Amelia Wallington reflects, on the basis of her own work as a solicitor working in the field of education law, on recent debates about the SEN framework and whether or not it is helping children, parents, or professionals. Her call for legislative change adds weight to the view that the government is wrong to think that the framework can continue to provide an effective means of meeting children’s special educational needs.

The current statutory framework for SEN was founded over two decades ago with the implementation of the Education Act 1981 (‘the Act’). This acknowledged that all children are not the same and that some may require different educational provision. The Act also introduced the concept of statements to ‘protect’ the interests of children with SEN, and an obligation on local authorities, where statements are maintained, to work in partnership with schools to ensure that the support specified in a statement is provided to a child. Under the statutory framework, resources may be distributed on a whole-school basis. However, there must be arrangements in place to ensure that provision is made even where the relevant budget is delegated.

Policy and practice In practice, there are a number of ways in which SEN funding is delegated to mainstream schools. In some LEAs it is expected that a proportion of normal school funding (age-weighted pupil units) will be spent on this area. Most LEAs also have a ‘SEN/AEN’ factor in the funding formula that enables them to provide greater funds to schools with high numbers of pupils with SEN. There is also ‘pupil-led’ funding, both for statemented and non-statemented pupils.

Delegated funding for SEN was encouraged by the Audit Commission report Statutory Assessment and Statements of Special Educational Need: in Need of Review? (June 2002) which highlighted the inherent tensions created by the statutory framework, stating that ‘statutory assessment is a costly and bureaucratic process, which many parents find stressful and alienating. Statements often provide little assurance to parents, lead to an inequitable distribution of resources and may provide resources to schools in a way that fails to support inclusive practice.’

One month later, Ofsted and the Audit Commission concluded in LEA Strategy for the Inclusion of Pupils with SEN that ‘the principal continuing reason for insistence on a statement is lack of confidence, particularly on the part of parents that, without the protection it provides, the provision that is needed will be made.’ This parental lack of confidence has been evident to me as a lawyer involved in defending a significant number of ‘failure to educate’ claims brought against local authorities.

‘Arguably, the statutory framework no longer sits comfortably with current practice as it does not take into account the reduction in practice of reliance on statements or changes in SEN funding’

In such cases, the root of the legal action was often a perceived negligent failure by an LEA to provide a statement to a pupil with learning difficulties, despite the fact that in many instances the appropriate level of support was being delivered to the child through a different mechanism and without the bureaucracy of the statementing process.

Tensions and dilemmas in current practice More recently, in the last five years, there has been a considerable move towards the granting of autonomy to individual mainstream schools through greater delegation of funds to enable schools to invest in developing their skills and capacity to accommodate a wider range of pupils. This approach to funding is, of course, consistent with the current inclusion agenda. By delegating a greater share of SEN budget to schools, the government has hoped that LEAs and schools would be able to build on their capacity to meet a wider range of SEN and thereby develop assurances for parents leading to increased confidence in the educational arrange-ments provided for their children. The government’s response to the afore-mentioned Audit Commission Report, Removing Barriers to Achievement has set out further proposals to enable mainstream schools to facilitate even greater inclusion. In effect, these proposals would lead to a less time-consuming and bureaucratic process with a decreased dependency on statements, these only being required for a much smaller group of pupils, typically those with severe complex needs.

It was anticipated that this approach could be successfully achieved within the existing statutory framework. However, given that problems with the legislative scheme were recognised by the Audit Commission as long ago as June 2002, it was surprising that the government chose not to seize the opportunity to review the law with the publication of Removing Barriers to Achievement.

Arguably, the statutory framework no longer sits comfortably with current practice as it does not take into account the reduction in practice of reliance on statements (the cornerstone of the legislative scheme) or changes in SEN funding. Furthermore, reflecting on other policy developments, it is difficult to see how under the Children Act 2004, LEAs, now part of children’s services authorities can work effectively with partner agencies to achieve holistic solutions to children’s needs whilst the constraints of the statutory framework and threat of statutory appeals remain in place.

A system in need of repair That there are cracks in the current system of providing for and funding SEN is beginning to be openly acknowledged. Firstly, there is concern among some educational professionals that, in the process of delegating funds, LEAs are effectively operating blanket policies to issue statements which do not specify provision clearly and in detail or fail to quantify provision at all. This is clearly illegal and contrary to the intention of the statutory framework. LEAs are not able to specify educational provision in a statement by reference solely to a particular band of funding from their local system of calculating funding, by reference to a sum of money or by leaving it solely to schools’ discretion to decide what provision should be made for a child. As confirmed by the SEN Toolkit, published in 2001 alongside the Code of Practice, the only circumstances in which it may be appropriate for a statement to provide schools with flexibility and scope as to how they use resources is where, for example, provision may differ depending on the particular setting in which the child is to be taught, or where it is appropriate to specify the hours of learning support for a child to be shared with a number of children with similar needs. However, a statement must leave no room for doubt as to what is provided to the individual pupil, how it is to be provided and for what purpose.

