Departmental Consultation - Special Educational Needs and Inclusion

Committee for Education Response to the Department’s Consultation

‘Every School a Good School: The Way Forward of Special Educational Needs and Inclusion’

1. The Committee for Education welcomed the Minister’s decision to extend the consultation period on these policy proposals to allow parents and stakeholders the time to consider the proposals and respond to them.

2. The Committee was briefed by senior Departmental officials on the SEN & Inclusion policy proposals on 21 October 2009 when Committee Members raised a significant number of concerns, including:

• the definition of ‘complex and multiple needs’
• the mechanism for obtaining a Coordinated Support Plan (‘CSP’);
• replacing annual reviews of statements with reviews of CSP at transition points;
• lines of responsibility for multi-disciplinary groups;
• concerns that the ‘Inclusion’ element of the proposals would ‘dilute’ the provision for children with SEN;
• the additional work which will be involved for already ‘overstretched’ teachers;
• whether the proposals were resource driven; and
• monitoring of SEN funding spent by schools, if it is not ring-fenced.

3. The Committee’s concerns were not in any way diminished by briefings from the Children with Disabilities Strategic Alliance (CDSA) at the Committee’s meeting on 11 November 2009 and from the Northern Ireland Teachers’ Council (NITC) at its meeting on 25 November 2009.

4. Also, the Committee was made aware, though an almost unparalleled level of lobbying by parents and stakeholder organisations, of a groundswell of concern and anxiety about the proposed changes among those who would be most affected by them. A number of key stakeholders copied their consultation responses to the Committee and some of these can be accessed on the Committee’s web pages¹.

5. This groundswell of concern led the Committee to host an event in Parliament Buildings which provided a platform for parents and stakeholders to raise their concerns directly with Departmental officials and helped inform the Committee’s scrutiny of the policy proposals. The Committee requested Hansard to prepare a full transcript of this event which is now available on the Committee’s website² and would ask the Department to consider the numerous issues raised by stakeholders.

6. This Committee event, evidence sessions and correspondence with stakeholders identified a number of serious concerns. The key areas of concern are summarised below and referenced to individuals and organisations who raised concerns and issues, together with the Committee’s comments and/or recommendations.

Access to External Support/Early Diagnosis

7. While the Committee welcomed the policy proposals’ emphasis on early identification of children with special educational needs, itshared the concerns raised by Mencap, CDSA and NITC below, which appear to arise from para 13.6 of the policy proposals, namely the requirement that ‘… before availing of any external support, the school must be able to demonstrate that it has taken appropriate and reasonable action to meet the child’s needs but that the desired progress has not been achieved.’³

• Would the current early involvement of a teacher of the deaf be postponed and not follow immediately from early diagnosis? (CDSA – NDCS); ‘Many visually impaired children are supported by classroom assistants. In most cases, those children have their statements from the age of two. I reinforce what has been said tonight about changing the bureaucracy. At the age of two, my children were assessed twice by an educational psychologist. It surely took a lot of time and cost the Department a lot of money to do what a consultant at the Royal had done, which was to tell them that they will have a lifelong visual impairment. A lot of parents here want the Department to look at the current framework. Parents whose children have a statement feel secure about that, but they have a big fear about will happen to their children if that disappears.’ (CDSA/Angel Eyes)
• Insufficient recognition of the distinct nature and impact, early onset and often lifelong nature of disabilities including learning difficulties (in contrast with the hopefully more temporary nature of some of the other barriers to learning); (CDSA - Mencap)
• Fears that the proposals will prevent teachers raising SEN issues at an early stage and ‘block’ resources reaching children. (NITC)

Coordinated Support Plans

8. The Committee shares the concerns raised by a number of stakeholders that there was a lack of clear definitions and consequent lack of certainty about the threshold required before a child would be entitled to the legal protection currently available to children with Statements:

• Lack of clearly defined terminology around access to the proposed Coordinated Support Plans (‘ “children with complex needs”, “childrenwho experience complex and multiple barriers”, “children who have frequent access to a diversity of multi-agency services external to the school” - whether the Department interprets those terms in the same way as health and social services.’); (CDSA - Mencap), and consequent uncertainty among parents about whether their child will be entitled to a CSP;
• Fears that in the move from ‘Statements’ to ‘Co-ordinated Support Plans’, the proportion of children with legally enforceable rights to particular levels of support will be reduced; (CDSA – SENAC)
• Fears that the statements will be removed before resources have been put in place; (CDSA - SENAC)
• It is not clear if there will be a right to appeal against the removal of a Statement (where a child is not deemed to require a CSP or the level of support in the CSP is reduced) or whether the current right to appeal if the education board refuses to make a Statement at Stage 4 of the existing process will be replicated in the proposed arrangements. (CDSA – SENAC)
• Research commissioned by the Committee⁴ on reforms of SEN arrangements in Scotland highlighted that legislation introducing a system involving Coordinated Support Plans in Scotland in 2004 was revisited in 2009. It also identified a sharp decrease over the period in the number of children with special educational needs who had legally enforceable rights – from 13,450 in 2005 to 3,201 in 2009 – a much greater decrease than had been anticipated according to the Financial Memorandum to the 2009 Act in Scotland.

On this subject the Committee noted the following exchange in the course of Education Questions on 25 January 2010 and in particular the words highlighted in bold type below:

Mr McCallister : Does the Minister acknowledge the findings of the Lamb inquiry, which showed that parents value a statement of special educational needs because it is legally enforceable and that they want a new system to work better than the present one? Will she assure the House that she will take into consideration the findings of the Lamb inquiry? Does she think that parents have a lack of trust in her to deliver a suitable policy?

The Minister of Education : Is í is aidhm do na tograí ná soláthar do pháistí agus do dhaoine óga a bhfuil riachtanais speisialta oideachais acu a fheabhsú taobh istigh den scoil.

The proposals aim to enhance the provision for children and young people with special educational needs within their school setting, by ensuring that they get the right support at the right time, without the need to wait for long periods for external assessment or support when it can be provided from within the school’s resources. The proposals do not and will not reduce the rights of parents as currently available to them through the appeals mechanism of the special educational needs and disability tribunal. Depending on the detailed outworking of the proposals,parental rights may be differently reflected, but that detail is yet to be developed and can only be considered following consideration of the responses to the consultation.

The Research commissioned by the Committee noted that the 2009 Act in Scotland introduced a requirement that Education Authorities in Scotland were required to offer an independent mediation service (as opposed to in-house) and a free of charge advocacy system for Tribunal proceedings.

The Committee asks the Minister to consider if it is reasonable to expect stakeholders to approve a direction of travel without clarity about the impact on the legal rights of children with SEN. They fear that approval of the direction of travel will mean that they have to live with the ‘detailed outworking of the proposals’ whether they like it or not.

Recommendation: The Committee recommends that the Department provide stakeholders with the level of detail needed to make the outworkings (or the range of possible outworkings) of the policy proposals clear, so that stakeholders can make an informed response on the fundamental direction of travel.

Reform of the existing system

9. The Committee shares the concerns of a number of stakeholders (set out below) who, while acknowledging the shortcomings of the existing system of Statementing and Annual Review, expressed support for aspects of it. The general thrust of these comments was that reform of the existing system was preferable to the level of change in the policy proposals. In this context the Committee noted the cross-E&LBs ‘Provisional Criteria for Statutory Assessment’ and ‘Good Practice Guidelines’ as mechanisms which may go some way to address the issue of ‘inconsistency in assessment and levels of support across the five Education and Library Boards’.

• Failure to consider the alternative approach – namely, reform of the current “Statementing” arrangements (along the lines proposed in the Lamb⁵ Report? (CDSA - SENAC); Particularly in light of the DE Research in 2005 which showed a 80% satisfaction rating among the parents of children with Statements (National Autistic Society) . “Would it not be better to examine the current system and use the funding that has been secured to improve it rather than disposing of it altogether? Dorothy Angus said that the existing special education needs funding has no definition of outcomes attached to it. Why has that not been looked at before these proposals have come about? Why can we not look at what we are getting for our money before we start changing things?’” (Autism NI)
• ‘NITC does not agree that the statementing process needs to be dropped. The statementing process can exist, side by side, with a process of early identification. It does, however, need to become significantly less bureaucratic.’ ( NITC)
• Failure to appreciate the value which parents/child attach to the current system of annual review of Statements and the perceived loss of voice that they fear the proposed move to ‘transition point’ reviews will mean; (CDSA – SENAC)
• ‘Given the reality of the constraints of time and money, has consideration been given to addressing shortcomings in the current system and seeking to make amendments rather than radically overhaul a system that both teachers and the boards know the workings of to replace it with the unknown and untested?
  Is this a cost-effective use of public money to “reinvent the wheel” rather than altering the infrastructure already in place.’ (Sean McGahan, Parent)

Recommendation: The Committee recommends that the Minister actively consider options for reforming or building upon the existing system of SEN provision.

