BWB Education Forum and Baker Tilly
25 June 2015
SEND Post-19 Round Table Meeting: Are students still falling off the cliff
post-19 following the SEND reforms?
Present:
Alison Boulton, CEO, Natspec
Dominic Blythe, Audit RI, Baker Tilly
John Briggs, Adviser, New Schools Network
Joanne Clement, Barrister, 11KBW
Claire Dorer, CEO, National Association of Independent Schools & Non-Maintained Special Schools
Caroline Doyle, Responsibility for Special Educational Needs, London Borough of Lewisham
Chris Eridani-Ball, 0-25 Special Educational Needs and Disability Unit Childcare, Special Educational
Needs and Children’s Strategy, Department for Education
Mary Groom, Partner and Head of Education, Bates Wells Braithwaite
Lynne Haines, Head Teacher, Greenvale School
Caraline Johnson, Senior Associate, Bates Wells Braithwaite
Brian Lamb OBE, Chair Achievement for All, SEND consultant and Visiting Professor of Special Education
Needs and Disability Derby University.
Stephanie Mason , Head of Further Education and Skills, Baker Tilly
Margaret Mulholland, Director of Development and Research, Swiss Cottage School
Kathryn Rudd, Principal, National Star College
Dr Jonathan Roberts, Department of Social Policy, London School of Economics
Chris Theobald, I&A Manager, Bates Wells Braithwaite
Jean Tsang, Associate, Bates Wells Braithwaite
1. Context
1.1. The Children and Families Act 2014 (“the Act”) has introduced significant legislative reforms to the
structures around and provision for children and young people’s special educational needs and
disability (SEND). The new framework extends to the age of 25.
1.2. The Act seems somewhat opaque and ‘fuzzy’ with regard to the precise entitlements, responsibilities
and provision which are required from 19-25. Such fuzziness is in one sense an improvement on
the situation prior to the Act, when there was no accepted obligation for local authorities to fund
educational provision for this age group. Now, local authorities have an obligation to assess
whether the educational or training outcomes of an Education, Health and Care (EHC) plan have
been achieved, and consider whether remaining in education or training would enable the young
person to progress and achieve outcomes, and whether the young person wants to complete or
consolidate learning. Will it help them to prepare for adulthood?
1.3. A number of topics were introduced for discussion: the sufficiency of funding for the post-19 stage;
the meaning and extent of entitlement to SEND provision for young people who are 19+; the extent
to which there was a duty to offer (or at least fund) provision, and with whom this duty resided.
These notes begin with a summary of the legal position (section 2) and of identified difficulties and
challenges associated with the new legal framework (section 3). The discussion stretched more
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broadly to consider other dimensions of post-19 SEND provision, such as the role of the local
authority, procurement and commissioning, barriers to entry for new providers, and workforce
development in both local authorities and special schools. These dimensions are reported in
sections 4-7.
2. The legal position following the Act
Age 16-19
2.1. Prior to the Act, a Statement of Special Educational Needs lapsed when a young person left school.
If the young person continued their education at a post-16 college the Statement was effectively
replaced by a Learning Difficulty Assessment. The Act has introduced a clear entitlement for young
people aged 16-19 with an EHC plan and their parents to state their preferred educational
placement. Local authorities (LAs) must comply with this preference unless they can show it
breaches certain conditions (it is not appropriate for the young person; it is an inefficient use of
resources; or it is incompatible with the efficient education for others). It is anticipated that there will
be Tribunal cases and litigation which will clarify the responsibilities of the LA.
Post-19
2.2. It is relatively clear that there is not an absolute entitlement to an EHC plan post-19. There is
instead a statutory test: does the young adult require more time to complete their education or
training relative to the majority of others of the same age who do not have SEND? The Act further
links the continuance (or not) of an EHC plan to whether or not the plan’s outcomes had been
achieved (Children and Families Act 2014, Part 3, section 45(3)).
2.3. But there is a difficulty here with the idea of ‘completing’ education and training. What does this
mean? The current position is that an EHC plan would cease if a young person ceased to remain in
some form of formal education or apprentice post 19, which was viewed as too constraining. For
instance, if provision might largely be described as social care, LAs might argue that this is neither
educative nor shows progression. But what if the provision reinforces what has gone before, or
underpins some kind of progress to independent living? A major challenge will be in defining what is
educational provision and convincing LAs that that provision requires continuation of the EHC plan.
It was suggested that provision should be regarded as education if it reinforces and continues the
progress already made, and if that progress is sufficiently important.
2.4. In cases where the statutory test is passed, then the LA has a duty to meet the preferences of the
young person (with the necessary caveat of the particular conditions described above). This is a
sea-change in the legal situation. In addition in both ages groups (16-19; 19+), appeals against LA
decisions are now heard by the SEND Tribunal, rather than only being subject to Judicial Review.
This is a significant development.
Funding of provision
2.5. If the SEND Tribunal instructs that provision must be made, then the LA has responsibility for the
payment for provision.
