Local Government Association response to the Government consultation on the SEND and alternative provision system in England

The previous reforms to the SEND system set out in the Children and Families Act 2014 have failed to achieve the goal of improving provision for children with special educational needs and disabilities (SEND). Placing children and young people at the centre of the SEND system was right, but the reforms set out in the Act were not supported by sufficient powers or funding to allow councils to meet the needs of children with SEND or hold health and education partners to account for their contributions to local SEND systems.


About the LGA

The Local Government Association (LGA) is the national voice of local government. We work with councils to support, promote and improve local government.

We are a politically-led, cross party organisation which works on behalf of councils to ensure local government has a strong, credible voice with national government. We aim to influence and set the political agenda on the issues that matter to councils so they are able to deliver local solutions to national problems. The LGA covers every part of England and Wales, supporting local government as the most efficient and accountable part of the public sector.

Key messages

  • Councils share the Government’s ambition of making sure every child with special educational needs and disabilities (SEND) gets the high-quality support that meets their needs. We welcome the Government’s review of the SEND system and believe that the proposals set out in the consultation will help improve the way that SEND support is delivered to the benefit of children and young people with special needs.
  • The previous reforms to the SEND system set out in the Children and Families Act 2014 have failed to achieve the goal of improving provision for children with special educational needs and disabilities (SEND). Placing children and young people at the centre of the SEND system was right, but the reforms set out in the Act were not supported by sufficient powers or funding to allow councils to meet the needs of children with SEND or hold health and education partners to account for their contributions to local SEND systems.
  • It is positive that the Green paper acknowledges that councils are ideally placed to act as convenors of local SEND systems, bringing together health and education partners to develop local inclusion plans. The Green paper rightly recognises that getting the accountabilities, accompanied by the right levers will be crucial. We look forward to working with the Department for Education (DfE) to ensure councils have the powers to hold partners to account for their contributions to meet the needs of children and young people with SEND.
  • Improving mainstream provision and inclusion levels are central to the success of the proposals set out in the Green Paper. We would like to explore the development of a more contractual relationship between councils and schools in the provision of high needs funding, focused on outcomes and holding all schools to account for the successful delivery of those outcomes.  The Schools White paper proposes a regulatory review of Multi-Academy Trusts (MATs) and this review provides an opportunity to clarify the role of councils, and the powers they will have to hold schools in their areas to account for the support provided to children and young people with SEND. Democratically elected councils are best-placed to deliver effective place-based accountability, working with DfE regional teams, to hold schools to account for increasing levels of mainstream inclusion.
  • Access to health services, included therapeutic and preventative mental health services remains a huge challenge for children and young people with SEND and we are concerned that this will have an impact on implementation of the wider ambitions set out in the Green Paper.  Long term sustainable funding is needed for councils to meet current and unmet demand for children’s mental health support that has built up during the pandemic. Supporting young people’s mental health should not be seen as a solely NHS issue. The vital services that councils provide are essential to supporting children and young people’s wellbeing; councils need to be treated as an equal partner and adequately resourced to ensure all young people who need it can access comprehensive and timely support.
  • It will take several years for the proposals set out in the Green Paper to be taken through the legislative process, before becoming law. In the meantime, making additional high needs funding available via the ‘safety valve’ and ‘Delivering Better Value in SEND’ programmes is welcome, but the Department for Education (DfE) must go further and develop a plan that eliminates every council’s Dedicated Schools Grant deficit.
  • Parental confidence in a new SEND system will be crucial if it is to work effectively and we are keen to work with parents, families, schools, health partners and the Government to ensure a reformed system meets the needs of all children and young people with SEND.

Consultation questions

What key factors should be considered when developing national standards to ensure they deliver improved outcomes and experiences for children and young people with SEND and their families? This includes how the standards apply across education, health and care in a 0-25 system.

