• How key legal duties will change for independent schools as a result of SEN reform

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

‘Headwinds’ has been a word used a lot in the independent school sector of late, and the white paper published in February could add a little more intensity to the wind speed for those schools who support children and their families with SEND.

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 from their perspective.

Interestingly, ‘mainstream’ independent schools are not referenced at all. We understand that recent conversations between the Independent Schools Council and Department for Education (DfE) policy officials have indicated that mainstream independent schools will not be subject to some of the key new legal obligations proposed in the white paper. However, while the large majority of the changes are expected to affect schools in the maintained sector (as well as independent special schools and colleges supporting those with the most complex needs), the downstream effect on all independent schools, notably those independent schools with a high number of pupils with SEND or pupils with EHCPs, will be significant. 

Although it will take many years to implement, it is clear that schools in the maintained sector (including academies) 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 be in the detail in future changes to legislation, the Code of Practice and statutory guidance, but fundamental changes which stand out for schools – and will have a knock-on effect for independent schools – include the following. 

What’s not changing?
The white paper is not law. It is a set of proposals and now subject to a consultation which runs until 18 May. That is then followed by a period of policy refinement, legislation drafting, Parliamentary scrutiny and approval and a phased implementation planned for 2028 to 2035. It is important to remember that further changes to the plans set out in the white paper are highly likely and it is to be hoped that these will include clarity on the position for the independent sector which is currently sorely lacking. By way of reassurance, nothing changes for your pupils with EHCPs for the foreseeable future. If a pupil in Year 3 has an EHCP, they should get to the end of Year 11 before the reforms take place. 

So what is changing?

1. Individual Support Plans 
   A key change is the legal requirement for schools to generate and review (at least annually) Individual Support Plans (ISPs) at one of two levels (Targeted and Targeted Plus) for all students with identified SEND. Previously, it was understood that this would include independent schools, as the white paper states “we will require all schools and other educational settings to create digital ISPs for any child or young person with identified SEND” and that for “every child receiving Targeted or Specialist support, regardless of their educational setting, schools will be required to develop an Individual Support Plan” (our underlining). However, as above, there is now a question mark regarding the extent to which the duty to produce ISPs will apply to mainstream independent schools in light of comments made by DfE officials. It is to be hoped that greater clarity will be provided soon. 

   
   It will be interesting to 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 schools caught by the new ISP related duties.   
   ISPs will involve additional and significant legal duties on schools (and this is therefore very much an issue for independent schools to keep an eye on, whether or not they are special schools): 

   
   a) Those schools that are subject to the duty to produce ISPs 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 and parents/young people. There will be more parental “co-production” expected, which again could improve provision but will certainly increase workload.

   
   b) EHCPs, when issued, will be more strategic documents to entitle the pupil to access specialist support 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 (the defined ‘Packages’ will guide provision and eligibility for EHCPs) and placement decisions have been made, 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.” There is a notable absence of any reference to the ‘mainstream’ independent sector in connection with specialist provision and our reading of the proposals is that the vast majority of children eligible for EHCPs through the Specialist Provision Packages will have their needs met through the specialist sector or maintained / Academy ‘Specialist Bases’.

   
   c) 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”.  As above, the position remains unclear for independent schools, but either way it appears that no actual specific new legal duties will be imposed on any independent schools who are subject to the ISP requirement to make the educational provision under ISPs beyond their current duties to make “reasonable adjustments” (under equality law) and to otherwise ensure the requirements contained in the Independent School Standards Regulations are met (see in particular Parts 1 and 6 of Schedule 1). However, the extent of a school’s “accountability” in delivering provision under ISPs requires further clarification. Guidance on reasonable adjustments will be issued by the DfE.

   
   d) 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. Whilst schools 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 robust powers to deal with vexatious complaints when they occur.

2.  Restructuring of SEND funding and provision 
   Another 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.   

   
   A further 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). The resulting impact of this, together with the drive to halve the number of EHCPs (and, as noted above, EHCPs will be reserved for the most severe and complex needs), is likely to be a shift away from placements in the independent sector and a move towards provision within the maintained sector.  

   
   The white paper anticipates that “Specialist knowledge flows outwards from these inclusion bases into all classrooms. They will be a source of expertise for teachers, educators and leaders”. The effectiveness of these inclusion bases will determine whether staff in mainstream classrooms are equipped to support more students with significant SEN and relieve pressure on the specialist sector. We assume no such funding will be offered to independent schools; but the move towards using inclusion bases for pupils who do not meet the criteria for a Specialist Provision Package may be an opportunity the independent sector can take advantage of. The recent announcement of ‘Moon Hall Copthorne’ (Moon Hall describes itself as ‘mainstream dyslexia specialist school’ and Copthorne is a co-ed prep within the Caterham family of schools) may set a trend of independent schools looking to position themselves to meet such gaps in provision.

   
   The expected outreach from special schools and special post-16 institutions into mainstream education is also evident, where there is likely to be the knock-on effect that if provision within a hybrid maintained-special school sector meets need, LA commissioning patterns may change and the drive for placements in the mainstream independent schools sector is likely to slow.  

   
   We will also see whether LAs will use new powers under the recently passed Children’s Wellbeing and Schools Act 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 as a result of these changes.

3. The impact on 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”. This is likely driven by the DfE drive to crack down on independent special school profit; recent ministerial comment has focused on examples of profit being made out of private equity backed special schools, and the consultation document contemplates strong legal controls on the governance and activity of independent special schools. 

   
   The white paper also proposes that 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 independent special 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”. 
      

   Given these proposals, and that it is also proposed that there will be right to refuse the expansion or opening of new independent special schools where there is limited evidence of demand from commissioning LAs, the resulting impact for mainstream independent schools could be there is an increase in applications for places from children with SEND but who do not have an EHCP and cannot find a suitable mainstream school to meet their needs (particularly where their needs do not “fit” into one of the new categories for Specialist Provision Packages). 

   
   Parental preference for school placement will also 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”. This proposal that LAs will provide parents with a list of recommended settings capable of delivering the child’s Specialist Provision Package is a shift away from the present position that parents can request any suitable school, including an independent school. It is not clear whether independent schools will feature on this new list of recommended settings. 

   
   We have already held one round table bringing together many of the independent school associations to discuss the impact on the sector and hope to hold further events in due course once a clearer picture for the independent sector begins to emerge.
   For more information or to discuss any concerns you may have, please contact Partners Charlotte Melhuish (CharlotteMelhuish@stoneking.co.uk) and Kenji Batchelor (KenjiBatchelor@stoneking.co.uk).