Thursday, 17 April 2014

The draft SEN & Disability Code of Practice

For parents and young people this Code is the most important document of the three formal layers of the new system. It should lay out the whole of the new process in one easy to read and understandable document. A public consultation on some of the draft Regulations and version of the Code of Practice was held at the end of 2013. However this was before the was finalised. The legislation changed quite radically during the Parliamentary process.

Now that a revised draft of the Code has (finally) been published, what should we all be looking for? IPSEA have identified a number of 'red lights' - issues which, if not addressed, would mean that the Code is unworkable and not fit for purpose. If any one of these 'red lights' are triggered then the whole process should be stopped until successfully resolved.

Red light 1: Legal duties must be made clear and must be correctly quoted

The draft Code contained many inconsistencies and errors in its interpretation of vital sections of the law. Examples include:
  • The legal thresholds – tests – an LA needs to apply when making decisions must be correct. For example when considering whether a child or young person should have a Statutory Assessment of their needs carried out, or when an LA should issue an EHC Plan for a child or young person.
  • The duty on an LA to provide support to families and young people in the SEN system was described inconsistently in many different sections – “advice and information” in some places then “advice, information and support” in others. This leaves questions as to whether an LA must provide support in, say, making appeals to the SEND Tribunal.
  • The draft Code wrongly stated that you can make a claim of disability discrimination against an LA to the SEND Tribunal. You can’t. Such a claim has to be made to the county court. 
Such fundamental errors do not instill confidence that the guidance being given is correct.

What needs to happen:

The draft Code needs careful legal checking so that those who will have to abide by it can help the Government to identify areas that are still unclear or wrong.

Parents and young people also need to be encouraged to give their view as to whether the new system that the Code outlines makes sense - can they are able to see how the pieces fit together to provide good, consistent support?

Red light 2: Mental capacity

The Children and Families Act 2014 transfers parental rights to young people at the age of 16 years old. Parents will no longer have an automatic right to be involved in decision-making about their child or be able to challenge decisions made by an LA through the SEND tribunal. However the age up to which parents are responsible for their child remains 18 years old.

The potential for conflict created between LAs, schools/ post 16 institutions, parents and young people between the age of 16 to 18 years old is very high. The Code needs to provide clear guidance on what should happen to avoid this for children and their families during these two years. The public draft of the Code skirted over the issue and advised LAs to resolve any conflict by prioritising the views of the young people. This guidance does not address the issue of parental responsibility.

The Code should also give clear guidance on the role of parents for young people over the age of 18 years old up to the age of 25 years old where they may not have mental capacity to make decisions for themselves.

Nothing was included in the public draft of the Code as to the test for establishing whether a young person has mental capacity or who should apply it and how.

Guidance in the Code should make very clear that parents should automatically be presumed to be the advocate for their child if it is established that they do not have mental capacity to make decisions for themselves. In any event, it should be made clear that parents should always be central to decision-making, be kept informed by LAs and their views given due regard. Only in exceptional circumstances should they not be involved in the process and their views not take precedence over professional views.

It needs to be clear that LAs need to be transparent in such decision making. How will they be held accountable? At the time of the first consultation on the Code, the draft regulations on mental capacity had not been issued. Consultation responses relating to mental capacity as an issue in the Code were very limited as many parents’ groups were just not aware it was a potential issue. This meant that mental capacity issues were not been adequately addressed. There still has not been any public consultation at all on the Mental Capacity Regulations or the new wording proposed for the Code. This is an important and complex legal area, which is therefore complex in practice. It affects our most vulnerable young people. It is therefore important that all those living, working with or advising in relation to these issues have the opportunity to contribute to these discussions and draft wording can only be considered fully when it is seen in the context of the whole draft Code.

What needs to happen:

Mental Capacity is a burning issue for individual parents and should be of major concern to those groups representing the views of children and young people. This issue is so fundamental that it needs careful addressing.

Is the wording right now?

