Edited by: Geoff Anthony Lindsay, University of Warwick, United Kingdom
Reviewed by: Brahm Norwich, University of Exeter, United Kingdom; James Elliot Hall, University of Southampton, United Kingdom; Richard Rose, University of Northampton, United Kingdom
This article was submitted to Special Educational Needs, a section of the journal Frontiers in Education
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The Warnock report ‘Special Educational Needs' (Warnock,
The Warnock Report envisaged assessments would be focused on those needing additional support as “children who require the provision of regular special help outside the ordinary school ….call for greater resources and more complex organization of services.” The assessment was a means to secure these resources; “Unless these needs and the corresponding means of meeting them are explicitly recorded there will be real danger of insufficiency or default in their provision” (Warnock,
From its inception the framework was questioned as a means of organizing SEN provision with the House of Commons Education Committee (
The Government responded to the criticisms by enhancing the statutory assessment framework through the Education Act (
When the seminal Audit Commission reports (
Statutory assessment was also “a poor way of allocating resources within the system,” anticipating Warnock's later criticisms (Warnock,
It has often been the cost of statutory assessments and their inefficiency as a resource allocation mechanism that has dominated the debate on statutory assessment. What has been less focused on is the crucial role that the lack of parental confidence in the non-statutory offer has played in explaining the reliance on statutory assessment. The Audit Commission found that there; “is lack of confidence, particularly on the part of parents, that, without the protection it provides, the provision that is needed will be made. Where there is confidence, the statement is unnecessary,” (Audit Commission Ofsted,
Parents “value the security of a statement and the confidence it gives them to challenge the authority if the provision agreed is not forthcoming” (Lamb,
Securing parental confidence in provision without recourse to statutory assessment is a crucial element of the debate on, and the solutions proposed to, the Warnock framework. These issues are now explored within the context in which they developed in the public debate on the future of the system.
In 1992/3 the Government responded to the Audit Commission criticisms of the statutory process by tightening statutory duties on LAs and schools however by the time of 2002 Audit Commission critique they had moved to reverse the emphasis on statements. The Department for Education and Employment (DfEE) had concluded in 1997 that “statements can act as barriers to full inclusion of pupils with SEN” (DfEE,
A new policy statement, Removing Barriers to Achievement and associated guidance, was also developed with the aim of promoting early intervention, improved teaching and greater access to specialist skills. It was hoped this would lead to a “reduced reliance on statements” and a reduction in special schools placements as mainstream skills and support increased (DfES,
While the DfES were still grappling with improving the non-statutory offer Warnock produced a revisionist paper (Warnock,
Warnock's critique provoked a new Select Committee inquiry into SEN which issued two reports critical of the statementing system (House of Commons Education and Skills Select Committee,
Though not explored to the same extent there was also the option that the statutory system should only apply to pupils who have significant SEN placed in mainstream schools, the reverse of Warnock's revised proposal. It could be argued that those who go to special schools or resourced units do not need to have statutory protection as specialist provision is available to meet their needs. Statutory protections would then be reserved for mainstream provision where the adequacy of provision might be more insecure. However, this solution would still need a process for allocating special school places and assumes special school placements will always meet need. The most time consuming and often contested part of the statutory process would still have to remain in some form with a statutory right to appeal against decisions around placement. At best it is only a partial solution but does have the advantage of focusing attention on the quality of the mainstream offer.
