INTRODUCTION

 

  1. The Welsh Local Government Association (WLGA) represents the 22 local authorities in Wales.  The three fire and rescue authorities and the three national park authorities are associate members. 

 

  1. It seeks to provide representation to local authorities within an emerging policy framework that satisfies the key priorities of our members and delivers a broad range of services that add value to Welsh Local Government and the communities they serve.

 

  1. The WLGA is guided by a number of key principles which underpin the work of the Association and have helped to shape this response to the Additional Learning Needs and Education Tribunal (Wales) Bill introduced to the National Assembly for Wales on 12th December 2016. The WLGA believes that decisions about services should be taken as close point of delivery as possible and that the people and communities using those services should be as engaged as possible in their delivery.  It is also our belief that local services should be provided within a democratic framework of local accountability. 

 

  1. The WLGA recognises that it is the role of the Welsh Government to set the strategic framework and policy direction for services at a national level and that it is the role of local government to deliver those services taking account of the local circumstances and pressures.  It is also recognised that services must be provided within a proportionate but effective regulatory framework to ensure that public resources are used appropriately and that services are delivered effectively and efficiently.

 

  1. The WLGA has consistently argued for an un-hypothecated revenue support grant (RSG) as the best way of funding local government and any new responsibilities or additional burdens placed on local government should be fully costed and appropriately funded. 
  2. The WLGA recognises that some policy initiatives or strategies need to have funding attached to them for specific periods of time to make sure that they become embedded and are delivered as intended.  For this reason, the WLGA, by exception, supports the use of specific grants on the understanding that funding will eventually return to the RSG.

 

  1. The WLGA is pleased to be able to respond to the Committee’s consultation on the general principles of the Additional Learning Needs and Education Tribunal (Wales) Bill. This is a joint consultation response on behalf of the WLGA and the Association of Directors of Education in Wales (ADEW), informed by the views of the ADEW Inclusion Group, the professional network for the operational delivery officers for additional learning needs (ALN) in local authorities. Individual local authorities may submit their own responses reflecting their own views on the Bill.

 

  1. The WLGA supports in principle the overarching policy objectives and core aims of the Bill. The Bill has the potential to help improve education outcomes and ultimately life opportunities for children and young people with additional learning needs in Wales. Legislation is necessary to achieve the policy objectives, recognising that the Bill is but one part of Welsh Government’s wider ALN Transformation Programme.

 

  1. The Association welcomes the continued involvement of local authorities and the third sector in developing the legislation and guidance (the new statutory ALN Code of Practice); also in considering the detail of arrangements for implementation of the new system through Welsh Government’s Strategic Implementation Group and its expert sub-groups.

 

  1. The Regulatory Impact Assessment (RIA) accompanying the Bill proposes transition to the new ALN system over a four-year period. Welsh Government will be consulting further on the detail of transition, in particular how and when children and young people move across to the new system. Adequate funding, training and time will be needed for all concerned to prepare and adapt.

 

  1. The detail of how the new system will operate will be set out in the new statutory ALN Code of Practice. There will also be various Regulations, yet to be drafted. Until these documents become available, how some of the Bill’s provisions will work in practice – and the full implications for local authorities and schools - remain unclear. At the time of writing this evidence these additional documents were not available.

 

  1. The WLGA and local government agree that the Bill and wider Transformation Programme have the potential to develop and improve the way the ALN system works and make it more equitable for all learners. The focus on inclusion as a whole school approach is welcomed. However, the introduction of statutory Individual Development Plans (IDPs) for all learners with ALN will inevitably increase expectations. This will put additional pressure on local authority education (and social) services at a time of considerable change in other areas (notably curriculum reform) and when schools’ and local authority budgets are already under huge pressure. Authorities and schools will need time to adapt and staff will need to be adequately trained, with appropriate funding to support the training needed.

 

  1. The WLGA considers that the underlying assumption in the RIA that statutory IDPs for all children and young people with ALN will remove all problems associated with the adversarial nature of the current system - and lead to cost savings for local authorities in future due to the consequent reduction in disagreements/appeals - is overestimated. There is potential the Bill will create tensions which do not currently exist, for example between schools or Further Education Institutions (FEIs) and local authorities over where responsibility for a learner’s IDP lies or parents/young people wanting a local authority to take over an IDP from a school or FEI; an issue that Welsh Government have acknowledged.

 

  1. There is the potential that local authorities will have to maintain more IDPs than the RIA suggests. There may especially be pressure for authorities take on IDPs of children and young people currently on the margins of School Action Plus/statemented. This has consequences for workload and funding as the majority of SEN funding is delegated to schools. Similarly, it is unknown how many of the 8905 learners in FE with learning difficulties and/or disabilities (LDD) have ALN that may need to be met by local authorities rather than FEIs. Authorities have no responsibility for funding or governance of FE and it is unclear how they will meet the costs of IDPs taken on from FEIs.

