Department for Children, Schools and Families

Consultation about the transfer of responsibility for the registration of independent schools and the regulation of Independent Special and Non-Maintained Special Schools to Ofsted.

Consultees:

• The Foundation for the Education of the Underachieving and Dyslexic, Reg Charity No. 289837
• Literacy 2000
• Maple Hayes School - Independent Special School, Assessment and Research Centre for Children with Specific Learning Difficulties.
• Inclusion @ SAID, Registered Charity No. 1118028
• DAIS – DCSF-Approved Independent Schools group.
  

We wish to record our strong objection to one aspect of the proposals in particular, that of discontinuing the category of Independent Special Schools, on the grounds that the most vulnerable children in our society will be considerably disadvantaged by this proposal.

We give evidence of the superior efficiency of the Approved Independent Special Schools through the existing regulation and inspection system, in comparison with similar Local Authority provision both in terms of cost and outcomes.
We make alternative proposals to improve access of poor and disadvantaged children to provision of proven appropriateness for their special educational needs.

We ask the DCSF to consider that the persistently outstanding performance and success of Independent Special Schools is a result of their approved status and the constant requirement upon them to demonstrate their superior effectiveness in order to obtain placements; that their very existence is thus the most potent spur to improvement of SEN in the maintained sector.

Contact details: Dr. E. Neville Brown, Chartered Psychologist, Chartered Scientist, Registered Neuropsychologist, Maple Hayes Hall, Abnalls Lane, Lichfield, Staffordshire, WS13 8BL. Tel: 01543 264387 Fax: 01543 262022.

Summary of our recommendations to the DCSF:

• That the category of Independent Special Schools be retained or, alternatively and more logically, be merged with the category of Non-Maintained Special Schools in view of the requirements of EU regulation and HM Government’s requirement of competitiveness between public and private sectors. The distinctions assumed in the 1981 Act between private, charity and state schools are no longer tenable in respect of regulated special education.

• That HM Government removes all distinctions made between schools approved and regulated for children with disabilities and LEA special schools for children with disabilities in accordance with EU regulations and laws.

• That HM Government secures equity in fiscal and taxation treatment amongst all providers for children and others with disabilities, including equity in inspection of provision, as is incumbent upon them by EU regulation.

• That parents are enabled to name, rather than merely able to state a preference for, an approved ISS or NMSS in the same circumstances as they can name a maintained special school, given that placements at ISS and NMSS must always be considered to be “efficient use of resources” owing to the rigorous inspection regimen applied to ISS and NMSS in order for them to retain their approval. This would accord parents the choice promised under Section 9 of the Education Act 1996 but denied to them in practice by the almost universal refual of LAs to accede to parental preference. Given the costings presented in paragraph 7, there would be a considerable and significant saving to the public purse.

• That HM Government reviews with urgency the access of children with disabilities to appropriate and inexpensive advocacy, at least commensurate with that available to and within Local Authorities, in disputes over the appropriateness of provision for children with approved categories of disability and also in respect of access to the courts when LAs act unlawfully.

• That, in the public interest and that of natural justice, the Tribunal regulations be amended by Statutory Regulation to remove the LA right to deny parents a public Tribunal hearing of their appeal against an LA decision.

• That the effectiveness of existing parent partnerships in representing and securing parents’ wishes and children’s interests in respect of special educational needs should be investigated.

• That the Audit Commission be enabled to provide data on the outcomes at Key Stage 4, including Value-Added computations for those with Statements of SEN by specific categories in order for equitable comparison to be made of the efficiency of the different forms of provision, e.g. in mainstream schools –v- special schools.

• That Ofsted inspectors are required to consider actual outcomes of children with statements of SEN, when inspecting mainstream schools, on a comparative basis with outcomes in special schools, including ISS and NMSS, again with regard to comparison of like with like category.

• That HM Government’s data on schools reverts to the previous practice of recording the numbers of children with Statements of SEN separately from those at School Action Plus. Merging the data further prevents access to data for comparative purposes.

• That Value-Added data is available in a non-adjusted form so that fair comparisons may be made between different types of provision for similar categories of SEN.

• That the costs of Ofsted inspections for ISS continue to be free and on the same equitable basis as for other categories of special school, according to EU regulation.

