Special Needs Education

Tuesday 6th September 2011 Westminster Hall

13:00

[Annette Brooke (Mid Dorset and North Poole) (LD)]

I shall begin by declaring an interest. I am patron of Diverse Abilities Plus, a Dorset charity that, among a range of activities, runs Langside school. I have a long acquaintance with the charity, which was formerly known as Dorset Scope, and with the school. I have seen the school’s intake change over many years; the children now have extremely complex needs. It is a fantastic school. Sadly, since the last boundary changes, it is no longer in my constituency, but I share its concerns about the future. The Minister will be aware that I have an equal passion for Montacute school, a maintained school that I expect to gain academy status; the children there also have complex needs. I believe that the schools complement one another, and that both should be allowed to thrive to ensure that we give children with disabilities the very best start in life. The charity’s name change reflects well on the positive outcomes that can be achieved with the right support.

I welcome the Government’s recent Green Paper on special educational needs, and its vision to improve outcomes for children and young people who are disabled or who have special educational needs. In particular, I believe that there is widespread support for a joint education, health and care plan, and I share the Minister’s aim to minimise the adversarial nature of the system for families. The role of special schools in providing specialist expertise is also recognised. However, concerns have been expressed about the provision of special needs education by non-maintained and independent special schools, which cater for around 13,000 of the most vulnerable children in the country who have wide-ranging but complex needs.

As well as Langside School, I have been contacted by the National Association of Independent and Non-Maintained Schools—NASS—which reminds me that I know well and value highly another of its members, the Victoria centre in Poole. I have also heard from I CAN, the National Autistic Society and Ambitious about Autism. I CAN has two special schools, Meath school in Surrey and Dawn House school in Nottingham, which specialise in providing intensive support for pupils aged four to 19 who have severe or complex language and communication needs. As well as supporting children directly in their settings, I CAN schools provide outreach to the mainstream, facilitate academic research and provide an assessment service for local authorities and parents. Both schools were rated as outstanding in the 2011 Ofsted inspection care reports.

The National Autistic Society provides six specialist schools for children with autism and complex needs. Inspectors recognise that those schools are excellent and provide good out-of-school services. Ambitious about Autism runs the TreeHouse school, with its outstanding provision; I am proud to have visited it. I mention those schools to give a flavour of the type of school that I wish talk about today.

I thank the Minister for generously allocating time to meet representatives from NASS earlier this year. However, its concerns remain and I am pleased to have secured this debate so that I can seek further clarification about the future of the sector in the Government’s vision for provision for children with special educational needs. There is deep concern that non-maintained and independent special schools are misunderstood or have been overlooked by policy makers. As a result, the sector faces a number of challenges in connection with its funding arrangements and the policy environment in which it must operate.

Ambitious for Autism has written to me, and I would like to share what it says with the Chamber. The Minister will be aware there are over 70 non-maintained special schools; they are approved by the Secretary of State for Education under section 342 of the Education Act 1996. To become approved, the schools have to be non-profit making and have demonstrated that they operate to a level at least equivalent to state maintained special schools. Their day-to-day running must be controlled by a governing body, the articles and instruments of which are to be agreed by the Secretary of State. To keep that status, schools must comply with the non-maintained special school regulations. Local authorities fund pupils to attend them. The schools cater for pupils with extreme and/or low incidence difficulties, and they provide specialist schooling.

The charity writes:

“While we welcome the diversification of provision for children with special educational needs, the creation of special academies and special free schools has created additional complexities and uncertainties for the special school sector.

Non-maintained special schools share many key characteristics with special academies and free schools, in that they are effectively special schools with freedom from local authority control but are not independent schools. However, the funding systems for these types of schools are all different, which creates unnecessary complexity and confusion in the system, as well as the potential for an unfair playing field.

Furthermore, special schools are being asked to apply to become special academies and special free schools without adequate information about the funding implications. This information is essential if the Government is asking schools to consider these options and make informed decisions.

Ambitious about Autism is increasingly concerned that a new and separate model is being developed with very little regard for the impact that this may have on a large number of highly successful schools that continue to provide an excellent education to some of the most complex children in England. We would welcome the opportunity to further engage with Ministers about new funding arrangements.”

For the purposes of this debate, I turn to the Green Paper on SEN, and specifically to page 52, which clearly states that parents will have the right to express a preference for any state funded school, including academies and free schools, but that does not seem to extend to non-maintained and independent special schools. That is despite the Government’s commitment to develop a national banded framework for funding provision for children and young people with SEN that has the potential to create greater transparency of funding. That needs clarification, as both non-maintained and independent special schools are usually funded by local authorities rather than parental placements, which means that in legal terms they are similar to academies and free schools and have less in common with the mainstream independent sector.

