the new SEN legislation and the Dunkirk spirit

In less than a week an event will take place that’s been awaited with excitement, apprehension, or in some cases with something approaching the Dunkirk spirit. On 1 September part 3 of the Children and Families Act 2014 comes into force. It’s been described as the biggest change to special educational needs in 30 years.

It won’t work
. If I were a betting sort of person, I’d put money on the next government having to review the system again in a couple of years. How can I be so sure? Or so pessimistic? It’s because the ‘problem’ with special educational needs and disabilities (SEND) isn’t the special educational needs and disabilities, it’s the education system. And not just the SEN bit of it – it’s the education system as a whole. To find out why we need to go back in time…

we have a history

Education became compulsory in England in 1870. The new education system was essentially a one-size-fits-all affair focusing on reading, writing and arithmetic. Or more accurately one-size-fits-most; what took the government by surprise was the number of children turning up to school who didn’t fit the education system. Government essentially saw these ‘handicapped’ children as a problem, and its solution was to provide special schools for them. Although the solution made perfect sense, it wasn’t entirely successful. Handicapped children often ended up socially marginalised and sometimes institutionalised, and there were still children in mainstream schools who were struggling.

By the 1970s, the education system had changed considerably. There was more emphasis on an individualised education and local education authorities (LEAs), schools and teachers had a good deal of flexibility in the education they provided. The time was right for Margaret Thatcher as Secretary of State for Education to commission a review of the education of handicapped children, headed by Mary Warnock. The Warnock Committee reported in 1978. It defined special education as ‘provision not generally available in normal schools’ (p.45). In other words it saw the ‘problem’ of special education not as the children but as the educational provision available in mainstream schools. The committee’s recommendations fed into the 1981 Education Act that:

• assumed children would attend mainstream schools where possible
• did away with the old categories of handicap
• introduced the concept of ‘special educational needs’
• gave LEAs a duty to assess children’s special educational needs and to fund the additional provision required for their education.

The Act had the potential to transform the lives of children marginalised by the education system, but it clearly hasn’t done so – not in a good way, anyway. In the last 20 years we’ve had three SEN Codes of Practice, numerous inquiries, reports and tinkerings with SEN legislation and regulations. One select committee described the system as not fit for purpose. So…

what went wrong?

The Warnock recommendations were made in the context of a highly flexible education system. A contemporary account describes a fruitful collaboration between a school for children with visual impairment (VI) and a mainstream junior school, pioneered by a keen LEA officer (Hegarty & Pocklington, 1981). Children with VI were gradually integrated into the mainstream school and teachers trained each other. Everybody won.

In order to undertake such a project, LEAs, schools and teachers needed a fair amount of control over their time and budgets. Projects like this might have eventually been rolled out nationwide, except that within a decade the introduction of a compulsory national curriculum and standardised testing had begun to steer the education system back towards a one-size-fits-all approach. Within a few short years central government had essentially wrested the responsibility for education and its funding from local authorities and education had become a serious ‘political football’. Successive governments have focused on raising educational attainment as an indicator of their own effectiveness as a government and ironically that’s what’s resulted in SEN becoming a problem again in recent years.

Essentially, if you want an efficient one-size-fits-all education system and world-beating exam results it makes perfect sense to remove from the equation children who don’t fit into the system and are unlikely to do well in exams however hard everyone tries. That’s what the government did in the 1890s. If you want an education system that provides all children with an education suitable to their individual needs, you can forget about one-size-fits-all and world-beating exam results; you’ll need a lot of flexibility. That’s what the education system had developed into by the time of the Warnock committee. If you want both you’re likely to end up where we are now.