The most routinely promoted solution to reforming statements that emerged from the Select Committee reports and subsequent debate was to separate statutory assessment into an independent assessment agency leaving LAs to organize provision (House of Commons Education and Skills Select Committee,
The Government responded that a radical separation of assessment from provision would “be a leap in the dark and would endanger the position of parents and children with special educational needs” (DfES,
How to improve the SEN offer was addressed in a number of related reviews commissioned in response to the Select Committee reports by the Government. The support of well-trained teachers with expertise in SEN, to strengthen provision for children was stressed in reviews of communication (Bercow,
The Inquiry provoked the issuing of new guidance on writing outcomes focused statements from National Strategies (DCSF,
Following from these reviews Ofsted's influential Special Educational Needs and Disability Review: A Statement is not Enough (Ofsted,
Some commentators argued that the framework should be adjusted to remove the statutory stage or dismantled altogether and be replaced by a more generalist assessment for all children, with a much greater focus on early intervention and greater investment in the system overall to secure provision (Williams and Maloney,
Another option was to maintain a multi-agency assessment outside of a specific statutory protection framework, giving parents the choice to be covered by statutory protection depending on their level of confidence in provision (Norwich,
The DfE had responded piecemeal to the individual reviews but the cumulative weight of their conclusions led to a complete review of the SEN system under the new Coalition Government starting in 2010. The primary focus of the review centered on reforming the process of assessment, and extending the age range of the statutory assessment framework while less attention was given to the non-statutory system (DfE,
Educational need remained the trigger for the production of a statutory assessment while integrating complex health and social care needs into the assessment process where there was also an educational need. Securing parental confidence and support for the new system meant guaranteeing that current recipients of statements would be covered by the new plans and that the legal test to qualify for a statutory plan would remain the same (DfE,
The reforms failed to extend legal protections in plans beyond education provision to health and social care. EHCPs therefore strengthened requirements which were already in the original statementing process to take account of multi-agency assessments but without adding the binding legal protection of the SEND Tribunal (Norwich and Eaton,
The DfE tested the reform proposals through a Pathfinder Programme with 6 of the 9 objectives focused primarily on statutory assessment (Hill et al.,
If there were expectations or fears that the more complex EHCPs would produce fewer statutory plans this has not been the case. The number of statutory plans under the new system has increased by just under 50%, from 237,111 statements in 2014 to 354,000 EHCPs as at January 2019 (DfE,
A significant proportion of the growth in EHCPs has been driven by the opening up of statutory protection to the 16–25 cohort (replacing Learning Difficult Assessments for young people in further education and extending the age range). The proportion of the 16–19 age group moved from 10% of all statements in January 2014 to 22% of all EHCPs in January 2019, while the 20–25 age group represents 5% of all plans as at January 2019. This leaves just under three-quarters of EHCPs in the pre-16 age groups with the 11–15 years old group the largest at 36% of the total in January 2019. The increase in EHCPs is now across all age groups, with the largest percentage increases in the 0–5 age group (13%) and the 20–25 age group (32%) as at January 2019 from the previous year (DfE,
Demographic trends are also driving demand with a growing incidence of complex needs (Pinney,
Minsters have stated that there was a deliberate relaxation in part of the criteria for assessments where “may have SEN” was introduced into the definition which triggers an assessment. This has potentially widened the number of CYP who could be covered by the definition (House of Commons Education Select Committee,
The challenge of introducing the new EHCPs, while simultaneously converting all the existing statements, has absorbed the capacity of LAs and diverted special educational needs coordinator's (SENCos) and schools from focusing on the new SEN support category. LAs are struggling to complete plans within the new timescales with only 60.1% being completed within the 20 week deadline in 2018, lower than the previous year (64.9%) and the starting point in 2014 which stood at 64.3% (DfE,
A majority of parents and CYP have valued the more personalized and outcomes focused assessment process. A large scale survey of 13,643 new EHCPs in 2015 found that around two-thirds of parents were happy with the overall process and around the same proportion were confident about the outcomes being achieved as part of the new process (Adams et al.,
The quality of the transfer process from statements to EHCPs has been questioned with 52% of respondents, to a survey of 430 organizations and professionals directly involved in the transfer process, saying that children being transferred from statements rarely or never received their legal entitlement to a full EHCP needs assessment (Special Educational Consortium,
Which CYP are placed in special schools is not simply a function of SEND need but what support can be accessed outside of the special school setting. Choosing to seek a special school placement often happens only after parents lose confidence in the mainstream offer as most pupils in special school start in the mainstream (Bryant and Swords,
