Populist politics undermines truth; preferring certainty over doubt and simplicity over complexity. This is visible in three word slogans like, “Get Brexit Done” or the many variations of “Build Back Better”. The oversimplification conceals dangerous trends that rarely get discussed. In particular the education provision to children with SEND, which is in crisis.
The complexity starts with a pincer movement of legal obligations. Although the education system has fragmented under successive governments, Local Authorities retain the statutory responsibility for pupil place planning. This means that LAs have to ensure there are enough school places of specific types to meet the needs of the population in their areas.
For mainstream schools, this is simple. You need to ensure that, across a region, you have sufficient primary, secondary and FE classrooms to accommodate the needs of the population. For efficiency, you want your schools to be as full as possible. Below an average of 24 children per class, it gets more difficult to provide ‘good’ education.
When you start to think about children with SEND, the other arm of the legal pincer is revealed. The Equality Act (2010) says that you cannot discriminate against anyone with a protected characteristic. This includes disability and the penalties for non-compliance are significant.
Most educators are inclusionists. They believe that if a child can be in mainstream schooling then they should be. Those who support grammar schools or talk about selection are not talking about improving education. They are describing ways to limit opportunity for some. Because it is too expensive to give the same chances to all. This selection process is dressed up as something else, otherwise it falls foul of the Equality Act.
In an ideal world public education would be tailored to the needs of each child. But any rational person can see that the costs of this are prohibitive. The minimum funding guarantee for English primary schools in 2021-22 is £22 per child per day (or £4,180 per year). But for young people with profound and complex needs, the cost of special schools can reach 20-30 times as much. If there isn’t enough money in the system to give everyone their entitlements, all you can do is:
- Keep people in the dark about their entitlements
- Delay people’s access to their entitlements
- Add barriers to people obtaining their entitlements
- Shift responsibility onto someone else and blame them
- Illegally redefine people's entitelments and
- Hope that the number of times you are found guilty in court of any of the above costs less than doing what the law requires
...this is exactly what many Local Authorities are being forced to do.
The government’s own data shows that the incidence of Education Health and Care Plans (EHCPs) has risen from 2.8% in 2015-16 to 3.7% in 2020-21. Despite the fact that over the same period the threshold of needs (the fifth bullet point on the list above) has also risen. At least one LA no longer issues EHCPs for Down’s syndrome; many LAs make families wait over two years for EHCPs; and most issue significant numbers of EHCPs without any additional funding for schools.
Before you start getting angry at LAs, the blame is not theirs to shoulder alone. Over the last decade, LA funding from central government has halved. High Needs Funding is based on historic levels and has not adjusted to increased demand. Moreover, LAs are not allowed to use funding for other purposes to meet this rise in SEND needs. The DfE restricts them to a maximum of 0.5% of virement (to be taken from the schools funding block) in any given year. If they break these rules they are required to sit on the financial 'naughty step' and submit regular budget refinancing plans. And remember this is to meet their legal obligations not spending on 'nice to haves'.
Despite next year's increase of 8%, central government funding is still inadequate to address the scale of debt run up by most LAs. Equally, the £2.6bn announced in the Chancellor's autumn spending review, to create additional places for SEND children, sounds like a lot. But it is only capital funding to build the new schools or extra classrooms. There is no commitment to pay for the education that the children taking up these places will need. Some LAs have between 50-100 children with EHCPs requiring specialist provision but with no named special school. These same LAs are being shamed for overspending their High Needs allocations. They are being encouraged to cut other services such as refuse collection, social care or early years provision.
The government has created a situation that encourages LAs to sweep the problem under the carpet. LAs are being forced to ignore or misdiagnose need. But they retain the risk if they are caught doing so in the courts. And an increasing number of them are being cuaght. In 2019-20 SEND Tribunals were up 13% on the previous year and LAs lost 95% of the claims brought against them. Indeed LAs have lost 91% of all actions brought against them since SEND reforms became law. This strongly suggests that the claims which come to tribunal are likely to be the tip of the iceberg with many thousands more children and families being deliberately kept in the dark and denied their entitlements.
This is further evidence of a nation in moral decline.
