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  Education Committee inquiry: pre-legislative scrutiny of the Government’s proposed reform of provision for children and young people with Special Educational Needs (SEN) Submission from the Association of Teachers and Lecturers October 2012


Executive summary ATL welcomes this inquiry. In summary:  Joint working across agencies is welcome. However, it requires the placing of statutory obligations on provision by the health and care sectors, as well as education.  The financial cuts across all services provide a huge challenge to successful implementation. The resulting lack of capacity is a key impediment to the reforms making a substantial positive difference to children and young people with SEN.  Concurrent changes to funding arrangements, including the personal budget, increase the complexity of system, resulting in increased bureaucracy and delays in delivery.  The pilot Pathfinder programme should be extended in focus and in time, to allow greater piloting of issues such as transition, to include further education, and to allow greater opportunity to gather information and learn from the findings.  Further information around definitions of SEN, particularly the new single schoolbased category, would be helpful to determine the likely impact on education staff and their pupils.


About the Association of Teachers and Lecturers (ATL) ATL, as a leading education union, recognises the link between education policy and our members’ conditions of employment. Our evidence-based policy making enables us to campaign and negotiate from a position of strength. We champion good practice and achieve better working lives for our members.


We help our members, as their careers develop, through first-rate research, advice, information and legal support. Our 160,000 members – teachers, lecturers, headteachers and support staff in maintained and independent nurseries, schools, sixth form, tertiary and further education colleges in the United Kingdom – are empowered to get active locally and nationally. AMiE is the trade union and professional association for leaders and managers in colleges and schools, and is a distinct section of ATL. We are affiliated to the TUC, and work with government and employers through partnership and by lobbying.


ATL policy ATL believes that teachers as professionals must be recognised for their knowledge, expertise and judgement, at the level of the individual pupil and in articulating the role of education in increasing social justice. Within light national parameters, development of the education system should take place at a local level: the curriculum should be developed in partnership with local stakeholders; assessment should be carried out through local professional networks. Schools and colleges are increasingly encouraged to work collaboratively to offer excellent teaching and learning, and to support pupils’ well-being, across a local area. Accountability

ATL Submission on proposed SEN reforms


mechanisms should be developed so that there is a proper balance of accountability to national government and the local community, which supports collaboration rather than competition. 5.

Does the draft Bill meet the Government’s policy objective to improve provision for disabled children and children with special educational needs? ATL welcomes the provisions which relate to across-agency working. The replacement of the statement by the Education, Care and Health Plan and the emphasis on joint working across relevant agencies correctly identifies these as key issues which require improvement and reform.


Yet only the education sector has a statutory obligation in relation to the provision outlined in the Plan. More explicit links to health and social care sectors, within legislation, need to be made to ensure that all provision identified as necessary to support a child’s needs is put into place. There is a danger that the Plan will be little different from the existing system where a child has no entitlement to the health and care provisions within a statement, only to the educational support identified. This could negate the entitlement of children and young people with SEN to therapies such as speech and language therapy, which could be regarded in a Plan as medical/health rather than educational provision.


ATL is concerned that the SEN reforms are being introduced at a time of many education sector changes, including to funding arrangements, and of large budget cuts in the public sector. These cuts have reduced capacity across education, health and social care sectors, leading to loss of expertise and staffing in local areas. This, alongside the diminution of the LA model, has reduced what has been a strong source of support for schools and colleges. Furthermore, schools have lost a significant number of support staff. The role of key worker is welcome but with fewer Educational Psychologists, reduced social care teams and fewer support staff on the ground, the role will make up for shortfalls elsewhere rather than bringing something new and vital to the table.


As well as the agencies concerned suffering this lack of capacity, there remain the historical multi-agency issues of competing priorities, different eligibility criteria, different assessment processes, different care/support pathways, different terminology and professional language, even incompatible IT systems. The variation in statutory responsibility across the relevant agencies does nothing to address these issues.


ATL welcomes the focus on transition across phases and particularly the emphasis on transition to adulthood and employment. However, the provisions do not address the practical or cultural implications of this which makes it of particular concern that none of the pathfinder areas are focusing strongly on this. Our members are concerned that the difficulties associated with the current arrangements for transition are not addressed and therefore, may continue.

