Warnock & SEN

INTRODUCTION

Mary Warnock (now Baroness Warnock) is one of the leading, but now controversial, figures to have been involved in the SEN process and debate. The SEN system that we now have together with the individual legal rights that children with SEN and their parents now have are still a fairly recent development.

Lady Warnock, aged 81, a former head teacher, academic and leader of several high-profile inquiries, produced a report which laid the foundations for the introduction of statements of special educational need in England and Wales in the early 1980s. The 'statementing' process can be viewed as one of the most significant changes in legislation.

THE DEVELOPMENT OF LEGISLATION

The Education Act 1944 originally established that children's education should be based on their age, aptitude and ability. Eleven categories of 'handicap' were described which included for example, 'educationally subnormal' and 'delicate' as well as blind. At that time, the general philosophy was that the child should fit the school rather than the school fit the child.

1974 saw the establishment of the Warnock Committee, leading to the publication of the Warnock Report 1978, which was named after Mary Warnock, the chair of the inquiry whose remit was to look at the needs of children with SEN.

The Warnock Committee's conclusions were that 20% of children in the school population could have SEN but 2% might need support over and above what a mainstream school could provide for. The Warnock Report recommended that there should be specialist provision for children with SEN which could protect the 2% and ensure that they received appropriate provision.

The Warnock Report gave rise to the Education Act 1981 which attempted to address the situation. The Act introduced the requirement that LEAs identify and assess pupils who may require the LEA to decide on suitable provision for them.

The 1981 Act was eventually surpassed by the Education Act 1993 (which was subsequently consolidated into the Education Act 1996) which required the Secretary of State to issue a Code of Practice on SEN giving practical guidance to LEAs and the governing bodies of all maintained schools about their responsibilities for all children with SEN. Those responsibilities are now set out in Part IV of the Education Act 1996.

After extensive consultation with schools, LEAs, the health services, social services and voluntary agencies, the Code of Practice was approved by Parliament as 'The Code of Practice on the Identification and Assessment of Special Educational Needs', which came into effect on September 1st 1994. From that date, schools, LEAs and all those who are involved with children who have SEN, including the health service and social services, have had to adhere to the Code.

The 1981 Act also allowed for parents to appeal against decisions made about their child’s SEN in the first instance to the LEA and thereafter to the Secretary of State. However, as this gave rise to problems, the 1993 Act (now 1996 Act) established a national SEN Tribunal which has now become the Special Educational Needs & Disability Tribunal (SENDIST).

The 1996 Act was then amended by the Special Educational Needs & Disability Act (SENDA) 2001 which reinforced the Government’s commitment to the inclusion of children with SEN in mainstream schools as well as increasing the rights of parents who wished to Appeal to the SENDIST against LEA decisions to place them in Special Schools.

A revised Code of Practice on SEN also came into force in January 2002 and incorporated amendments from the SENDA together with new SEN Regulations which made Inclusion more of a legal requirement.

After the implementation of SENDA, the law was amended (by insertion of a new section 316/316A into the Education Act 1996). This change has now required LEAs to place children with SEN in Mainstream Schools not only where it will be compatible with efficient education and the efficient use of resources but to say that they must be educated in a mainstream school unless it is incompatible with efficient education and the wishes of the parent.

RECENT DEBATE

In mid-2005, (now) Baroness Mary Warnock, published a pamphlet calling for a rethink on special needs and about inclusion and statementing. She has appeared to do an about-turn and has stated that the way in which schools care for children with special needs is a disastrous waste of money and must be overhauled.

In an interview with the TES in September 2003 she called the introduction of statements of SEN, which she has claimed the inquiry committee invented, disastrous. "It is the greatest obstacle to good provision," she has said. "There are far more children statemented than we ever envisaged. It has ceased to be about what the child needs and has just become a battle for resources."

Baroness Warnock has also said that statements should be abandoned as well as further moves towards inclusion. Instead there should be a broad look at how pupils' social and educational needs could be met.

Her comments have followed critical reports in 2002 by Ofsted and the Audit Commission, which have said that the statementing system is bureaucratic and wastes money needed to support vulnerable children.

BARONESS WARNOCK'S MAIN POINTS

A summary of the main points in Baroness Warnock's pamphlet is as follows:

• Inclusion and statements are not working and a new commission is needed to look into the whole area of SEN provision;
• Small specialist school provision is needed;
• Bullying of children with SEN is inevitable in mainstream schools;
• Statements should only be used as passports to special schools;
• SEN should only be catered for in mainstream schools when it can be supported from within a school’s own resources.