"Relativity" by MC Escher

“Relativity” by MC Escher

The Warnock committee defined special educational needs in terms of the educational provision ‘generally available in normal schools’. By definition, the better the provision in normal schools, the smaller the number of children who would be deemed to have special educational needs. The committee couldn’t have emphasised the need for SEN training for all teachers more strongly if it had tried, but perversely, the education system appears to have taken a step in the opposite direction.

teacher training

The Warnock committee recommended the inclusion of SEN training in the initial teacher training (ITT) for all teachers. Following the 1981 Education Act, the assumption that many children with SEN would be taught in mainstream schools and that all teachers would be trained in SEN led to the cessation of many special needs teacher training courses. They obviously haven’t been replaced with comparable training in ITT. This, coupled with the retirement of special education teachers and a reduction of the number of children in special schools, has meant that the education system as a whole has suffered a considerable loss of SEN expertise.

Reviews of SEN provision have repeatedly reported concerns about there being insufficient emphasis on SEN in ITT. But it’s only been since 2009 that Special Educational Needs Co-ordinators (SENCOs) have been required to be trained teachers, and only new SENCOs have been required to have SEN training. The current government has allocated additional funding for SEN qualifications (para 53) but only up until last year. This isn’t going to touch the problem. DfE figures for 2011 show that only around 7% of the total education workforce has SEN experience and/or training, and most of those people are concentrated in special schools. And special schools report ongoing difficulties recruiting suitably trained staff. This, despite the fact that the Warnock report 35 years ago pointed out that based on historical data, around 20% of the school population could be expected to need additional educational provision at some time during their school career. The report made it clear that all teachers are teachers of children with special educational needs.

Teachers’ expertise, or lack of it, will have a big impact on the attainment of children with SEN, but that hasn’t prevented government from developing unrealistic targets for all children under the guise of raising aspirations.

expectations of attainment

I mentioned earlier that over the last three decades education has become a ‘political football’. Concern is often expressed over the proportion of young people who leave school functionally illiterate or innumerate or without qualifications, despite evidence that this proportion has remained pretty constant for many years. In the case of literacy, it’s remained stubbornly at around 17%, by bizarre coincidence not far from the equally stubborn 20% figure for children with SEN.

But the possibility that some of those young people might be in the position they’re in because of lack of expertise in the education system – or even because they are never going to meet government’s arbitrary attainment targets and that that might actually be OK – doesn’t seem to have occurred to successive governments. In her keynote address to the inaugural national conference of the Autism Education Trust in 2009 the then Minister for Schools and Learning Sarah McCarthy-Fry, saw no reason why young people with autism shouldn’t achieve 5 A-C grade GCSEs. Some of course might do just that. For others such an aspiration bears no relation to their ability or aptitude, part of the definition for the ‘suitable education’ each child is required, by law, to receive.

Currently, funding for post-16 education requires young people to have or be studying for A-C grade GCSEs in both English and Maths. Post-16 providers are rolling their eyes. Although I can understand the reasoning behind this requirement, it’s an arbitrary target bearing no relation to the legal definition of a suitable education.

it’s the system

Currently, local authorities, schools and teachers are under pressure from the SEN system to make personalised, specialised educational provision for a small group of children, whilst at the same time the education system as a whole is pushing them in the opposite direction, towards a one-size-fits-all approach. This is a daft way to design a system and no matter how much effort individual professionals put in, it can’t work. But it isn’t the SEN system itself that needs changing, it’s teacher expertise and government expectations.

Over recent decades, successive governments have approached education legislation (and legislation in general, for that matter) not by careful consideration of the historical data and ensuring that the whole system is designed to produce the desired outcomes, but essentially by edict. A bit of the education system is wrong, so government has decreed that it should be put right, regardless of what’s causing the problem or the impact of changing part of the system without considering the likely consequences elsewhere.

In systems theory terms, this is known as sub-system optimization at the expense of systems optimization. That mouthful basically means that because all the parts of a system are connected, if you tweak one bit of it another bit will change, but not necessarily in a good way. Policy-makers refer to the not-in-a-good-way changes as unintended and unwanted outcomes.