Red light 3: School accountability

The duties on schools to identify a child’s SEN and put into place support to meet those needs are still unclear. According to the Department for Education (DfE) statistics released in October 2013, 1.3 million children will have their needs met only from within schools’ or colleges’ resources - without having a formal Statutory Assessment of needs and an EHC plan issued for them.

The first draft of the Code laid out a single category to replace the existing two stages of school support – currently called school action and school action plus – to be called “SEN Support”. However it was confused and inadequate with regard to how "SEN Support" should be put into practice.

The Minister, Ed Timpson, recently used the phrase “Freedom within a framework” to describe the Government’s approach to issuing Guidance to schools. However the framework is not sufficiently clear in relation to what parents can expect from class teachers, SENcos, school based provision and LA intervention. The result is in fact “freedom to fail”. Schools and parents need to know:
  • When does differentiation of the curriculum tip into SEN provision?
  • What will the new cycle of planning (Assess, Plan, Do, Review) look like in practice for a child? Is it a formal cycle or an informal process of trial and error? How will it be documented, if at all?
  • What interaction can parents expect by way of meetings, verbal or written information about the interventions that have been put in place to support their child, outcomes expected and progress being made? As drafted, this is limited to an initial “note” on a school record of a school and parent meeting to discuss a child being put on the SEN register.
  • When should a school request and then an LA intervene with an EHC Plan needs assessment? What or who triggers it on the basis of what criteria? Where will they access this information?
There needs to be a clear process, based on the legislation, that everyone understands - right from initial teacher training on identifying and supporting SEN to the duty on an LA to intervene.


What needs to happen:

The Code needs to be transparent as to the support children and young people should expect to receive if they do not have an EHC Plan in place.

The Code should also give clear guidance on how schools record an individual’s needs, the support put into place, expected outcomes and progress towards them.

There needs to be structure around how schools are accountable to parents and young people.

Does this draft of the Code describe a system that works for everyone that will have to put it into action and those who should benefit from it?


Red light 4: The requirement for specification

Although the first draft of the Code stated the legal requirement that provision written into an EHC Plan is ‘normally quantified’, it did not explain the full extent of the legal requirement for LAs to specify provision in an EHC Plan. This omission alone caused a breakdown in the previous Code’s progress through Parliament back in 2001.

Guidance must make clear that the duty on LAs to specify, means that provision is quantified and qualified. It must be clear to LAs, schools, parents and young people who needs to do what, when, how often and when it should be reviewed.

This is an existing requirement that parents have relied on in dealings with LAs and at Tribunal in order to change vague descriptions of provision into enforceable, specified provision.

Specification is essential if schools and colleges are to be able to determine the correct level of SEN funding that they should be receiving in order to put this provision into place. The need to quantify derives from a clear line of case law and must be included. The Government accepted that the requirement on LAs to specify should remain in the Act - they abandoned the original wording they proposed which sought to change this requirement to one of “setting-out” provision.

The Code needs to reflect this very clearly.

What needs to happen:

The wording of the Code needs to be made very clear. Does it clarify who needs to do what, when, how often and when it should be reviewed?

Red light 5: Right to an inclusive education in a mainstream school or college

The Code needs to contain a full description of the right of children with SEN/D to attend mainstream school. The legal test is that it is an absolute right unless it is incompatible with the wishes of their parents or the provision of efficient education for others.

The latter exception can only be relied on when there are no reasonable steps which could be taken by the LA to prevent this incompatibility.

These exceptions need to be explained clearly in the Code -  just as they are in the current guidance (Inclusive Schooling). Assurances that this would be done were given to Lord Low among others pressing this issue as the C & F Act progressed through Parliament. 

What needs to happen:

The wording in the Code needs to reflect the wider duty on LAs to ensure mainstream school and college places are available to children and young people when they want it except in the most extreme of exceptions.

Current statutory guidance “Inclusive schooling” does this clearly and needs to be used in wording for the Code as it will be withdrawn when the new system is implemented.

Red light 6: Equality

The new Code is no longer just for children and young people with SEN - it  also now includes, in some sections, duties towards those with a disability. The vast majority of children and young people with SEN will also fall under the separate legal definition of being disabled.