2.6. The source of the funds is more complicated. The Education Funding Agency, through the High
Needs funding arrangements, provides place-funding of £10,000 for independent or non-maintained
special school and independent specialist provider placements; the local authority is responsible for
top-up funding from the High Needs budget. Local authorities, of course, are experiencing sharply
decreasing budgets, so that, where progress is predicted to be small and where the boundary
between education and care is blurred, there are incentives or pressures to cease EHC plans and
transfer the young person to a social care funded pathway.
3. Challenges and difficulties arising from the new legal framework
A number of issues emerged which were connected to this emerging legal framework.
The need for ‘challenge’
3.1. The emphasis on challenge – in other words, taking on LAs through complaints and recourse to the
Tribunal - is problematic. If the Act is policed by legal challenge through the Tribunal or still higher
in the legal system, how could most parents afford this? There is a danger of a two-tier system in
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which articulate parents have an advantage – and in which young people who do not have strong
parental support or other advocates are significantly disadvantaged. Further, if the young person or
their representative does not make a challenge, LAs tend to assume that at age 18 and 19 it is not
necessary to continue educational provision.
The EHC and outcomes
3.2. The focus on the achievement of outcomes as a test of the need for further educational provision
was questioned. It is not always the case that there are obvious outcomes to be met, but this does
not mean that there is no need for provision. The law did not seem to allow for the experiences and
needs, for instance, of young people with profound and multiple learning disabilities where there
may be limited opportunities to make use of very formal further education.
3.3. The nature of the statutory test in the Act focuses attention on how outcomes are written in EHC
plans. Often these outcomes are poorly composed - with very real negative consequences at the
moment of transition at 19. The definition and delineation of the outcomes in the plan is clearly a
central factor in any assessment of whether the educational process is complete, whether further
progress is achievable, and in turn whether the statutory test for further post-19 educational
provision is perceived to be passed.
3.4. Numerous difficulties were identified in the construction of EHC plan outcomes. Some LAs were
simply unclear about what outcomes should be listed and how they should be specified: outcomes
were often unintentionally ‘fuzzy’ or unclear; they did not adequately capture the needs or
aspirations of the young person. As many LAs lack the capacity to fully oversee the transfer
process it has frequently been teachers who have steered the composition of the plans; outcomes
might thus be too narrowly focused on educational attainment rather than broader conceptions of
development and progression which included reference to health and wellbeing. Sometimes there
might be too much of a focus on employment to the exclusion of other outcomes.
3.5. It was suggested that the Department for Education should publish examples of well-drafted EHC
plan outcomes, and perhaps even national templates. Templates might be especially useful for
those LAs who are struggling. There was a risk, however, that outcomes might become too generic:
there was already evidence of a “cut and paste” approach to EHC plans in some cases. The key
was to ensure a certain extent of standardisation, so that those composing EHC were not always
starting from scratch – but also to enable responsiveness to the particular needs of the individual
young person.
3.6. The appropriate specification of outcomes was only one dimension in ensuring that provision met
the needs of the young adult. The EHC plan had to be realistic; it had to encourage people from
different services to come together; it had to incorporate and create a vision of person-centred and
imaginative practice.
4. The role of the LA
4.1. LAs were presently under severe financial pressure, both in the context of SEND and more widely.
Cuts in funding were the most significant for many years.
4.2. Nonetheless not all the difficulties of implementation of the SEND framework could be attributed to
funding shortfalls. Some LAs were responding to the challenges of SEND administration and
provision more effectively than others. As an example, in some areas there was an apparent
default position that Year 13 leavers would not continue with EHC plans; they were being moved to
social care rather than educational provision. But other LAs automatically continued EHC plans and
moved leavers to educational placements.
4.3. These geographical differences in approach and effectiveness were partly attributable to LAs’ past
trajectories and the very different cultures around SEND which have been handed down. Some
LAs have historically been proactive in funding post-19 provision.
4.4. Changing the culture around SEND, whether in mainstream schools or in LAs, has been a focus of
the Act and its implementation: as the previous BWB round table noted, there has been an attempt
to create a cultural shift towards involving parents and young people in decisions, personalisation,
and integration of health, education and social care. But cultural change is challenging in any
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context – and especially so in the present difficult environment for LAs.
4.5. There was a specific challenge in redeveloping the LA workforce. LA staff working on SEND had
generally been employed as administrators. Now they were being asked to perform a very different
role which demanded very different skills – in particular people-centred skills which were more
characteristic of social work rather than LA administration. This was especially important for LA key
workers. But workforce redevelopment was difficult when LAs had little spare capacity or resources.
4.6. A significant driver for LA improvement will be Ofsted inspections. Ofsted and the Care Quality
Commission will be trialling a new accountability framework. They will be assessing, for instance,
the extent and effectiveness of joint commissioning and cooperation at an ‘area’ level, as well as the
implementation of EHC plans.
4.7. There was a suggestion that, where LAs were failing, their services should be taken over by another
LA or a new management team introduced. This idea was not generally supported, especially given
that LAs were clearly under-resourced. Those LAs which were struggling should instead receive
support and advice about best practice from LAs which were doing well.
