Implementing the Code of Practice for Children with Special Educational Needs

A Practical Guide

Ahmad F. Ramjhun

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781134118816
• Edition: 1
• Topic: Education
• Subtopic: Education General

This new edition has been revised to bring teachers and other education practitioners up to date with the revisions to the Code of Practice due to come into force in January 2002. The author was a member of a working party for the National Advisory Group for special educational needs, with a remit to assist with the revision of the Code. This book reports on the outcomes, and details advice and guidance on the key tasks for its effective implementation.

1

An introduction to the Code of Practice

Introduction to handbook

This handbook is a revision of the guidance produced in 1995 when the original 1994 Code of Practice came into force (Ramjhun 1995). It summarises the key changes that have been made to this Code, including my interpretations and reflections where appropriate. I was a member of the group convened under the auspices of NAGSEN, the National Advisory Group on Special Educational Needs, to assist in this revision. This sub-group represented a wide range of interests, from parents to specialist interest groups and LEA officer representatives. This enabled wide-ranging discussion of issues with a common and shared objective of furthering the interests of children experiencing difficulties in learning.

The main constraint facing the sub-group derived from the statutory framework, the risk being that only minor changes would be acceptable. However, there appeared to be a commitment to addressing some of the issues raised from the implementation of the 1994 Code, particularly the need to reduce bureaucracy and to review the role and function of the SEN tribunal. Some of these required new regulations, e.g. extending parental rights of appeal in respect of school requests for statutory assessment and placing time limits on LEAs to implement tribunal orders. Others required amendments to the 1996 Education Act, e.g. Section 316 was revised to strengthen children’s rights to mainstream education. However, there were also many opportunities missed to bring the Code up to date with other education developments, particularly those linked with inclusive thinking. Although inclusion features in the new Code, it sits uncomfortably in it. This is because the Code still emphasises the ‘special needs pupil’ discourse; there is very little said about teacher or school effectiveness, or indeed ‘disability rights’ matters which are more directly and fundamentally linked to inclusion. It is as if the Code ignores decades of research showing the links between schools and the barriers that they can present to pupil participation (see Galloway et al. 1994, Reynolds 1995). Warnings about the outdated nature of the concept of special needs also appear to have gone largely unheeded. Only recently, Mittler (2000) was arguing for the abandonment of the language of special needs that ‘create or maintain mindsets that perpetuate segregation at the very time when we are talking about moving towards a more inclusive education system and a more inclusive society. In this context, the continued use of special is not only anachronistic but discriminatory’ (p. 8). Corbett (1996) had also referred to ‘bad mouthing’ in the language of special education, arguing that reference to needs signals dependency, inadequacy and lack of worth.

An equally serious shortcoming is the new Code’s failure to deal with the issue of assessment. Although it provides extensive details of the processes and procedures of assessment, it fails to address the tensions that research has consistently shown to arise from the process. Galloway et al. (1994) had already shown how statutory assessment directly affects the hopes and expectations of its participants and how these are further compounded by policy constraints at school, LEA or government levels. Perhaps the revised Code should have clarified the roles and responsibilities of each participant, especially those with a duty to make the special educational provision or to facilitate other outcomes of the assessment. There is still too much confusion over who provides for the majority of children experiencing difficulties in learning; do schools provide for Warnock’s 18 per cent and LEAs for the remaining 2 per cent with Statements of SEN? Since local management of schools (LMS), teachers have become increasingly used to LEAs taking responsibility for the funding of SEN (Bowers et al. 1988); however, as more SEN resources are being delegated, greater clarity is now required with regard to school functions in this area. Although ‘School Action’ and ‘School Action Plus’ are introduced, the new Code does not make sufficient use of the opportunity presented to deal with this issue.