10. ATL is concerned that the focus of service provision on those who currently have statements will reduce the support for many children and young people on ‘School Action’ or ‘School Action Plus’ programmes. This concern is exacerbated by the lack of detail available on the criteria to be used in the revised single assessment. We believe that a narrow model is simplistic and serves a funding cuts agenda. 11. Will the provisions succeed in cutting red tape and delays in giving early specialist support for children and young people with SEN and/or disabilities? The Pathfinders do not seem to suggest that the provisions will succeed in cutting red tape and delays; their first report finds no lack of desire from the professionals for ATL Submission on proposed SEN reforms


joint working but it is clear that they are hindered by lack of resources and capacity. In terms of impact on bureaucracy, the pathfinder initiative has not resulted in one joined up process but rather has brought together the different processes. This is hardly surprising considering the complexity of the different assessment processes but is concerning in terms of this further level of bureaucracy and doubtful whether there is any positive impact on the users’ experience, particularly in terms of waiting times and difficulty in navigating the system. 12. In relation to provision for young adults, our members are concerned that the complex funding arrangements that are planned to be in place by 2013 will increase the bureaucracy and red tape associated with provision for learners. The fact that there will be three elements of funding for some learners, two from the Education Funding Agency and one from local authorities, is unduly complex. Many providers support young people from a number of local authorities. The requirement to develop relationships with several local authorities, care providers and health agencies rather than a single funding agency will impose a significant additional burden on providers. 13. What will be the cost? This question is a particularly complex one at a time of big changes in funding across the school and FE sectors. The allocation of Dedicated Schools Grant through the Schools Block, Early Years Block and High Needs Block (not ring-fenced), changes to deprivation indices and related funding, the introduction of the place-plus model, changes to delegated funding for alternative provision, proposals for a new DfE grant to replace the local authority central spend equivalent grant (LACSEG) and the introduction of personal budgets for parents of children with SEN present an overwhelming challenge for local authorities, schools and colleges to deliver. And yet they must not only deliver services, but these services are expected to improve the offer for children and young people with SEN in the context of reduced public funding. 14. If the aims of the reforms are realised, it has the potential to result in a more streamlined service which should produce cost savings. However, the pathfinders indicate that a seamless merging of assessment processes is unlikely and we are unclear as to the financial contribution from the health and care sectors. 15. Our members working in post-16 institutions welcome the improved arrangements for managing transition. Current arrangements and the use of Learning Difficulty Assessments are often unsatisfactory and involve learners, their parents and education providers in difficult and complex transition processes. ATL welcomes a single system up to the age of 25. 16. What impact will the draft Bill have on current institutional structures? The Bill will impact on the joint working aspect but the lack of statutory requirement relating to sectors other than education weaken the positive impact it could have. Capacity is also an issue here; lack of capacity requires yet impedes changes in working as those working in each sector have to focus their efforts on meeting growing demands with ever-dwindling resources. 17. The local authority having responsibility for SEN across its area while academies, free schools and FE colleges are not within its model is challenging and will necessitate a clear definition of roles at LA level and across relevant agencies with appropriate training to ensure proper level of knowledge and understanding in relation to the assessment, planning and delivery processes. 18. For colleges and other providers recruiting learners from a range of local authorities and health agencies there will be a significant increase in staffing costs to manage the new arrangements. Each local authority is likely to manage processes in different ATL Submission on proposed SEN reforms


ways and ATL is concerned that some providers will find the complexity of working with several local authorities a significant additional burden. 19. What transitional arrangements should be put in place in moving from the existing system? Transitional and future arrangements must be supported by sufficient funding and the use of funding models and approaches which are based on professional evidence of what works. Pathfinders should have sufficient time to explore the range of reforms proposed and to have a longer time to judge the deliverability of proposals and their likely impact in order to inform plans for roll-out. 20. We welcome the focus on improving transition to employment or supported employment. For this to work, there will need to be cultural change in all of the agencies supporting young adults with learning difficulties and disabilities and employers need to be encouraged and, perhaps, incentivised to recruit these young people. There is also a strong need to recognise the value of supported employment. Education providers cannot address this issue on their own. The government should lead a programme to bring about a substantial increase in the employment (including supported employment) of young adults with LDD in each of the public and private sectors. This must involve investment in training for staff working with learners making the transition from school or college to work. 21. What can be learned from the current pilot schemes and how can these lessons be applied to the provisions of the draft Bill? The recent Pathfinders’ report highlight capacity as one of the key issues; at a time when maintaining current levels of service is increasingly difficult, introduction of significant changes to the SEN system is highly challenging. Furthermore, it is vital that all of the key areas of change are included within the pathfinders; currently the transition to FE requires a stronger focus. 22. The pilot schemes are finding funding aspects highly challenging, particularly the personal budgets. This is likely to become more difficult within the larger funding context and raises a note of caution around the timing of large-scale reforms. For post-16 providers we are concerned that too little can be gleaned from the pilots. Major changes to funding arrangements are being made from 2013 and, in the case of SEN, the new funding arrangements remain complex with high needs funding passing to local authorities. Unless there are proper trials in relation to the new funding arrangements, we fear that things will go wrong and the quality of service for some learners will be at risk. One risk is that there will be an increase in appeals and tribunal cases if parents and carers do not feel that they are able to access appropriate provision. 23. Is there anything missing from the draft Bill? There is a lack of information about the new single school-based category and the criteria against which learner needs will be assessed. It would be useful to have more clarity on ‘personalisation’, particularly in context of the personal budgets and how they might work. 24. Whether it would be appropriate to move away from “special educational needs” and use the term “learning difficulties and/or disabilities” instead in the new system? Some revisiting of the definition around special educational needs would be useful, in terms of clarity, fitness for purpose and standardisation across sectors. ATL is concerned that whichever language is used, it reflects the needs of children and young people with SEN and that it is clearly understood amongst users.