4.8. More positively, there were emerging signs of some LAs working well together – for instance, coming
together to form collaborative consortia around procurement.
5. Markets, procurement and costs
Barriers to new provision
5.1. There was not enough competition in the specialist post-19 provision ‘market’. From the LA
perspective, the lack of provider competition limits the ability to contain costs. Providers did not
necessarily concur with this perspective. It was in particular very difficult to make cost comparisons
in this field: individual packages can be very different, so that it is rare that a simple like-for-like
comparison is possible.
5.2. The requirements and regulations of the Education Funding Agency (EFA) created barriers to entry.
Schools, for instance, are not permitted to offer educational provision beyond 19; to do so they must
establish a separate legal entity.
5.3. New providers also face barriers. They must show, for instance, that they have ten LA-funded
students in order to be eligible for EFA funding. This is a difficult task, especially since LAs will not
necessarily commit to a placement if they cannot be sure that the provision will be in place. The
purpose of such EFA policy is to ensure that the new setting is financially viable. But the
specification of ten students seems arbitrary. Given that young people with profound needs receive
substantial levels of funding, would not a specification of 5-8 students be more sensible? The
compliance rules were too inflexible.
5.4. A further entry requirement is that new providers must have in place a suitable site – but no
government funds are available for capital refurbishment.
Procurement and commissioning
5.5. A number of issues were raised around procurement, commissioning and funding of SEND provision.
There can be, for instance, an awkward interface between SEND and procurement. Where there is
a legal duty to put in place the preference of a young person and his/her parents, then a
procurement approach can no longer be applied. Providers were concerned about the transaction
costs of contracts and procurement. A disproportionate amount of staff time is dedicated to
responding to demands around procurement and contracting – for instance, discussions about what
provision should be and what it should cost. These costs need to be reduced. A national
framework to guide commissioning and procurement would be helpful in this regard.
5.6. Demand-side funding attached to an individual student can create difficulties and uncertainty. As
one example, it is sadly the nature of this user group that there is a relatively high mortality rate.
The death of a student is extremely upsetting for schools. But there is also a financial dimension –
top-up funding attached to the student may be immediately withdrawn, with considerable impact
upon the organisation’s planned budget.
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6. Understanding value… and the implications for joint commissioning
6.1. SEND provision is often perceived to be very expensive. But this focus on costs is short-sighted.
The real issue is the value created for young people by the provision – and whether the costs are
justifiable given this value. For instance, provision may support young people into employment; it is
thus an investment which not only creates significant value for the young adult but also substantial
future savings for various government services.
6.2. It was therefore suggested that there is a need for a full evaluation of the real costs and benefits of
SEND provision – for instance, through a social return on investment approach (SROI). There have
been two previous explorations of SEND provision by Baker Tilly for NASS (lead authors were Jim
Clifford OBE and Chris Theobald). Both show that, even if provision seems expensive, a
comprehensive evaluation of outcomes indicates clear value. Electronic copies of these can be
downloaded from www.nassschools.org.uk.
6.3. Investment in SEND provision can be shown, through an SROI approach, to provide benefits and
savings for public services beyond the LA and the EFA. Good post-16 and post-19 provision can
reduce future demand for, and hence funding pressures upon, adult social care, health and welfare
payments.
6.4. At the moment health and social care services generally do not participate in commissioning - the
education budget covers the bulk of SEND costs. The challenge is to help these other service
areas to understand the ‘cashable’ savings which they might receive from investment in SEND
provision, so that they become involved in joint commissioning. There is a potential role for
outcomes-based commissioning, which might establish financial incentives for health and social
care commissioners to participate.
6.5. In reality such models of joint commissioning may be a long way off. It is very hard to bring non-
education statutory partners to the table in a timely manner – for instance, to produce an EHC plan,
in spite of the new statutory duty on the LA and health services to co-operate to ensure that the
EHC plan and care plan are aligned.
7. Teacher training and continuing professional development in special schools.
7.1. The progression of young people with SEND towards adulthood demands a particular ethos, culture
and way of thinking among the educational professionals who work with them.
7.2. There are numerous barriers to initial teacher training and continuing professional development for
teachers in this field. There is very little training available. Further, there are legal compliance
problems which prevent special schools from taking part in initial teacher training. Teacher training
agencies require age-appropriate curricula, so that, at secondary-age special schools, student
teachers should pursue secondary school curricula – even though these curricula are inappropriate
for the user group. Therefore there was effectively no funding available for relevant training. The
initial teaching training system had been designed with mainstream schools in mind and was too
inflexible; there needed to be a skills-based approach to teacher training rather than an age-related
one.
7.3. There was some discussion about whether there should be a specific training and leadership
development pathway for specialist SEND teachers. This had previously been considered, but such
a pathway was challenging because there were too few opportunities for moving into leadership
positions. On the other hand, it was in fact increasingly difficult to find SEND specialists to move
into senior leadership teams in special schools.
Dr Jonathan Roberts
Department of Social Policy
London School of Economics and Political Science
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