Only part of the trend toward additional special school placement can be explained by demographic growth (Black,
The use of out of authority placements has also been a growing trend within the rise in special schools placement. The cost of Independent Non Maintained Special Schools (INMSS) is consistently higher than in authority provision and is often required because of the additional non-educational support elements or behavior management issues. Thus, while only 6% of CYP with EHCPs are in INMSS placements they account, on average, for 14% of LAs expenditure (Parish et al.,
The DfE's response to the growing crisis in provision has been to announce funding which would secure 39 new special free schools and AP provision offering an extra 3,459 extra places for pupils (DfE,
Creating gateways to accessing specialist provision means it is inevitable that there will be disputes at the edge of that boundary with so much at stake (Meijer,
An important strand of the DfE's strategy to improve the SEN offer in schools has been to enhance teacher skills on SEN. The Making Good Progress initiative 2007–2009 (PricewaterhouseCoopers LLP,
The focus on the quality of teaching rather than hours of support led to more attention on classroom teachers taking more responsibility for children with SEND in the revised CoP (Blatchford et al.,
The 2014 reforms made limited alterations to schools obligations on SEN. The most significant change was to abolish the categories of School Action and School Action Plus in favor of introducing a single SEN support category for non-statutory provision which was implemented through the CoP (DfE/DoH,
The number of children identified with SEN annually may not be representative of the total number over time within a particular cohort of children as they progress through school. Analysis has shown that because children move in and out of being categorized as having SEN, due to the relativity inherent in the definition, the overall number of children over the course of a cohort going through the schools system can be much higher than the overall figure in the annual statistics. Thus, one analysis suggests 39% of children were recorded with SEN at some point between Reception (age five) and Year 11 (age sixteen) (Hutchinson,
There have been many examples of good practice for children in the SEN support category (Bryant and Swords,
The SENCo role is fundamentally important in supporting better provision for SEN in school, yet SENCos think their role is undervalued. A large scale study of 1,940 SENCos experiences of the reforms found that only 27% felt their role was understood by colleagues and less than half (46%) thought their role was understood by senior management. Additionally 74% of SENCos stated that they do not have enough time to ensure that pupils on SEN support are able to access the provision that they need (Curran et al.,
Provision for the SEN support category is also being undermined by a lack of resources. Funding per pupil has fallen by 8% in real terms since 2010 (Institute of Fiscal Studies,
Failure to support schools' capacity to manage SEN is also reflected in the higher proportion of exclusions of children with SEN than any other category of pupil. Pupils with SEN accounted for 46.7% of all permanent exclusions and 44.9% of all fixed period exclusions (DfE,
The Timpson Review (Timpson,
Five years after the introduction of the SEND reforms specific issues connected to the imbalance in legislative protections and access to specialist support and provision between the statutory and non-statutory system suggest a continuing structural problem which needs to be addressed. Any system will have to assess need to ensure accurate and effective intervention but this does not have to be tied to statutory assessment. The more resources are deployed on formative assessment and early intervention, as part of ensuring the graduated approach works well, the more effective the SEND framework can be in meeting need (Audit Commission,
Concerns about implementation of the SEND reforms have provoked a new Education Select Committee inquiry with the evidence submitted confirming support for the principles of the 2014 reforms but reflecting serious concerns about the implementation issues explored above (House of Commons Education Select Committee,
The implementation of the reforms has been undertaken during a period of sustained pressure on LA finances and school funding with significant changes to the education system and growing demand (Parish et al.,
All mainstream schools have funding allocated for SEN in their overall delegated budget, the notional SEN budget. This funding comes from the schools block of the Dedicated Schools Grant (DSG) and is distributed to each school through a funding formula. The notional SEN budget is not a ring fenced amount but schools are expected to provide additional support up to a nationally prescribed threshold per pupil per year of £6,000. The LA provides top up funding where additional provision exceeds the threshold of £6,000. These top up payments come from the LAs HNB allocation, which like the schools block is part of the DSG. In most cases pupils who secure top up funding have an EHCP. However, LAs can provide additional funding to pupils who do not have EHCPs to support early intervention to avoid the need for statutory assessment (DfE/DoH,
This spilt in funding within the DSG between the school block and the HNB can increase the pressure to seek statutory protection for pupils to secure additional support or a different placement, especially where schools feel funding is not sufficient to meet all SEN needs. This can create pressure on the HNB and potential conflict with the LA if a EHCP is refused.
