HCR Law Events

22 March 2023

Update on SEND reforms

Further to our recent article in which we considered the future of the SENDIST Tribunal, the long-awaited response to the SEND and Alternative Provision Green Paper (‘the Green Paper’) was published by the DfE on 3 March 2023.

Following the initial publication of the Green Paper in March 2022 the DfE undertook an extensive 16-week consultation. It involved input from over 4,500 people including children, young people and families in addition to considering around 6,000 responses provided via the online consultation process.

The Green Paper highlighted a cycle of late intervention, low confidence and inefficient resource allocation across the SEND system. Children and young people’s needs are identified late or incorrectly, with needs escalating and becoming more entrenched. For parents and carers this inconsistency across the system has resulted in low confidence and the belief that they need to secure Education and Health Care Plans (‘EHCPs’) as a means of guaranteeing support.

The SEND and Alternative Provision (AP) Improvement Plan (‘the Plan’) sets out how, in response to the consultation, the DfE intends to deliver ‘a single national system that delivers consistently for every child and young person with SEND and in alternative provision’.

The Plan does not propose any legislative changes and, despite acknowledging that early identification and intervention are essential for children to have their needs met, much of the Plan will not be delivered until the end of 2025. It seems therefore that the current issues affecting the SEND system will not be going away anytime soon.

Despite this, there are a number of changes included in the Plan which have the potential to be beneficial. Changes that independent schools should be aware of include:

Increasing SEND funding by more than 50% to over £10 billion by 2023-24

For independent schools funding continues to be a contentious topic with local authorities attempting to avoid providing funding for the full extent of the support under a child or young person’s EHCP.

The Plan acknowledges that, despite significant investment, local authority spending continues to outstrip funding. In response to this issue, £400 million of the £2 billion additional funding for schools, announced in the Autumn Statement, will now be allocated to local authorities’ high needs budgets in 2023-24.

In addition, the DfE intends to take action to address supply issues by investing £2.6 billion between 2022 and 2025 to deliver new places and improve existing provision for children and young people with SEND or who require alternative provision. They envision that, in turn, this will reduce the need for independent provision.

Introducing the National SEND and AP Standards (‘the National Standards’)

It is proposed that ‘a significant portion’ of the National Standards will be published by the end of 2025 and that they will set clear and ambitious expectations for ‘what good looks like’ in identifying and meeting needs and clarify who is responsible for delivering provision and from which budgets. The delivery of National Standards will be supported by an amended SEND Code of Practice.

It is likely that, as with the SEND Code of Practice, the National Standards will not apply wholly to independent schools. However, it is anticipated they will set out best practice and independent schools may therefore wish to look at these to help them review the systems they already have in place.

Introducing standardised and digitised EHCPs

It is anticipated that the introduction of standardised templates and processes around EHCPs will reduce bureaucracy in the system, deliver consistency and best practice and improve experiences for children/young people seeking plans.

The DfE have set out, in the Plan, how they intend to work with stakeholders to deliver a standard EHCP template, with supporting processes and guidance, from 2025.

Additionally, it is envisioned that digitised EHCPs will reduce the burden of administrative processes in the system, improve the experience and satisfaction of parents, carers and professionals and improve the DfE’s ability to monitor the health of the SEND system.

Through digitisation the DfE could take advantage of the benefits of anonymous data collection keeping in mind the requirements of data protection law and information sharing protocols. For instance, the DfE is considering ‘track indicators’ such as progress made towards outcomes and trends in the prevalence of need.

The DfE has confirmed that the requirement for all local authorities to digitise EHCPs will come into force in 2025.

Improving provision through high quality teaching and SEND

Difficulty in recruiting suitably trained staff to deliver the provisions within an EHCP is a widespread issue within both the independent and maintained school sectors. In the Plan the DfE acknowledges the key role support staff play in supporting children and young people with SEND and commit to setting out clear guidance on the effective use and deployment of TAs to support children and young people with SEND.

This will be done through the new SEND and AP practice guides, enabling TAs and learning support assistants to make the best use of the available provision set out in the National Standards. In addition, they have committed to increasing the number of staff with an accredited SENCo qualification by introducing a new leadership level SENCo NPQ (National Professional Qualification) for schools and funding up to 5,000 early years staff to gain an accredited Level 3 early years SENCo qualification.

It appears that the DfE has listened to many of the concerns raised during the consultation process and the commitments set out in the Plan do have the potential to significantly improve the current SEND system, in turn easing pressure on the SENDIST Tribunal. We may also see knock on benefits for independent schools, but it may be two or three years before these are in place and start to become apparent.  We will continue to monitor the implementation of the Plan and provide further updates as appropriate.

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About the Author
Kate Shields, Chartered Legal Executive (FCILEx)

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