My Lords, my amendment, which I am pleased to hear the noble Lord, Lord Low, is also supporting, is very much along the lines of the discussion we all had in Committee. Currently, as we know, any child who has special educational needs but does not have a statement must
be educated in a mainstream school. There are no exceptions to this duty, which helps to ensure that children and young people are not inappropriately placed in special schools.
Under both the old and the new regulations, a child can attend a special school on an assessment place. Despite some sympathetic comments by the Minister in Grand Committee, the Government’s proposals will still potentially allow special academies, including free schools, to admit children or young people permanently into school without their having had their special needs statutorily assessed, or an education, health and care plan put in place for them.
Illustrative regulations accompanying Clause 34 —Regulation 2(2)—will also allow children without an EHC plan to be placed in any special school on an ongoing basis provided the situation is reviewed annually. Although the Minister stressed that the support of professional advice would be needed, I fear that not enough safeguards will be in place to stop children or young people being admitted without their needs being fully assessed and agreed by a range of professionals with the child or young person and his or her parents.
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This proposal bypasses the careful consideration of a child’s needs through an EHC assessment which brings together a range of information and advice, including parents’ views, children’s views and advice from professionals with expertise in relevant areas of SEN, including those nominated by the parent or young person. The proposal would seem to undermine the principle that mainstream schools must be enabled to make provision for all children without a statement/EHC plan and for most children with a statement/EHC plan.
Although special academies will need to make it clear through their funding agreement that a child or young person with SEN but no EHC plan should be placed there only at the request of their parents or at their own request, and with the support of professional advice such as a report from an educational psychologist, I am concerned that there will be no formal role for the local authority in this process. I fear that this proposal will make the local authority’s role of planning provision for pupils with SEN, including provision for children and young people with an EHC plan, extremely difficult.
The draft SEN code of practice confirms that an educational psychologist on their own might support the placement of a child or young person in a special academy. However, it is unlikely that an EP on their own would be happy to advise in this way; their advice would normally sit alongside advice from others who also have specialist knowledge in the relevant area of SEN.
This proposal contradicts the Government’s stated commitment to apply the SEN framework equally to maintained schools and academies. It also bypasses the decision-making process built into an EHC plan which gives parents a right to request the school at which they would like to have their child’s needs met, and a right of appeal against the decision of the local authority.
If this proposal were enacted, there would be a danger of mainstream schools being incentivised to persuade parents that their child would be “better off” in a special school just because they did not want them in their school, and a child or young person could be moved into special education without their needs and interests being safeguarded by having an EHC plan in place. This would take us back to the situation that prevailed before the Education Act 1981 was introduced. There is also a high risk of head teachers deciding the placement of children with SEN, with parents persuaded of the benefit because otherwise their child might potentially be excluded.
Special schools admitting a child value and use all the information from an assessment and statement to assure themselves that the child has the type of need for which they are designated. However, this proposal would not ensure that this would continue. It would seem contrary to the Government’s new way of assessing, and commitment to meet, the needs of all children and young people with SEN.
There could also be a situation where special academies increasingly enrolled pupils with less complex needs, which would beg the question of where children with complex needs would go. If this provision remains, I would question the point of having mainstream places within a special school.
I fear that the proposal would result in medical labels determining whether a child would secure a place in a special academy. If a special academy has been set up for a particular type of SEN, will it result in an influx of children having been diagnosed with that condition? How can the Government ensure that a framework process is in place so that inappropriate placements do not occur?
There are also concerns about the practical impact on admissions and places. Would decisions be taken solely by schools and parents, and how would EPs’ views be protected and advocated? How would places be allocated within school-year groups? If there was parental demand, could the funding agreement be varied to allow more non-EHC plan places? The policy also begs the key question of what the aspiration would be for a child without an EHC plan in a special academy. Would there be an exit plan? Who would set the child targets and ensure that they were making adequate progress?
I understand the Government’s position, which the Minister set out in Grand Committee, that the views of the parent should be the determining factor in what school a child attends. However, there need to be stricter and clearer protocols for what steps the parents must follow in such instances to protect both them and the child or young person from the risk of receiving misinformation. Regulations should also state that, on making this decision, parents must have ready access to specialist advice that may fully explain both the potential beneficial and negative outcomes of any such decision for the child or young person. I look forward to hearing what the Minister has to say.