The Children and Families Act and the SEND code of practice set out clear guidance on caring for disabled children within our school system. The Act created a care document for disabled children that’s aim was to identify their specific special educational needs and meet them. This week the House of Lords published a cross-party report saying that “inadequate implementation and monitoring has made what should have been a landmark piece of legislation a largely missed opportunity”. The missed opportunity directly affects the outcomes, wellbeing and life chances of children with disabilities and special educational needs.
The Act formalised the process and put a set of expectations and legal duties on the local authority to ensure that children got the correct provision and support on time. However, due to cuts to local authority budgets and the lack of capital funding for specialist teaching, the financial burden on the local authority has only increased.
Over-reliance on private SEND schools has caused huge budget deficits as councils pay upward of £80,000 per place when local authority schools cost around £15,000 for children with similar needs. This is in a system that does not have to comply or have the same oversite as local authority schools. When the correct provision is not in place, children deteriorate further and require a more intensive and expensive education provision that falls on the local authority budget creating a cost spiral.
The problem starts with the early years. SEND children access far less of their free entitlements than other children, and only 18% of local authorities report they have enough provision to meet demand. The Early Years Alliance (2022) found that 28% of settings have refused a place for a child because they cannot meet their needs, and 92% say the local authority has forced them to use their own finances to support SEND children’s additional needs.
When the child accesses mainstream education during primary years, getting a diagnosis and the proper support is difficult. NHS waiting times for the correct diagnosis delays support in school and increase the prevalence of mental health concerns in young people. CQC has reported that the system is “fragmented” and does not have the required skills to deal with the mental health pandemic, especially with children diagnosed with autism and ADHD.
The Tory government’s response to this was the schools bill, which education secretary Gillian Keegan announced this week has been scrapped in another Tory U-turn that directly affects vulnerable children. The legislation was meant to address regional disparities, children currently not in school or receiving an education and greater oversight for the DFE on academy trusts.
Children with SEND are twice as likely to not have a school place or are currently without education than children without any SEND, so dropping the bill will cause massive concern for parent carers up and down the country with a SEND child without an education. This is further exacerbated by the vast regional disparities in the provision and the inability of local authorities to monitor inclusive practices within academy trusts.
The lack of support for parents and children can often lead to the need for costly social care intervention that is both scary and intimidating for families. This has led to the increase of SEND children being placed in care. A child with SEND is four times more likely to be looked after by the local authority showing how we are failing these children and families that are crying out for support. This number has grown drastically during tory cuts as early intervention services such as Sure Start, and well-funded primary school provisions have been decimated.
The solution, however, is not to start again. Inadequate implementation of the legal framework does not mean we must rewrite all the laws surrounding disabled and vulnerable children. A letter to the Secretary of State for Education, from 30 leading SEND lawyers, stated: “The SEND system is broken because it lacks local accountability. It is riddled with unlawful decision-making, with no negative consequences for local decision-makers – only for children and young people with SEND.”
Whilst the policymakers and local authorities do not have to adhere to rigorous scrutiny and accountability, the failure falls squarely on children with SEND. The solution lies in forcing the local authorities and schools to comply with the current law. Schools need to be given the ability to be genuinely inclusive, local authorities need to follow the law and health and social care need to work together to provide timely and proactive early interventions. Currently, none of these are happening, and again, it is disabled children and their families that suffer.