Previously LAs were able to manage this tension by allocating schools block resources to the HNB to support provision and by transferring money from the HNB to support schools without recourse to statutory assessment. However, the new national funding formula limits LAs ability to reallocate DSG funding between the schools block and HNB to 0.5% of the total budget without appealing to the DfE for permission to vary the allocation. A sign of the stress this has put on the system is that 38 LAs applied for additional flexibility and 22 were allowed to transfer funds above 0.5% in 2018–9
LAs have responded by exploring traded service models for specialist services and non-statutory EP support. Traded models transfer the costs directly to schools and other settings which often results in reducing the non-statutory offer as schools and settings do not have the capacity to pick up the costs and specialist provision is reduced (National Sensory Impairment Partnership,
The SEN notional budget is based on a funding formula which does not always accurately reflect the level of needs and numbers of CYP with SEN in individual schools (Parish and Bryant,
The £6,000 threshold for schools SEN obligations was introduced to address consistency and to counteract “the perverse incentive for schools to argue for increased costs of support so that they would have the full costs met” (DfE,
To address these issues the DfE could reintroduce greater flexibility in how LAs manage their HNB to allow more focus on the SEN support category to improve school capacity. This needs to be coupled to a more accurate formula or alternative means of funding schools based on identified needs. One solution would be to secure more accurate measures of the current school population with SEN which forms part of Ireland's reforms of SEN and then fund the identified needs within schools (NCSE,
Raising the threshold could reduce the need for statutory assessments by ensuring SEN needs are met earlier, increasing parental confidence in the schools offer. However this would need stronger accountability mechanisms on schools to demonstrate how they are allocating the notional budget. A study of local variation in SEN found that “Our hypothesis that a lower use of statements indicated better support for children with SEN in mainstream schools was broadly supported by the data. The local authorities which appeared most confident about their mainstream provision generally had a lower percentage of SEN pupils with a statement, a lower rate of appeals” (Lewis et al.,
One area where there is additional funding for SEND indirectly is through the Pupil Premium. There is a strong association between pupils with SEND and children in poverty (Shaw et al.,
There have been concerns that FSM funding is being applied outside of its intended target group with 30% of head teachers saying the funding the school received for poorer pupils was being used to plug gaps in their budget (Sutton Trust,
Robust accountability mechanisms are essential to ensure greater focus on SEND in schools and the LA across both statutory and non statutory provision. A significant legislative innovation of the SEND reforms was to include a new statutory duty to involve parents and CYP (Children and Families Act,
The lack of LA powers also limits the ability of parents to influence policy at school level via strategic engagement through the Local Offer. LAs are therefore left with limited direct levers to use with schools to secure a focus on SEND and need to rely on schools collaboration, which only works to the extent they are willing to participate and have the capacity (Curran et al.,
The accountability of schools and settings could be improved by greater delegation of funding but then holding them more accountable for ensuring adequate provision and outcomes. The Local Offer could also be used more proactively by LAs in this context to establish what should be made ordinarily available in schools as part of their use of delegated SEN funding and link this to a clear account of the schools offer in the SEN Information Report (Lamb,
With the importance of Multi Academy Trusts (MATs) growing, including their role in directly providing SEN support services to their own schools, DfE could require MATs to produce a trust wide SEN Information Report. This would encourage a more strategic and consistent schools offer from MATs and ensure that they are more accountable for their SEN provision which is often less scrutinized by LAs. Especially as there have been concerns that sponsored academies could be deregistering pupils at the SEN support stage to look more attractive to parents and meet accountability standards (Black et al.,
The local area SEND inspections undertaken by Ofsted and the Care Quality Commission (CQC) have secured a strategic focus on the reforms. With 42 of the first 83 reviews requiring LAs to write statements of action on how they will improve due to weaknesses in implementation (Ofsted,
There are also many other aspects of the schools framework which undermines the inclusivity of the schools. For example the Progress 8 accountability system weights performance measures toward the academic end of the spectrum and schools fear failing inspections without good Progress 8 figures. Schools then become concerned that children with SEND will potentially bring down the overall schools rating on Progress 8 scores, given they have the largest attainment gap compared to those with with no SEN of all the comparison groups, which can then drive exclusions and off-rolling (House of Commons Education Select Committee,
