Tag Archives: SEND

SEND on the agenda again

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Until recently, the difference between the High Needs Block and remainder of the Dedicated Schools Grant that funds schooling in England was known only to a few officers and civil servants and those headteachers and governors serving on School Forum. The advent of a National Funding Formula for schools outside the special school sector and a growing demand for spending on children with additional needs has brought the issues with the High Needs Block into sharp relief.

The Local Government Association has published the outcomes of the research they commissioned earlier this year. A key paragraph sets out the issues and reflects two of the key issues, the ability of local authorities to ensure all schools act in ‘the common good’ instead of ‘their own good’ and the effects on the school funding of an extension of support to young people up to the age of twenty five from the High Needs budget, not originally designed for that age range.   The report can be found at: https://www.local.gov.uk/have-we-reached-tipping-point-trends-spending-children-and-young-people-send-england

Addressing the points raised in paragraph 17 of the Report would go a long way to creating a sustainable and successful system for young people with SEND.

  1. To create a more sustainable funding settlement going forward there may be merit in considering some key questions around how incentives in the system might be better aligned to support inclusion, meet needs within the local community of schools, and corral partners to use the high needs block to support all young people with SEND as a collective endeavour. These might include
  2. setting much clearer national expectations for mainstream schools;
  3. rethinking how high stakes accountability measures reflect the achievements of schools which make good progress with children and young people with SEND or at risk of exclusion;
  4. correcting the perverse funding incentives that mean that it can be cheaper to pass the cost of an EHCP or a permanent exclusion onto the high needs block than making good quality preventative support available in-school;
  5. looking again at the focus and content of EHCPs to afford greater flexibility to schools in how they arrange and deliver the support needed;
  6. providing ring-fenced investment from government designed explicitly to support new and evidence-based approaches to early intervention and prevention at scale;
  7. providing additional capital investment and flexibility about how that can be deployed by local government;
  8. issuing a national call for evidence in what works for educating children and young people with these needs, backed up by sufficient funding to then take successful approaches to scale and a new focus for teacher training and ongoing professional development;
  9. more specific advice for Tribunals, parents and local authorities on how the test on efficient use of resources can be applied fairly when comparing state and non-state special school placements; and
  10. reaffirming the principle around the equitable sharing of costs between health and education where these are driven by the health needs of the child or young person.

At present, there are perverse incentives for schools to look first to their needs and only then to the needs of children with SEND. The extension of the age range to twenty five brought many more young people into scope without necessarily providing the resource.

The announcement of more cash by the Secretary of State will help, but is almost certainly not enough to solve the problems being faced within many local authorities. At the heart of this is broken system for governance of our schools. In the post Brexit world, whatever it looks like, creating a coherent education system with democratic accountability across the board should be a high priority for the Education Department and its Ministers at Westminster.

 

Courts support the underdog

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From time to time the courts become involved in changing the direction of the education system in England. One such occasion, discussed previously on this blog, was the judgement of the Supreme Court on the issue of holidays during term-time. That judgement has redefined the contract for parents that ask or allow the State to educate their children in a more prescriptive manner than many might have thought possible.

Recently, there have been two more important judgements, albeit from lower courts, below the level of the Supreme Court. The Upper Tribunal, a court in all but name, as it interprets the law, has handed down what has been described as a landmark judgement in the treatment of pupils with SEND that involves a degree of aggressive behaviour linked to their disability: in this case autism. The case has been well reported, but you can read about it at https://www.equalityhumanrights.com/en/our-work/news/landmark-ruling-exclusion-disabled-pupils-schools

The case was brought under Section 28 of the Equality Act 2006 and the implications arising from the judgement should be on the agenda of governing bodies during the autumn term. The issue will turn on what are ‘reasonable adjustments’ that a school can be expected to make in educating these children. Obviously, or I suspect obviously, a special school catering exclusively for children with aggressive tendencies might be expect to make more adjustments than a small rural primary school faced with a five year old with such tendencies. However, if the five year old is living successfully in the community, the school is a part of the community and must now make clear what adjustment sit has made to deal with the education of the child. This might mean more specific training for the class teacher and any classroom assistants encountering the child in the course of their work. It might also mean dinner supervisors; office staff and anyone likely to come into contact with the pupil also receiving training.

The other recent case concerned Bristol City and its role in providing special education. The case was primarily about the issue of consultation over possible cuts to the City’s SEND budget, but the judge strayed into the area of the financing of education. You can read the whole judgement at https://specialneedsjungle.com/wp-content/uploads/2018/08/KE-others-v-Bristol-City-Council-Approvedjudgment.pdf As with the previous case, fairness for minority groups played a large part in the arguments before the court and in the reasoning of the judge. I can foresee more challenges in this area about cuts to SEND transport, based upon this judgement.

However, there was a rather curious exchange about the funding of education by local authorities that is reported in the judgement that suggests that it is not only in the realm of understanding popular culture and music that some judges and indeed other members of the bar may be slightly out of touch with currently realities.

Take this extract from the judgement from paragraph 98:

  1. Mr Tully explained that ‘The overall principle which the Council is seeking to follow is the principle that, if possible, the DSG (Dedicated Schools Grant) should pay for Schools Budget responsibilities.

However, as Ms Richards Q.C. correctly points out, this a simply a principle which the Defendant has chosen to follow i.e. a political choice and not a statutory requirement. As a consequence, it could be abandoned or varied, most pertinently in light of the results of appropriate consultation.

Surely, the DSG and the High Needs Block isn’t open to virement and by implication also isn’t open to being supplemented should local authorities ever find themselves with an excess of cash or indeed required to make choices about how they spend their income. If this section of the judgement is regarded as ‘obiter’ then it doesn’t matter, as it can be ignored, one would not want to raise the hopes of parents and others that the DSG is just an addition to a local authority overall income stream and not as its says, a ‘Dedicated Schools Grant’. Schools forum need to be consulted about the distribution of the DSG. How far is there also a need to consult the wider public?

The situation is of course complicated by the fact that some education expenditure, including on home to school transport, is provided for not from the DGS and High Needs Block within it, but from the general grant to local authorities and must compete with other services for its share of the cake. Here is issue is a fight for resources subject to the decision of the ruling group on any Council and is clearly subject to the need for consultation with the public and interested groups.

The person on the Clapham Omnibus, or is it in the Uber car these days, must be able to understand the logic behind the funding of our education system, lest they be deceived into thinking some things are possible that are actually not the case.

Despite some politicians feeling about European Courts, the courts and civil law plays an important part in defending liberties. At this time of financial cut backs it is also sometimes the way that minority groups can ensure that they are treated fairly.