The SEND Code of Practice is routinely broken because a number of factors are not being addressed. Simply moving children around the system is not in itself a solution.

Recently, the government announced an additional £700 million in high-needs funding, another special educational needs and disabilities review and its intention to expand alternative provision (AP) through the free schools programme. The truth is, this is only a partial, (and potentially risky), response to the challenges in the system, many of which have been highlighted in previous reviews.

An analysis of warning signs suggests that the problem involves both scarce resources and weak implementation. There are rising numbers of children with complex needs and increasing pressures from expanding SEND support to age 25. SEND appeals are increasing and 89% are successful.

It’s important to acknowledge that this high rate of succcessful appeals means the Code of Practice is being routinely broken. Parents are not to blame and they often have to go to unreasonable lengths to secure the basic rights of their children. The upper tribunal has also ruled that current regulations affecting school exclusions are unlawful and breach human rights.

Too many perverse incentives make inclusion difficult

There are too many perverse incentives for schools that make including children with SEND more difficult than it needs to be. Balancing budgets, loss of wider children’s services, staffing difficulties and ever-rising attainment expectations are creating a pressure cooker from which the only release valve is to squeeze out children with additional needs. This remains unchecked by weak regulation and a lack of transparency over managed moves, exclusions and home schooling. The data and the oversight of schools and local authorities (LAs) are simply inadequate.

Funding poses a further problem. The allocation of high-needs funding between different local areas is inconsistent and inflexible. This likely contributes to postcode lotteries in SEND support that have been highlighted many times, including by Ofsted prior to the 2014 SEND reforms. The detail of the funding rules also creates a potential anti-inclusion trap whereby the more AP is available in an area, the fewer funds are available for early help and support in mainstream schools.

A critical reading of the government’s proposals might be that they are simply throwing more money into the system and hoping. This has the potential to result in both the Code of Practice and equality laws continuing to be breached, and to encourage an ever-larger proportion of children being siphoned out of mainstream schools without sufficient safeguards or regard for their best interests. Meanwhile, policies of school choice and competition continue to evade scrutiny in terms of their impact on vulnerable children.

SEND support is only the tip of the iceberg, though. Beneath the water are also the attitudes and practices of school staff (for example, in relation to reasonable adjustments), and of LAs, conflicted as both assessor of needs and provider of support.

Because of weaknesses in transparency and regulation, practices are hard to document, but they underpin any attempt to implement the qualified duty to include children with SEND in mainstream schools, and any attempt to ensure that children who need specialist places can access these promptly.

A 2017 rapid evidence review for the DfE suggests we need more focus on researching and embedding effective practice for particular types of special need. For this to really work, we need better accountability and regulation. We need to reduce the conflicts of interest schools face by setting stretching (but realistic) expectations of children’s attainment. It also means breaking up the conflict of interest in LAs.

Money is needed, but for the right things. We should focus on the quality of AP rather than expanding capacity at any cost; and remember that there is also a shortage of special school places. Focusing on quality both in mainstream and specialist provision must involve better mandatory training and development for all staff in schools and LAs.

Ultimately, we’re unlikely to make progress unless we recognise that without improved support, moving children around the system is not in itself a solution. It is time we found a way to treat behaviour disorders and mental health difficulties more comparably with other types of SEND and to uphold inclusion in line with the qualified duty that we signed up to nearly 40 years ago.