However, there will always be a small group who will be identified as being disabled but with no SEN or have SEN but no disability. The interface between equality duties and SEN duties has changed within the new legal framework. Guidance is needed as to how these two parallel areas of law need to be put into practice.

A very current example would be how does the duty on schools to make reasonable adjustments for a disabled child by providing auxiliary aids and services – maybe computer equipment – work practically alongside the duty on an LA to make special educational provision for a child with SEN specified in an EHC Plan?

The first is a duty to provide what is reasonable for that child – potentially restrained by financial considerations – whilst the second is an absolute duty to provide what is specified in the EHC Plan.

The Code needs to make clear the similarities and important legal differences between special educational provision and reasonable adjustments. Failing to address this cross-over of legislation or glossing over these issues will lead to confusion between LAs and schools as to who must do what, when and how. The right support for children and young people will be “lost” during the debate.

These duties towards disabled children and young people were only added after the draft Code was put out for public consultation.


What needs to happen:

The additional duties towards disabled children and young people need to drafted into the Code. All interested groups can then consider and comment on them.


So where does this leave the SEN reforms?

Under the Children & Families Act 2014, the Secretary of State must issue a Code of Practice – it is the final leg of the three legged stool of the new SEN legal framework. Nothing can be implemented without it. Also under the Act he has a clear duty to consult on this Code. Once that has happened then both Houses of Parliament have to approve the Code.

If the Secretary of State has failed to consult on the Code (or the consultation has been inadequate) he risks being judicially challenged. If he consults and then fails to address the issues raised, he risks political challenge.

Either would be a disaster for the current implementation plan of September 2014 - which is already failing to give schools the one clear term promised to them to prepare for new duties. Failing to adequately publicly consult on a Code is far more dangerous for our children and young people with SEN and disabilities.

We are in danger of ending up with a rushed and inadequate Code. Suggestions have been made that the “whole thing” should just be put into place and then a new consultation be held in a year’s time. We would gain the evidence as to where the holes are and new case law could be developed which could then be reflected in a revised Code. Is that not what the £12.4 million given to Pathfinder LAs so far was supposed to have done – gather evidence? The final report on the Pathfinder pilots is not due until September 2014.

This option is just not acceptable. First, this Government cannot bind a potential new Government into such a commitment. Second, why would you even potentially let vulnerable children and young people knowingly fail for at least a year and bad practice be established in LAs, schools and other professionals. Parents would much rather get this right for their children and young people than rush to meet the September 2014 deadline.

Wednesday, 8 January 2014

Are Pathfinder families happier than ever before?

I've just read the press release the Government issued just after Christmas. I'm in a Pathfinder and families I know aren't that happy with the new process. What does IPSEA think?

IPSEA's answer: We read this too. For those that didn’t, on the day after Boxing Day 2013, the Government’s Department for Education (the DfE) issued a press release about the special educational needs (SEN) Pathfinder programme. It said that:

‘Parents trialling the government’s new special educational needs (SEN) reforms are happier than ever with the support available’
Parents within the Pathfinder areas reacted on Twitter with incredulity, some even suggesting that the DfE/their local authorities must have cherry picked parents to arrive at this conclusion.

We immediately asked three questions :

  • What’s the evidence for this ‘happier than ever’ claim?
  • If it’s true, is it sustainable and generalisable after and beyond the Pathfinder areas?
  • Why is the press release talking about feelings, what about real outcomes for children, integration of health and social care with education, or the quality of the Plans versus statements?
Our answers are:
  • The evidence is not there for such a bald assertion.
  • Any positive impacts are probably not sustainable and generalisable.
  • It’s probable that the press release is concentrating on feelings because the evidence for the Pathfinders fulfilling the other Green Paper aspirations just isn’t there.
Please see below for why we came to these conclusions and where we go from here.

What’s the evidence?

The conclusion that families are happier than ever is apparently based on a key finding in the latest evaluation of the Pathfinders, published in October.