We understand the need for greater consistency of approach across the SEND system, including through a single, digitised Education, Health and Care Plan (EHCP). The Green paper does however acknowledge that even in such a system there will be a need for some flexibility to reflect available provision and differing levels of need. We are concerned that too great a focus on the ‘national’ part of the system could raise expectations amongst parents and carers that the same support will be available in every area and delivered in the same way. Instead, the standards should focus on the things most important to children and young people with SEND and ensuring they achieve good outcomes. A national set of academy standards would be particularly welcome in addressing some of the inconsistencies in the school system for pupils with SEND, as well as setting out the Government’s expectations for increasing levels of mainstream inclusion.

In the next stage of the reform process the Government should provide more detail on the shape of the proposed national standards to inform discussion on how they would impact the system, including on outcomes and on budgets.

How should we develop the proposal for new local SEND partnerships to oversee the effective development of local inclusion plans whilst avoiding placing unnecessary burdens or duplicating current partnerships?

The establishment of local SEND partnerships, convened by councils is welcome. For these partnerships to work effectively, councils must have backstop powers to hold partners to account if they fail to make appropriate contributions to meet the needs of children and young people with SEND. Proposals for the development of local inclusion plans should give local areas flexibility to build on existing co-working arrangements and structures.

What factors would enable local authorities to successfully commission provision for low-incidence high-cost need, and further education, across local authority boundaries?

We support proposals to allow councils and their partners to work across boundaries to drive down the costs of low-incidence high-cost places while also encouraging the development of provision which meets children’s needs. The Department should also consider developing national arrangements for the small number of placements for children and young people with the most complex needs and associated highest costs, as we have also called for in relation to children’s social care placements.

While working across boundaries can help to ensure economies of scale and greater purchasing power, there are key benefits to working locally that should be retained to ensure strong outcomes for children. For example, councils will wish to work closely with children and families to shape provision, decide on the most appropriate placements and build support around individual children; this must not be lost in regional or sub-regional arrangements.

Relationships between individual councils and providers are also vital, particularly where providers are located within a council’s locality. These are not only important in managing the placements of and support for individual children, but in building local capacity and responding to local need.

Locally-led solutions to commissioning across local authority boundaries, rather than structures imposed from above, would allow councils to build on existing relationships and respond to local contexts. Where we see existing commissioning partnerships working well, often there has been investment in dedicated capacity to manage this. Funded support for collaborative arrangements could help to tackle some of the issues without infringing on existing good practice or removing local autonomy.

What components of the EHCP should we consider reviewing or amending as we move to a standardised and digitised version?

We support the proposal to introduce a standardised, digitised EHCP, which will help improve consistent and timely access to support for many mobile families. It is important that this is co-produced with councils, parents and providers to ensure it meets the needs of all key partners.

How can parents and local authorities most effectively work together to produce a tailored list of placements that is appropriate for their child, and gives parents confidence in the EHCP process?

The LGA wants to work with the DfE and National Network of Parent-Carer Forums at a national level to develop a set of shared principles that can underpin discussions between individual councils and parent-carer groups. A transparent and co-produced list of appropriate placements within a local area, as well as those out-of-area for children with more profound needs, will allow for a shared understanding of how needs can best be met and start to build trust in a reformed SEND system. Any such list should take into account the providers’ performance, availability and suitability of places to meet local need as well as the value for money offered by the placements. It will be important that the process is promoted widely so that other parents are aware of how decisions were made and understand how they can have a say in the process going forward. 

We look forward to having sight of the Department’s initial proposals setting out how parents/carers, councils and health and education partners will reach a shared decision on how a placement from a tailored list will be decided upon. It would also be helpful for the Department to clarify the role of providers in developing the list of suitable placements. It will be important to set out proposals on how the market will be managed in this regard.

To what extent do you agree or disagree with our overall approach to strengthen redress, including through national standards and mandatory mediation?

The LGA supports the proposal to introduce mandatory mediation with the aim of resolving disputes earlier. This supports findings of LGA-commissioned research, which found that the increased proportion of mediation cases going to Tribunal appeal reflected the trend of increasing proportions of appeals relating to the contents of EHCPs, specifically Section I and that it was more difficult to resolve such disputes through mediation.

