Has increased SEN delegated funding led to fewer statements? Roger Inman looks at the friction between the law and new ways of providing for learning difficulties in the mainstream

The law on assessment and statementing has changed very little since 1981. Local authorities (LAs) should identify, assess and, where necessary, provide statements for pupils with the most severe learning difficulties.

The theory

Once a statement has been issued, the LA has a clear and non-delegable duty under the Education Act 1996 to arrange the provision in that statement — even if the pupil’s school fails to do so. Parents have a right to be involved in arrangement of provision, and LAs have the chief responsibility for dialogue with parents over the entitlement.

The reality

But many schools have seen LAs introduce extensions to their schemes for delegating SEN funding and responsibilities. These schemes:

  • aim to delegate as much of the SEN budget to schools as possible to give schools more flexibility in making SEN provision
  • result in fewer statements and less detail on provision in the statements that do exist
  • shift responsibility for managing parental expectations to schools. In practice parents lose their rights to dialogue with LAs, and appeal to the special educational needs and disability tribunal (SENDIST)

There has also been a decrease in special school places, so that maintained schools admit more children with more severe SEN, and see fewer statements.

The key consequence for schools is that more borderline children with SEN who would have had statements in the past are admitted through the ordinary admission process — with no obligation on local authorities to consult schools as part of the statementing process.

As we shall see, where a pupil has no statement, or a statement with inadequate specification of provision in Part 3, schools may not get sufficient funding under SEN funding arrangements.

Why is this happening?

Since Removing Barriers to Achievement in 2004, there has been a longstanding DCSF agenda to delegate SEN responsibilities to schools and reduce the number of statements.

In particular, guidance has been published on The Management of SEN Expenditure in which the DCSF recommends that local authorities:

  • delegate SEN resources to mainstream schools
  • develop a funding formula to allocate resources for most pupils with SEN
  • develop arrangements to distribute additional resources for pupils with the most severe and complex SEN
  • work with schools and other stakeholders to ensure that responsibilities are clear, and to build parental confidence
  • ensure that provision can be delivered, particularly where statements are maintained

The issue for individual schools is whether their LA is adequately carrying out these recommendations.

One size fits all?

LAs have taken various approaches to increased delegation of funding and responsibilities to schools.
The starting point is increased distribution of SEN funding via ‘proxy indicators’ — based on school population, general (non-SEN-specific) pupil attainment, free school meals and the index of multiple deprivation.

Uneven budget distribution When used in simplified form, these indicators result in uneven SEN budget distributions. Schools with less deprived intake, but many pupils with SEN, have had significant budget deficits. Use of these formulae send a message that statements are pointless because no further funding will follow.

Northumberland introduced a system where, with narrow exceptions, SEN funding was distributed through proxy indicators. As a result, 55 schools sustained funding deficits in the first year of the 2006-07 funding scheme.

The schools complained to the DCSF, and threatened legal action, so Northumberland hired Capita Strategic Children’s Services to review and amend the operation of their ‘proxy indicators’ — but significant inequalities remain.

Where the conflict lies
Most new delegated funding schemes have involved distribution through funding formulae, and additional funding based on assessment of individual children, to carry out the DCSF’s recommendation that they ‘develop arrangements to distribute additional resources for pupils with the most severe and complex SEN’.

This is where these schemes become entangled with the existing assessment and statementing law — and where local authorities stray into arguably unlawful policy and practice.

Riding two horses at once

In designing their arrangements to distribute resources for pupils with the most severe SEN, most local authorities try to avoid assessment and statementing, largely through obliging schools to assess their own pupils (‘audit’); or through grouping local schools to decide which pupils should get funding.

The key concept behind delegated funding is that the greater mainstream schools’ resources, the wider the special educational provision that they can provide without LA involvement through a statement.

Difficult to fit with the law
It is difficult to make this fit with assessment and statementing law. See box, below.

Duty to carry out statutory assessment

A local authority has no duty to carry out a statutory assessment unless a child ‘probably has SEN’, which also ‘probably requires the LA to determine special educational provision (SEP)’.

We must consider these two requirements separately:

1. Probably has SEN: as more money is delegated to schools, the expectation is that the range of SEP available at schools will expand.

For a child to have SEN, s/he must have ‘learning difficulties’ and need special educational provision, which is, for children over two, educational provision
that is additional to, or otherwise different from, the educational provision made generally for children of that age in local authority  schools (other than special schools).

Having delegated all, or nearly all, of their SEN funding to schools, local authorities will argue that most ‘special’ educational provision is not technically ‘special’ any more — so, fewer children with learning difficulties have special educational needs.

2. Probably requires the LA to determine SEP: The SEN code of practice says that a child requires a statement when s/he needs resources beyond those available to maintained mainstream schools ‘in the context of school-based intervention, monitoring and review arrangements’.

But in reality, many LAs are saying that a statement is not necessary because they are providing other ‘exceptional’ methods for distributing SEN funding to schools for children with a level of SEN that, until recently, would certainly have been covered by a statement.

