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A zero sum game?

The number of SEND tribunal cases is rising and the proportion of appeals ‘lost’ by local authorities is at a record high. Lottie Winson talks to education lawyers to understand the reasons why, and sets out the results of Local Government Lawyer’s exclusive survey.

Ofsted warns of “fundamental mismatch” between scale of demand and level of resource in SEND system

Outcomes for children and young people with Special Educational Needs and Disabilities (SEND) are poor with a “fundamental mismatch” between the scale of demand for support and the level of resource, Ofsted has warned.

The regulator’s annual report, which was published today (5 December), noted that the number of children with SEND continues to increase, putting even more pressure on an already strained system.

It added that inconsistencies and weaknesses continue in area SEND arrangements, and many children do not receive the right support at the right time.

Ofsted said this was “aggravated where there is ineffective use of information across partnerships, and weak joint commissioning, governance and oversight”.

The report noted as well that not all children with an identified need will (or should) receive an Education Health and Care (EHC) plan.

“The needs of many children with SEND can and should be met in mainstream schools with high-quality targeted support,” it insisted.

“We should, collectively, look at the early interventions that can be made – for instance in the early years and key stage 1 – to stop needs escalating and becoming entrenched. If EHC plans are used too widely, the resources that follow them will always be stretched too thinly for those in most need.”

Ofsted also stressed the importance of all schools having a qualified teacher appointed special educational needs coordinator (SENCo) – a requirement under the DfE’s SEND code of practice.

Commenting overall, Ofsted concluded that although there were many reasons to be positive about the future of education and children’s social care, huge challenges remained.

Looking at schools, the watchdog warned that attendance issues had “deepened” and learning had become “disjointed” for too many children.

The report noted that the absence rate has risen since the pandemic, with disadvantaged and vulnerable children more likely to be persistently or severely absent.  

Ofsted observed: “A growing number of children are now on part-time timetables, while a mix of online and in-person education is increasingly being used for children with SEND and behaviour or health needs. A small number of schools also now allow flexi-schooling, where parents home educate their children for part of the week.

“Along with a growth in home–schooling and an unknown number of children attending unregistered schools, this means a very significant number are experiencing unorthodox patterns of education.”

On children’s social care, the watchdog noted that the number of children in care continues to rise, but there is a shortage of foster carers and not enough children’s homes in the right places.   

It warned that without the right homes in the right places, “too many children are placed in unregistered homes without regulatory oversight”.

Last year, more than 1,200 Deprivation of Liberty (DoL) applications were made, compared to 580 in 2020/21.

Ofsted Chief Inspector, Sir Martin Oliver said: “Ofsted plays a part in advocating for the most vulnerable children by drawing attention to the services under most pressure, the cracks in the system, or the providers that are not meeting their needs. That sits alongside our duty to recognise excellence, innovation and exemplary practice, and to reassure parents about the education and care their children receive. As we introduce changes to the way we work, we will not shy away from calling out unacceptable education or care. But we will also highlight and champion great work and positive outcomes.  

“There are plenty of reasons to be positive about the future – not least because the services we inspect and regulate employ thousands of committed and talented people, doing their best for children and learners every day. They deserve all our thanks.”

Responding to the report, Cllr Arooj Shah, Chair of the Local Government Association’s Children and Young People Board, said: “This report rightly highlights the key challenges facing education and children’s social care.

“We continue to call for urgent reform to the SEND system, and the need to improve mainstream inclusion in schools to address rising need. Ofsted should also pause SEND area inspections and instead focus on the national, systemic issues within the SEND system.”

Cllr Shah added: “We also share Ofsted’s concerns around homes for children in care, especially those who need the most specialist support. The Government’s recent policy paper offered helpful measures to start to address this challenge, and we want to continue working with them to make sure we can make swift progress on improving the lives of all children in our care.

“Fundamental to all of this is a cross-government plan for children, identifying the ways in which all departments and their associated local agencies can support better outcomes for children – supported by improved budget sharing at a local level.”

Lottie Winson