Can special academies admit children without EHC Plans?

Question:  I recently heard Jane McConnell speak at a conference about the proposed SEN reforms and I was really concerned about the point she made re special academies being able to admit pupils permanently without their having been assessed or having an Eduation Health and Care (EHC) plan in place. Can you explain it further?

IPSEA’s answer: Yes, this is a subject that Jane spoke about at the Westminster Forum recently and it is of real concern to us at IPSEA. 

The current law is very clear: section 316(2) says “If no statement is maintained under section 324 for [a] child, he must be educated in a mainstream school”. There are a few exceptions: children without statements can be admitted to special schools for assessment, for instance, but the exceptions are temporary and admission must be with the agreement of all concerned, including parents. In the draft legislation, provision 14(9) allows the permanent admission of children and young people with SEN but no EHC plan to a special school or special post-16 institution that is an academy if allowed for in their funding agreement, i.e. the contract between the Secretary of State and the "governors" of an academy which sets them up and defines how they should be run. Legally the term "academy" includes free schools, studio schools and university technical colleges.

At this moment, as far as we are aware, the funding agreements of the few special academies that exist reflect the legal position on admission into maintained special schools, i.e. that they cannot admit a child permanently until the child has gone through the statutory assessment process to clearly define their special educational needs and also identify the additional special educational provision that they will need to be put in place to ensure that they are adequately supported in order to access an appropriate education. If special academies were able to opt out of this process we have the following concerns:

1. It would mark a real difference between the admission process to maintained special schools and special academies. Both are paid for by taxpayers’ money to take the same role within our education system but admission would be on very different terms. It would create a two-tier system within special schools. Special academies would not be under the same level of rigour to ensure a child's needs were meet and then reviewed. Nor do academies have to deliver the national curriculum or have qualified teachers.
2. If they have not been through a statutory assessment process no one can fully know and understand the extent of the child or young person’s needs and therefore would not be sure that the right special educational provision would be made for them in that school/institution. It would be easy to assume a child or young person had a certain learning condition or profile without professionals having fully explored the extent of their difficulties. Historically, many hearing-impaired children were assumed to have learning difficulties because they were not assessed properly. Many children were placed inappropriately in special schools, and in the wrong sort of special school, because of inadequate knowledge of their needs.
3. Children and young people could be "manoeuvred" into a special academy place without realising that they could be entitled to have their needs fully assessed and a Plan issued. Common examples would include where a child or young person is under threat of permanent exclusion: "Would it not be better to move your child to our special academy – you would not want a permanent exclusion to go on their record?"; where a parent is told "your child's needs are not great enough to warrant the Local Authority (LA) assessing them or putting a EHC plan into place". If the child has no EHC Plan, the parent has no qualified right to any maintained or non-maintained special school of their choosing, so cannot use it to obtain an alternative mainstream or special school.
   We are concerned that this would disproportionately effect children and young people from ethnic backgrounds where English is not their first language, where parents themselves are vulnerable and may also have a learning difficulty or those families living in poverty where access to information and advice is hard to establish.  
4. Special academies could become a dumping ground for children failing within the education system as by placing them in the special academy they would no longer be part of the accountability and success recognition process for a mainstream school, i.e. five GCSEs at grade C or above. We could see a situation where a academy chain has a group of mainstream academies within an area and could set a special academy up in which "difficult" children could be placed. We are not saying this would be the norm but we want to ensure that all children and young people with SEN who need it have their needs assessed and properly met.   
5. Without a child or young person having gone through  statutory assessment of their needs and obtaining an EHC plan, the special academy will not be able to access the higher level of funding from a LA to make provision to meet those needs. There will be a maximum of £10,000 which will be paid to the special academy from the Educational Funding Agency with which to make the provision for the child. This will act as an illegal "cap" on provision and will be resource-driven rather than needs-lead as required by law. There will be no incentive for a LA to assess the child and issue a EHC plan as this would mean that they would be responsible for paying a top-up to the special academy to make additional provision for the child.

Parliament’s Education Select Committee has to date not questioned anyone about this, including the Minister. The question that needs to be asked is, "What this will do to promote the successful inclusion of children with SEN/disabilities in mainstream schools?" This could lead to an erosion of the assumption that mainstream schools should be able to make provision for all children without a statement/Plan, and most of those with statements/Plans. It may well erode disabled children's right to a mainstream education through the back door.