The new SEN legislation is a classic case of an attempt at sub-system optimization that’s doomed to fail. It requires the education, health and social care sectors to do some joined up thinking and extend the support offered to children with SEND for a further decade – until they are 25 – at a time when all three sectors are undergoing massive organisational change and simultaneously having their budgets cut. It introduces personal budgets at a time when all three sectors are changing their commissioning arrangements. It fails to address the lack of expertise in all three systems. (Recent reports have pointed out that teachers aren’t trained in SEN, GPs don’t have paediatric training and children’s social workers don’t know about child development.) It fails to address the fundamental systems design problems inherent in all three sectors; a one-size-fits-all education system, and health and social care sectors that focus on cure rather than prevention.

This approach to systems design isn’t just daft, it’s incompetent and reprehensively irresponsible. People who have made hopeful noises about the new SEN system have tended to focus on the good intentions behind the legislation. I have no doubt about the good intentions or the integrity of the ministers responsible – Sarah Teather and Edward Timpson – but they have been swimming against a strong tide. Getting through the next few years will be tough. Fortunately, in the world of SEN there’s a lot of Dunkirk spirit – we’re going to need it.

Hegarty, S & Pocklington, K (1981). A junior school resource area for the visually impaired. In Swann, W (ed.) The Practice of Special Education. Open University Press/Basil Blackwell.
Warnock, H M (1978). Report of the Committee of Enquiry into the Education of Handicapped Children and Young People. HMSO.

not enough jam: select committee report on SEN legislation

Sad person that I am, I love reading Parliamentary Select Committee reports. Select Committees don’t always get it right, but they are an example of democracy at its most transparent. Evidence, written and verbal, is presented verbatim so anyone who cares to can see how the Committee has taken evidence into account in its recommendations – and anyone can learn from the expertise and insights of witnesses. And because government responses to Select Committee reports are also published, anyone can see how much notice the government has taken of the Select Committee – and therefore of the evidence presented. Just before Christmas, the UK’s House of Commons Education Select Committee produced a report on its pre-legislative scrutiny of the draft special educational needs legislation published in September this year. I want to comment on the report in the light of my previous post about upstream and downstream factors in the education system.


The first thing that struck me about this report is that it is firmly grounded in the evidence submitted by individuals and organizations involved with special educational needs; almost all the recommendations are based on information from the frontline. The second thing was that it brings a systems perspective to the draft legislation. And the third thing (I have mixed feelings about this) is that I’m not the only Cassandra out there. The impression that the report as a whole conveys is that although the government’s intention and direction of travel in reforming the SEN system is heartily welcomed, that welcome is accompanied by long list of misgivings.

In this post, I want to list some of the key misgivings that emerged from the evidence presented to the Select Committee and then look at the upstream factors that might have prompted them.


Joined-up thinking:
• no statutory duty for health or care services to provide the support specified in the Education, Health and Care (EHC) plans
• questions over how EHC plans will fit in with adult Care and Support plans.

• doubts about the capacity within the system to carry out assessments – without enough people with sufficient expertise, young people will continue to need multiple assessments from different agencies as is currently the case
• a conflict of interest if assessment and service provision are carried out by the same parties.

• lack of clarity about who is accountable to whom for what and how that accountability can be enforced.

SEN Code of practice:
• to be revised, but not as a statutory document laid before Parliament.

Children and young people falling through the net:
• concern about children who have non-educational needs (e.g. pre-schoolers, children with disabilities but not SEN, young people in supervised work placements, apprenticeships)
• concern about children currently on School Action, School Action Plus or lower Statement funding ‘bands’ levels – SA and SA+ categories will disappear.

The Local Offer:
• no minimum standard required – concern that LAs will simply provide a service directory
• no minimum requirement regarding parent participation – a risk that parent participation will be tokenistic

The task of government

As I see it, the primary task of government is to ensure the maintenance of an infrastructure that allows the community it serves to go about its lawful business without let or hindrance. That doesn’t mean government has to design the infrastructure – the evidence suggests that design is far better left to people with relevant expertise. But government does need to maintain an overview – to make sure the different parts of the infrastructure interact effectively, to legislate in order to resolve conflict and to ensure the community’s cash isn’t wasted. Government departments have different areas of responsibility and one of the tasks of the Prime Minister or his/her office should be to ensure that those departments interact effectively. This is a thankless and difficult task and conflict between government departments is unlikely ever to be eradicated, but someone, somewhere needs to have oversight of what’s going on in different departments to ensure that government policy is coherent – that legislation drawn up by one department isn’t going to conflict with legislation drawn up by another, or that budgets aren’t going to scupper policy. Unfortunately, in the case of the draft SEN legislation, this doesn’t appear to have happened.