In relation to Inclusion, Baroness Warnock has said that:

• Inclusion must embrace the feeling of belonging which is necessary for well-being and successful learning;
• In primary schools, things are not so bad provided that the necessary support is forthcoming; however, in secondary schools the problems are more acute;
• LEAs who, at their best, used to know and care for the children for whom they were responsible are visibly withering away and are now only seen as having an ‘enabling’ function;
• Special equipment may make it possible for some children with sensory deprivation to be taught in the ordinary classroom but when educated in mainstream schools, many children are not included at all;
• The Government has recognised the need to deploy the expertise of teachers from special schools to support and train teachers in mainstream schools but the whole idea of inclusion should be rethought.

In relation to Statements of SEN, Baroness Warnock has said that:

• Statements are not a very good idea and should only now be retained as a ‘safety net’;
• There is a crucial lack of clarity in the concept of a statement and the criteria for deciding who should have a statement was never clear. The Warnock committee had thought that the figure of how many children would receive statements would be around 2%. The actual figure is around 20%;
• Statements should only confer right to special school place; although there are 18% of children in mainstream schools needing extra help at some time in their school career or needing special equipment, there are only 2% in special schools;
• Children with similar needs may get entirely different provision as the number of children issued with statements varies enormously from one LEA to another;
• Statements have been regarded as essentially concerned with available resources, not with the child's needs and educational professionals are not encouraged to give evidence which might involve their employers in expenditure they may not be able to afford;
• The present system of statements must be re-examined and put to a different use if it cannot be abolished.

In relation to the differentiating children’s needs, Baroness Warnock has said that:

• The refusal to address genuine differences can wholly undermine attempts to meet children’s needs;
• There was an embargo on seeing deprivation as a SEN around the time of the 1978 commission but the connection between deprivation and educational failure, though now widely recognised, is actually extremely complex;
• Too often children with special needs (with or without statements) in mainstream schools have been taught almost entirely by teaching assistants who are not fully qualified, and therefore they have not benefited from the best teaching;.
• SEN children increasingly tend to be lumped together indiscriminately;
• Mathematically gifted children also have special needs.

In relation to bullying, Baroness Warnock has said that:

• Children with SEN are not as vulnerable to bullying in special schools as they inevitably are in mainstream schools (particularly secondary schools), but some parents see attendance at a special school as a bad thing which is likely to expose their child to abuse; the tendency of children to bully those they see as different should be addressed;
• Inclusion in practice often means that children are physically included but emotionally excluded.

Therefore Baroness Warnock's mooted solution is as follows:

• The single most effective way to improve educational provision is to provide small maintained schools to which students could have access if (and only if) they have a statement;
• Statements should be used as passports to such schools, and for no other purpose, so there would be no pupils with statements in mainstream schools;
• Some of the pupils in mainstream schools would of course have special needs, but only such as could be met within the normal resources of the schools and for the most part in the normal classroom; although small schools would be expensive, they would not need to offer such a wide range of subjects as a large comprehensive school;
• A new system would get rid of the anomaly that within the same school (and sometimes even the same class) there may be some pupils with statements and some without them, whose needs nevertheless appear to be much the same;
• A new kind of specialist school would be able to cater properly not only for children with specific disabilities which prevented them from being taught in a large school but also for children with needs that arise from social disadvantage.

CRITICISM OF BARONESS WARNOCK

There has been a great deal of debate about and criticism of Baroness Warnock's comments recently and as part of the recent Parliamentary Inquiry into SEN, which she seems to have provoked.

In its powerful submission, IPSEA (the Independent Panel for Special Education Advice) has submitted regarding what they refer to as the system as portrayed by the 'Second Warnock Report'. Due to the comprehensive nature of the submissions we have quoted from them directly below:

"Mary Warnock’s 2005 attack on statements needs to be commented on because she is accorded the status of special educational needs guru by politicians and the media, and this risks her recent contribution to the debate being accorded a significance which it does not merit.

Despite the respect still generally accorded to the original ‘Warnock Report’, on the evidence of her 2005 pamphlet Mary Warnock would seem, now, to know little of how the special educational needs system operates e.g.

• the pamphlet asserts that 20% of children have Statements of Special Educational Needs, when actual figure is between 2% to 3%. The context of the error makes it clear that it is the author’s, not the typesetter’s: “… our original guess of how many children would receive statements was wildly off the mark. We thought the figure would be around 2%. The actual figure was around 20%”.

