I do not usually take to publish letters of complaint, but this merits a bit more ‘shout out’ than my usual offerings! The complaint by myself and @e2ska is about this document:
Norfolk County Council has issued the above document to explain the eligibility criteria for a Needs Assessment and subsequent writing of an Education, Health and Care plan (EHCP). The document should be read in conjunction with a further document setting out what provision Norfolk expects its schools to be making from within its own resources (not yet published).
We welcome the fact that Norfolk has acknowledged its duties to publish this information under the Children and Families Act (CFA), 2014. We set out our response below to this document, which we have found lacks coherence. More concerning is the appearance that the local authority (LA) is applying criteria to a Needs Assessment and EHCPs that are above what the law requires. Whilst LAs can, quite rightly, develop their own criteria (SENCoP 9.16), it cannot be above that set down in legislation.
The document purports that the Local Offer sets out all of the support and services available in relation to SEND. The Local Offer in fact sets out what the LA expects to be available. It would not be possible to identify everything.
The list of legislations on page 4 omits some key pieces, in particular the Equality Act (2010). Schools have a duty to provide aids and services as Reasonable Adjustments, which might include netbooks or Speech and Language Therapy. The Equality and Human Rights Commission (EHRC) guidance is very useful here, to the LA, educational placements and parents alike. It would help put section 2.2 into context.
The table on page 6 is very misleading. Children requiring EHC plans ‘have needs so complex […]’ is wording that sits above what the law requires. The correct terminology is found in the CFA s20:
(2) A child of compulsory school age or a young person has a learning difficulty or disability if he or she—
(a) has a significantly greater difficulty in learning than the majority of others of the same age, or
(b) has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.
The gov.uk website suggests SEN might affect the following:
- behaviour or ability to socialise, for example they struggle to make friends
- reading and writing, for example because they have dyslexia
- ability to understand things
- concentration levels, for example because they have ADHD
- physical ability
The purpose of EHC plans, leading on from the Warnock Report (1978) and statement of SEN, was to enable children to attend mainstream schools with whatever additional support is required to enable this to happen. A child cannot be refused a mainstream placement unless their attendance would be incompatible with the efficient education of others, and neither the school nor the LA can take reasonable steps to remove that incompatibility. This is a very high bar (CFA s33(2)). Cost and suitability are not a factors (it may be worth noting that Norfolk SEND Partnership incorrectly cited suitability and cost in its last newsletter to refuse a placement within an Academy). The diagram on page 6 is suggesting that children either access SEN Support, or they attend a Special School, which is therefore wholly wrong. Additionally, children in special schools may not have ‘a complexity of need requiring coordinated support across health, education and social care’, since some may attend purely due to the differences in physical environment.
Comparing Norfolk with the rest of England can carry two meanings; either schools are unable to make provision due to lack of resources, or that Norfolk has a higher incidence of children with additional needs. It is not made clear what the LA’s belief is.
The list of SEN ‘myths’ are not all myths. Where a school cannot meet a child’s needs, for example because they do not have the resources to identify them, or if identified, they do not have the funding to meet them, the LA must assess and where necessary, make and maintain an EHCP. Where a school cannot fund provision, the LA must, even where cost to do so may be over and above that of a special school placement.
Whether a child is in need of assessment is, as reported correctly, a two-part process. The ‘process word’ however, is whether a plan may be ‘necessary’. This has been clarified in Buckinghamshire County Council V HW : ‘Necessary sets a standard that is somewhere between indispensable and useful or reasonable’. The bar for assessment is therefore quite low and broad.
Section 3.2 misquotes the four broad categories of SEN, which could be confusing. The language used in this area, and in other areas of the document is unnecessarily negative, it is the effect of any needs that indicates whether an EHCP may be necessary, rather than the severity of that need.
We found that section 3.2.1 confusing and muddled. Defining the difference between profound and multiple learning (MLD) and severe learning difficulties (SLD) does not add any value regarding whether or not a Needs Assessment should be carried out and it is not understood why autism/social communications difficulties have been singled out and no other diagnoses have been. This may lead readers to believe that a diagnosis is necessary for assessment, leading to more parents and practitioners seeking a diagnosis as a way to gain assessment. It is a child’s needs that lead the Needs Assessment, not diagnosis.
In 3.2.2, the terms ‘profound’ and ‘severe’ are being used, although as stated above, the legal description is ‘significant’. The subsequent descriptions appear to be applying criteria above what the law allows.
3.2.3, the broad heading of sensory and/or physical needs has been extended to include medical needs. Whilst this is not a problem as such, it could create confusion. The discussion under hearing and visual difficulties is again appearing to apply criteria that is above the law, through the use of ‘severe/profound’. Section 3.2.4 suffers from the same treatment.
The discussion of the difference between SEN and other difficulties which may result in challenging behaviour is welcomed. However there is a difficulty in reconciling the LA’s suggestion that it will rely heavily upon information obtained as part of the request for an EHC needs assessment, with the ability of the school to obtain such evidence if it falls outside of the school’s resources to provide this. The LA retains a duty to support such children outside of the SEND system. It is not clear to the reader how such children will be supported/route of referral.
At 3.3, the LA discusses whether it may be necessary for special educational provision to be made in accordance with EHC plan. It states that it will be the findings of the analysis of the factors above which will be used to consider this. However this is akin to putting the cart before the horse. The document is setting out reasons why a plan would be necessary as opposed to may be necessary. For a great many children it will not be known whether or not they will fall within the descriptions stated, and as we are stating, those descriptions appear to be creating a bar which is higher than relevant legislations.
This document is failing to recognise that there are more children with SEN within mainstream school than within the special school system (4-5 children within a class of 30 may have SEN – 14.4%). While it does correctly state that it is the school’s duty to provide well-founded interventions in the first instance, there is little clarity to the discussion of the LA’s duty to assess when the school does not have the resources to assess a child’s needs itself, or after having assessed the child’s needs, not having the resources to make the provision.
The SEN Code of Practice at 6.15 makes the case for higher quality teaching, alluding to higher skills levels to be available within schools as being the more cost effective and sustainable way of creating inclusive education. This is not disputed within the document, but it is hidden in the back of it, rather than being the start point. In many ways this document has been written back-to-front, which means that it does not follow a logical sequence, and reinforces the confusion. It does not make its argument for schools to increase its expertise very well, and it is only after schools have done so that the numbers of children identified as having SEN will fall.
We realise that this document should be read alongside another document setting out what the LA expects schools to be providing from within its own resources (SEN Regulation 53, schedule 2), but that now retracted document failed to actually do this. We would welcome the LAs direction to schools and parents in order to provide clarity for both. At this time, support is fractured across the schools within the county with soaring exclusions and lower numbers of school rated good or above.
We respectfully requests that the LA amends this document in light of the well-founded criticisms above without delay. We would also like to respectfully propose that the document be set out in a logical sequence, e.g.
- Definition of SEN and SEP, Children & Families Act, 2014, s20/21
- SEN Support, including SEN Regulation 51/Schedule 1, CFA s66 and the Equality Act/EHRC guidance for schools.
- Criteria for a Needs Assessment
- Grounds for refusal to assess
- Criteria for Issuing an EHC Plan
- Grounds for refusal to issue
- Moderating the process
Bren Prendergast – SEND Advocate/EHC Plan Adviser.
Emma Grimbly – Adviser-Advocate, ASD Helping Hands.