The biggest reform in SEN legislation for 30 years is being introduced at the same time as the NHS is undergoing the biggest structural change in its history, the school leaving age is being raised to 18, school funding is changing to reflect the increasing autonomy of schools and public sector budgets are being cut year-on-year for the foreseeable future. The SEN legislation rests on several assumptions about the way other public sector services will be working. But no one actually knows how they’ll be working. Witness after witness drew the Committee’s attention to the large number of ‘unknowns’ in the proposed SEN equation.

Sub-system optimization

The SEN legislation is a perfect example of what’s known as sub-system optimization at the expense of whole system optimization. In other words, the proposed SEN sub-system on its own might be great; but the SEN sub-system doesn’t exist on its own, it interacts with several other systems many of which are also undergoing change. Re-designing a service so that it works effectively is a challenging task and one that’s best undertaken by a team of people who have expertise in different aspects of the service, in consultation with a wide range of those working at the front-line – including service users. The reason for this is not to ensure that all parties feel they have been consulted, but to avoid the unforeseen and unwanted outcomes of poorly designed legislation that often end up as part of the judiciary’s caseload. Large-scale or rapid structural changes should be undertaken only when absolutely necessary otherwise there is a big risk of costly knock-on outcomes elsewhere. Over recent decades, the speed with which legislation is introduced seems to have gathered pace. This is certainly true for special educational needs legislation.

The Warnock Committee responsible for the previous re-design of SEN provision was set up in 1974 and consisted of 27 members. Its terms of reference were as follows;

To review educational provision in England, Scotland and Wales for children and
young people handicapped by disabilities of body or mind, taking account of the medical
aspects of their needs, together with arrangements to prepare them for entry into
employment; to consider the most effective use of resources for these purposes; and to
make recommendations

The Committee took nearly four years to report and legislation based on its recommendations wasn’t enacted until 1981. The recent equivalent was the Lamb Inquiry. Its Expert Advisers Group had six members (although it had a larger Reference Group). It was commissioned in 2008 in response to Select Committee reports critical of SEN provision published in 2006 and 2007, reported in 2009 and its recommendations have prompted legislation that has been drafted before pathfinder local authorities’ pilot studies are complete. Its terms of reference are very different from those of the Warnock Committee, focusing on parental confidence in the SEN system:-

In formulating their advice, the Inquiry would:
●● consider whether increasing parental confidence could be best achieved by:
–– making the provision of educational psychology advice ‘arm’s length’ from
local authorities;
–– sharing best practice in developing good relationships between the
authority and parents, through effective Parent Partnership Services and
other local mechanisms;
–– effective practice by schools and local authorities in meeting the needs of
children at School Action Plus;
–– developing the ‘team around the child’ approach in the school stages;
–– other innovative proposals;
●● commission and evaluate innovative projects, in the areas identified, that can
demonstrate the impact on parental confidence of a particular approach;
●● draw on the evidence of other work currently commissioned by the
●● take into account the evidence of the submissions to the two Select
Committee Reports in 2006 and 2007.

In 1981, the changes resulting from the Warnock report would have been applied to a fairly flexible education system – it would have been up to individual schools or local authorities how implementation took place. A decade later, a compulsory national curriculum and standardized testing had completely transformed that educational landscape. Ironically, the SEN reforms had been both introduced and undermined by changes to the wider education system by the same person – Margaret Thatcher. The constraints imposed on schools and local authorities by performance indicators have led to unforeseen and unwanted outcomes for children with SEN.