• the pamphlet asserts that parents are dissatisfied with the Special Educational Needs Tribunal and offers as an explanation “ Local Authority officials who could hardly be regarded as disinterested, chaired the tribunals (Special Educational Needs Tribunals).” From the evidence of IPSEA casework, this is wrong. In the main, parents are satisfied with the operation of the Tribunal. The whole purpose was for it to be independent, and, in fact, Chairs are qualified solicitors (not LEA officials), and are appointed by the Lord Chancellor.

• the pamphlet asserts “every school now (has) to appoint someone as a Special Educational Needs Coordinator (or SENCO), whose responsibility (is) to ensure that all the procedures of assessment and statementing (are) properly followed.” This is wrong. Statutory assessment and the drawing up of Statements is the responsibility of the LEA, not of school staff or SENCOs.

• the pamphlet asserts that “Since 2002, heads and governors have been liable to criminal charge if they exclude a disruptive child from a mainstream school against the wishes of the parent.” This is not true. This degree of factual error alone would suggest that Mary Warnock’s opinions on the operation of the special educational needs system should be treated with some wariness. A further reason to guard against uncritical acceptance of the views put forward in the 2005 pamphlet is that, in the pamphlet, Mary Warnock claims falsely that her Committee ‘invented’ statements. This risks the unwary reader concluding that: “If Mary Warnock is coming out against statements, when they were her idea in the first place, there must something seriously wrong with them!”

The 2005 pamphlet claims:

“We (the 1978 ‘Warnock’ Committee) invented the statement of special educational need. This was to be a document issued by the local authority, after expert assessment of a child’s abilities and disabilities, which would list the extra support that he would need in order to make progress, the provision of which would be a statutory duty laid on the local authority.”

In fact, the 1978 Report does not contain the term ‘Statement’. Nor did it recommend that LEAs would have a statutory duty to provide the help described in it. What “The Warnock Report” recommended should happen, following assessment, was:

“We consider that the process of multi-professional assessment of a child’s needs … should be concluded by the completion of Form SE4 … The detailed profile of the child’s needs and the recommendation (our emphasis) for the provision of special help entered on this form will … provide the basis for a judgement by the local education authority as to whether the child should be recorded as requiring special
educational provision (4.66)

The process of recording a child as requiring special educational provision will entail entering in a file at the local education authority’s offices the completed Form SE4 with a profile of the child’s needs and with a recommendation (our emphasis) for the provision of special help, as well as a separate note on how that recommendation is being met in practice together with the name of a person designated by the multiprofessional team to provide a point of contact for the parents. These documents will form the record of the child. (4.70)

“The recording of children as in need of special educational provision will enable their parents to satisfy themselves that the children are receiving a suitable education. The profile of their child in Form SE4, as well as the documentation filed by the authority alongside Form SE4 recording how the child’s needs are being met, will afford the parents a basis on which to make representation to the authority and subsequently, if necessary, to the Secretary of State if they consider that their child’s needs have been incorrectly assessed, or that the recommendation (our emphasis) for meeting them is inadequate, or that the authority is failing to make suitable provision.” (4.73)

What the 1978 Warnock Report proposed was a new use for an already existing form (Form SE4), that being to trigger the ‘recording’ of children as in need of special education provision. The Report neither recommend nor described by another name a document with the legal function of the Statement i.e. a contract which would make it mandatory on an LEA to arrange the provision specified in it. The Report referred to parents being able to use their general right to make representations to the Secretary of State if unhappy about an aspect of their child’s education, but this is a very different (and a much weaker) right than the right to seek Judicial Review if your child is not getting the provision specified in his or her statement.

In fact the Statement, and its binding nature, was the creation of the drafters of the 1981 Education Act. It was not so much as hinted at, let alone ‘invented’, by the Warnock Committee. We would re-iterate the following regarding the actual assessment and statementing process:

(i) For the sake of accountability, a proper process is necessary which will inevitably involve an appropriate amount of bureaucracy;
(ii) The current process is already as minimal as it can be if it is to be effective;
(iii) The citizens using this process, the parents or carers of children with sen, find it a vital protection for their children;
(iv) This vital protection is all the more necessary if increased inclusion of children with sen in mainstream schools is going to succeed. "

CONCLUSION

Whether you agree or disagree with Baroness Warnock's recently aired views, there is no doubt that she has raised the temperature on the current debate on SEN!

However, the plain fact remains that there are many children with SEN experiencing difficulties obtaining the correct special educational provision or school placement that they require and that there will continue to be disputes between parents and LEAs about this in the SENDIST or High Court for the foreseeable future.

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