Responding to the Government’s SEND Review

The Government education consultation on “Improving outcomes for children and young people with SEND and those in alternative provision” ended on 22nd July 2022.

Various proposals were set out in a green paper with parent and carers, local and national system leaders and those who work with the SEND and education sector encouraged to respond.

As an organisation which represents many families and individuals with regards to their special educational needs we’ve responded to the consultation.

We have provided a detailed response to the government consultation and here we share some of our views on the proposals:

Placements

The selection of placements can be an overwhelming process for parents and young people. The creation of a tailored list of placements may assist in guiding them in this process; however, offering only a limited selection of placements to a parent or young person does not promote transparency or ensure that an informed choice can be made. All children/ young people are different; therefore setting a defined list of placements is too restrictive and fails to put the individual child/ young person at the centre of decision making.

SEND Tribunals and Remedies

Current remedies available to SEND Tribunals are not effective in putting children and young people’s education back on track. The Tribunal does not have powers to award compensation. There is a unique (and in our submission discriminatory) statutory bar in paragraph 5(b) of Schedule 17 to the Equality Act 2010 which prevents the Tribunal from awarding damages in disability discrimination claims against schools.

Often discriminatory acts cause some form of emotional or psychological harm and if a child/young person has been permanently excluded, for example, parents may not want their child to return to that school, meaning any Order about school improvements will have very little impact on the child directly. An apology may go some to way to helping alleviate the child’s feelings though.

Whilst compensation would not necessarily put the child back in the position they were in before the discrimination occurred, it may go some way to recouping legal costs that parents have incurred in bringing a claim or providing therapies for the child to help them recover from the emotional / psychological harm.

Alternative Provision

The consultation recognises that AP  is  subject to volatile funding, which fluctuates due to unpredictable pupil movements, and this in turn creates an incentive to support children and young people (CYPs) only once needs have escalated, rather than providing early intervention. We agree with this. From our experience of working with families of CYPs who are out of school, often it

seems that early intervention wasn’t taken whilst the child was in school to try and meet their needs/help them transition to an appropriate setting before they were either excluded or refused to attend school due to unmet needs leading to anxiety or school-related trauma. AP has an important but limited role where children’s needs prevent them from attending mainstream schools; however, it cannot be an alternative to properly assessing and meeting CYPs needs and/or special schools.

Summary

 We’re concerned that references to new national standards has the potential to seek to reform the current legal framework and dilute the rights of children/ young people with SEND and their families. Any reforms should focus on helping local authorities to meet their existing obligations rather than amending them, as we believe the current statutory framework adequately sets out their legal duties.

In general the emphasis of the green paper appears to be misguided. The focus, in our view, should instead be on ensuring that schools, local authorities and those professionals commissioned by local authorities to assess SEN (e.g. educational psychologists) are properly resourced and trained to ensure that they understand their legal duties to children who have or may have a variety of different SEN under the Children and Families Act 2014, which does not appear to be the case in many local authority areas at present.

Click here for more information on our expert Special Educational Needs (SEN) team.