ATL Submission on proposed SEN reforms


25. How the general duties on local authorities to identify and have responsibility for children and young people in their area who have or may have special educational needs (clauses 3 and 4) work with the specific duties in other provisions (clauses 5-11, 16, and 17-24)? Are they sufficiently coherent? Clause 5: There should be statutory duties on Health and Care to deliver what is in the EHCP. 26. Clause 11 on the local offer needs to be clearer on the tiers of support: what is expected to be included in mainstream provision; what additionally from the £6,000 ALS; and what support should be requested from the high needs block from the local authority. 27. Clause 11 also includes arrangements for transport; this needs to be clarified as primary legislation in this area is weak. Currently there is variability both between and within local authorities, where a Plan can recommend specific provision but the local authority’s own transport policy does not support it. 28. Should the scope of the integrated provision requirement be extended to all children and young people, including those with special educational needs? While excellent in principle, this could be difficult to implement due to limited capacity and resources. If the Bill could deliver a holistic system of services with fluent cooperation, clear guidelines and shared responsibility (reflected in equal statutory responsibility across the agencies), then this aim would achievable. Currently, agencies struggle to achieve this in response to individual cases of need, indicating the level of change required. This is unlikely to happen within a context where most of the agencies involved are struggling with cuts, significant losses in staff numbers and a growing diversity in the types of educational institutions. In the current context, it seems sensible to start with where the need is highest, whilst bearing in mind that whether or not a child or young person has an EHCP can depend on local authority policy rather than level of need. 29. Should other types of schools and institutions be included in the duty on schools to admit a child with an education, health and care plan naming the school as the school to be attended by the child? This already includes all state-maintained schools; free schools, academies, FE colleges, which ATL welcomes. The duty on colleges should coincide with their full involvement in transition planning which should be achieved through the duty on the local authority to cooperate with institutions including FE and Sixth Form Colleges. 30. The situation regarding Independent Specialist Colleges where there is currently no duty to name or to admit needs to be resolved. If a legal definition is at the bottom of this, then ‘in receipt of funding from the EFA’ could be added to clarify that they are state funded. 31. Do the provisions for 19-25 year olds provide a suitable balance between rights, protections and flexibility? We are concerned that there is a lack of clarity in the draft legislation about local authorities’ responsibility to maintain an assessment for someone over the age of 18. It would be better to frame the legislation in terms of the individual learners’ rights; i.e. any learner with an EHCP should have the right for that to be maintained, if they so wish, until he or she reaches the age of 25. Any other approach provides a recipe for conflict. 32. The planned arrangements with elements of funding being provided through local authorities and other elements through BIS and the Education Funding Agency are unsatisfactory. This is particularly so where there are differences between the ATL Submission on proposed SEN reforms


DFE/EFA and BIS/SFA in relation to the funding that is available and the funding rates at which provision can be made. 33. Do the provisions achieve the aim of integrated planning and assessment across the agencies? No, the pathfinders show that planning and assessments are not being integrated but brought together at a final stage. New statutory duties on health and care services to deliver what is set out in an EHCP are needed. 34. How could the power given to the Secretary of State to make regulations with regard to the practicalities of the assessment and planning process be best utilised to achieve the aim of integrated support? There needs to be statutory inclusion across the agencies. 35. What impact will the new powers provided for in the clauses have on young people’s transition into adult services? The transition to adult social services at 18 currently causes difficulties for individuals and for education providers, including colleges. What is proposed has the potential to bring about improvements in comparison to the current very variable situation. However the whole area of 18-25 needs much more clarification than currently exists in the draft legislation, in particular in relation to the responsibility of health agencies and social care providers to make continuing arrangements to enable young people to access education and training. 36. How could the provisions in the Bill be used to reinforce protections for young people with special educational needs who are in custody and who are leaving custody? It is important that young people with learning difficulties and disabilities who are in custody are able to access education and training so that they have a stronger chance of living independently once they are out of custody. It is therefore appropriate that, so far as possible, an EHCP should continue to operate when young people are detained. 37. In conclusion Reform to the current SEN system is necessary: the Lamb review highlighted parental dissatisfaction; early identification of SEN is not what it should be; the system is bedevilled by long delays; and education, health and care agencies struggle to manage their differing and, at times, conflicting priorities to ensure suitable provision for children and young people with SEN. 38. However, ATL is concerned that the measures only address these issues superficially, the most striking example of which is the emphasis on across-sectoral joint working while education is the only ‘partner’ to have a statutory obligation around provision. Schools and local authorities will do their utmost to ensure a quality offer for pupils with SEN and their families but they cannot meet this challenge alone, and these measures fail to ensure that they do not have to.

ATL Submission on proposed SEN reforms


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