We are however concerned that there is insufficient capacity in the mediation system to meet an increase in demand across all areas if this proposal is implemented. The Department must work with mediation providers to develop proposals, accompanied by sufficient funding, to increase capacity where it is needed.

Do you consider the current remedies available to the SEND Tribunal for disabled children who have been discriminated against by schools effective in putting children and young people’s education back on track? Please give a reason for your answer with examples, if possible.

The LGA does not have a view with regards to this question.

What steps should be taken to strengthen early years practice with regard to conducting the two-year-old progress check and integration with the Healthy Child Programme review?

We welcome the recognition of the importance of getting it right in the early years to ensure children are enabled to thrive, needs are identified early and staff have the skills and confidence they need to provide support to children. Providing training and support to staff is essential and the proposals setting out a review of the Level 3 early years educator qualification is welcomed, as is a greater focus on specific support for SEND. However, the sector has experienced significant challenges which have been exacerbated by Covid-19, and recruitment and retention of skilled staff remains an ongoing concern.

The LGA has conducted research looking into the Special Educational Needs Inclusion Fund and believe there are some quick fixes that could be made, so the proposal set out to look at this are welcomed. However, we have long highlighted that early entitlements are underfunded and that the early years sector needs to be properly resourced to support the Government’s ambitions set out in this paper, therefore consideration of a wider review of early years funding is welcomed.

Health visiting and school nurse services are leaders of the Healthy Child Programme, the

the national evidence based universal programme for children aged 0-19. The programme provides the foundations for health improvement, public health and supporting families to identify problems early and give children the best start in life. The Healthy Child Programme shares many similar workforce concerns to early years; recruitment, retention and capacity.

Health Visitors provide a vital service in ensuring children get the best start in life and councils have been working hard despite the pandemic to ensure this is still available to those who need it in local communities. However, we know that many areas are struggling to recruit Health Visitors, with the number of Health Visitors falling by around a third over the last five years. Current projections estimate that there is a shortfall of 5,000 health visitors in England.

We are therefore calling for a properly resourced, integrated workforce plan that underpins the current refresh of the Healthy Child Programme. In addition to ensuring we have a sufficient supply of specialist public health nurses, a workforce strategy should recognise the benefits of having a diverse range of health visiting, school nursing, children’s centre and other early years staff in children’s and health services. We believe this will ensure councils are able to provide a consistent service which leads to better outcomes for children and families.

The Healthy Child Programme in local authorities is funded through the ringfenced public health grant, which has been vastly reduced in real terms since 2015-16. Despite more recent increases in cash terms, the public health grant in 2021/22 was 24 per cent, or £1 billion, lower per head in real terms compared to 2015/16.

To what extent do you agree or disagree that we should introduce a new mandatory SENCo NPQ to replace the NASENCo?

We support the proposed introduction of a SENCo National Professional Qualification (NPQ). This reflects the complexity of the system in which SENCos work and will help equip them with the skills needed to lead on the delivery of SEND support within schools. If we are to increase levels of mainstream inclusion then the Department must go further and develop training and support for all teachers and school staff to ensure they can meet the needs of pupils with SEND in mainstream settings.

To what extent do you agree that we should strengthen the mandatory SENCo training requirement by requiring that headteachers must be satisfied that the SENCo is in the process of obtaining the relevant qualification when taking on the role?

We agree that the Department should strengthen the mandatory SENCo training requirement by requiring that headteachers must be satisfied that the SENCo is in the process of obtaining the relevant qualification when taking on the role. Any requirement should be as light-touch as possible to minimise the burden on both trainee SENCos and school leadership teams.

To what extent do you agree or disagree that both specialist and mixed MATs should be allowed to coexist in the fully trust-led future? This would allow current local authority maintained special schools and alternative provision settings to join either type of MAT.

