Schools are setting aside cash for potential legal action, being asked to “make the case” to secure SEND cash and signing up to inclusion charters as cash-strapped councils try to boost inclusion.
The government’s key plan to fix the broken SEND system is to make mainstream schools more inclusive.
Buckling under huge deficits on their high-needs funding, some councils are already attempting to get their mainstream schools to educate more pupils with complex needs.
But plans in some areas have led to huge backlash from heads, with threats of legal action and fears over more cuts by the back door – providing a stark warning sign for future reforms.
Schools Week investigates…
Special schools ‘turn away most complex’ kids
Kent council – the country’s largest – plans a raft of changes to get its spending on pupils with additional needs under control. It was criticised by Ofsted previously for failing to tackle “a lack of willingness” among some schools to “accommodate” children with SEND.
One of the more controversial proposals is to change the admission guidance and designated needs that some special schools cater for, to ensure pupils with more severe and complex needs can access places.
Kent said the current admission guidance means six schools only admit children who are achieving within the range expected for their age, a situation one leader branded as “mad”.
This results in some special schools “turning away the most complex pupils and in some cases recommending a mainstream school”, council papers stated. In fact, some mainstream schools now have pupils with “more complex needs than those in special schools”.
The papers reveal a Kent special school told a parent via an email in March that their child’s needs “are too high” for their school, but their “needs could be met at mainstream”.
Christine McInnes, Kent’s director of education, told Schools Week a third of special schools now “reflect our selective system in secondary schools” as they have “very, very restrictive admissions criteria”.
‘It’s a complete outlier’
Snowfields Academy, for instance, states pupils must have an education, health and care plan with autism as their primary need.
But students “should be working at, or close to, age expected attainment levels, within 2-3 years of age expected and on a pathway to achieve GCSE or functional skills qualifications at the end of year 11”.
It adds students with a primary need of social, emotional and mental health or a “significant global developmental delay or challenging behaviour” are not appropriate for the school.
McInnes added: “Kent is the only authority that I have come across that restricts the entry of children to special schools by saying, ‘we will only take children who can achieve well at GCSE’. It’s a complete outlier.”
Legal action eyed over inclusion push
However, the proposals have caused a huge backlash.
Kent Special Educational Needs Trust, which represents special schools in the region, has warned the scale of proposals “will require affected schools to make sweeping changes to their curriculum, staffing resources and capital infrastructure”.
The heads warned there was “little confidence” the changes “will have the desired impact of better outcomes for children” or address the deficit.
They pushed back on “rhetoric from [Kent council] officers that special schools do not wish to change and are actively resisting change… This is simply not the case and is causing further friction”.
Schools Week understands a KSENT leader said during a meeting that it was seeking legal advice on the plans, and suggested it had £100,000 that could be used for this purpose. Schools have to pay for membership.
A KSENT spokesperson said the organisation had “a contingency fund for unpredicted costs”, but said: “No monies from the contingency fund are set aside for specific purposes. No money from the KSENT budget is ring-fenced for legal challenge.
“KSENT headteachers will continue to work with Kent County Council colleagues in order to ensure the best outcomes for children and young people.”
Simon Beamish, chief executive at Leigh Academies Trust which runs schools in the area, has also said if the plans were implemented, his trust would consider legal action against the council.
The proposals would be “damaging” for the region’s special schools, and make it “more difficult to achieve a place”.
Schools ‘sticking fingers in ears’
But Seamus Murphy, chief executive at Turner Schools, said: “The system is broken in Kent and there are those who are working with the local authority to deliver change and those who are sticking their fingers in their ears, shouting [King] Canute-like at the incoming tide and hopping up and down pleased that everybody else’s castles are washed away.”
He added inclusive mainstream schools currently “face a triple whammy of lower progress rates, staff burnout and risk adverse Ofsted judgements”.
Kent said it would aim to “encourage” academies, which are their own admission authorities, to make the changes.
Kent is also creating what it calls a “continuum”, setting out what needs schools should be able to cater for.
Fears of cuts and ‘lack of clarity’
A draft document stated secondary schools should be able to support children “operating within six to seven years below their chronological age”.
Kent said the contents of the document “reflect the range of existing practice” in schools.
But some academy bosses are worried the new model will mean funding cuts and a “lack of clarity” about the thresholds for which they will be able to receive additional funds to support children with complex needs.
A consultation response is due this autumn.
Brighton and Hove City Council is also reviewing its admissions system. They want to rebalance the proportion of pupils on free school meals across schools and have started consultation with schools.
Plans include modifying schools’ catchment areas to ensure they are more “equitable”.
Councillor Jacob Taylor, the council’s deputy leader, said he would like a system “where there is a better social mix within our schools”.
Heads must ‘make case’ for cash
Several councils have also moved to a “locality” model on SEND decision making and funding.
Generally, an area is split into “localities” or “clusters” which are made up of headteachers, SENCos and other representatives. They get allocated a chunk of high-needs funding and make decisions on what support each school receives.
Usually, a council just makes decisions on which pupils receive “top-up” funding from the high-needs block, and the cash follows the individual pupil.
Schools can apply for this extra cash, which is for pupils with more complex needs. However, Kent council said schools that see themselves as more inclusive are less likely to apply for top-up cash because they see pupils instead as part of the “ordinary population”.
