Stone King welcomes the ambitious white paper, ‘Every child achieving and thriving’, and the “generational opportunity” it describes.

Much of the media focus thus far has been on the changes to the entitlement of children and their parents. This briefing looks at the effect of this reform on schools and colleges.

The devil will also be in the detail in future changes to legislation, the Code of Practice and statutory guidance, but key changes which stand out for schools include the following. 

The key change is the legal requirement for schools and colleges to generate and review (at least annually) individual support plans (ISPs) at one of two levels (Targeted and Targeted Plus) for all students with identified SEN. We will see whether the scope of SEN narrows in the future, but if the same proportion of students (currently about 20%) are deemed to have SEN, that will significantly increase the workload of school and colleges.  

Those ISPs will also involve additional and significant legal duties on schools and colleges:

    1. Schools will have to generate and constantly maintain the detail of provision in ISPs. That may make provision more agile for students but also may cause more disputes between schools/colleges and parents/young people. There will be more parental “co-production[1]” expected, which again could improve provision but will certainly increase workload.
    2. ECHPs, when issued, will be more strategic documents and Schools will also have to issue ISPs alongside ECHPs to contain the detail of the student’s provision”. The LA’s duty will be “to secure access to support and provide sufficient funding to the setting, within national banding, to deliver the EHCP[2]”
    3. The consultation[3] tells us that “Through the introduction of ISPs, settings will be accountable and responsible for delivering educational provision and supporting the child or young person to learn, rather than this being the responsibility of the local authority”. It appears that no actual specific new legal duties will be imposed on schools/colleges to implement ISPs beyond their current duties to use their “best endeavours” (under SEN law) and to make “reasonable adjustments” (under equality law). However, the extent of a school/college’s “accountability” in delivering provision under ISPs requires further clarification. Guidance[4] on reasonable adjustments will be issued by the DfE. The DfE should take the opportunity to rationalise the parallel duties that school/colleges have under SEN and equality law, which have long caused confusion in practice.
    4. The Consultation states that “Where there are concerns about provision, parents and young people will be able to resolve this directly with the setting, including making use of the improved schools complaints process”. Whilst schools and colleges need to be accountable, they are already reeling under the weight of AI supported and generated parental complaints, and will be very concerned about having to manage an even greater complaints workload unless DfE guidance gives schools and colleges robust powers to deal with vexatious complaints when they occur. 

Another necessary and key change will be the gradually switching of public funding away from distribution through LA High Needs “top up funding” to provide more direct funding of mainstream schools and colleges to support their extended role in inclusion.  It will be crucial for schools and colleges to have flexibility in the use of that funding if they are to deliver inclusion in a dynamic and effective way. The risk is that schools and colleges will be bogged down with producing detailed, costed provision maps for all their students with ISPs to explain[5] how they are meeting their statutory delivery duties. 

As regards special schools there is a distinction drawn between state funded and independent special schools. The common requirement will be that they make provision to deliver “nationally defined Specialist Provision Packages” and “Packages will form the basis for future EHCPs, in both mainstream and specialist settings”. Crucially these Packages will[6] be “linked to a nationally set costing framework based on the provision outlined in the Package”. 

Recent ministerial comment has focused on examples of private profit being made out of special schools, and the consultation document contemplates strong legal controls on the governance and activity of independent special schools. The government will “legislate to bring the duties and oversight of ISSs into line with other special schools by [amongst other changes]:

    • Creating a statutory definition and, via a separate consultation, standards for ISS.
    • Aligning their admission duties with that of other specialist settings.
    • Requiring them to offer placements based on Specialist Provision Packages and in accordance with national funding bands, and to adhere to the Code of Practice”.

The Government is also “considering what changes would be required to ensure special post-16 institutions are treated in a similar way, recognising that this sector will continue to play a vital role”[7].

We will also see whether LAs will use their proposed powers under the Children’s Wellbeing and Schools Bill to open new maintained special schools, although that may conflict with the new objective of grouping all schools in trusts unless individual LAs have an appetite to set up such trusts.

Clearly if the overall objectives are to place proportionately more students in mainstream settings and control the costs of special school placements, the availability of sufficient special school places will have to be managed carefully over time, especially if the independent special school sector contracts significantly.

Another important issue, which is not expressly addressed, is what will happen to the considerable number of students being educated in “mainstream” independent schools through ECHPs paid for by LAs. If the eventual outcome is that ECHPs will only be issued to students who require defined “specialist” packages, presumably that type of school will need to adapt to provide those packages (and manage on the fees available) if they want to receive public funding. 

Given the complexity and depth of these proposed changes, we are glad to note that the Government will “work with the sector to implement our reforms in a sequenced, phased and manageable way”[8].

Footnotes

[1] White Paper (“WP”) page 50: “This plan will describe the child’s day-to-day educational provision and the support required, and will be created collaboratively with parents”.

[2] Consultation (“C”) page 68

[3] C97

[4] C42: We will produce practical guidance on reasonable adjustments, which will contain real examples and simple, actionable tools to embed inclusive practice confidently and consistently… Our new guidance will make clear that children do not need a diagnosis to receive reasonable adjustments,

[5] WP55 Schools and other education settings will be held accountable for how they use all their inclusion funding, including both the new Inclusive Mainstream Fund resource and the funding they already receive to provide support for children with SEND through their notional SEN budgets (and future funding through the National Funding Formula linked to SEND-related factors).

[6] C64

[7] C80

[8] WP15