There is no finding about ‘happiness’ as such. The evaluation did find a weak positive impact on families’ feelings: ‘between 8 and 17 per cent more Pathfinder families “strongly agreed” with positive statements about the process than comparison families’. To be clear what this means: the researchers questioned two groups of families, the Pathfinder group and a group called the comparison families. There were 237 families in the first group and 226 in the second. It is not clear how the families in these groups were selected and why the survey was not carried out across all the families selected for Pathfinder piloting, over 2,000 across 31 local authorities.

The evidence of positive impact relies on an even smaller number of families. The highest increase in strong agreement with positive statements, 17 per cent, represents 40 families. (To put this in context, in January 2013, there were 229,390 pupils across all schools in England with statements of SEN.) The lowest, 7 per cent, represents 17 families. But families overall still aren’t very happy. For instance, the 17 per cent rise brings families saying they strongly agreed that their views were considered up from 32 per cent in the comparison group to 49 per cent in the Pathfinder group (still a minority then).

The researchers themselves say, ‘While positive, the overall level of change appears modest at this relatively early stage.’

Further, as the comparison is with other families at one point in time, not families over time, we do not think the claim that families are happier ‘than ever’ can be made out unless the DfE has other data it has not disclosed.

The evidence, then, is not there for such a bald assertion.


Is it sustainable and generalisable?

Many charities (including IPSEA) are worried that any positives for families in Pathfinder areas will not be sustainable when the Pathfinder funding ceases, or generalisable to the 121 local authorities outside the programme. The LAs that were selected as Pathfinders all volunteered to be part of the pilot scheme. They have been given substantial resources in the form of additional funding (on average £350,000 each) and specialist support from Mott McDonald and the DfE to develop practices over the past two years. This level of support and time will not be available to other LAs who are being expected to put the new practices into effect from September 2014.

One example of how difficult they are going to be to sustain comes in the evaluation’s data on the length of time professionals spent just in formal meetings per case: the figure the researchers came up with is 14 hours of professional time. In Table 46 the time taken per month on a Pathfinder case versus a comparison case (statementing) is nearly double: 9 hours versus 5. Even though the Pathfinder process is meant to take about 4.6 months versus the 6 months for statements, the overall hours per case is 42 for Pathfinders versus 30 for statements.

Non-Pathfinder LAs will not have the time or resources to put this intensive support into practice.

The evaluation also points out that Pathfinder families’ happiness and involvement also depends heavily on the new role of the ‘key worker’. Key workers offered, for example, home visits – the importance of this sort of action to families’ experiences cannot be overestimated, yet may not be possible in actual implementation. The report states:

The average estimated delivery cost per family for the key working role was £924, or put another way the pathfinder approach used with the initial cohort of families required on average, 39 per cent more front-line delivery time than the SEN Statementing process.
(page 111)
Both resource for the new processes and trained and knowledgeable key workers may be unavailable for the legislation’s implementation in the longer term. Children and young people’s needs aren’t usually susceptible to quick political fixes.

We think the answer to this question is, then, ‘Probably not.’


What about improvement in real outcomes, integration of services, and the quality of Plans?

It’s probable that the press release is concentrating on feelings because the evidence for the Pathfinders fulfilling the other Green Paper aspirations just isn’t there.

Real outcomes

There aren’t any. Or, as the report says in a more convoluted way, ‘the survey found no consistent evidence to illustrate an improvement in outcomes had occurred’.

Integration of services

There has been some improvement (not quantified), but ‘substantial workforce development and cultural change were still reported to be required’. Integrated working was reported in July to be suffering from lack of health engagement. Given the stresses and changes within the NHS, this is hardly surprising. This area, however, was the main initial thrust of the reforms.

Quality of plans versus statements

The evaluation has not looked at this, as it concentrated on how families felt and so on. IPSEA has looked at a lot of Pathfinder plans and think current ones aren’t fit for purpose and are likely to confuse rather than help with the relative responsibilities of the three different services for the child/young person. We hope the legislation and guidance will put this right but it is worrying that the evaluation is not looking at this central feature of the new system.


