Council education bosses are being urged to guarantee they will not breach their legal duties over education provision for pupils with special educational needs or disabilities (SEND) as a result of “cost-cutting” deals with the government.
The Independent Provider of Special Education Advice (IPSEA), a SEND charity, is writing to more than 30 councils that have Department for Education “safety valve” deals in place over concerns that these will result in young people’s entitlements being reduced “through the back door”.
There are currently more than one in five councils in England with a bailout safety valve deal from the DfE in place to bring down each area’s high-needs deficit.
As part of this town hall, chiefs have to “set out the high-needs reforms and savings targets they must follow to eliminate deficits”. The DfE payments will be made over a series of years and, if the conditions of the deals are not being met, it can withhold money.
IPSEA is concerned that this pressure on councils to reduce spending will affect the education of pupils with SEND, and council decisions about whether a young person needs an education, health and care plan (EHCP).
The Department for Education has said that safety valve deals are not cost-cutting exercises.
IPSEA is writing to every local authority with a safety valve agreement to ask them to “confirm that they will fully comply with their legal duties to children and young people with SEND”.
Catriona Moore, the charity’s policy manager, said: “The focus on finances above all else is clear in the safety valve agreements the DfE has established with local authorities that have the biggest [high-needs] budget deficits.
“It’s entirely unclear how local authorities can address these weaknesses and meet their statutory obligations to children and young people in the context of a binding agreement with the DfE that requires them to cut costs.”
Ms Moore added: “We are concerned that safety valve agreements between the DfE and individual local authorities are a way of reducing children and young people’s rights and entitlements by the back door.
“It’s hard to see how the strict requirement to cut costs can be done without restricting access to provision that children and young people need, and to which the law entitles them.”
The letter sent from IPSEA’s chief executive Ali Fiddy to directors of children’s services and seen by Tes, says the charity wants to be able to assure parents that these local authorities will fulfil all their statutory duties to children and young people with SEND.
It adds that many parents are concerned that “the drive to control and reduce” a deficit in high needs spending could mean “their children may be at risk of not receiving the special educational provision and support to which the law entitles them.”
Ms Fiddy adds: “Individual safety valve agreements are explicit about containing numbers of EHC needs assessments, EHC plans and placements in non-mainstream settings, among other things. But it would not be lawful, for example, to introduce local policies on eligibility for EHC needs assessment that vary from the legal threshold, or blanket policies on access to particular services or placements.”
Negative SEND inspections
IPSEA is also concerned that these deals are in place in many areas where provision for pupils has already been found to have significant weaknesses.
Tes analysis shows that the majority of areas that have been tasked with making high-needs savings have also received negative Ofsted and Care Quality Commission inspections of SEND services for pupils in their area.
Under the previous SEND area inspection system, councils could be required to produce a written statement of action to address areas of significant weaknesses in their services for young people.
Of the 34 councils that have a safety valve deal in place, 22 have previously been found to have significant weaknesses in services under the last SEND area inspection regime.
Ms Moore said: “The majority of areas with a safety valve agreement were found by local area SEND inspectors to have significant weaknesses in their provision for children with SEND.”
IPSEA’s letter over the impact of safety valve deals is part of a wider concern that the government’s SEND reforms are aimed at reducing costs.
Ms Moore added: “It was clear from the outset that the main purpose of the SEND review was to reduce spending, and it’s hard to see how that can be done without cutting provision for children and young people who need it.”
The DfE’s SEND Green Paper had the stated aim of improving early intervention for pupils, which would reduce parental demand for EHCPs for their children.
But Ms Moore added: “While early intervention, multi-agency working and inclusive practices are all vitally important, there will always be children and young people who need additional statutory support. The law is clear that they are entitled to provision that meets their needs.
“Unfortunately, local authorities don’t always prioritise compliance with SEND law - as we can see through the steady rise in appeals to the [First-tier (SEND)] Tribunal and the overwhelming number of appeals that are upheld.
“Parents want to have confidence that decisions about their child are taken on the basis of the child’s needs, not on a commitment to cost containment.”
A Department for Education spokesperson said: “We are clear that the safety valve agreements are not a cost-cutting exercise, and do not, under any circumstances, excuse or prevent local authorities from delivering on their statutory requirements for children and young people.
“Instead, they hold local authorities to account for delivering services in the most effective and sustainable way, for the benefit of children and young people.”
‘Papering over the cracks’
Union leaders have warned that the concerns around safety valve deals to bring down the highest council deficits are an indication that there is not enough funding in the system for pupils with SEND.
Geoff Barton, general secretary of the Association of School and College Leaders, said: “We’re sure local authorities are fully aware of their responsibility to deliver EHCPs where they are needed.
“The problem they have is that there is rising demand and not enough money to meet that demand, and safety valve agreements are an attempt by the government to paper over the cracks in the absence of a sustainable and properly resourced system.
“The result is that high-needs deficits are likely to rise even further and waiting times for EHCPs are often very long, meaning that children with complex needs can spend months or years waiting for support.
“It is a terrible situation for the children, families and schools concerned, and the government simply has not got to grips with dealing with this problem.”
James Bowen, assistant general secretary of the NAHT school leaders’ union, said: “Ultimately, this is the consequence of an underfunded SEND system.
“It is very worrying that, in some areas, we could see pressure to reduce the number of EHCPs. Pupils and their families deserve a system based on need, not one hamstrung by financial targets.”
Councils call for deficits to be written off
The Local Government Association has renewed its call for councils’ high-needs deficits to be eliminated.
A spokesperson said: “Latest figures released this month show last year, councils issued a record number of education, health and care plans - 66,400 - which are a reminder of the huge strain that the SEND system is under, and the significant challenges that councils continue to face, managing the rise in demand for support.
“It was good the government responded to calls from the LGA and set out its SEND and Alternative Provision Improvement Plan earlier in the year, which will fix some of the problems with the current system.
“However, they do not go far enough in addressing the fundamental cost and demand issues that result in councils struggling to meet the needs of children with SEND.”