Unforseen and unwanted outcomes

The recent Select Committee report draws attention, for example, to the disincentives in the education system for schools to educate children with special needs. The NASUWT cites the case of the flagship Mossbourne Academy in Hackney (founding principal Sir Michael Wilshaw, currently Chief Inspector of Schools) where parents have successfully challenged the school in relation to admission of pupils with SEN. My attempts to find a reference to ‘special educational needs’ on Mossbourne’s website met with failure – as they did on a number of websites for secondary schools in my local area. This might be because the search function on the websites doesn’t work – but frankly, I doubt that’s the cause.

In addition, giving schools increased autonomy and removing them from local authority control has resulted in a lack of clarity about who’s responsible for what and to whom. Edward Timpson, Parliamentary Under-Secretary of State for Education assured the Committee that

all schools will have a vested interest in ensuring that the services that they have available are part of the local offer. Parents will be able to hold them to account for whether they do or they do not” (para.138)

I suspect the Committee wasn’t assured, since this means that the only way for parents to ultimately hold schools to account will involve taking legal action against them – which many parents will be unable or unwilling to do.

In short, making sure that a suitable education is available to all children and that schools actually provide that education is no longer safeguarded in the design of the system – by, for example, ensuring that all education providers have ready access to relevant expertise and resources and that there’s a clear pathway of accountability that doesn’t require parents to resort to legal action. Instead, government appears to see its role as having good intentions.

In response to the Select Committee’s suggestion that the draft clauses in the legislation lacked substance the Minister stated;

“I am confident—and it is borne out in many of the conversations I have already had with many of those who played a part in bringing it together—that it does illustrate, very clearly, the ambition of this Government and many other people to ensure that the system we move to is a vast improvement on the previous system” (para.13)

That might be perfectly true, but ‘ambition’ isn’t all that’s required to design and run an education system, health or care service. As I see it, over recent decades governments have become increasingly involved in the design of public sector services for political reasons, but are reluctant to take responsibility for flaws in the design of those systems – flaws that are unsurprising given the unavoidable lack of relevant expertise of government ministers and their special advisers.

Upstream factors

I said I’d look at upstream and downstream issues. Not surprisingly, the factors I flagged in my previous post – lack of expertise, insufficient resources and capacity and inadequate needs analysis, cropped up in the evidence submitted to the Select Committee.

Expertise The NUT drew attention to the fact that schools were already reporting difficulties accessing specialist advice regarding children with School Action or School Action Plus support, implying that at least some teachers don’t currently have the expertise required to support children at these levels. Witnesses also asked for the legislation to require SENCOs to have appropriate training.

Resources and capacity The difficulties experienced in accessing specialist advice suggest some local authorities are already cutting back on support services. One headteacher had been told by her local authority that children currently with lower band Statement funding would not be eligible for EHC plans. Funding cuts across the public sector have significant implications for the viability of the SEN proposals.

Needs analysis The task of local authorities is, and always has been, to provide services that meet the needs of the local population. By now, LAs should have accumulated sufficient information about the needs of local children to have a reasonably accurate idea about what services those children need. But currently, many LAs prioritise the needs of children with severe difficulties, suggesting that services are not based on need, but on budgets. The NHS hasn’t been around for as long as local authorities, but 60 years is quite long enough to have formed a good awareness of what children’s needs are. But long waits for diagnoses, to see specialists or get wheelchairs suggest that again, children’s healthcare is based on budgetary considerations rather than needs.

Not enough jam

In a letter to the Education Select Committee, Sarah Teather, responsible for the Green Paper that initially set out the proposals for change to the SEN system, asked whether there was ‘a case for extending the scope of the integrated provision requirement to all children and young people, including those with SEN’ (para.73). The consensus amongst witnesses was that doing this would mean ‘spreading the jam too thinly’.

One can appreciate concerns about limited resources being diverted from those who need them most, but this response does beg a couple of questions: The first is ‘Why are children categorized as those who need jam or those who don’t?’ Difficulties that require educational, health or social support are distributed across the population and vary during the lifetime of the individual – some children need more support than others and some might need support at some times but not at others. In other words, all children need access to the jam, even if they never need the jam itself. The second question is ‘Is there enough jam in the pot?’ If service design is based on the outcomes of a needs analysis, there should be. If service design is based on budgets, then assessments determine children’s eligibility for support, not what their needs are. And if there isn’t enough support to go round, this means that there are likely to be children who need support but who aren’t getting it.

