SEND reform will reshape colleges, but workload shock is coming

The devil will be in the detail when it comes to the government’s SEND reforms, but there are key legislative changes on the horizon which stand out for colleges.

The most notable of these is the legal requirement for them to generate and review at least every year individual support plans (ISPs) at one of two levels – targeted and targeted plus – for all learners with identified SEND needs.  We will see whether the scope of SEND narrows in the future, but if the same proportion of students (currently about one in five) are deemed to have SEND, that will significantly increase colleges’ workload.   

Those ISPs will also involve additional and significant legal duties on colleges: 

1. They will have to generate and constantly maintain the detail of provision in ISPs.  That may make provision more agile for learners but also may cause more disputes between colleges and parents and young people.  There will be more parental ‘co-production’ expected, which again could improve provision but will certainly increase workload.
2. Education, health and care plans (EHCPs) when issued will be more strategic documents and schools will also have to issue ISPs alongside ECHPs to contain the detail of the learner’s provision. The council’s duty will be “to secure access to support and provide sufficient funding to the setting, within national banding, to deliver the EHCP”
3. The consultation tells us that “through the introduction of ISPs, settings will be accountable and responsible for delivering educational provision and supporting the child or young person to learn, rather than this being the responsibility of the local authority”.  It appears that no actual specific new legal duties will be imposed on schools/colleges to implement ISPs beyond their current duties to use their “best endeavours” (under SEND law) and to make “reasonable adjustments” (under equality law).  However, the extent of a school or college’s “accountability” in delivering provision under ISPs requires further clarification. Guidance on reasonable adjustments will be issued by the DfE. The department should take the opportunity to rationalise the parallel duties that school and colleges have under SEND and equality law, which have long caused confusion in practice.
4. The consultation states that “where there are concerns about provision, parents and young people will be able to resolve this directly with the setting, including making use of the improved schools complaints process”.  Whilst schools and colleges need to be accountable, they are already reeling under the weight of AI-supported and generated parental complaints. They will be very concerned about having to manage an even greater complaints workload unless DfE guidance gives schools and colleges robust powers to deal with vexatious complaints when they occur.  

Another necessary and key change will be the transfer of public funding away from distribution through local authority high needs “top up funding” to provide more direct funding of mainstream schools and colleges to support their extended role in inclusion.   It will be crucial for schools and colleges to have flexibility in the use of that funding if they are to deliver inclusion in a dynamic and effective way. The risk is that schools and colleges will be bogged down with producing detailed, costed provision maps for all their learners with ISPs to explain how they are meeting their statutory delivery duties.  

As regards special schools, there is a distinction drawn between state funded and independent special schools.  The common requirement will be that they make provision to deliver “nationally defined specialist provision packages” and “packages will form the basis for future EHCPs, in both mainstream and specialist settings”.  Crucially these packages will be “linked to a nationally set costing framework based on the provision outlined in the package”.  

Recent ministerial comment has focused on examples of excessive private profit being made by independent special schools, and the consultation document contemplates strong legal controls on their governance and activity. 

Legislation is planned to bring the duties and oversight of independent special schools into line with other special schools by creating a statutory definition and standards, aligning their admission duties with that of other specialist settings and requiring them to offer placements based on specialist provision packages and in accordance with national funding bands, and to adhere to the code of practice. 

The government is also considering the changes needed to ensure special post-16 institutions are “treated in a similar way, recognising that this sector will continue to play a vital role”.

Given the complexity and depth of these proposed changes, we are glad to note that the government says it will work with the sector to implement these reforms in a “sequenced, phased and manageable way”.