Individual special schools should have the discretion to choose whether to join either a mixed or specialist, or council-led MAT, depending on that school’s assessment of which structural arrangement will best help it continue to meet the needs of children and young people with SEND.

What more can be done by employers, providers and government to ensure that those young people with SEND can access, participate in and be supported to achieve an apprenticeship, including through access routes like traineeships?

The Green Paper acknowledges young people with SEND may need additional support to navigate their way through the post-16 education and training offer and flexible approaches to study including part-time or through a modular approach. At the same time, some Level 2 provision (BTEC and apprenticeships) has been removed resulting in a reduction of pathways to further learning. Young people need a broad offer with alternative choices that are not unduly restricted, with a clear line of sight of what each post 16 route could lead to. Fundamental to this is being able to make informed choices through targeted and independent careers advice and guidance, but the system in and of itself is complicated.

Our own analysis (April 2021) found that the employment and skills system, including careers advice and guidance, is complicated. Across England, around £20 billion is spent on at least 49 nationally contracted or delivered employment and skills related schemes or services managed by nine Whitehall departments and agencies, multiple providers and over different geographies. No single organisation is responsible for coordinating this locally or nationally.

The LGA recently launched Work Local: Unlocking talent to level up, our latest employment and skills devolution proposals which build on the Government’s Levelling up White Paper. It makes clear recommendations to Whitehall on ways it can improve its approach to employment and skills policy and provision for all places right now, and what is needed for a coherent framework for employment and skills devolution. We also point to local government’s leadership, knowledge and innovation bringing together partners and national schemes to make the best of the current system to improve outcomes for residents, businesses and other employers. But local government can and wants to do far more for its people and places.

To enable this, we believe the LGA’s Work Local model should be implemented. It would give democratically elected local leaders the power and funding to work with the full range of national and local partners to join up careers advice and guidance, employment, skills, apprenticeships, business support services and outreach in the community. By enabling this approach, local leaders would be able to design services targeted to local needs while meeting national priorities. Independent cost benefit analysis reveals a Work Local approach could each year result in a 15 per cent increase in the number of people improving their skills or finding work, delivering benefits to residents, businesses, the health and wellbeing of local communities while reducing costs to the public purse.

To what extent do you agree or disagree that this new vision for alternative provision will result in improved outcomes for children and young people?

We support proposal to make alternative provision (AP) an integral part of local SEND systems and that their focus should be on ensuring that as many children as possible stay in or return to mainstream education as soon as possible. AP must focus on returning children with special needs to mainstream settings as soon as is practicable, supporting the focus on increased mainstream inclusion, and not be seen as a permanent placement. The Department must ensure councils are provided with sufficient, long-term funding to allow AP settings to meet the needs of children and young people as set out in local inclusion plans.

What needs to be in place in order to distribute existing funding more effectively to alternative provision schools, to ensure they have the financial stability required to deliver our vision for more early intervention and re-integration?

The proposed vision for alternative provision must be accompanied by sufficient, long-term funding for AP settings that will help provide certainty, aid planning and ensure that settings can focus on supporting children and young people back into mainstream settings.

To what extent do you agree or disagree that introducing a bespoke alternative provision performance framework, based on these 5 outcomes, will improve the quality of alternative provision?

We agree that the introduction of a bespoke alternative provision (AP) performance framework will help improve the quality of AP. A shared understanding of what a ‘good’ AP system looks like and how it should work is positive, but any framework will need to be accompanied by sufficient funding to ensure all AP settings have the capacity to meet the standards set out in the framework. The DfE should also work with partners to develop an improvement programme that provides timely support to AP settings that are struggling to deliver against the performance framework.

To what extent do you agree or disagree that a statutory framework for pupil movements will improve oversight and transparency of placements into and out of alternative provision?

We agree that a statutory framework for pupil oversight and transparency of placements into and out of alternative provision is positive. For such a framework to be effective it must be backed by sufficient powers for councils to act swiftly in the interests of children where poor practice is identified.