The feedback IPSEA is getting at this stage is that parents and advisers are not ‘happy’ about the reforms but are anxious, increasingly so after the universal thumbs down for the Government’s consultation drafts of the SEN Code of Practice and Regulations. There is a considerable way to go to realise the Green Paper’s aim of producing a streamlined, joined-up and simplified process for all services to support children and young people with SEN across the full range of their needs. IPSEA has highlighted problems to the DfE and will continue to do so, and is committed to working with the Government to find ways to address them.

Thursday, 15 August 2013

Should statements be replaced by EHC plans now?

Question: I have a daughter whose statement is out of date and I would like it updated as her needs have changed. The local authority (LA) are amenable to this as are the school.

The LA has said as a pathfinder authority they are writing all new statements in the form of the new EHC plans (which I understand aren’t to come into law for at least another year). They have said the current law still applies so if I am unhappy with any aspects of their proposed document I still ultimately can appeal to the Tribunal. They have said if I prefer they could still write it in the old statement style.

The question is, is their advice correct and is there any reason for me not to accept this advice?

IPSEA’s answer: Unless the EHC plan follows the format and content laid down in current law for a statement of special educational needs, it will not be a statement, will not be appealable to the Tribunal and will not oblige the LA to arrange the provision (until the law changes). We are not sure what ‘old statement style’ means, but the document will only do what a statement does if it follows the strict pattern of a statement, the model for which is in the current SEN Regulations, with further advice on what it should contain in the SEN Code of Practice, chapter 8.

This means that if your daughter’s statement is replaced by a plan which does not follow this pattern, she will have at least a year with no guarantee of provision, over which you will have no appeal right. It will mean that in effect she is going back to school action plus. So we think there’s good reason for not accepting this ‘advice’, and that the LA themselves may be misinformed as to the law.

The law is not changing until September 2014 at the earliest, which means that people in this pathfinder authority will be in limbo for a year if they accept an EHC plan now. The Regulations which will cover the new plans and the revised Code of Practice are not yet even in consultative drafts, so that LAs do not know yet how to write plans. In effect they are experimenting with an untried and ungoverned system.

It’s questionable whether in law LAs can do this until after the law changes. LAs must maintain statements until children no longer need them, and they cannot simply ask parents to waive their child’s rights. If statements are ceased then parents must be issued with a formal notice of that decision.

IPSEA can advise if other parents are faced with this approach by LAs, and will be glad to do so!

Thursday, 7 March 2013

Changes to funding special needs via statements – bands not specificity?

Question: My local authority (LA), at a training event for parents yesterday (SEND Local Offer & Funding Training) told us that they will cease to quantify provision in statements of special educational need (SEN) in terms of hours but will instead refer to a 'banding'. Apparently this isn't their decision but is being forced upon them by the DfE via the way schools are funded from 1 Apr 13 and the Children and Families Bill.
They will now include the following in all new statements made and amended statements from 1 April:
For statements with 12.5 hrs but no 'top-up' funding:
"Therefore, child’s needs will be met from the school's own resources and arrangements detailed in the Local Offer"
For statements that will attract 'top-up' funding:
"Therefore, child’s needs will be met from the school's own resources and arrangements detailed in the Local Offer. In addition, Children's Services will provide funding based on Band X pro rata for the balance of the financial year."
I understand that under the current legislation LAs are required to clearly quantify provision in Part 3. Does the way schools are funded guidance and/or the new legislation allow LAs to refer to bands in statements?
This a significant step backwards if this is the case!

IPSEA's answer: ISPEA are very clear that the changes to how SEN is funded do not change the law on SEN and therefore any move to remove specificity from a child’s statement is not legal unless based on good evidence that that particular child no longer needs it. We have gone back directly to the DfE on this to check that there has been no change of policy and have received this response:
“You will recall that in 2010, in the guidance “Improving the quality of statements of special educational needs – Good practice in writing statements”, we stated that,
“11. Funding
Resourcing levels or funding are not special educational provision per se, and are not a substitute for a detailed level of provision.
The LA has a statutory duty to secure special educational provision for children with statements (‘arrange that the special education provision specified in the statement is made’) and to outline how it ensures that the provision is made. The LA’s arrangements for funding statements should be subject to separate information, and the LA’s funding scheme should be clear about what levels and type of special provision is funded respectively by the school and by the LA. Such information is a statutory requirement (The Special Educational Needs (Provision of Information by Local Education Authorities) (England) Regulations 2001). If necessary, LAs should review and clarify with their schools the responsibilities of each for SEN provision, including what schools are routinely expected to fund. These arrangements should be reinforced through the ways in which provision is described in Part 3.
This position does not change as a result of the funding reforms. What we are saying is that the new funding system places even greater emphasis on LAs and schools being clear about the types of special educational provision each is responsible for providing.”
IPSEA would be very happy to follow up directly with any LA that has adopted this approach to specificity in statements. Please let us know.