• That, in the interests of the welfare of our most vulnerable children, the same inspection regimes (e.g. Section 5) are resumed to be applied across all categories of special school, so that fair comparisons may be made as they were pre-2006.

• That representation on relevant government advisory bodies be extended to include that from ISS and NMSS.

We wish the DCSF to consider our submission on the proposals:

1. The category of Independent Special Schools came into being through the 1981 Education Act through the concern of Lady Warnock’s committee of enquiry about the then burgeoning numbers of children in the state education sector who had special educational needs of one kind or another and about the widespread lack of effective provision for their disabilities.

2. The 1981 Act retained the category of special schools stemming from the 1944 Act, now called Non-Maintained Special Schools (NMSS) as they received state support and other privileges which were not to be accorded to the then new category of Independent Special Schools (ISS).

3 From the 1981 Act, ISS could be set up and run by charities or could be proprietary, whereas NMSS could only be run by charities such as the RNIB. With the advent of privately and in many cases commercially run state-funded school such as academies, those under special measures (e.g. run by SERCO) and those set up as independent trusts, control of many non-special state schools has passed out of LA control. Parents can opt for the new academies and, if accepted, LAs must pay for their places.

4 ISS are now no different (in respects other than funding) from academies and others of the new privately run state-funded schools except in one respect, parents of children with statements of SEN may only state a preference for an ISS or NMSS. Justice and equal opportunities demand that parents should be able to name an ISS or NMSS, given that to retain their approval status all such schools must be (i) considerably and significantly more effective in terms of outcomes and (ii) better value for money and relatively more cost-effective than LA provision in order to persuade SENDIST to accede to parental requests for placement in appeals. If parents of children with statements of SEN were able to name an appropriate special school, whether LA, ISS or NMSS, there would be a significant saving to the public purse not only in respect of placements, from the costings provided in Paragraph 7 below, but also in respect of the significant reduction in the appeals to SENDIST where each appeal is estimated to cost the national exchequer £12,000 and the LA some £3000. The costs of the recent Coventry case (details appended of their unsuccessful appeal against a SENDIST direction to place at an ISS on the grounds of less cost to the LA ) to that LA and its ratepayers are estimated to be in the region of £22000.

5. Contrary to what is suggested in the proposals, the ISS were inspected by HMI and then by Ofsted on exactly the same basis (Section 5) as state schools until 2006 when the DCSF changed the regime so that they continued to be inspected by Ofsted but as independent schools. With the introduction of “light touch” two-day inspections for state schools, ISS thus came to have more rigorous inspections than their counterparts in the state sector in that they had 4 day full inspections. This change was not communicated to the ISS before the new regime began in 2006 so that there was no prior consultation.

6. ISS schools thus recommend and welcome the maintenance of the most rigorous inspection regime for special education equitably across the independent and state sectors. It is in the public interest for all provision for the most vulnerable and needy children to be evaluated and its effectiveness known to prospective consumers. Presumably for this reason, the 2003 Act required all LAs to issue lists of Government-approved (ISS and NMSS) special schools to parents with their children’s proposed statements of SEN, a legal requirement which has been ignored by many LAs with complaints against them upheld by the Department (DCSF).

7. Comparison with like (1): We compare the costs per annum of day placements per pupil of same age and category of need at NMSS, ISS and also provision as set out in a statement for a pupil in a mainstream secondary school, given that the NMSS and moreso mainstream and special LEA schools have many financial advantages over ISS schools in terms of tax concessions (most notably on capital items), state aid and VAT recoupment:

Maple Hayes ISS £11,160 for full-time day placement for SpLD

Nunnykirk NMSS £12,300 for full-time day placement for SpLD

Hagley Park School (LEA mainstream secondary) £18,900 for 10 hours pw specialist teaching for SpLD and 10 hours pw LSA plus AWPU costed from school’s own figures

Sunnydown School (LEA special for SpLD) £22,500* for full-time day placement for SpLD
* estimated; more accurate costings are awaited from the school.

This is not to criticize other categories of special schools on the grounds of lack of value for money, rather to demonstrate the efficiency of the ISS schools which we claim is a consequence of the need to maintain the high standards required of them by their terms of approval as ISS.

