If not statutory - then essential
maintaining services in challenging times
For many years Local Authorities (LAs) have provided specialist support services to deaf children in mainstream and in special schools.
The complexity of the task of supporting deaf children has been recognised by government in some form or other since 1908 and several re-examinations of the role have concluded that not only are Teachers of the Deaf essential but they should also have a mandatory qualification.
Nationally there is broad variation in the structure of services and the role of the Teacher of the Deaf. In some areas Teachers of the Deaf have a largely advisory function. In others, they have retained a direct teaching role. In addition to Teachers of the Deaf, services employ a range of support staff: TAs, CSWs, BSL instructors for example. The common aim of each of these services must be to meet the needs of the deaf children in their local community as effectively as possible.
In recent months/years, the changes to the political and financial context for Local Authorities have put increasing pressure on centrally retained services. As LAs seek to respond to government requirements to significantly reduce spending, all activity is being scrutinised.
It is in this context that many services are being asked the question, “Is your service statutory?” As LAs look to reduce costs, the first response must be to ensure that all statutory services remain in place.
The next question must then be – if not statutory, is it essential? What would be the risks of reducing or removing the service?
Thirdly, if the support is necessary, can it be delivered in an alternative way that is more cost-effective and yet meets needs?
BATOD believes that the role of the Teacher of the Deaf and of support services remains vital if deaf children are to achieve positive outcomes.
The need for services has not reduced. However, at this time of challenge, all services must be realistic, identify the need within their LA, and demonstrate that their model of services represents clear value for money.
The BATOD Steering Group convened a special meeting in mid-January to discuss this new climate and the demands being made on heads of service and other colleagues.
At this meeting, a number of heads of service considered what are the statutory roles for support services. If elements of the work are not statutory, how can we demonstrate that they are still, in fact, essential?
Initially, we looked at the following legislation and the duties which are placed on LAs – bearing in mind that the LA has to ensure that provision is made but does not necessarily have to provide the service themselves – they may commission it.
Children Act 1989 Duty of Care to pupils
LA Social Care has a general duty to provide services for children in need; i.e. those who need services to attain a reasonable standard of health and development. The LA must co-operate with this provision in a number of areas but especially;
- for under 8's, day care, nursery provision;
- out of school activities;
- special educational needs, and
- school attendance.
Education Act 1996 Duty to promote and monitor SEN and disabilities outlined in the Education Act
The Council has a duty to identify, assess and make provision to meet the special educational needs of children within its area.
Section 316A of the Education Act 1996 requires maintained schools and local education authorities to have regard to guidance on the statutory framework for inclusion.
An essential function of the LA is to make effective arrangements for SEN by ensuring that:
- the needs of children and young people with SEN are identified and assessed quickly and matched by appropriate provision
- high quality support is provided for schools and early education settings – including through educational psychology and other support services, and arrangements for sharing good practice in provision for children and young people with SEN
- children and young people with SEN can benefit from co-ordinated provision – by developing close partnerships with parents, schools, health and social services and the voluntary sector
- strategic planning for SEN is carried out in consultation with schools and others to develop systems for monitoring and accountability for SEN
- LA arrangements for SEN provision are kept under review as required under section 315 of the Education Act 1996.
The Special Educational Needs (Provision of Information by Local Education Authorities) (England) Regulations 2001 set out at Annex A require LAs to publish their policies on SEN and information about how the authority is:
- promoting high standards of education for children with SEN
- encouraging children with SEN to participate fully in their school and community and to take part in decisions about their education
- encouraging schools in their area to share their practice in providing for children with SEN working with other statutory and voluntary bodies to provide support for children with SEN.
LAs must also publish their general arrangements, including any plans setting out objectives, targets and timescales covering local arrangements for:
- identifying children with SEN
- monitoring the admission of children with SEN (whether or not those children have a statement) to maintained schools in their area
- organising the assessment of children’s SEN statements, including any local protocols for so doing
- providing support to schools with regard to making provision for children with SEN
- auditing, planning, monitoring and reviewing provision for children with SEN (generally and in relation to individual pupils)
- supporting pupils with SEN through School Action and School Action Plus
- securing training, advice and support for staff working in SEN
- reviewing and updating the policy and development plans on a regular basis
- explaining that element of provision for children with SEN (but without statements) which the LA expects normally to be met from maintained schools’ budget shares and that element of such provision that the authority expects normally to be met from funds which it holds centrally.
To fulfil their role effectively, LAs’ planning should provide for the inclusion of children with SEN in mainstream schools. They should monitor and review the role and quality of central SEN support services and parent partnership services; take account of current and predicted pupil numbers; monitor the kinds of needs that are identified and where children are placed; and develop their SEN policies in consultation with schools and their other partners and keep them under review.
Academies are still bound by this – no child should be disadvantaged by the change of status. At the time of the passing of the Academies Bill Lord Hill said:
“We are absolutely committed to ensuring academies play a full and fair role in meeting the needs of children with SEN," he said. "Parents and children will have the same safeguards they enjoy at the moment."
SEN and Disability Act 2001 (subsumed into the Equality Act 2010)
An LA must arrange for the parent of any child in their area with special educational needs to be provided with advice and information about matters relating to those needs.
The authority must take such steps as they consider appropriate for making the services provided under subsection (1) known to —
- the parents of children in their area,
- the head teachers and proprietors of schools in their area, and
- such other persons as they consider appropriate.
SEN Code of Practice 2001
Statutory rights of deaf pupils stated in their statements of educational need; involvement of QToD in assessment.