It took nearly two years to revise the 1994 Code of Practice for Children with SEN. The end result was little more than a revision; much of the original thinking and creativity that could have added to this was incorporated in an SEN Toolkit (DfES 2001b) which was published at the same time. The latter is likely to stimulate innovations and change in schools; it was able to be more comprehensive and, more importantly, did not have to stick too rigidly to the existing statutory framework. On reflection, it seems to me that it is probably the statutory framework that needed revising and not the Code of Practice. Basing a revised code on old legislation was probably a mistake; there have been so many changes in education and at such a fast pace that, other than a complete rewrite, a revised code would be an anachronism on the day it came into force. Yet it will continue to be a key and essential reference in any SEN tribunal or court of law. Let us hope that the focus will be on its accomplishments and improvements, not its limitations. Like many colleagues who helped with its revision, my aspirations are that the revised Code will continue to serve the interests of children experiencing difficulties in learning for the next decade or at least until such time as it is rewritten to retain its strengths and reframe its focus away from its individualised to a more inclusive approach.

Background to the 1994 Code of Practice

It can be said that the 1994 Code of Practice was introduced in order to put right some of the deficiencies perceived to have arisen since the implementation of the 1981 Education Act. Most notable of these were the criticisms which had been made by the Audit Commission in their reports Getting in on the Act and Getting the Act Together (Audit Commission/HMI 1992a and 1992b).

These were linked to the lack of accountability by some schools in their use of resources allocated for children experiencing special educational needs. The main problem here was that some schools failed to specify exactly how resources had been targeted to support children experiencing difficulties in learning. Conspicuous amongst this was an absence of details relating to teaching programmes and their organisation and implementation, including the staff allocation needed. There had been unacceptably long delays by LEAs to process the statutory assessment of children experiencing special educational needs.

The Audit Commission found that the majority of LEAs were taking far too long to complete the statutory assessment procedures, under the terms of the 1981 Education Act. This ranged from a few months to a few years, revealing inconsistencies between LEAs and raising suspicion among parents and pressure groups that the procedures were being used as delaying tactics.

The making of Statements of special educational needs was considered too vague, lacking in specificity and clarity relating to objectives and provision, making these weak and potentially liable to abuse. This was a common observation, particularly from the recipients of Statements, and also reinforced by the Audit Commission. The main criticisms have been that the child’s special educational needs have tended, on the whole, not to be clearly specified. There were occasionally failures to specify each and every need (i.e. the ‘Dorset judgment’ 1991) and a lack of specificity relating to the provision needed, including some confusion as to exactly who should be funding specialist resources, such as speech therapy (i.e. the ‘Oxford judgment’). (See Denman and Lunt (1993) for a review of cases which have gone to judicial review.)

The number of appeals reaching the Secretary of State had increased and there was a perceived need to bring consistency and fairness in regard to Appeal Committees’ recommendations, leading to their replacement with the new Special Educational Needs Tribunals. The main concern was the inability of the Appeals Committees to enforce their recommendations on LEAs, as the latter could choose to ignore them – leaving the only recourse for parents being to appeal to the Secretary of State. This was compounded no doubt by the lack of consistency of Appeal Committees and the possible role conflict of local councillors sitting on them, the conflicting roles being loyalty to their LEAs as elected representatives and their obligation to safeguard children’s best interests. This raised doubts about objectivity and impartiality (Chasty and Friel 1991, Robinson 1994, DFE 1994).

It was therefore inevitable that legislation would be undertaken in an attempt to resolve these issues. Part III of the 1993 Education Act tried to address these concerns. This it did by repealing most of the 1981 Education Act and by making specific provisions for each of the above, including the requirement for a Code of Practice to be produced to secure practical guidance to LEAs and others with responsibility for children experiencing special educational needs (see Robinson 1994).

Issues since 1994

Since 1994, some of the above issues have continued to cause concern. The revised Code was delayed because it had sought to remove the requirement for SEN provision to be specified and quantified. It had become apparent that there was no requirement in previous law for this degree of specification and quantification although it had been raised in the 1994 Code of Practice. A high court judgment had, however, found in favour of parents who had sought such specificity against an SEN tribunal which had considered that some flexibility was required where appropriate (Somerset judgment 2000). The proposed revised Code that was eventually passed in Parliament re-included this requirement for specificity while still managing to retain the principle that flexibility will be desirable at times.

