‘Every child achieving and thriving’ and 'Putting children and young people first'

How key legal duties will change for schools and further education colleges as a result of SEN reform

Stone King welcomes the ambitious ‘Every child achieving and thriving’ white paper and the “generational opportunity” it describes. 

Much of the media focus thus far has been on the changes to the entitlement of children and their parents. This briefing looks at the effect of this reform on the duties of schools and colleges from their perspective.

Some of these changes affect both schools and colleges, some only schools, but the downstream effect on colleges will clearly be significant, particularly as a result of the changes to mainstream schools at the heart of this reform. 

Although it will take many years to implement, it is clear that mainstream schools and colleges will have to change their provision significantly, and take on considerably more responsibility for student inclusion, in the future (with the role of local authorities (LAs) significantly reducing). A complex mix of significant resources are proposed to support these increased responsibilities, and a long implementation period is proposed. The devil will also be in the detail in future changes to legislation, the Code of Practice and statutory guidance, but fundamental changes which stand out for schools include the following. 

Changes to individual support plans (ISPs)

The key change is the legal requirement for schools and colleges to generate and review (at least annually) ISPs at one of two levels (Targeted and Targeted Plus) for all students with identified SEN. We will see whether the scope of SEN narrows in the future, but if the same proportion of students (currently about 20%) are deemed to have SEN, that will significantly increase the workload of school and colleges.  

Those ISPs will also involve additional and significant legal duties on schools and colleges: 

• Schools will have to generate and constantly maintain the detail of provision in ISPs. That may make provision more agile for students, but also may cause more disputes between schools/colleges and parents/young people. There will be more parental “co-production” expected, which again could improve provision but will certainly increase workload.
• EHCPs, when issued, will be more strategic documents and schools will also have to issue ISPs alongside EHCPs to contain the detail of the student’s provision: “EHCPs will be developed with the setting, and in consultation with parents, after the Specialist Provision Package and placement decisions have been made [by the local authority], rather than beforehand, as happens now. They will include the educational offer based on the relevant Package, as well as health and care provision agreed during the assessment process”. The LA’s duty will be “to secure access to support and provide sufficient funding to the setting, within national banding, to deliver the EHCP”.
• The consultation tells us that “Through the introduction of ISPs, settings will be accountable and responsible for delivering educational provision and supporting the child or young person to learn, rather than this being the responsibility of the local authority”.  It appears that no actual specific new legal duties will be imposed on schools/colleges to make the educational provision under ISPs beyond their current duties to use their “best endeavours” (under SEN law) and to make “reasonable adjustments” (under equality law).      However, the extent of a school’s/college’s “accountability” in delivering provision under ISPs requires further clarification. Guidance on reasonable adjustments will be issued by the DfE. The DfE should take the opportunity to rationalise the parallel duties that schools/colleges have under SEN and equality law, which have long caused confusion in practice.
• The consultation states that “Where there are concerns about provision, parents and young people will be able to resolve this directly with the setting, including making use of the improved schools complaints process”. The rationale for this is that it will “allow settings more flexibility to respond quickly and to update plans in response to children and young people’s changing needs, rather than the current bureaucratic process [amending an EHCP]”. This is part of expanded expectations in the white paper regarding complaint handling by schools and colleges. Whilst schools and colleges need to be accountable, they are already reeling under the weight of AI supported and generated parental complaints, and will be very concerned about having to manage an even greater complaints workload unless DfE guidance gives schools and colleges robust powers to deal with vexatious complaints when they occur. 

Provision of more direct funding to mainstream schools and colleges

Another necessary and key change will be the gradual switching of public funding away from distribution through LA high needs “top up funding”, to provide more direct funding to mainstream schools and colleges to support their extended role in inclusion. It will be crucial for schools and colleges to have flexibility in the use of that funding if they are to deliver inclusion in a dynamic and effective way. The risk is that schools and colleges will be bogged down with producing detailed, costed provision maps for all their students with ISPs to explain how they are meeting their statutory delivery duties. 