The saying ‘children are our future’ might sound trite, but it’s still true. Child abuse by individuals has, rightly, received a great deal of attention in recent years. But public sector systems that withhold support from children who need it is also abusive and needs to be addressed as a matter of urgency. Treating children with special educational needs and disabilities as second-class citizens is a self-fulfilling prophecy.

Dr Beeching, I presume?

When it was nationalized in 1948, the UK rail system was already inefficient. It had evolved piecemeal over the previous century into an overextended sprawling network. Passenger numbers had been hit by the increased use of motor vehicles and continued to decline in the post-war period. A commitment to full employment by the Labour government and increasing union power due to the post-war economic boom set the scene for a two-week rail strike in 1955, forcing rail freight users onto the roads, where many of them stayed. A White Paper in 1960 recommended splitting the integrated national transport system. Rail – then making a significant annual loss – would be run by a new British Railways Board, and a programme of complete modernization was proposed.

Richard Beeching was a research physicist who had risen through the ranks of ICI to become technical director when in 1961 he was appointed chairman of British Railways. His task was to make the nationalised rail network profitable. Quite why someone with no experience of the rail industry was appointed to this post remains a mystery. Maybe it was thought a physicist would understand the technicalities of rail. Perhaps it was felt that someone with a rail background wouldn’t be sufficiently ruthless. Or maybe Beeching was considered thick-skinned enough to take the blame for savage cuts. I won’t speculate on the motivation of Ernest Marples, then Minister of Transport.

According to Robin Jones’ fascinating account Beeching: 50 Years of the Axeman, one of Beeching’s criteria as to whether or not a service should be spared his now legendary axe, was direct profitability. On the face of it this seems perfectly reasonable. It certainly made sense to replace a branch line carrying a dozen passengers a week, with a bus service. Unfortunately for Beeching, many unprofitable branch lines contributed much of the traffic that made mainlines profitable. And according to Robin Jones, Beeching assumed that long-distance passengers whose branch line had closed would drive would drive to their nearest mainline station and complete their journey by rail. Instead, partly because of the new motorways, car owners found it more convenient to keep driving.

The way Beeching wielded his axe is an example of a classic systems-change error, known as sub-system optimization at the expense of system optimization. In an interconnected system, changing one component of the system will affect other connected components. The tighter the connection, the greater the risk of unintended or unwanted outcomes. Since rail branch lines are tightly coupled to mainlines, the effect of closing branch lines was considerable.

In addition, Beeching committed a second common systems-change error; making unfounded assumptions about another interacting system – in this case human behaviour.

The problem that we humans have with complex systems is that they are complex. With incomplete knowledge and a working memory that can hold seven-plus-or-minus-two bits of information, it’s very difficult for us to look at systems as a whole. That creates a lot of problems. We tend to optimize our own immediate situation regardless of the impact that has on other people or on our own long-term outcomes. Governments tweak sub-systems oblivious of the impact on whole systems and then have to tweak other sub-systems to compensate.

Beeching’s systems errors and Marples’ policies had a lasting impact on the transport infrastructure of the UK, with incalculable cost implications for the economy as a whole. It’s only been since privatization in the 1990s that rail passenger numbers have recovered to levels comparable to those prior to the Beeching cuts. (Whether or not the increase in passenger numbers is due to privatization or due to traffic congestion, petrol prices and difficulty parking at stations is a moot point.)

It’s interesting to speculate on how a biologist might have approached the task of making the railways efficient, since the systems that biologists are familiar with are significantly more complex than those that engage the attention of physicists.

Next, I plan to look at levels of complexity in systems.


Jones, R. (2011). Beeching: 50 years of the axeman. Mortons Media Group.

Miller, G. (1956). The Magical Number Seven, Plus or Minus Two: Some Limits on Our Capacity for Processing Information, Psychological Review, 63, 81-97.