 

  1. The increased age range of 0-25 has potential impacts in terms of the advice and information local authorities will be required to provide; also on disagreement avoidance/resolution services and appeals, especially in relation to local authority reconsideration of decisions by governing bodies about school-based IDPs (e.g. about their content or a decision to cease an IDP). Local government considers that some of these risks, and the assessment of additional workload/costs on local authorities (and others, especially the Education Tribunal), need closer scrutiny.

 

Funding

 

  1. The WLGA welcomes the grant funding Welsh Government has already given to local authorities to help embed Person Centred Practice (PCP), as well as the funding available in 2016-17 and 2017-18 through the ALN Innovation Fund to help local authorities prepare for the new legislative framework.

 

  1. The WLGA and local government recognise the work that Welsh Government has put into trying to identify the costs associated with implementation of the Bill. It is not an easy area as the way local authority/school spend on SEN is recorded can make it difficult to identify and break down into its component parts. The Association does however have some concerns about the assumptions underpinning some of the estimated costs/savings to local authorities as set out in the RIA.

 

  1. The RIA estimates total transition costs for the Bill at £11,954,490 across nine public sector organisations over the four years 2017-18 to 2020-21 (see Annex 1 for details)[1], of which £2,398,440 falls to Welsh Government and the remaining £9,556,050 to eight other bodies, which include local authority education and social services, schools and Pupil Referral Units. The majority of these estimated transition costs fall on schools for the ALNCo Masters qualification (£9,019,020). 

 

  1. Welsh Government is supporting implementation of the Bill through transition grants totalling £6,956,000, meaning there are transition costs of £2,600,050 that will not be covered by Welsh Government grant funding. Total implementation grant to local authorities over the four-year period from 2017-18 is £5,236,000. The Minister for Lifelong Learning and the Welsh Language has however recently announced funding of £20m for ALN Transformation over the lifetime of this Assembly. We understand that this funding will meet the identified gap of £2.6m in transition costs but it is not yet known how the additional money will be shared between the various public bodies. 

 

  1. The proposed distribution of this implementation grant to local authorities is not yet known, nor the details of what authorities will be able/expected to spend it on. The WLGA asks that authorities be given maximum flexibility in use of the funding and its administration is not unduly bureaucratic. The Association looks forward to working with Welsh Government to help develop further the grant distribution criteria.

 

  1. The RIA estimates that the Bill will not result in any additional costs to local authority social services, mainstream schools, special schools or PRUs. There are expected to be cost savings to public administration overall, the majority of which are estimated savings of £11,839,600 to local authorities as a result of there no longer being any disagreements or appeals have not having a statement in future.

 

  1. It is proposed Welsh Government funding of £12,440,703 will transfer to local government in the Revenue Support Grant (RSG) for the transfer of current Welsh Minister’s duties to local authorities in relation to securing specialist placements for post-16 learners.

 

Post-16 specialist placements

 

  1. Local government continues to have concerns about the transfer of the current duty on Welsh Ministers to local authorities in relation to securing specialist post-16 education for a child or young person where the IDP indicates this is necessary to meet their needs. As noted in the WLGA’s response to Welsh Government’s consultation on the draft Bill, the costs associated with supporting such pupils can be substantial. The RIA indicates that Welsh Government funding for such placements (including staff salary costs) is £12,440,703 at 2016-17 prices, based on 298 learners in Independent Specialist Colleges (ISCs). The RIA notes (footnote 89, p160) that there is an ‘upward trend’ in Welsh Government funded ISC places; also that it is a needs-based system and costs can go up or down depending on the number of learners (footnote 164, p223).

 

  1. The WLGA recognises the potential advantages to learners in this transfer of responsibilities and welcomes the proposed transfer of funding but there is a risk that the current quantum of funding will be less able to meet the needs of learners once spread across 22 local authorities, given that by and large the distribution formula works on population distribution rather than the needs of learners. The Distribution Sub-Group, made up of finance representative from Welsh Government and local government, is due to consider this further. An analysis of the numbers and costs of learners currently in the system in this category across local authorities demonstrates that this is not constant, there is a significant variation over 5 years. If a funding allocation was calculated for local authorities using the average cost for support of learners in this category over a five-year period, for example, then many authorities would not meet their current costs for their learners.

 

  1. In addition, part of the rationale for moving post-16 assessment is to link the post and pre-16 assessments within the local authority. There is a proposal in the Local Government White Paper that aspects of ALN could be considered as part of a regional education structure. This would mean either moving this service into a regional structure which is untested in carrying out assessments or that post-16 remains in local authorities with aspects of pre-16 sitting at a regional level, against one of the main reasons for moving post-16 into local authorities. Whichever route is taken this is not taken into account in the ALN Bill.