NASS is concerned about a response given by the Minister to the Select Committee on Education, which it says implies that parents will get the choice of a non-maintained and independent special school only after other local options have been considered. The association believes that this exclusion is based on untested assumptions that non-maintained and independent special school placements are always more expensive than similar placements in the maintained sector, and it calls on the Government to give parents the right to express a preference for a non-maintained or independent special school.

I hope that the Minister recognises those concerns and that she will give a clear answer on whether parents will be able to choose non-maintained or independent special schools. We also need to know why parents are given the choice of free schools but not schools from the non-maintained or independent sector.

The perception is that places at non-maintained special schools are consistently more expensive than local authority provided packages of support for children with the same level of need. NASS quotes the Minister as speaking of parents pressurising local authorities for expensive independent school places, but that should not be needed if the Government get early intervention right. There are two issues here: is provision more expensive, and will early intervention obviate the need for highly specialist provision?

On the first, as a former chair of education for a small local authority, I understand only too well the financial pressures of providing expensive placements. The costs of providing the right services for a child with complex needs are high. However, a local authority should not have to fund entirely these low-incidence cases, as such highly specialised provision is likely to be provided over a wide area.

In a recent constituency case, a young person with autism needed a highly specialised course that entailed residential provision. Some children and young people with autism and many other conditions have extremely complex needs and need highly specialist provision with perhaps a 24-hour curriculum. Obviously, in this period of reduced resources, it is crucial that the Department for Education and local authorities do more to achieve better value for money in the commissioning and delivery of special educational needs. As there is lack of information available in the SEN sector about cost-effectiveness, I urge the Department for Education to commission research on the cost of placements in the non-maintained and maintained special school sectors. The non-maintained sector obviously has accommodation, social care, health and allied therapy costs that will be reflected in direct financial transactions, so we need true costings for both sectors. That would go some way towards ensuring that there is a level playing field between the non-maintained and maintained special school sectors and that value for money is delivered at this time of fiscal restraint.

What evidence can the Minister point to that indicates that places at independent and non-maintained special schools are consistently more expensive than local authority packages of support for children with the same level of need? If there is no evidence on that at the moment, can it be collected?

There cannot be any disagreement about the value of intervention in early childhood for children whose needs can be identified early. In addition, the SEN Green Paper asserts that good early intervention will reduce the need for placements in non-maintained and independent special schools. NASS is concerned that that reinforces the view that placements in its sector are made only as a result of family breakdown or poor early placements. The small group of children who actively benefit from residential placements would like the Green Paper to say more about the role of residential provision and how it will be supported or explored further. Will the Minister provide some comment on that matter?

NASS would like greater recognition by the Government of early intervention for emergent special educational needs later in childhood. Although those often relate to early life experiences, some social, emotional and behavioural difficulties are not apparent until later in the child’s life. Often such young people are then subjected to multiple interventions before specialist assessment and support is offered. NASS would like to see this group of children and young people better reflected in the Green Paper.

I have two specific concerns about the treatment of this sector compared with the maintained sector, particularly bearing in mind the fact that 99% of places are funded through the public purse as a result of local authorities making placements. In legal terms, it is very similar to academies and free schools, and it has less in common with the mainstream independent sector.

One concern relates to specialist school funding. NASS discovered by chance that funding for non-maintained special education schools had not been allocated as part of the move to direct school grant funding. It was concerned about that, especially as it seemed that those schools under local authority control had actually received a commitment that money would still be passed on to them. It seems that there was a communication problem within the Department, and the schools will now receive only a proportion of the money they were originally expecting. Clearly, there are some concerns, especially around communication.

At the end of July, NASS was made aware that new non-maintained special school regulations had been laid before Parliament on 8 July—they came into force on 1 September 2011. Neither NASS nor the schools had been made aware that that had happened. By then, schools were on summer holidays and were unaware of the new regulations to which they were returning in September. I am aware that NASS contacted officials at the Department for Education and also wrote to the Secretary of State for Education in August 2011, but it is still awaiting an official response.

Finally, special schools in the independent sector are concerned about Lord Hutton’s recent review of public service pensions. There is great concern that teachers in the independent sector might be excluded from the pension scheme, which would affect movement between the two different sectors quite considerably and could affect the supply of highly qualified and specialised teachers.