Wednesday, 9 January 2013

LA caseworker as key worker on single plan

Question: I have just been offered a Local Authority case worker as a key worker for my son's Single Plan. Would IPSEA consider a caseworker to be impartial in the planning/writing of a Single Plan ?

IPSEA’s answer: As we have said already on key workers and direct payments, IPSEA does not believe that key workers who are not independent of LAs will able to give robust advice to families and young people. In our experience LA caseworkers are well aware of their LA’s policies and criteria for statementing and resourcing provision, but not their legal basis. The law requires, for instance, Part 3 of the statement to be written without regard to resources or placement, but we frequently meet statements written the other way around, driven by what’s available rather than what the child needs, and often with a band or matrix position the only thing specified. It’s easy to see why LA caseworkers behave like that, especially when LA budgets are reducing, but it means parents should try to get independent knowledgeable advice. It will be useful to do the same checks on the single plan as on a statement, especially on its specification of provision.

However, please remember that even if you ensure that everything your child needs is specified, anything in a ‘single plan’ is not currently legally binding on an LA, and where there is any possibility that this may endanger a child’s provision, parents can opt for a statement.

Monday, 10 December 2012

SEN reforms: will we lose case law?

Question: When the new special educational needs law comes in to place, will we lose all of the case law when appealing?

IPSEA’s answer: Case law, or common law, in England makes up much of the substantive law that governs our lives, and that includes the area of special educational needs (SEN). Acts of Parliament set up broad frameworks, and then judges tease out the detail of how the law applies to particular cases, sometimes filling in gaps left by an Act’s drafters. Case law interprets the statutes in Acts of Parliament, and tends to be very literal – that is, judges look carefully at the meaning of words, often giving them their plain or natural meaning, but sometimes considering them in terms of the general purpose of the Act or the purpose of the Government as stated by a minister during Parliamentary debates.
So individual words can be very important, and judges may assume a different approach is intended when words are changed, as we argued for instance when it looked as though the duty to ‘specify’ special educational provision in Part 3 of the statement of SEN would be replaced by the duty to ‘set out’ the provision.
We are concerned that some areas are to be changed radically and therefore we may lose the case law which interprets the current legislation. An example is the definition of health provision in the proposed legislation, where we foresee a danger that we could lose the current case law which says that therapies can be educational provision (therefore enforceable) or health (therefore not enforceable) depending on the facts of the individual case. The draft legislation introduces such a broad definition of health provision that it could be seen by judges to move anything provided by the NHS into the health section of the Plan, and a local authority (LA) would not therefore have responsibility to ensure it was delivered.
Where there are requirements that have been omitted, such as the duty on LAs to respond within a time limit to a parent’s request for statutory assessment, then all case law interpreting the omitted law will cease to be relevant.
So the answer is that it depends on how much the legislation departs from current law. We are hoping that the Government, in keeping its promise to ensure that parents’ and children’s legal protections are maintained, will ensure that no rights based on case law are lost, given the extensive list parents and their advisers draw on when negotiating with LAs or appealing decisions.

Tuesday, 4 December 2012

Can special academies admit children without EHC Plans?

Question:  I recently heard Jane McConnell speak at a conference about the proposed SEN reforms and I was really concerned about the point she made re special academies being able to admit pupils permanently without their having been assessed or having an Eduation Health and Care (EHC) plan in place. Can you explain it further?