These ‘exceptional’ methods often only concern teaching assistant hours. LAs frequently still control the provision of therapies and specialist teaching. If so, a statement should be provided, on the grounds that it is still ‘necessary’ for the LA to determine SEP for the individual child.

No detail in statement

Where statements continue to exist, there is frequently no detail of what should be delivered in Part 3; or Part 3 does specify (in particular teaching assistant hours) but then says that most of those hours must be met from general delegated funding. These thresholds are increasingly at a high level (e.g. 20 hours per week in both Hertfordshire and Greenwich).
A key justification for reducing use of statements is that they are over-bureaucratic and delay funding. But for schools not getting sufficient funding through general SEN funding formulae, a properly quantified statement is vital.

LAs are, in this way reducing the practical effect of the absolute obligation they have — to ‘arrange’  (i.e. fund) SEP under a statement.

Parents and the court

Meanwhile, as far as parents and the courts are concerned, the full assessment and statementing system continues. LAs that have embraced new delegated funding schemes must operate them
beside traditional assessment and statementing for parents who claim those rights for their children — and  if necessary, exercise their rights in the SENDIST, whose decisions are binding on LAs, schools and parents.

The code of practice says: ‘Provision should normally be quantified (e.g. in terms of hours or provision, staffing arrangements)’. The SENDIST orders routinely specific quantification of provision in Part 3 of the statements.

Reduced rights for parents?

This riding of two horses at once means that some children receive traditional, fully-quantified statements in a system where the LA has limited mechanisms in its SEN funding scheme for delivering additional funding to the school for this pupil.

  • Parents are often left confused as to whether the LA or the school decides on SEP for their child.
  • The other consequence for parents of a system without statements is a significant reduction in their rights. Without a statement they cannot expect any real participation by the LA in their child’s life at school and oblige the LA to arrange provision under their child’s statement.

Their only recourse is to try and take the school to task on the weaker ground that the governors are not using their ‘best endeavours’ to secure their child’s SEP (Under s317(a) Education Act 1996).

  • Without assessment and statementing, parents also have no right to annual review by the LA or any right of appeal to SENDIST.

These changes mean that parents of children with the most severe SEN (and requiring the most sustained attention) are now looking to schools rather than LAs for answers.

Disability equality — a new way of looking at SEN?

Another area of the law that is becoming increasingly important for children with learning difficulties is disability equality (and discrimination). Seven per cent of school pupils have identified disabilities.

This compares with 20 per cent of general population, and is probably a gross underestimate. Schools are advised to assume that most children with SEN also have disabilities for the purposes of disability law.

The distinction
Disability law in education has been grafted onto special needs law in a botched job, complicated further by recent court decisions. The easiest way to understand the distinction is:

  • SEN is delivering extra resources in form of auxiliary aids and services (SEP), ensuring access to curriculum.
  • disability equality uses existing resources to ensure access to ‘education and associated services’,

i.e. ‘all activities covering the life of the school’, with fair admissions and exclusions. Auxiliary aids and services are usually not required for disability equality. Additional resources may be needed if ‘reasonable’, and not available via SEP.

Parental challenges

But in the absence of SEN rights, we can expect more parental challenges under disability law. A recent case, R (K) v SENDIST and Governing Body of Slough Grammar School, was brought entirely under disability law.

This concerned a child with severe difficulties in accessing the curriculum. He was paraplegic and doubly incontinent requiring frequent changing. The Court of Appeal said that provision to meet incontinence could be auxiliary aids and services (SEP) or education and associated services (under disability law).

It said that the school was justified in discriminating against the child by refusing to change him on health and safety grounds after a member of staff severely injured her back lifting him.

The judges said that the SEN duty owed to the child by his LA should have been harnessed by his mother and the school: ‘Responsibility for providing the additional facilities required to change and clean [the child] lay with the LEA. The school’s duty was to put the SSEN [statement] into effect. It was unable to do so, and the only effective way of securing the necessary facilities was to amend the SSEN’.

What this means in practice

When provision could fall under either SEN or disability law,
schools should ensure disability equality for pupils with learning difficulties when reasonable adjustments can be made, but otherwise can expect the LA to help through a SEN statement.

But in LAs where the statementing regime is largely no longer available, schools will find LAs reluctant to take responsibility in this way.

Schools should link their SEN and disability equality systems, work with parents to explain what provision is ‘reasonable’ given the resources, and press the LA to get involved through statementing. If schools can show they acted reasonably within resources their actions are likely to be justified in equality law.

The price of freedom

Schools must get used to fewer statements and more delegated funding and responsibility for SEN. This brings freedom but until the law is brought into line with LA practice, schools must provide for some pupils through statements but operate more independently with delegated SEN budgets.
With freedom will come scrutiny. The DCSF is to introduce more sophisticated budgetary tools to allow detailed reporting by schools on how SEN funding is spent.

Find out more

Roger Inman is a partner at Stone King LLP

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