Multi-Disciplinary Groups

10. The Committee shares concerns around the role of the multi-disciplinary groups (MGs), envisaged in the policy proposals and the increase in the amount of work required to operate the multi-disciplinary groups effectively.

• Insufficient clarity about the role of multi-disciplinary groups the mechanisms for referrals, the legal accountability of those groups for any decisions taken, their legal responsibilities to parents, schools and the ESA or E&LB and any right of appeal for parents; (CDSA – CLC)
• ‘Challenge’ role for MGs (para 12.22 of Consultation Document - ‘Each MG will play an important role in the challenging of participating schools regarding the levels and effectiveness of the support they are providing for their pupils.’) – In its written submission NITC said: ‘Teachers reject the “gatekeeper” function of the Multi-Disciplinary groups and consider that the MG Groups will add bureaucratic burden to the system, will add to costs and will be hard to convene. It is not self evident that the teachers will even find representation on these groups. In particular we reject the “challenge role.”
• However, at the Committee’s SEN Event senior Departmental officials stated: ‘There is no intention to enable any health sector professionals working in the MGs to have a role in challenging schools about their educational provision for children.’ The Committee considers it is not clear how this could be achieved in practical terms if the challenge role of MGs is to be retained.
• Failure to address the limited statutory obligation on health trusts to address needs of statemented children – namely that the obligation on the health trust to provide therapy services to a statemented child is contingent on resources in the trust area. Under the policy proposals the Regional Health and Social Care Board and the Trusts would only be bound by service agreements to plan jointly; (CDSA – CLC)
• Failure to address the fact that we have a competitive school system. Schools have to compete for everything, but this document is looking for collaborative working. The two systems will not go together. You cannot collaborate effectively in a competitive system. ( Standing Conference on SEN - Mary Dorman)

Role of Special Schools, Teachers and Assessment

11. Teachers fear that the ‘enhanced role of the school’ under the proposals will mean that teachers will be held responsible for the problems and shortcomings of new system ( NITC).

• ‘NITC believes that the Department of Education should be explicit about proposals – if any – for Special Schools and for the expertise that resides therein.’
• Senior Departmental officials at the Committee Event on 20 January 2010 commented on proposed assessment arrangements:
  
  In some cases, the assessment, in broad terms, might be done by the school, or it might be done by the special education needs co-ordinator (SENCO) under proposals whereby the SENCO could be trained to do some of the educational diagnostic testing. It would depend on the complexity of the child’s needs as to whether the assessment was carried out by an educational psychologist or through a multidisciplinary assessment. We would like to get more flexibility into the system so that help can be given to the children as soon as possible.’
  
  Childrens’ Law Centre responded: –
  
  Ms Stevenson:
  
  “With regard to the learning support co-ordinators and the extension of the role to include diagnostic testing, it is important that we guard against a situation arising in which people who are not qualified to make assessments of individual children are able to do so; they need to be trained properly” . [ Applause .]
• ‘Special education needs and inclusion are becoming a more litigious environment. … The concern that we have is that teachers, who are responsible for early diagnosis, who are responsible for doing the IEPs …would do so with half an eye on the tribunal …so the danger is that those plans would be written defensively ..we would want some discussion around mitigating the prospect of litigation.’ (NITC – Mark Langhammer)
• Apparent misreporting of the Ofsted Report - Paragraph 10.2 of the consultation document clearly states that Ofsted reported that an ordinary, experienced, qualified teacher is required. However, the Ofsted Report specifically states that a specialist teacher is required. ( Parent – Sean McGahan). The key ingredient for success is a specialist teacher, and it spells out what a specialist teacher is. I have looked at the policy document, and nowhere are specialist teachers mentioned. ( Eimer Cleland - SNAG)
• ‘Many experienced teachers, whilst fully qualified as teachers, do not have the expertise and knowledge to meet the various needs that children can present with. This important change in emphasis is attributed wrongly to OFSTED and is unlikely to be accidental. It betrays a disingenuous attempt to impose the proposed changes on the teaching profession.’ ( NITC)
• Failure to address the impact of a policy of greater ‘Inclusion’ on class size and the other children in mainstream classes. ( Standing Conference on SEN (‘SC-SEN’)- Mary Dorman)
• ‘Class size is an issue of major concern which must be highlighted …It is increasingly difficult for one teacher in a classroom to cope with a variety of needs and behaviours which are being presented within a single class and regulations still permit 30 children at key stage 1. This means that a statemented child could be pupil number 31 in an infant classroom.’ (NITC – Audrey Stewart)