IPSEA’s answer: Yes, this is a subject that Jane spoke about at the Westminster Forum recently and it is of real concern to us at IPSEA. 
The current law is very clear: section 316(2) says “If no statement is maintained under section 324 for [a] child, he must be educated in a mainstream school”. There are a few exceptions: children without statements can be admitted to special schools for assessment, for instance, but the exceptions are temporary and admission must be with the agreement of all concerned, including parents. In the draft legislation, provision 14(9) allows the permanent admission of children and young people with SEN but no EHC plan to a special school or special post-16 institution that is an academy if allowed for in their funding agreement, i.e. the contract between the Secretary of State and the "governors" of an academy which sets them up and defines how they should be run. Legally the term "academy" includes free schools, studio schools and university technical colleges.
At this moment, as far as we are aware, the funding agreements of the few special academies that exist reflect the legal position on admission into maintained special schools, i.e. that they cannot admit a child permanently until the child has gone through the statutory assessment process to clearly define their special educational needs and also identify the additional special educational provision that they will need to be put in place to ensure that they are adequately supported in order to access an appropriate education. If special academies were able to opt out of this process we have the following concerns:
  1. It would mark a real difference between the admission process to maintained special schools and special academies. Both are paid for by taxpayers’ money to take the same role within our education system but admission would be on very different terms. It would create a two-tier system within special schools. Special academies would not be under the same level of rigour to ensure a child's needs were meet and then reviewed. Nor do academies have to deliver the national curriculum or have qualified teachers.
  2. If they have not been through a statutory assessment process no one can fully know and understand the extent of the child or young person’s needs and therefore would not be sure that the right special educational provision would be made for them in that school/institution. It would be easy to assume a child or young person had a certain learning condition or profile without professionals having fully explored the extent of their difficulties. Historically, many hearing-impaired children were assumed to have learning difficulties because they were not assessed properly. Many children were placed inappropriately in special schools, and in the wrong sort of special school, because of inadequate knowledge of their needs.
  3. Children and young people could be "manoeuvred" into a special academy place without realising that they could be entitled to have their needs fully assessed and a Plan issued. Common examples would include where a child or young person is under threat of permanent exclusion: "Would it not be better to move your child to our special academy – you would not want a permanent exclusion to go on their record?"; where a parent is told "your child's needs are not great enough to warrant the Local Authority (LA) assessing them or putting a EHC plan into place". If the child has no EHC Plan, the parent has no qualified right to any maintained or non-maintained special school of their choosing, so cannot use it to obtain an alternative mainstream or special school.
    We are concerned that this would disproportionately effect children and young people from ethnic backgrounds where English is not their first language, where parents themselves are vulnerable and may also have a learning difficulty or those families living in poverty where access to information and advice is hard to establish.
  4. Special academies could become a dumping ground for children failing within the education system as by placing them in the special academy they would no longer be part of the accountability and success recognition process for a mainstream school, i.e. five GCSEs at grade C or above. We could see a situation where a academy chain has a group of mainstream academies within an area and could set a special academy up in which "difficult" children could be placed. We are not saying this would be the norm but we want to ensure that all children and young people with SEN who need it have their needs assessed and properly met.   
  5. Without a child or young person having gone through  statutory assessment of their needs and obtaining an EHC plan, the special academy will not be able to access the higher level of funding from a LA to make provision to meet those needs. There will be a maximum of £10,000 which will be paid to the special academy from the Educational Funding Agency with which to make the provision for the child. This will act as an illegal "cap" on provision and will be resource-driven rather than needs-lead as required by law. There will be no incentive for a LA to assess the child and issue a EHC plan as this would mean that they would be responsible for paying a top-up to the special academy to make additional provision for the child.

Parliament’s Education Select Committee has to date not questioned anyone about this, including the Minister. The question that needs to be asked is, "What this will do to promote the successful inclusion of children with SEN/disabilities in mainstream schools?" This could lead to an erosion of the assumption that mainstream schools should be able to make provision for all children without a statement/Plan, and most of those with statements/Plans. It may well erode disabled children's right to a mainstream education through the back door.