The Department for Education has published the draft provisions that will form the basis for the Children and Families Bill, expected to be introduced into parliament in early 2013. The proposed changes were initially outlined in the Green Paper published in March 2011 and followed up in the Next Steps document of May 2012. A number of the recommendations are currently being piloted in a series of Pathfinders which are due to report their findings in summer 2013. The Education Select Committee is currently conducting pre-legislative scrutiny and has invited written submissions of evidence to be received by noon on Thursday 11 October. The Select Committee is expected to publish a report of its findings in December 2012.

Proposals in the draft provisions indicate the government’s intention to make no change to the way in which local authorities’ duty to educate in the mainstream is defined. CSIE is pleased to note the clarification that the law applies equally to all state-funded schools, including academies and free schools, but is disappointed to see little change in the conditions on which access to mainstream education is thought to depend. The draft provisions replicate clauses which were first introduced in the Education Acts of 1981 and 1996, when disabled children’s right to be part of mainstream life and institutions had barely been acknowledged. Alarmingly, the draft provisions also include some clauses that had been repealed by the SEN & Disability Act (SENDA) 2001. The Coalition government, as well as the Labour government before it, have insisted that type of school should be a matter of parental choice. If the promise of parental choice is real and honest, then the law must clearly state that access to mainstream education depends only on the wishes of the child’s parent or the young person. Specifying any additional conditions would be the same as admitting that some parents will not be allowed to choose mainstream and have their choice honoured. In other words, it would be the same as admitting that the government’s promise of parental choice is hollow.

Proposals in the draft provisions further indicate the government’s intention to make no change to the use, or the definition, of the term “special educational need”. Repeated criticisms of the term had so far been met with the argument that it cannot be changed because it is embedded in the law. The term “special educational need” was first introduced in the 1981 Education Act, which stated that a child should be identified as having special educational needs if he or she has “a learning difficulty which calls for special educational provision to be made”. This definition has repeatedly been criticised as inadequate and, in the words of Baroness Warnock in 2005, is “the purest vicious circle you will ever know”. She added: “Well, that is not much of a definition but it is the only definition there is.” At a time of such radical law reform, CSIE is disappointed to see that the government is not taking the opportunity to establish a new culture of making provisions for “all children”. If the DfE deems that a particular group of children and young people has to be defined and separate provisions articulated for them, a clear alternative seems to be the term “disabled children and young people” which can rely on the definition of disability which exists in the Equality Act 2010.

Other key points from the draft provisions include: the proposal that Education, Health and Care (EHC) plans are introduced for young people up to the age of 25 and replace statements of special educational need; the proposal for each local authority to publish information on the education, health and care services available locally (the Local Offer); the proposal that local authorities and clinical commissioning groups must make arrangements for joint commissioning of services; the suggestion that local authorities must prepare personal budgets for young people with EHC plans, if requested by the young person or their parents; and the suggestion that there will be a revised Code of Practice, albeit not to be laid before Parliament, as the proposal currently stands.

CSIE welcomes the government’s intention to reform the current system but remains deeply concerned about some of the proposals being made. We are also alarmed that the government is pushing ahead with law reform before many of the Pathfinders have reported. The DfE has responded to this concern by saying that the consultation process is long enough to take into account further evidence when it becomes available. One can draw one’s own conclusions as to why this law reform is being rushed with an aim to be completed by spring 2014. CSIE will be submitting evidence to the Education Select Committee shortly and publish it on this website.