In conclusion, will the Minister provide assurances that the excellent specialist provision that the sector provides for some of the most complex children is recognised and is not hindered, and that there will be a level playing field in which such schools can operate?

13:16

[Rehman Chishti (Gillingham and Rainham) (Con)]

I congratulate my hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke) on securing this important debate. May I also say that it is a pleasure to serve under your chairmanship, Mrs Main?

I should like to cover three specific points that the independent sector has raised with me. First, will personal budgets proposed in the SEN Green Paper be available to enable parents to purchase provision in the independent sector? Secondly, is there any desire to implement the auxiliary aids and services provisions for education in the Equality Act 2010? That could have a huge impact on independent schools, with schools having to fund additional provision which, historically, individual parents have paid for under their contractual arrangement with independent schools.

Finally, if an independent school does not offer a place to a pupil with special educational needs, the school could be open to a disability discrimination challenge, while mainstream pupils who are refused places have no such rights. Is it right that an independent school should find itself in such a position? The place will have been refused for sustainable reasons yet the schools are “forced” to spend thousands in order to defend their position with no prospect of being awarded costs even if they are successful in defending the claim at a tribunal. I said that I would be brief. Those are the three specific points on which I seek clarification from the Minister.

13:17

[The Minister of State, Department for Education (Sarah Teather)]

It is a pleasure to serve under your chairmanship, Mrs Main. I think it is the first time that I have been in Westminster Hall when you have been in the Chair.

I congratulate my hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke) on securing this useful and timely debate. I am aware of her long-standing interest in this issue. She kindly mentioned that I attended a meeting that she called with a number of schools from her area and nationally. I am grateful to have this opportunity to place some issues on the record and to clarify some of the points that she has raised.

Independent and non-maintained special schools play a valuable role in supporting some of our most vulnerable children and young people, many of whom have very complex needs, and they also have considerable expertise to offer other schools. My hon. Friend mentioned a number of schools in her constituency, outlined their particular expertise and what they are able to offer to children and families. I pay tribute to the impressive work that schools in her constituency and across the country do in supporting children and families. They make an invaluable contribution to supporting children and to the sector as a whole. Independent and non-maintained schools are an established part of the landscape of special educational needs provision in this country and they form an integral part of the diverse range of schools that we are seeking to establish, in order to improve choice for parents and support for children and young people.

In the time available to me, I want to try to pick up on the points that were made by my hon. Friend and by the hon. Member for Gillingham and Rainham (Rehman Chishti). Both hon. Members will be aware that this debate takes place relatively soon after we published a Green Paper on SEN and disability. We carried out a consultation that received 2,400 responses and we are going through all those responses. They were very varied, coming from education professionals, including teachers, families and health workers. Later this year, we will publish a formal response. So I take this debate in the spirit of that consultation. We are still in a period of gathering information and views about our Green Paper before deciding how to work through some of the proposals that we made and to ensure that we get the detail correct. During this period, we are also establishing local pathfinders to test out some of the best ways of delivering the change that we have proposed. We will announce details of those pathfinders later this month.

My hon. Friend made a number of specific points about naming schools and school choice. It is perhaps worth my placing on record what the Green Paper says. We are widening the range of schools from which parents can choose by enabling parents, teachers and others to set up free schools and by allowing existing schools to become academies. The free schools route also provides an opportunity for non-maintained schools to seek academy status if they wish to do so. We intend to change the law so that parents of children who would have an education, health and care plan have the right to express a preference for any state-funded school and to have that preference considered on the same basis, whether it is for a special school, a mainstream school, an academy or a free school.

My hon. Friend asked why we have not made a similar provision for parents to express a formal preference and then for local authorities to name a school if it is a non-maintained school or an independent school. It is about the original purpose of the legislation, which is to ensure that parents get that choice—often when a school may not choose to take the child. As she will be well aware, the process is that parents are able to express a preference and the local authority will then consider whether that is the right placement for that child, subject to the legal provisions about the best use of resources and whether it will have any detrimental effect on the education of other children. At that point, if the local authority agrees—if it does not meet the conditions, it has to agree—to place the child in that school, it formally names that school and the school is forced to take the child.

Of course, non-maintained schools and independent schools do not want to be forced to take a child and, in a sense, that is a point that the hon. Member for Gillingham and Rainham made when he raised wider issues about disability discrimination legislation. We have a diverse range of schools and there are balances of freedoms and restrictions applied to different schools. If non-maintained schools want to take on slightly different freedoms but also different restrictions, they have the freedom to apply for academy status, and independent schools have the ability to apply for free school status, as I outlined a while ago. In doing so, they trade some of the freedoms that they already have and gain different restrictions. Therefore, it does not make sense in that situation to extend the legislation so that schools would be forced to take a child, and I do not think that that is something that those schools would want to do. However, I stress that parents will continue to have the right to make representations for a place at a school that is not state-funded and the local authority must take those representations into account when it makes its decisions on placements. We are not proposing any change to that process in the Green Paper.