We should not confuse the process of producing a particular type of statutory assessment (statements/EHCPs) with the overall output of a legally binding plan of the services needed (Florian,
The SEND CoP (DfE/DoH,
Legal protections in the rights based approach could help in securing educational support for many CYP with SEND without resorting to EHCPs. Further, through the anticipatory duty to plan for access and stress on removing barriers to learning rights legislation focuses on addressing the overall context of education provision and helps promote a more inclusive culture. There is also a legal right to appeal to SENDIST against a failure to make reasonable adjustments, or where there is disability discrimination, direct or indirect discrimination, harassment or victimization (Equality and Human Rights Commission,
A rights based approach would allow exploration of a broader concept of the goals of an inclusive education system, guided more by the idea of enhancing capability rather than identifying individual deficits and which could support a more positive ethos in schools (Terzi,
A rights based approach to education might also secure support with parents if the proposed extension of the Tribunals powers to health and social care provision within EHCPs, currently being piloted by the First Tier Tribunal, is successful (DfE,
There have also been criticisms of provision in Scotland which echo some aspects of the English experience including the need to ensure greater investment in specialist staff in mainstream and special provision, the difficulty of obtaining statutory protection for those in deprived areas, the detrimental impact of budget restraints on provision, and the need to enhance parental and CYP engagement in the whole process (Scottish Parliament,
The statutory assessment framework, initiated by the Warnock review over 40 years ago, has undergone significant legislative and policy reforms culminating in the Children and Families Act (
The reasons for the growth and durability of statutory assessment should not be underestimated as they are, in part, rooted in the lack of capacity to meet need, ensure parental confidence and secure rights outside of the statutory framework. Recent Governments have strengthened the statutory assessment framework in which they have invested policy capital and resources but have not sufficiently matched this with enhancing the non-statutory offer.
To create greater confidence in the reforms overall the DfE's implementation strategy needs to balance the focus on improving the quality and delivery of EHCPs with new measures to enhance the non-statutory offer. This needs to address parental concerns by ensuring that the system works with them to support better outcomes and easier access to specialist support outside of the statutory framework. Confidence in the non-statutory offer could be improved by better implementation and integration of the disability rights requirements into the SEN framework. At the same time extending the Tribunals powers to health and social care provision would address the main structural weakness in the design of EHCP's and drive the integration of services as originally envisaged by the reforms.
Increased focus on the non-statutory framework would also allow more scope for embedding other aspects of the 2014 reforms such as improving the Local Offer, reviewing how well SEN support is functioning, personalization for all CYP with SEND and supporting parents and CYPs engagement. The review of the reforms and CoP provides the opportunity to reconsider how well the new system is meeting the needs of all CYP with SEND. The measures explored here build on the existing legislative and policy frameworks but look to integrate the SEN framework more closely with the disability rights framework. Such a strategy would also need to be supported by increased funding linked to greater delegation to schools and a more SEND sensitive accountability and inspection framework to help change the overall culture in the system. There would also need to be more direct investment in the workforce to ensure that schools and other settings are highly skilled in supporting CYP with SEND as Warnock originally intended (Warnock,
The author confirms being the sole contributor of this work and has approved it for publication.
The author declares that the research was conducted in the absence of any commercial or financial relationships that could be construed as a potential conflict of interest.
1Statutory assessment is used here to denote the process of assessment, agreeing a statutory plan or refusal to proceed to a statutory plan.
2SEN 2 figures are the most comprehensive analysis of all CYP with an EHCP. School Census figures also quoted here below refer only to school aged children and are collected through the school census.
3Every LA is allocated a centrally determined amount of money for education in their DSG. The DSG is now divided into four blocks; schools, early years, central services, and the HNB. For a full explanation (see
4House of Commons. Written Answer. Nick Gibb, 7th March 2019.