Similarly, the issue of speech and language therapy has continued to be unresolved. This is in spite of the setting up of a working party to address the way forward (see DfEE 2000a). Although since previous court rulings, e.g. the Lancashire and Harrow judgments, speech and language therapy has been regarded as largely educational provision, there has been little progress on who should fund this, though the duty remains with LEAs. Government’s expectation was that the flexibilities of the Health Act 1990 would allow closer partnerships between LEAs and health agencies for this purpose but local variations in practice have meant that some health authorities have not deemed speech and language therapy as a health priority so that the funding has not been forthcoming. The point being missed is that children do not need speech and language therapy; they need a combination of education and language intervention programmes to develop their communication skills. These are not within the skills and expertise of speech and language therapists alone; they require a multi-disciplinary approach within which the speech and language therapist plays only a small part. Integral within such teams are teachers, LSAs, children’s parents and their peers who have a crucial and enriching role. Yet many tribunal and court appeals have focused exclusively on speech and language therapy as if that was the only requirement.

Other issues have tended to be around teacher workloads and a tendency for the Individual Education Plan (IEP) and Annual Review processes to be unnecessarily bureaucratic and unwieldy (see Ofsted 1996, Bowers et al. 1998). However, the most troubling to parents and LEAs has been the dramatic rise in tribunal appeals. Far from reducing the need for conflict and appeals, the 1994 Code led to many appeals, confirming the need for mediation and conciliation. Such need was not recognised in 1994 but is becoming alarmingly evident.

It is interesting that the Department for Education and Skills (DfES) and the revised Code seeks conciliation services independent of the LEA. Lord Woolf defines mediation as involving a neutral intermediary who encourages the parties to reach an agreed settlement using ‘shuttle diplomacy’ to bring the two sides to an agreement. Conciliation uses a similar process to mediation, but the conciliator plays a more proactive role, and may suggest settlement terms (see Freshfields Litigation Team 1998:15). Conciliation lies as an extension of parent partnership services outside of LEAs and is a recognition that current levels of services are not working as tribunal appeals continue to rise. Whether they will make any difference is debatable; the road to tribunal may still remain the most promising to many parents. The cure for dealing with conflicts is not to introduce a legal requirement for conciliation; this is not without further costs, resources which should have been more appropriately directed to schools. Tribunals, parent partnership and conciliation services are costly and will involve millions of pounds of expenditure. Do these, however, reflect the truer focus, that these services are politically attractive and meet the needs of parents and not necessarily those of children? Central government’s strategy seems to be to pass legislation and to make further expectations of LEAs which it has striven to weaken over the years and for which it seems to be reserving the role of dealing with conflicts arising out of SEN casework. Perhaps, the focus should have been about managing the problem of assessment and the demand and expectations that this creates more forcefully and honestly. Exactly what are the criteria for statutory assessment? Whose needs do they serve? How should these be funded? What changes are expected: in children; in adult providers; in schools? What are success criteria and how will these represent best value? I am not sure that the Code answers any of these in any depth.

The original 1994 Code of Practice: an overview

The original Code of Practice came into effect in September 1994. It was a requirement of the 1993 Education Act, calling on the Secretary of State to provide practical guidance to Local Education Authorities (LEAs), schools and other agencies, namely Social Services Departments and Health Trusts, on how to discharge their responsibilities with regard to children who experience special educational needs.

The 1994 Code represented a significant milestone in special needs thinking at the time and provided detailed and comprehensive guidance on the procedures to be followed on the identification and assessment of children who experience special educational needs and the planning, teaching and provision to meet those needs. It detailed the responsibilities of LEAs, schools, Health Services and Social Services Departments to work in partnership with each other and with parents, in their responses to children experiencing special educational needs.