Secondly, Ofsted have recently published Inclusion: the Impact of LEA Support and Outreach Services (July 2005, see p5 of this month’s SENCO Update) which highlights a number of shortcomings with regard to the delegated funding system. The report reviews the quality of external SEN support for schools. Its findings are based on inspections in 2003/04 and visits to six LEAs. It concludes that the quality of services available to schools varied considerably and that this was in part due to the fact that LEAs choose, in consultation with schools, whether or not funding for support services is delegated. The report considered that where funds were delegated it enabled schools greater flexibility giving them the option to buy services or use the money in a variety of different ways.

However, it also outlines a number of problems with the delegation of funds in this area, including a negative effect on the provision for some pupils with SEN – where the capacity of LEAs to monitor the progress of pupils with SEN was diminished, and the range and quality of staff available to provide support and advice was inevitably reduced as money had been used for other purposes. It also reduced LEAs’ capacity to provide targeted support for school improvement where the standards achieved by pupils with SEN were too low. Traditionally statements have set out a pupil’s entitlement to specialist support services but, with delegated funds, the system effectively relies upon schools to identify problems and recognise that there are other services available to help support certain pupils more effectively.

Review and reform In light of the above, Baroness Warnock’s call for a review of the present system of assessment and statementing and a rethink of the concept of SEN is timely. In Special Educational Needs: a New Look Baroness Warnock is critical of delegated funding for SEN which she describes as: ‘stripping LEAs of what was their most valuable function… to hold in view the requirements of the whole of their area and to coordinate and share activities and services between different schools in that area…’

Among other things, she considers that the profligacy of time and money in the current system coupled with its tendency to antagonise parents will not be remedied until central government can consider again what statements are supposed to be for. She also calls for the concept of inclusion to be reconsidered for whilst it remains a ‘worthy ideal’, the desire to deliver education to pupils of all abilities in the same institution and thereby treat them the same has been taken too far to the detriment of some children.

‘Among other things the profligacy of time and money in the current system coupled with its tendency to antagonise parents will not be remedied until central government can consider again what statements are supposed to be for’

Against this background, it is unfortunate that the government was not more radical in its approach and did not consider a review of the statutory framework and changes to the same in response to the 2002 Audit Commission reports. Removing Barriers to Achievement strives to further embed SEN in mainstream policy and practice. Yet it is difficult to see how this can now be achieved without a critical review of and change to the legislative scheme itself. The statutory framework is not compatible with current thinking on effective and equitable funding of SEN at school level. Furthermore, the current system continues to promote parental expectation that a statement is the only avenue through which to access appropriate SEN provision, a perception which is often the catalyst for legal challenges by way of statutory appeal or judicial review. A reduction in such legal challenges could therefore also be a further benefit to a review of the statutory framework. Amelia Wallington, solicitor, Browne Jacobson LLP Tel: 0115 9766583

Email: [email protected]

Provision passports: the role of statements of special educational need

In reviewing the value of statements, Mary Warnock does not argue for their abolition. 1 However, she does not see them as being a helpful means of securing appropriate mainstream provision for children and young people with special educational needs. 2 Instead, she thinks that they could be used to secure access to specialist provision for pupils with more complex needs (although she does not discuss the difficulties in defining these needs), linking these to what she considers to be a reconceptualisation of inclusion:

‘The policy of issuing statements of special educational need for certain pupils, while it may ensure for some a place at a special school, seems to have had little or no effect on those children who remain at maintained schools. In the case of such pupils, there is no evidence that the statement serves as a ‘safety net’. If the issuing of a statement for a child were to be used as a passport to an appropriate special school there would be some purpose to be served by it. But this, of course, would be contrary to the policy of inclusion. It is time now to consider that policy itself.’ (p38)

Whether such a policy review takes place remains to be seen, but both the government and opposition parties are, albeit for different reasons, reflecting on the idea of inclusive education and what this actually means within the context of English educational policy that is multi-faceted and influenced – particularly in the summer heat surrounding examination results – by concepts of exclusivity.

Notes 1. Special Educational Needs: A New Look (Impact Pamphlet 11) by Mary Warnock, published by the Philosophy of Education Society of Great Britain.

2. It is worth noting that the vast majority of pupils with statements of special educational needs attend mainstream schools.