Chief Executive Director Denise Inger discusses the ALNET Wales Act with Andy Lusk, long standing Board Member with SNAP Cymru as we wait for the new Code of Practice for Wales due for consultation later this year.

Background

The Additional Learning Needs and Education Tribunal (Wales) Bill was passed by the National Assembly for Wales on 12 December 2017 and became an Act on 24 January 2018 after receiving Royal Assent.  The Bill and ALN Code will be the catalyst for the biggest changes in provision for pupils with special educational needs in a generation. SNAP Cymru is broadly positive about the Education Reform and the Welsh Governments Transformation Agenda, however we remain concerned about its implementation.  Meeting Additional Learning Needs requires considerable skills and expertise and if not done well generates friction points, which can be moved, but cannot be eliminated.   As the Reform in Wales shifts there will be some magnification of key friction points, which may create serious conflict, between parents schools and LA’s as has happened and continues to happen in England.   We hope the Act, the new Code of Practice along with the newly appointed DECLO’s will result in Health, Social Care, Schools, FEIs and LA’s delivering on equality, inclusion and quality for children and young people with ALN.  Families however, are less confident that this will happen and we believe families and professionals will need, more than ever, independent easy access to advice and impartial support to help avoid conflict and achieve resolution.

 

Waiting for the new ALN Bill & Code of Practice Wales – getting it right?

Prepared by Andy Lusk NEC member SNAP Cymru.   

(Andy Lusk is the retired Autism Services Director of Ambitious about Autism, prior to that Executive Director at Scope for the UK and prior to that Education Director, Children’s Services Director, Head of Schools at NCH.   He currently provides consultancy, mainly in England, in the SEND and Safeguarding fields. He has also been a Higher Education Lecturer. He served on the Lamb Review in 2009 which investigated a range of ways in which parental confidence in the SEN assessment process might be improved and was, earlier in his career, part of the process of consultations on the 1989 Children Act. Andy  has also been an expert witness in the Family Court)

Since the publication of the green paper that later became the Children and Families Act 2014 and the SEND Code of Practice I have been consulting to schools, institutions, parents and young people responding to, or confronting, the new arrangements for SEND in England, soon to be implemented, with some significant differences, in Wales as the ALNET (Wales) Act.

In the 40 years since I became involved in Special Schools it has been clear that the restricted arrangements to access special education beyond the age of 19 has been one of several reasons why individuals with additional educational needs enjoy so few of society’s benefits, in the shape of work, economic success, access to housing, leisure….the list is considerable, it needs no rehearsing here. Perhaps the most strikingly unsuccessful aspect of the sector is its continuing ability to propel those with complex needs into the least stimulating yet most expensive forms of institutional care. For example, in England, of those categorised  (by the Institute of Psychiatry) as having complex autism, of the 238,000 identified, over 50% were in institutional care, a further 14,000 in hospital care with just 17,000 in supported living.

The factors driving these (and other) dismal figures are what the legislation in England and soon in Wales seeks to change. So how has this turned out so far?

In my experience, successful implementation has been affected by:

  1. The Transfer process (from Statements to EHC plans) has exemplified everything that we discussed in the Lamb Review; many plans are very poor, or in reality worthless beyond securing a placement for a pupil. Schools do not understand how to write them, parents do not understand how to contribute to them and the chronic lack of aspiration translates into cut and pasted descriptions of children or young people that reflect a lack of targets, outcomes or sometimes even intentions. The hope that SMART, crisp clear driven plans, with serious Reviews is not yet anything like a reality. Why? Many reasons, not least the fact that all schools, and special schools in particular, don’t see (or own) the consequences of a poor education, so don’t recognise that they have contributed to an individual too skills weak and independence training light to do other than head for unemployment at one end of the impairment scale to residential care at the other.
  2. In England the Local Authorities have the legal duty to write the EHCPs but in practice many are populated by schools. Because the inherent conflict of interest remains unchanged even well written EHCPs drafted by skilled local authority officers (and they exist) have a heavy bias towards in house schools, cheaper or cheapest options, which in effect just kick the can down the road. Where parents can afford quality advice and have the tenacity, they fight, and they fight more than before, hence the rise in SEND tribunal activity. In England this has been in part supported by the PPSs and ISs.
  3. There has in my experience been an improvement in the ability of mainstream schools to identify and support SEND pupils but this has been accompanied by a crisper calculation by SENCOs of the point at which they cannot expect their school to cope, driving more transfers to special schools and more friction with local authorities as they have sought EHCPs for such children to lever more resources. Hence, in part, the pressure on special school places.
  4. The Local Offer requirements of the Act have not obtained a foothold. Commissioners have not understood the way in which to track demand and thus predict resource pressures. This has been particularly acute around post 19. The assumption that somehow the FE sector would step up to the plate and accept far more SEND students has been an illusion. For FE the SEND population are a tiny part of their businesses. They have been unprepared for anything other than their traditional diet of a very small number of students with MLD and faced with more complex needs have manoeuvred to refuse entry, curtail stay, find excuses. This is not helped at all by the absurd lag learner system, the lack of understanding of what is actually happening by those in the ESFA and Ofsted. FE institutions are nervous of developing truly imaginative curricula and too devoted to the rigid systems imposed upon them by the funders. The result is that the pressures are transferred into adult social care services, who are struggling to survive. A very common problem is that an individual known to an education department from the age of 3 or 4 who has consumed perhaps £450,000 in education costs is introduced as if they were a complete unknown to the same local authority’s adult services department.
  5. Commissioners have not yet started to populate the supply side with training providers registered under Section 41, (and registration itself is restricted) so for the large number of special school leavers who cannot make use of the rigid regime of FE they cannot be placed with training providers either, with wholly predictable outcomes.
  6. The DWP has large gaps in its offer for people with ALN. This leads to local DWP officers assuming that someone with complex needs is simply going to be unemployed. The efforts to induce greater aspiration have to go far and wide to work.
  7. Far too often the sections of the EHCP related to social care support and health are blank or say nothing relevant. This frankly defeats one of the central objectives of creating EHCPs which are then little more than Statements as a result.