The Code provided a framework to inform and support practices to help children experiencing special educational needs and built on the principles first set out in the 1981 Education Act. In common with other legislation, e.g. the National Curriculum, it included a certain amount of prescription, particularly with regard to procedures, but left some flexibility with the processes – for example, in relation to formal criteria for statutory assessment, and schools’ decisions on their special educational needs policies, allocation of special educational needs resources and organisational arrangements.

There were clear and specific expectations, some setting out precisely the stages to be followed in assessment and minimum requirements relating to matters such as consultation with parents and involvement of outside agencies. Other requirements were more focused on the need for prompt and effective response within statutory time limits, especially on the statutory assessment of children, LEAs being required to complete the process within 26 weeks. The procedures relating to Annual Reviews were detailed, as were parental rights and expectations, particularly the time to be allowed for parents to study reports, professional advice and/or evidence prior to Annual Reviews. The time limits between 14+ reviews and the receipt of Transition Plans were also specified.

The 1994 Code, however, was not explicit on criteria for statutory assessment and asserts that indeed it could not be, these being matters for individual LEAs to decide. This turned out to be an area of misunderstanding and conflict though the intention was that if the framework offered by the Code was strictly followed, with responsibilities emphasised at the school level, a hierarchy of stages and needs could be established, providing the necessary documentation and evidence forming part of the criteria. The revised 2001 Code has not gone further, though the DfES commissioned specific work in this area from the University of Newcastle (DfES 2000b). This guidance has not been included in the SEN Toolkit, and is awaited with interest.

The 1994 Code represented best SEN practice at the time of its implementation. It had many resource implications which required careful and effective responses, especially in political and economic climates when resources were so scarce. With local management of schools, the responsibility for deployment of these resources rested with schools and their governing bodies as a substantial number of children experiencing special educational needs were expected to be supported from funds already delegated to them. The 1994 Code reinforces a number of key assumptions and requirements. Three require special mention.

First, 20 per cent of children are considered likely to experience a special educational need at some time in their school career. The majority will be educated in the mainstream, with a very small number (2 per cent) provided with a Statement of Special Educational Needs.

Second, all children experiencing special educational needs, i.e. all of the 20 per cent, will have their needs met. This means specific, targeted resources to support these children, with documentation to provide evidence of the necessary planning, consultation and teaching.

Third, specific staff will undertake responsibility for SEN provision, ranging from the nominated ‘responsible person’ to the Special Educational Needs Coordinator and special educational needs teams in larger schools.

If, as expected, more children attract support and stay in the mainstream, without a Statement, schools will have to allocate their resources as efficiently as possible, given the increased demands imposed on staff by the Code’s new procedures, e.g. IEP meetings, preparation of paperwork, consultation with parents. There is also the challenge of ensuring that suitably qualified and experienced staff are available to implement appropriate learning programmes, in addition to supporting the ordinary class teacher. Consideration will therefore need to be given to in-service training and other requirements of the teaching and non-teaching staff.

The 1994 Code introduced a number of requirements. First, and most importantly, children have a right to make their views known; they should be listened to and be encouraged to participate in decision making; this is strengthened in the 2001 revisions. Special Educational Needs Tribunals also actively seek information on children’s perspectives, reinforcing the increasing impor...

Table of contents

• Cover
• Title Page
• Copyright Page
• Table of Contents
• Foreword
• Acknowledgements
• Preface
• List of Abbreviations
• 1. An introduction to the Code of Practice
• 2. The revised Code of Practice: context and key changes
• 3. Implications for the class teacher
• 4. Implications for schools and governing bodies
• 5. Individual Education Plans
• 6. School Action and School Action Plus
• 7. Statutory assessment
• 8. Annual Reviews
• 9. Year 9 Reviews and Transition Plans
• 10. Parents and the Code of Practice, and SEN Tribunals
• Appendices
• Glossary
• Useful addresses
• Further reading and references
• Index