What are the key metrics we should capture and use to measure local and national performance?

While a 0-25 data dashboard will provide some information on the performance of the national and local SEND system, it will not on its own show how well any local SEND system is working. Data should not be used in isolation by the Department when deciding whether to intervene in a local SEND system. Key metrics should be taken from existing data collection measures to minimise any additional burden on councils and their partners.

How can we best develop a national framework for funding bands and tariffs to achieve our objectives and mitigate unintended consequences and risks?

The consultation acknowledges that councils already make use of ‘banded’ funding arrangements and the Department should build on this work when developing a national framework of funding bands and tariffs.

We agree that a national framework will help to improve consistency between areas and reduce the administrative burden on education settings that accept pupils from multiple councils. We also welcome the consultation’s acknowledgement that there will need to be a degree of flexibility for councils with the framework.

Given the scale of the challenge in implementing a national framework we would support the piloting of these arrangements and we also support the proposal in the consultation to focus on implementing banding for high-cost provision in the first instance.

How can the National SEND Delivery Board work most effectively with local partnerships to ensure the proposals are implemented successfully?

The National SEND Delivery Board should act a forum in which partners can come together at a national level to lead delivery of reforms to the SEND system, both as they go through the legislative process and in their implementation to ensure they will deliver improved outcomes for children and young people with special needs. The Board should also make the links with the Schools White paper and proposals in the Care Review to identify and resolve any tensions or contradictions in the various reform programmes.

Beyond that, we would expect to see the proposals set out in the Green paper to be piloted across several areas before they’re rolled out nationally. The Delivery Board should monitor the pilots, ensuring that lessons are learned and issues identified and resolved before the Green paper reforms are implemented in every area.

What will make the biggest difference to successful implementation of these proposals? What do you see as the barriers to and enablers of success?

Effective local accountability arrangements, accompanied by the correct levers and backstop powers, that create the right system-wide incentives to work collectively to meet the needs of children with SEND will be central to the success of the proposals set out in the Green paper.

It is vital that everyone involved in the SEND system has a shared understanding of how a reformed system will work and has an opportunity, both via the National SEND Delivery Board and broader consultation and engagement with local government, to feedback on the effectiveness of reforms as they are implemented.

Councils need certainty that the Government is committed to implementing reforms set out in the Green paper and that they will have the powers and funding to meet the needs of children and young people with SEND. The Government must also continue to demonstrate that the proposals are not being delivered in isolation and take account of, and are responsive to, proposals in the Schools White paper and Care Review.

There is a need for all partners to work collectively to ensure that children with SEND, alongside their parents and carers, have confidence that a reformed system can meet their needs in a timely and effective manner.

What support do local systems and delivery partners need to successfully transition and deliver the new national system? 

The Green paper proposes major reforms to the SEND system that will take a number of years to implement. In the meantime, making additional high needs funding available via the ‘safety valve’ and ‘Delivering Better Value in SEND’ programmes is welcome, but the Department must go further and develop a plan that eliminates every council’s Dedicated Schools Grant deficit.

The Green paper proposes to pilot the introduction of national banding and tariffs and this approach should be adopted more broadly. The learning from these areas will be crucial to implementing reforms more broadly.

We are calling for the Department to fund a sector-led improvement programme to provide long-term support to local SEND systems. This would be based on the principles that underpin the existing programme of children’s social care improvement support and uses multi-disciplinary sector expertise to share best practice and support areas that are struggling with different aspects of the SEND system, whether that is education, health or social care.

Is there anything else you would like to say about the proposals in the green paper?

The Green Paper recognises the interconnection between special educational needs, emotional needs and mental health which is welcomed. However, the current system does not work for children and their families and the proposals in the Green paper do not go far enough in recognising the steps that need to be taken, particularly for those young people with acute needs who require specialist support.

Contact

Clive Harris Senior Adviser – Children and Young People

Email: clive.harris@local.gov.uk