 

In England, in very brief summary, there is greater friction with parents, little evidence of greater aspiration, a weak supply side especially post 19, negligible commissioning activity, the same old same old conflict of interest between assessor and purchaser. The period over which disputes can range has been extended in line with the extension of opportunity to 25.

However I don’t believe the Act was a mistake. Much of this was not evident beforehand. The extension of opportunity was the right policy and overdue. But the challenges are considerable and will take a long time to overcome.

The question is can Wales learn from England’s mistakes. Well of course it ought to.

Decades of immersion in SEND help one to understand where the systemic points of friction exist. As parents have become more ambitious, access better advice, use the tribunal and related systems they learn that where the statutory assessor is also the purchaser the needs of the pupil/student will be subordinated to organisational welfare. Put simply, it’s about money. The new legislation has collided with reduced public investment and so the subordination of the client to the organisation increases. This process is moderated by 2 principal factors: the quality of independent advice to parents, so the access of parents and indeed students themselves to providers such as SNAP, and the quality of the professionals in the system. Yet it remains a fact that the desire for the perfect SEND educational placement and indeed the desire to create the perfect SEND educational provision would generate infinite spending and nobody has found a way to avoid the central conflict of interest that would be financially containable. The question is can the system confine the friction in the most manageable place whilst promoting the most intelligent outcomes for the customers of that system.

The ALNET Act is different in some key aspects to the England legislation. How might that affect the friction equation?

To some extent it’s all to play for via the ALN code and regulations.

I think there is likely to be:

 

  1. The same problem with the quality of IDPs/ALPs as with EHCPs. So far there isn’t enough to prevent that.
  2. Ditto the realistic inclusion of social care and health information relevant to a genuinely pan departmental plan.
  3. Independent advice for parents has to be independent to be useful. Where it is in house with the assessor/purchaser is risks being a sham that will quickly fall into disrepute with parents, resulting in more reliance on Tribunals.
  4. Creating a system in which schools (or, quizzically Governing Bodies) must write IDPs will too quickly reveal their incapacity to write really good ones, unless serious measures are taken to help them understand how to write good ones. The same will be even more acute for FEIs.
  5. So the locus of friction will move from the local authority (where it sits in England) to the school in Wales. This will, where it applies, change the relationship of parent to school.
  6. The school will have to defend at Tribunal, have they the knowhow and resources?
  7. Where ALN seems more complex, the school will seek the LA to take over the process to obtain the right ALP. This will in some cases shift the friction to the relationship between the school and the LA. Various complex alliances will result. As schools in Wales are local authority owned (there being no Academies) one can imagine some serious conflicts emerging where schools do not believe they have the resources to deliver on the IDP but their landlord will not take up the IDP and fund the ALP.
  8. All (and more) of the control and supply problems England has experienced seem likely to emerge in Wales as a result of the dependence on FEIs for the post 19 supply of education.

In summary, the differences so far evident (in the absence of the Code of Practice) as between England and Wales seem likely to shift and in some cases magnify friction points but may also accelerate the desire of LAs in Wales to support and improve SEND/ALN practice in their own schools, as the incentive to do so will be significant for them.

Andy Lusk /8.5.18/Wales

Implementation

The Welsh Government is developing implementation training which will be rolled out in early 2020 and the new system will be expected to go live from September 2020. There will be an implementation period of three years, during which time all existing statements and plans will be converted to individual development plans.  Children and young people newly identified as having an additional learning need and requiring an individual development plan during the implementation period will be supported via the new system.

For the time being, local authorities and all those who work with children and young people with SEN, must ensure that they continue to comply with the duties placed upon them by the Education Act 1996. They must also continue to have regard to the SEN Code of Practice for Wales (2004).