More “specialist” capacity into mainstream state-funded schools

Another key area of change will be the injection of “specialist” capacity into mainstream state-funded schools. All secondary schools will be expected to set up an inclusion unit (and primary schools to develop units providing the same total capacity), and further clarity will be needed about the extent of the role of the LA in both types of inclusion unit, especially the “Targeted Support Specialist Bases (LA funded, providing specialist support)”, which will mainly be located in academy schools with their more autonomous governance. 

The reform anticipates that “Specialist knowledge flows outwards from these bases into all classrooms. They will be a source of expertise for teachers, educators and leaders”. The success of this will be absolutely critical in supporting staff in mainstream classrooms to include more students with significant SEN, given the perhaps modest training budget that will be available to schools and colleges and for existing staff. The expected outreach from special schools and special post-16 institutions into mainstream education will also be vitally important, and will need to be systematically available if it is going to be sufficient. We are sure that all schools and colleges will welcome the availability of “Experts at Hand”, but the practicalities of recruiting these professionals (given the very limited local offer in many places at present) will be challenging in the long term. 

Distinction between state-funded and independent special schools

As regards special schools, there is a distinction drawn between state-funded and independent special schools. The common requirement will be that they make provision to deliver “nationally defined Specialist Provision Packages” and “Packages will form the basis for future EHCPs, in both mainstream and specialist settings”. Crucially, these packages will be “linked to a nationally set costing framework based on the provision outlined in the Package”. 

Furthermore, parental preference for school placement will be redefined: “LAs will provide parents and young people with a list of settings able to provide the Specialist Provision Package… Parents and young people will have the right to choose any of these settings or express a preference for an alternative”. The reasons why the LA can turn down this expression of preference will be altered, including a variation of the current “incompatibility” reason to include when a school is “already full or where this would have a seriously detrimental effect on children or young people already in the setting”.  Although a parent can still appeal a refusal by the LA to agree their preference, the Tribunal will not be able to name another school, but only (at most) quash the LA’s decision and instruct it to reconsider. This could have the perverse effect of increasing applications for judicial review in the high court when parents challenge the LA’s reconsideration of placement. 

Recent ministerial comment has focused on examples of private profit being made out of special schools, and the consultation document contemplates strong legal controls on the governance and activity of independent special schools. The Government will “legislate to bring the duties and oversight of ISSs into line with other special schools by [amongst other changes]: 

• “Creating a statutory definition and, via a separate consultation, standards for ISS.
• “Aligning their admission duties with that of other specialist settings [presumably compelling non Section 41 approved schools to admit when named in an EHCP].
• “Requiring them to offer placements based on Specialist Provision Packages and in accordance with national funding bands, and to adhere to the Code of Practice.” 

What else could be coming?

The Government is also “considering what changes would be required to ensure special post-16 institutions are treated in a similar way, recognising that this sector will continue to play a vital role”.

We will also see whether LAs will use their proposed powers under the Children’s Wellbeing and Schools Bill to open new maintained special schools, although that may conflict with the new objective of grouping all schools in trusts, unless individual LAs have an appetite to set up such trusts.

Clearly, if the DfE’s overall objectives are both to place proportionately more students in mainstream settings and control the costs of special school placements, the availability of sufficient special school places will have to be managed carefully over time, especially if the independent special school sector contracts significantly and/or more rapidly than anticipated.

Another important issue, which is not expressly addressed, is what will happen to the considerable number of students being educated in “mainstream” independent schools through EHCPs paid for by LAs. If the eventual outcome is that EHCPs will only be issued to students who require defined “specialist” packages, presumably that type of school will need to adapt to provide those packages (and manage on the fees available) if they want to receive public funding.  However, some of those students may no longer meet the threshold to be eligible for a specialist package and, by extension, a new style EHCP. 

Given the complexity and depth of these proposed changes, a long implementation period is sensibly proposed, although considerable changes will need to commence soon on the ground in schools, in particular in the building of capacity in mainstream schools. We are glad to note that the Government will “work with the sector to implement [its] reforms in a sequenced, phased and manageable way”.

For more information, contact Partners Roger Inman (RogerInman@stoneking.co.uk) or Richard Freeth (RichardFreeth@stoneking.co.uk).