Friday, 25 April 2014

Preliminary thoughts on the draft Code of Practice

“Bound upon a wheel of fire[1]”- IPSEA questions the “Assess, plan, do, review” cycle

Preparation of IPSEA's full response to the consultation on a new SEN Code of Practice is underway. Meanwhile, here are our preliminary thoughts:

1.    Inadequate consultation: While we welcome the further public consultation, at 12 working days the consultation period is wholly inadequate and unreasonable for the length, complexity and importance of the Code. This is exacerbated by the brevity of the previous consultation (which was 9 weeks rather than the usual 12 weeks). It is also unreasonable, in our view, for this very brief second consultation to coincide largely with school holidays. It is difficult for parents to respond when they are providing full time care for their children. We are unable to confer with many education colleagues about how realistic these proposals are because they are not working. Coupled with the issue of timing, the draft regulations have not been re-released publicly for further consultation alongside the draft Code. Without a published response from the government to the previous consultation on the draft regulations, it is impossible to tell how far they address concerns raised by parents and young people and the organisations which represent them. In short this does not feel like a bona fide consultation - this is not “co-production.”

2.    The draft SEN Code remains unfit for purpose: Despite extensive re-writing of the draft, the Code does not accurately reflect the underlying law as set out in the Children and Families Act 2014 (C & F Act). Most notably, thresholds for accessing statutory assessments and EHC plans are hard to pinpoint. To the extent that they can be identified, they are set higher in the Code than in the law. This is misleading for both parents and providers – what are their respective legal entitlements and responsibilities? We hope that this is an accidental oversight.

3.    The majority of children with SEN but without a plan are still worse off: We support efforts to increase capacity of schools to cater for the needs of all pupils. We particularly support the focus on equipping staff with better training in relation to special educational needs (SEN) and the emphasis on high quality teaching for all pupils. We support regular reviews of school resources and provision for SEN. There are however some serious issues: 

  •          A never-ending circle: The new so-called “graduated approach” essentially sets up an eternal cycle of trial and error. This is officially termed “assess, plan, do, review”. There is no clear sign-posting of an exit by which pupils and staff can escape the loop to access additional help (see 2 above in relation to exaggerated thresholds).

  •          Accountability and transparency: The duties on schools/colleges to keep individual and separate records for those children being given “SEN Support” are not made clearly enough. The requirement to meet with parents at least termly to discuss and agree the provision to be put into place for their child has been watered down and translated into 3 times per year. These meetings could all be held in the same week! Last, the requirement in Chapter 6 only applies to those in mainstream school and not those in special school.

  •          Unsustainable workloads for schools: These proposals to push greater responsibility down to schools come at a time when teaching unions are already planning strike action in response to unsustainable workloads, amongst other things. This draft Code fails to make clear where school/college duties to a child end and where the absolute legal duties on a Local Authority (LA) under the C & F Act take over. The Department for Education (DfE) “Teachers’ workload diary survey” published in February 2014 indicates that teachers are already working over 50 hours per week (and head teachers over 60 hours per week). We have concerns over their capacity to assume new onerous responsibilities for children with SEN and disability.

  •         Perverse incentives NOT to identify children with SEN: The potential benefit of the positive focus on “high quality teaching” is undermined by the threat of “performance management”.This risks incentivising teachers not to identify pupils with SEN  - to do so may equate to identifying themselves as poor teachers (with negative employment consequences). This approach risks engendering a culture of fear in schools, with staff reluctant to seek the support needed at the initial level. This will leave the needs of children unidentified and poorly supported.

4.    Children with SEN will also lose protections against being placed inappropriately in special schools:  This concern (which we expressed in relation to the previous draft) has not been remedied. It will still be legal for a child to be placed permanently in a special school without having their needs assessed by a LA or having the right educational provision to support them identified, and without adequate safeguards. In addition, much of the current guidance on the right to inclusive schooling is still not in this draft Code. We remain concerned that the DfE may be in breach of international treaty obligations and UK equalities legislation by failing to advance an inclusive education system.

5.    The issue of mental capacity has not been adequately resolved. As drafted, legal rights to engage and challenge LAs will automatically transfer from parents to the young person at 16 years old. The draft Code is inconsistent about the effect of this. It states in the opening chapter that the views of the child aged over 16 will prevail over those of their parents, while a new Annex at the back is more accommodating of parental rights.  The potential for parents to be barred from continuing to act as advocates for their child remains a live problem. The Code fails to address the very real issues which will face parents, young people, schools/colleges and LAs, about who will be responsible for assessing mental capacity and how such a decision can be challenged. It is not good enough to say it is all in the Mental Capacity Act 2005. Practical guidance is needed.

Once IPSEA has finalised our full response to this revised draft Code, we will make it available on our website ( Given the very tight deadline to respond and the fact that the consultation period has included school holidays and bank holidays, we suspect that we will not finish until very close to (or even on) the closing date of May 6th.

[1] A tribute to the 450th birthday this week of greatest dyslexic of them all - Shakespeare!

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