The Education Select Committee is conducting pre-legislative scrutiny of the Government’s proposed reform of provision for children and young people with Special Educational Needs (SEN). These on the most part constitute a number of questions based upon a letter written by the outgoing Minister Sarah Teather. You can download a copy of the draft legislation.

My comments are outlined below, if you wish to add your comments to the committee that can be done before the 11 Oct '12 to educom@parliament.uk and marked “Pre-Legislative Scrutiny: SEN”.

1. This submission will address some specific areas of concern for children with Down syndrome (DS) to enable their successful access to education. Down syndrome is the most common form of learning disability in the UK (there are about 840 babies born with Down syndrome each year with about 35,000 people with DS living in the UK today (http://onlinelibrary.wiley.com/doi/10.1111/j.1468-3148.2010.00593.x/abstract)).  

2. DSA figures also reveal that 97% of pre-school families expected their child to go into mainstream, yet in 1988 when they carried out a survey of parents with children who have DS about 87% of children with DS educated in mainstream primary only 23% transfered to mainstream secondary. Many children who do go to mainstream schools are held back in the reception year when their peers move up to year one.

3. Children with DS have only very recently been able to access formal education with changes introduced by Section 10 of the Education Act 1976.

4. The Committee invites written submissions of evidence addressing the following points:

Does the draft Bill meet the Government’s policy objective to improve provision for disabled children and children with special educational needs?

5. There is little in the Bill that demonstrates an improved provision. The idea of the personal budget is one which has the language of delegated control, however it is one with is necessarily limited (both financially and in access to services) and is a needless refocusing of support services on administration of budgets rather than excellence in support. Many parents will welcome the idea of more control – however they would welcome more the promise of dedicated and appropriate support for their children, something this Bill fails to define or deliver.

6. Personal Budgets are illusory in painting a picture of control where parents in reality will have little choice over available speech therapy, occupational therapy or specialist teachers – spend is anticipated to be manipulated downwards and quality, and availability of service put down to personal choice. Local offers have little or no quality control or high bar in place (e.g. following best practice from national professional bodies such as the Royal College of Speech Therapists on early intervention with children with DS).

7. This Bill lacks a vision of inclusion and excellence for our young people with Down syndrome and is likely to be a backwards step in a system already failing them. The aim should not be of ‘integrated support’ rather for integrated and successful children.

What impact will the draft Bill have on current institutional structures?

8. There is a significant danger that this Bill will prove a negative force against inclusion in mainstream schools for pupils with SEN. Given the only very recent opportunities for inclusion of children with DS within the current system clauses such as 19 (4a & 4b) give schools the potentially avoid addressing inclusion of those with Down syndrome based upon such undetailed and unmeasured sub clauses as ‘(i) the provision of efficient education for others, or (ii) the efficient use of resources.’

9. The term ‘efficient’ should be removed for a higher bar. For a school to prove, beyond all doubt, that it is not in the interests of the child to attend despite their parent’s wishes. Efficiency speaks to the concepts of productivity and cost control, however children’s inclusion produces effects greater than the investment required – social inclusion, understanding of other’s needs, friendships, behaviour modelling and higher educational achievement.

10. The concept of mediation rather than offering a chance for early resolution of issues could actually act as a further barrier to parents and children achieving the outcomes they need in a timely manner. Children with SEN need swift action and often the recourse to Tribunal is an effective and legal way to resolve disputes.

Is there anything missing from the draft Bill?

11. The Bill does not lay out a framework for measurement of success which given the aim stated in the Foreword of addressing the fact that the current system is ‘failing to address their [children with SEN] true needs’. The Bill fails to make any attempt to identify what these ‘true needs’ are, or to require any demonstrable outcomes from the legislation at all.

12. Only as recently as 2006, in the then Labour government response to a House of Commons Select Committee Report on Special Educational Needs in the same year, was SEN training proposed as a core component to teacher training and the recognition that school SEN co-ordinators should be qualified teachers. Without the key skills and understanding, of special needs whether specific for children with a diagnosis as with Down syndrome and non-specific for many other children, whose special needs can be economically or learning bias in origin, then it is not a surprise that many teachers feel that children with SEN should not be included.

13. This Bill offers no legal framework to support the proposed ‘integrated support’ with the Health and Care elements of the EHC unsupported by the opportunities to challenge available within the Education provision. Health and Care should also be subject to legal responsibility and consequently legal challenge by parents.

How the general duties on local authorities to identify and have responsibility for children and young people in their area who have or may have special educational needs (clauses 3 and 4) work with the specific duties in other provisions (clauses 5 to 11, 16 and 17 to 24)?  Are they sufficiently coherent?

14. The requirements set out under clause 11 fails to define any level of adequate provision of services for those children identified with SEN, it also fails to take a sufficiently national view on how these services could be shared, improved or reach a significant levels of excellence.
15. Brahm Norwich, Professor of Educational Psychology and SEN at the University of Exeter points to a parting of policy and statements from the Labour government where in 2006 Lord Adonis, the Parliamentary Under Secretary, told the select committee that ‘the government did not have a policy of inclusion that resulted in closing special schools’ in direct contradiction to the ‘Removing Barriers to Achievement’ strategy from 2004 (Warnock, 2010: 51). Warnock has been quoted (Quarmby 2006) as saying:
“I find it interesting, the subterranean way in which Labour is coming round to special schools.”

16. Baroness Warnock described things as getting:
"far worse from 1988 onwards [...] (for children with SEN)[...] who [...] were not going to help the league tables”
(Select Committee on Education and Skills Third Report 2006)

17. We find ourselves with a broad consensus towards some form of segregation in schools from the politicians and teachers unions, and for reasons which appear to come down to the failure to integrate properly. Not addressing training, not providing resources appropriately and using knowledge about particular conditions strengths and weaknesses. If the use of the term ‘ideological’ was meant in a pejorative way to refer to inclusion then that criticism stands if it is to describe a great deal of experience by pupils with Down syndrome as being more ideological than practical.

Do the provisions achieve the aim of integrated planning and assessment across agencies?

18. Local Education Authorities (LEAs) are in an untenable position where they act as both the provider and funder of services which they are also tasked with constraining. As a result LEAs often allow statements to reflect what they can afford rather than what the child actually requires. A common issue for children with Down syndrome is the provision of speech therapy, which is both expensive and important, consequently resulting in frequent tribunals (also chaired by LEAs) where parents attempt to extract the correct level of support. The statementing process itself is also byzantine and complex, so is likely to expose a bias towards educated middle class parents willing to fight. That this system needs reform is not in question, the strengths of the system that should be retained (and developed) should include:
18.1. The legal requirement for a state funded school to accept a child with SEN if their parents request it.
18.2. Currently LEAs allocate the funds that are spent to appropriate professionals, recognised speech therapists etc. making these funds freely available to spend by the schools on whatever support they deem necessary could undermine consistency in professional support and understanding – which needs bolstering not undermining
18.3. A collective and positive strategy for inclusion
18.4. Compulsory training and experience for teachers in SEN

19. Not everything is perfect in mainstream, this is clear, yet a move away from inclusion would be a retrograde step. There are many good teachers in mainstream schools who given the right support are able to take simple steps to achieve great inclusion to the benefit of all pupils and to the great advantage of the child with DS. As the Lamb Inquiry asserted one of the biggest issues facing the current system is that it is ‘designed around the presumption of failure’.