Funding/Resourcing

• Fears around the accountability of schools/governors/principals for the funding and lack of ring-fencing. It is proposed that the funding should be broadcast to schools, and the big concern about that is what has happened in the past - for example, TSN funding was very difficult to account for. Fears that money for SEN will not stay within SEN’. (CDSA – Alan Sheeran).
• The Committee noted that the Minister of Education, in an oral answer to a question on 25 January 2010 stated:
  
  ‘No funding will be diverted from special educational needs to the other groups that have been identified within the additional educational needs concept. Each of the groups that have been identified has its own specific policy and attracts its own funding streams. That will continue to be the case.’
• The Committee noted the Minister’s response to a question about the statutory rights of children with SEN which dealt with the ring-fencing of funding:
  
  Mrs M Bradley : Does the Minister agree that any changes in special educational needs procedure should not threaten the statutory rights of the children who have special needs or those of their parents?
  
  The Minister of Education : I absolutely agree that it is important that the money that goes to our children with special educational needs is ring-fenced. I know that some people have stated that that is not the case; therefore, I will clarify it.
• In the debate on SEN on 26 January 2010 the Minister stated:
  
  ‘I know that many parents feel that a mainstream education maximises their child’s educational experience. However, I also know that many parents and children value highly our special schools sector. Therefore, the proposals are not intended to change the current mix of mainstream and special provision here.’
• ‘The whole funding package is totally unclear. We do not know what will happen, and we must be sure that money for special education stays in special education, that it goes to the kids with particular needs and that it is not frittered away elsewhere. That is our main concern’. _(CDSA – Alan Sheeran)
• Need for sufficient teacher time to be set aside for the delivery of teacher training and capacity building; need for that training to be available for a teacher to take it up when he or she actually needs it; ( SC-SEN- Mary Dorman)
• ‘The proposals in the document to remove the responsibility for funding to the schools and away from what would be the ESA, is a mistake. That will not change the demands for funding, but it will simply shift the demand onto the schools, and there are inadequate resources in the schools to meet those demands. It will place an unfair burden on teachers … I would like to make a few concrete proposals; one, that the proposals in this document be costed. There are no costings in the document. There is no estimate of the proposed savings that are going to be made.’ ( NITC – Kevin Smyth)
• ‘Costing a project with a view to producing it is an aspect of design work and should be presented as part of a proposal, which the consultation document is. Without such costing the design work done by the Department seems to be detached from financial constraints. Identifying financial constraints on any project is a basic planning tool. It also forces one to look at the trade offs in objectives, which this proposal ignores.’ ( Sean McGahan – Parent)

Testing/Risk Analysis/Outcomes

• ‘This proposal [relating to Coordinated Support Plans] seems to be based upon an unfounded, untested assumption that the provision of teacher training within the mainstream sector will effect a major reduction in the need for special educational provision as defined in Article 3(4)(a) of the Education (NI) Order 1996. An attempt to correlate teacher training and capacity-building within mainstream schools with the level of special educational need in the school population is completely illogical. Arguably, increased skill levels within the mainstream teaching profession could help ameliorate the unnecessary escalation of special educational need in some children through earlier intervention. However it is highly unrealistic to translate this type of improvement into a significant reduction in the need for special educational provision.’ - ( Childrens’ Law Centre)
• ‘Where is the evidence of “risk management” in developing these proposals? I am quite certain that a host of high impact risks would be identified by such a project management tool. The document makes no reference to any risks and how they will be controlled.’ ( Sean McGahan, Parent)
• National Deaf Children’s Society made the point that greater responsibility at individual school level may not help address differential provision across all schools. ‘At present, the system is very different from school to school and from board to board. If learning support co-ordinators in each school will now have a new enhanced role, how can parents be sure that all of our children are being treated equally across Northern Ireland? Taking the responsibility away from the boards and giving it to schools will not ensure fairness.’

12. The Committee noted a guarded welcome for the Department’s proposals to ‘base children’s provision on outcomes’ from Dr Tony Byrne ( Parents’ Education as Autism Therapists).

