how statutory responsibilities for SEND should be discharged
• introducing new inclusion dashboards for 0-25 provision, offering a timely, transparent picture of how the system is performing at a local and national level across education, health, and care
• introducing a new national framework of banding and price tariffs for funding, matched to levels of need and types of education provision set out in the national standards
• working with Ofsted/Care Quality Commission (CQC) on their plan to deliver an updated Local Area SEND Inspection Framework with a focus on arrangements and experience for children and young people with SEND and in alternative provision

LGA view:

The clarification that health and care are ‘truly integrated partners’ in local SEND partnerships, convened by councils is welcome. As mentioned previously, councils must have backstop powers to hold partners to account if they fail to make appropriate contributions to meet the needs of children and young people with SEND. A duty to co-operate for Integrated Care Boards is welcome, but we believe this duty should also apply to Integrated Care Partnerships The forthcoming regulatory review of MATs, set  out in the Education White paper, should propose a similar duty on schools to co-operate with councils.

We are concerned that arrangements through which the DfE Regions Group seeks to hold councils to account for delivery and high needs spending will place an unnecessary additional burden on councils, when sitting alongside Ofsted/CQC SEND area inspections and is likely to divert resources away from meeting the needs of children and young people with SEND. Such an approach, with the DfE focussed on the role of councils and the Department of Health and Social Care holding NHS and health partners to account risks the fragmentation of accountability arrangements.

While a 0-25 data dashboard will provide some information on the performance of the national and local SEND system, it will not on its own show how well any local SEND system is working. Data should not be used in isolation by the Department when deciding whether to intervene in a local SEND system.

We would like to work with the Department, partners, and the inspectorates to develop a new SEND area inspection framework. Local SEND systems are incredibly complex, and any new inspection framework must therefore retain the existing narrative judgement which reflects this complexity in a way that isn’t possible with a one-word graded judgement. Inspections should focus on the system as a whole, including the contribution of each of the key partners schools, councils and health.

The Green paper proposes:

• taking immediate steps to stabilise local SEND systems by investing an additional £300 million through the Safety Valve Programme and £85 million in the Delivering Better Value programme, over the next three years, to support those local authorities with the biggest deficits.
• tasking the SEND and Alternative Provision Directorate within DfE to work with system leaders from across education, health and care and the Department of Health and Social Care to develop the national SEND standards.
• supporting delivery through a £70 million SEND and alternative provision change programme to both test and refine key proposals and support local SEND systems across the country to manage local improvement.
• publishing a national SEND and alternative provision delivery plan setting out government’s response to this public consultation and how change will be implemented in detail and by whom to deliver better outcomes for children and young people.
• establishing, for implementation of the national delivery plan, a new National SEND Delivery Board to bring together relevant government departments with national delivery partners including parents, carers and representatives of local government, education, health, and care to hold partners to account for the timely implementation of proposals.

LGA view:

Additional funding for council high needs budgets, via the ‘safety valve’ and ‘Delivering Better Value in SEND’ programmes is welcome. Implementing the proposals set out in the Green paper will take several years and, in the meantime, we can expect demand for SEND support to continue to rise. The Department must therefore bring forward a comprehensive plan that manages down and eliminates council’s Dedicated Schools Grant deficits.

We look forward to working with the DfE and partners to make sure the SEND system meets the need of all children with special educational needs and disabilities. If councils would like to get in touch to share any challenges or opportunities from your areas, to inform our work on local government’s behalf, please get in touch with your Principal Adviser or via the contact details below.

Contact

Clive Harris

Senior Policy Adviser

Phone: 020 7664 3207

Mobile: 07747 636931

Email: [email protected]