“This can reward schools financially which are less inclusive, and result in unfair allocation of limited resources,” they added.
“There is a need to ensure that SEN provision is more clearly linked to agreed, moderated levels of need and that access to additional funding and support is fair.”
‘Locality’ models rolled out
A similar model has been rolled out in other areas, such as Croydon and Sheffield.
In Sheffield, just a small percentage of its high-needs funding is given to the localities.
The schools in each locality then agree together how the funding should be used.
To access locality top-up funding for individual pupils, schools have to make an application to the panel.
A tool called the Sheffield Support Grid is used to describe the different levels of needs and links them to packages of provision – to make sure decisions are consistent across the city.
In Kent, the proposals have caused big concerns among heads about funding being slashed.
Debbie Rousell, chief executive at The Island Learning Trust, added mainstream heads are also concerned about the “level of need they will be expected to manage and educate – without training, experience or adequate resourcing”.
She said: “All three of my schools are incredibly inclusive now, I’m not sure how much more complex children we can educate, without detriment to other pupils and staff wellbeing.”
Funding ‘distributed in a different way’
Another boss, who wished to remain anonymous, said schools are worried they are “going to end up out of pocket and having to make support staff redundant”. They claimed no financial modelling had been shared.
Asked about these concerns, McInnes said there won’t be less funding “but it’s going to be distributed in a different way to enable head teachers to make decisions around what’s the best way of investing that money”.
But they will essentially have to make the case to secure funding.
McInnes added heads will “have to come and make the case to the other headteachers in their group about why they should get that level of funding – which I think is fair and transparent, because they’re accountable to their peers”.
The changes are based on national “evidence and research”, she added. “Some people are going to be a bit anxious about it, absolutely it’s a change, but there is widespread support for moving to another system. We can’t stay on the same system.”
But David Bartram, a former government SEND adviser, said that in theory the model prevents a “clashing of horns” between councils and schools as it still depends on having enough money and resource available locally.
Councils slash top-up cash under inclusion plans
As part of inclusion plans, two councils have actually cut their top-up funding.
Norfolk headteachers warned of redundancies after the cash-strapped council cut top-up funding to remain within its £35 million budget.
Heads warned this will impact on their ability to be inclusive, but the council is already falling behind its spending targets linked to the £70 million bailouts it is due to get under the government’s controversial safety valve scheme.
Meanwhile, Buckinghamshire Council will only give top-up funding to pupils with an education, health and care plan (EHCP), unless in “exceptional circumstances”. It has a £6 million overspend on its SEND funding.
As councils try to lower soaring rates of EHCPs, Margaret Mulholland, SEND specialist at ASCL leaders’ union, said: “It’s not helpful to set a precedent that EHCPs are the only route to additional funding.
“Not all pupils with high needs require a plan, and this could delay them from being able to access timely support.”
Specialist in mainstream
Another focus for councils is opening more specialist provision within mainstream schools.
A quarter of new specialist places planned by councils as part of the £2.6 billion capital grant they got from government are in mainstream schools, Special Needs Jungle analysis found.
There are two routes to do this.
SEN units are a special provision within mainstream schools where pupils are taught in separate classes for at least half of their time. These have risen from 352 in 2020-21 to 392 last year, government data shows.
The second is resourced provision, where places are reserved in mainstream schools for pupils with SEN, who are taught for at least half of their time within mainstream classes but require a base and specialist support.
There were 1,168 of these last year, up from 1,066 three years ago.
Norfolk will utilise £120 million capital funding to open 50 “specialist resource bases” in its mainstream schools, providing 746 places by 2027.
This would help reduce its reliance on the independent specialist school sector.
Norfolk’s special schools are so full that some dining areas are too small to serve all students at once, forcing “some to have meals in classroom settings”, council documents state.
There has also been the “elimination of dedicated spaces needed for delivering aspects of the curriculum – like art, music or science facilities to make room for classes of pupils”.
New special schools delayed
There have also been delays by DfE in the timeline to deliver two new special schools.
“Extreme pressures” in these schools risk lower Ofsted grades, they said. “To enable special schools to remain sustainable and to provide good education for their pupils it is imperative that inclusion in mainstream schools is increased,” the council warned.
SEND consultant Natalie Packer said resourced provision provides “balance” for pupils, but she is concerned schools with the most physical space will be chosen over those that can provide the best quality provision.
She also pointed out there was little guidance over the use of such provision, with leaders more widely concerned about oversight.
Unity School Trust has offered to create specialist places in its mainstream schools after rolling this out in neighbouring Suffolk.
Tim Coulson, chief executive, said they can be quick to open and relieve the pressure on councils, with pupils staying local rather than being sent to specialist provision miles away.
“Typically, you appoint staff with a greater level of expertise… so it’s really useful for the whole school. It feels like a special school environment but in a mainstream school,” he added.
North Somerset is also opening more resource bases as well as “nurture groups” for youngsters with social, emotional and mental health needs. The council, also on the safety valve scheme, warned it faces effective bankruptcy unless it receives more government cash for SEND.
It is also launching a memorandum of co-operation, which schools are asked to sign up to, setting out expectations on inclusion.
For example, schools should ensure that “they are using any funding given in the most efficient and effective way”.