Consultation

13. The Committee welcomes the promise of further consultation from Departmental officials at the Committee’s SEN event on 20 January 2010 –“if legislation was needed, as it would be if Statements were to be discontinued, there would be consultation. If there was major change in funding, there would be consultation. There would be further consultation on the minutiae of the details as we work through the results of the document .” The Committee is unsure at this stage that this level of further consultation will be sufficient to secure stakeholder confidence in the process.

14. The Committee also noted that in the SEN debate in the Assembly on 26 January the Minister, in her concluding remarks, stated:

‘ After the public consultation period ends, the Department’s immediate work programme will be to consider and analyse the responses received and to compile and publish a summary response document. A thorough analysis of those responses will guide and inform the development of the detailed policy proposals for implementation, including financial and operational considerations.

Work is under way on the development of a school capacity-building programme, which will begin to be rolled out during the 2010-11 school year. That sits well within the current statutory framework’.

15. The Committee shared concerns that this could be interpreted as a decision having already been taken that the Minister was going to introduce the policy in broadly the terms it has been presented in the consultation document – otherwise why would the Department be pressing ahead with the development of the training/capacity building programme referred to in policy proposal. ( Fiona O’Toole)

16. The Committee noted the following exchange at its 20 January event:

Mrs Angus (DE):

“The document sets out, as all consultation documents do, the broad direction of travel for special educational needs, and the purpose of the consultation process is to find out people’s views in light of that broad direction of policy travel, so that the Minister and the Department can then consider future arrangements. As with all such documents, when a broad direction of travel is set, we then work on the fine detail of the proposals. The special educational needs framework is very complex, so a lot of work will need to be done after the direction of travel is set.”

Mr Derek Doherty (Aspergers Network):

“I am a parent and carer, and I work with quite a few other organisations that have links with parents and carers. I have yet to speak to a charity or voluntary organisation that does not think that this consultation process is the worst that they have ever come across.” [Applause]

Recommendations

17. In relation to:

• Multi-Disciplinary Groups;
• The Role of Special Schools, Teachers and Assessment;
• Funding/Resourcing;
• Testing /Risk Analysis/Outcomes; and,
• Consultation;

The Committee strongly recommends that the Minister reviews her policy proposals in the light of the numerous concerns raised by stakeholders (as set out above).

Conclusion - Setting the Direction of Travel

18. The proposed policy changes to Special Educational Needs have created major concerns and anxieties for parents, teachers and organisations representing children with disabilities. The Committee considers that the effectiveness of any policy proposals which the Minister and Department take forward on foot of this consultation will be affected by the very negative feelings for the consultation exercise expressed by those parents and other SEN key stakeholders.

19. The Committee welcomes the assurance in the Minister’s letter of 11 January 2010 that ‘the existing SEN framework will remain in place until any future policy has been agreed.’

20. The Committee previously expressed the hope that the Minister’s extension of the consultation period indicated a willingness by the Minister to take on board the concerns of parents and professionals living and working with children with Special Educational Needs. The Committee believes that such a willingness will be essential to the success of this policy review.

21. In the Department’s letter of 13 October 2009 to the Committee it stated:

“The Department is therefore seeking to gauge whether there is general agreement to the overarching high level framework proposed by the Review and with the overall direction of flow that the needs of the majority of children should be able to be met within school. Feedback on this will then enable the detailed outworking of the Review to be addressed at the next stage in the policy development process”

22. The Committee’s sense is that stakeholder confidence in the consultation process would be much greater if stakeholders were provided with much more information in terms of the outworking of the policy proposals. The Committee believes that it is difficult for parents and other stakeholders to comment on the ‘proposed direction of travel’ without greater clarity about the destination.

23. The Committee requests a full written submission analysis of the consultation responses and what the Minister/Department proposes to do with each policy proposal, together with proposed action in the form of an Action Plan including timescales

10 February 2010

¹ Stakeholder Responses - http://archive.niassembly.gov.uk/education/2007mandate/SEN/stakeholder_responses.htm

² Hansard of the Committee Event on 20 January - http://archive.niassembly.gov.uk/record/committees2009/Education/100120_SENEvent.htm

³ Policy Proposals, para 13.6.

⁴ Education (Additional Support for Learning) (Scotland) Act 2004 and the 2009 Amendment Act – Assembly Research and Library Services - http://archive.niassembly.gov.uk/education/2007mandate/SEN/sen_research.htm

⁵ Lamb Report - http://www.dcsf.gov.uk/lambinquiry/