8. Comparison with like (2): It is very difficult to obtain accurate comparison of outcomes between ISS and similar pupils in mainstream schools. The DCSF’s value-added calculations, where available, are for adjusted figures which normally defeat fair comparison. However, on the unadjusted value-added figures for Key Stage 2 to Key Stage 4 progress, as also for the adjusted, pupils at ISS schools are invariably in the top 1% of all schools whereas the VA performance of similar pupils with statements of SEN in mainstream schools for SpLD, where known, is in the bottom 5%. It is in the public interest for unadjusted figures to be made available for pupils with statements (and also by category of SEN in statements but without identifying particular pupils) for fair comparison to be made. ISS schools would welcome an investigation and report from the Audit Commission to compare provision in terms of unadjusted VA for, for example, pupils with statements for SpLD/Dyslexia in LA mainstream schools, LA special schools, ISS and NMSS, and also into the comparative costings of provision.

9. Whilst ISS schools appear consistently at the top of the league table for value-added rating and are always outstanding in their Ofsted reports for value for money, it should be recognized that LEAs place pupils at these schools only as a last resort and, in the case of transfer from mainstream schools, after failure to make progress with the considerable allocation of resources at School Action, School Action Plus and often with a Statement, with considerable lapse of time before placement at ISS schools. ISS and NMSS schools are thus the only resort for parents after the failure of LA provision.

10. It is from the approved ISS schools that most initiatives in research that affect advancement in practice emanate. We maintain that this is a consequence of the need to maintain the approval status.

11. We maintain that true inclusion for children with statements of SEN for Specific Learning Difficulties/Dyslexia (the category of SEN that occasions the majority of SEN Tribunal appeals) does not and cannot occur in normal mainstream provision “by the very nature of the beast” and that placements in approved ISS and NMSS are the only effective remedy open to parents.

12. The practice amongst LAs of delegating special needs funding to mainstream schools and forcing schools to make provision out of the delegated funding for the children with statements of SEN undermines the principle behind the statement that the LA is responsible for the provision and actually results in the failure of LA schools to provide adequately for pupils with statements of SEN.

13. In the case of ISS schools for Specific Learning Difficulties, most placements are made after successful conclusion of the considerably attenuated process of parental appeal to SEN Tribunal. One Staffordshire child had to endure FOUR successive and successful appeals to SENDIST (to obtain Statutory Assessment, to appeal against refusal to issue a Statement, to appeal against a Note in Lieu and obtain a Statement, to obtain appropriate placement at an ISS) which took some 2.5 years of the child’s life.

14. The removal of approved special school status from ISS would give unscrupulous LEAs the opportunity to attenuate further the process for parents of obtaining appropriate provision for their children’s disabilities through appeal to SENDIST, would further increase the costs of advocacy and, we hold as a consequence, increase the numbers of youngsters leaving school without worthwhile qualifications thus contributing to the burgeoning numbers of illiterate, unskilled, disaffected and ill-educated people unfitted for employment or in our prisons.

15. We draw the attention of the DCSF to complaints made to them, to the Local Government Monitoring Officers of LAs and also by Judicial Review about the unlawful issue of statements by a number of LAs and other matters including:
Failure to issue the lists of approved ISS and NMSS with proposed statements, preventing parental choice under Section 9 of the 1996 Education Act.
Failure to ascertain from LA mainstream schools that they can meet the child’s SEN before issuing final statements.

Failure to take educational advice from the child’s school in the statutory assessment process, and substituting their own biased advice for the requisite genuine educational advice. (This is currently under Judicial Review against Staffordshire LA.)

Suppression of information to SENDIST by LAs that would assist parental appeal.
Provision of erroneous and misleading information to SENDIST hearings by LAs which can only be construed as deliberately to subvert justice and undermine parental choice under Section 9 of the 1996 Act.

16. To remove the approval status and place the power with LAs of assessing the suitability of an ISS placement against their own provision, where parents dispute the effectiveness of the LA provision, would inevitably result in LAs being in the position of “criminal, judge and jury” in deciding the educational fate of the most vulnerable children in our society.

17. With regard to the costs of inspection, if ISS were to be charged by Ofsted for their inspections then the cost would be merely passed onto the LEAs responsible for the placements. This would result in a further imbalance between the fiscal fortunes of ISS against NMSS and LEA schools when EU regulation requires equity of treatment between state and independent providers for those with disabilities.