My hon. Friend raised points about whether non-maintained special schools and independent schools are always more expensive. She quoted some things that I had said at a hearing of the Select Committee on Education. I think that they have been taken very slightly out of context. It is true to say that some independent schools and some non-maintained schools are more expensive than state-funded provision, but I have not said at any stage that all non-maintained special schools and all independent schools are always more expensive. It would simply be incorrect to say that. We have spoken to the National Association of Independent Schools and Non-Maintained Special Schools on this point and we have tried to encourage it to submit its own evidence about costs to the review about school funding, which is ongoing. We are out to consultation until about mid-October and we encourage those in the sector to submit what evidence they have about costs and to say whether full costs are being taken into account. Such evidence would be very useful when we are considering what we do with pupils, particularly those high-cost pupils about whom my hon. Friend spoke earlier.

It is also worth saying that local authorities are obliged to make decisions about placements on an individual basis. There is no doubt that for some children attending an independent or non-maintained special school will be absolutely the appropriate and right course of action for them, and the local authority is then required to fund a place for the child at that school. In fact, the number of children who are being educated in the independent sector has risen, not fallen, during the past five years.

My hon. Friend made some points about a local offer and the information that is available to parents. Local authorities already have a statutory duty to give parents information about non-maintained special schools and independent schools in their area. It is up to local authorities to decide whether to include that information in their local offer and that is something that we would like local authorities to develop on a local basis.

My hon. Friend did not mention the issue of the work force, but I wanted to make a couple of points about that because NASS raised it with us in its response to our consultation on the Green Paper. Independent and non-maintained special schools can now apply to become teaching schools if they are rated “outstanding” by Ofsted and have experience of collaborating with other schools. As I said earlier, however, those schools have such a lot of expertise that I want to encourage them to join an alliance with other schools in their area to form a teaching schools partnership, so that we can ensure that we are making use of the expertise that they have.

My hon. Friend very fairly made some criticisms about communication between the Department for Education and other organisations, particularly NASS, in the past few months. Those criticisms are absolutely fair and valid. Indeed, I wrote to Claire Dorer of NASS just this week to say that some of the failures of communication have been, in my view, inexcusable and that I am absolutely determined to ensure that they are not repeated. The Department is in regular contact with NASS on many of the points that my hon. Friend has raised. It is not an excuse, but by way of offering an explanation I will say that there has been some reorganisation within the Department about responsibility for some of these issues and unfortunately that has led to some issues of miscommunication.

I will come back to the other points that my hon. Friend made, but first I will address the specific questions that the hon. Member for Gillingham and Rainham asked. He asked about personal budgets and whether parents would be able to buy provision in the independent sector. The answer is yes, but we think that it is unlikely to apply to the whole school place. That is something that we are testing at the moment through our pathfinder schemes, but we think that it is unlikely to be practical to apply to the whole school place. Of course, as I stated a short time ago, if that provision is correct for a child, local authorities are already bound to fund the whole school place anyway, but they may well be able to pay for some of the extra provision that might be offered in a particular school.

Are we going to implement the auxiliary aids and services regulations? It is our intention to do so. There has been some delay in our doing so. Of course, the regulations will apply to all schools and not just to independent schools; all schools will be bound by them.

The hon. Gentleman also made the point about independent schools being open to disability discrimination challenge if they fail to accept a child. That is the flipside of the other point that my hon. Friend the Member for Mid Dorset and North Poole made earlier about naming a school. If a school is state-funded, the local authority can specifically name it and ensure that it is forced to take a child. It is a similar attempt to protect things for families.

In the last minute available to me, I want to respond to the points that my hon. Friend made about the Hutton report. We are, of course, looking at this issue as we consider how to deal with the detail of the recommendations made by the Hutton commission. There will be some issues to balance about what we do and there are, of course, pros and cons attached to private sector bodies’ participation in public sector pension schemes. That is something that we will have to consider with the teaching profession as a whole, but I understand the points that my hon. Friend raised.

In the time available to me today, I have done my best to answer all the points that my hon. Friend has made. There are two other points about funding on which I will respond to her in writing, but I hope that I have responded to all the other points that she has raised.