In November 2010, Sarah Teather, Minister of State, made a specific reference to the Mandatory Qualification – arising from a question stimulated by the NDCS:
“Local authorities are responsible for ensuring that teachers of hearing impaired and deaf children possess the appropriate mandatory qualification to undertake the role. It is a matter for local authorities to ensure that they have enough qualified teachers to meet their statutory commitments.”
The Importance of Teaching 2010
The recent White Paper also highlights the role of the LA:
5.30 Role of LAs:
- Support vulnerable pupils – including Looked After Children, those with Special Educational Needs and those outside mainstream education
At the time of writing we are awaiting the publication of the Green Paper on SEN and Disability. It will be important to ensure that this is brought into any discussions as it may raise relevant issues particularly related to the role of LAs.
‘Cemented to the floor by law’: Respecting legal duties in a time of cuts by Steve Broach, Barrister, Doughty Street Chambers
Heads of service may wish to consult this document which provides further interpretation of what is statutory and what is not.
Here are some helpful extracts:
A series of important judgments over the past 20 years have established that there are a number of duties owed to individual disabled children in relation to which either (i) resource constraints are an irrelevant consideration or (ii) resources may be relevant but the duty cannot be avoided by reason of resources alone. The following non-exhaustive list of these duties will be considered in the remainder of the first part of this paper:
- The duty to arrange the provision specified in a child’s Statement of SEN (s 324(5)(a)(i) Education Act 1996);
- The duty to provide suitable education for children who may be without such education for any period (s 19(1) Education Act 1996);
- The duty to assess a child’s need for ‘social care’ services and, where necessary, provide services to meet assessed needs (s 17 Children Act 1989, s 2 Chronically Sick and Disabled Persons Act 1970);
- The duty to accommodate children whose parents are ‘prevented’ from providing them with suitable accommodation and care (s 20(1) Children Act 1989); and
- The duty to respect disabled children’s right to family and private life under Article 8 ECHR.
- While only children with substantial special educational needs will benefit from a SSEN, all disabled children have the protection afforded by the duty found in s 19 EA 1996, which requires local authorities to make arrangements for the provision of ‘suitable education at school or otherwise’ for children who ‘may not for any period receive suitable education
- s 19(6) EA 1996 defines ‘suitable’ as meaning ‘suitable to his age, ability and aptitude and to any special educational needs he may have’ (emphasis added).
- 29. While an authority must exercise its judgment at the conclusion of an assessment as to whether services are necessary, if it concludes that services are necessary it has no discretion as to whether or not to provide services – the necessary services must be provided.
- 36. the legal duties remain to assess an individual disabled child’s needs, determine whether those needs should be met through the provision of services and if so provide services to meet needs.
- As budgets shrink and while the legal duties remain, it is likely that local authorities will increasingly be required by the Courts to comply with what the law mandates rather than what central or local government proposes as policy at any given time.
- 17. All disabled children are children ‘in need’;
If not statutory – are the services essential?
Having considered the statutory basis for support service provision, the group then turned to a more practical approach. Do the services provide good value for money? What would be the risks of a reduction or removal of services?
The outcome of any risk analysis will vary from LA to LA, However, there are a number of key themes which each LA should consider.
In developing a risk analysis it is important to describe clearly the current structures, costs, numbers of pupils and families supported and wherever possible, outcomes.
Implications of potential reductions in service could then be evaluated under the following areas of risk.
What are the financial risks?
Will savings made by reducing the level of service result in additional expenditure elsewhere, through for example:
- an increase in requests for statutory assessment
- increased requests for specialist placements with associated costs
- increased requests for out LA placements
- increasing numbers of appeals to SENDIST
- increased need for support throughout education as a result of lack of early intervention?
What are the risks re outcomes?
Will a reduction in service have a significant impact on schools/the LA outcomes data? Will it affect priority areas such as:
- impact on attainment data
- impact on attendance – a high percentage of pupils who are persistently absent have special educational needs. A loss of confidence for young people, their families and schools that needs will be met may lead to increasing non-attendance/disaffection
- increased risk of social and emotional difficulties, leading to exclusion
- impact on NEET figures?
Models of provision
The group considered a range of models of provision.
No one model of provision can be promoted above another. Within each LA a model should evolve that will best meet the needs of the local context. With the increasing expectation that LAs will commission rather than provide services in the future, LA services are having to question many previously accepted practices and consider very new ways of working.
Whatever the model of service delivery, certain principles and standards should be adhered to. The following documents may be of use when considering different ways of working:
Making a case
In order to support an argument for retention of services or a change in service structure, in addition to providing a clear risk analysis and value for money argument, it is always helpful to base the proposal on research evidence, national and local benchmarks and feedback from stakeholders.
Examples of similar good practice and case studies may be helpful when making presentations to decision makers such as elected members.
Case studies could describe the pathway of an individual child or group of children as well as the service as a whole. They should show how the service is organised and be illustrated with evidence of the impact on pupil outcomes including attainment and achievement showing how services are responding to need. Demonstrating progress and outcomes is key.
They would make clear the consequences of reductions or withdrawal of support.
This document deliberately does not provide solutions as each LA’s response must reflect the local context. We hope however it gives ideas and suggestions which may be useful when making a case for the retention of high quality specialist services for deaf children and young people from the point of diagnosis.
This is a dynamic document and we would really welcome comments and suggestions to improve it to ensure that the most useful information is available to colleagues in these challenging times.
National Executive Officer
BATOD, February 2011