 

  1. The WLGA notes that Welsh Government plan to continue funding Careers Wales for two years as part of the transition arrangements. Local government argues that all Careers Wales funding associated with post-16 specialist placements or assessments for learners with complex needs should be transferred into the RSG in due course. The Association also asks whether the Welsh Government has considered the need for Careers Wales staff to TUPE to local authorities, and the implications and costs associated with that.

 

Areas where more clarity is needed on the operation of the new system and/or costs needs further scrutiny

 

  1. Local government continues to have concerns about the practical operation of the new ALN system at both ends of the extended 0-25 age range, ie in the early years and also in the 16-25 age range. 

 

Early Years

 

  1. Local authorities are responsible under the Bill for IDPs in the early years but most contact for children in the 0-2 age range will be with health services (either directly or through Flying Start/Communities First where relevant). Under section 57 of Bill (functions of health bodies to notify parents etc), health bodies may bring to the attention of local authorities any child under compulsory school age they believe may have ALN if it is ‘in the best interests of the child’. Local authorities’ duty under section 11 (Duty to decide) will then take effect. There is a risk some children may slip through the net. In this age group how will local authorities know if there is a ‘child for which it is responsible’? How does the local authority engage with the parents in developing and reviewing the IDP if most of their contact is with health services? There are issues regarding health provision to meet identified ALN/ALP in the early years that need more clarity and detail in the ALN Code.

 

Post-16 learners (non-specialist placements)

  1. Local government continues to have concerns about the practical operation of the new system for post-16 learners. The respective responsibilities and accountabilities of local authorities and FEIs in relation to post-16 learners with ALN needs more clarity. Authorities have no responsibility for the funding or governance of FEIs, which are incorporated bodies. 

 

  1. The RIA anticipates that local authorities will only be responsible for an estimated 50% of the 120 learners with complex needs who currently have a Learning and Skills Plans (LSP) developed by Careers Wales. The additional estimated cost to local authorities of reviewing these 60 IDPs is £18,000 pa – the cost per review being based on an average cost of £300 at 2016-17 prices (para 8.191, p175).

 

  1. The RIA suggests the majority of learners with LDD in FE (8905) will have an IDP maintained by the FEI. However, the RIA also notes (footnote 135, p208) that the severity of these learners’ LDD is unknown, the percentage that might need a local authority maintained IDP is also unknown.

 

  1. The circumstances under which a local authority may become involved in an IDP for a young person entering or already in FE depend on an assessment of the young person’s ALN and the extent to which it would be ‘reasonable’ for the FEI to provide the ALP needed to support them. If a local authority already has responsibility for the IDP and it would not be reasonable for the FEI to deliver the required ALP, the authority will continue to maintain it.

 

  1. If a local authority accepts a transfer of responsibility for an IDP from an FEI, there is no equivalent provision in the Bill for a local authority to direct an FEI to prepare or maintain an IDP as there is in respect of schools (section 12(2)(i) and (ii), and 12(4) in the Bill (local authority powers to direct a school governing body to maintain an IDP prepared by the local authority or to prepare and maintain a plan). So if a local authority accepts transfer of an IDP from an FEI, the authority cannot require the FEI to take it back even if the young person’s needs change and it would be appropriate.

 

  1. The above suggests a possibility that local authorities could be responsible for maintaining IDPs for more post-16 learners than the RIA suggests. Should that happen, it is not clear how local authorities will meet those additional costs given that authorities receive no funding for post-16 learners and there is no provision for funding to transfer to them from FEIs.

 

  1. It is also not clear in the Bill how local authorities’ responsibilities will work in relation to 19-25 age group, in particular whether authorities will be expected to fund learners in FE through to age 25. This is an area for concern as it could have cost implications.

 

  1. Decisions taken by local authorities on post-16 learners - both specialist placements and other learners with LDD in FE - will be appealable to the Education Tribunal. The RIA suggests the risk is low.

 

Disagreement/avoidance resolution and appeals to the Education Tribunal

 

  1. The RIA says there will be no additional responsibilities or costs to local authority education services in relation to IDPs for children in maintained nursery or school settings. The expectation is local authorities will continue to be responsible for IDPs for children and young people currently in receipt of a statement (i.e 13,318), with the majority of IDPs for the other 94,363 children and young people of compulsory schools age with ALN being maintained by schools or, at post-16, by FEIs.

 

  1. However, under the Bill, local authorities will be required to become involved in the assessment or review of an IDP where the learners’ needs cannot reasonably be met by a maintained nursery, school or FEI or where there is a need to reconsider a decision taken by a maintained nursery, school or FEI on a learner’s ALN or ALP.

 

  1. The Bill opens up local authorities’ statutory involvement in future to many more IDPs than those for which they may be directly responsible (i.e those they prepare and maintain themselves). By virtue of having a role in reconsidering decisions taken by nurseries, schools or FEIs, authorities’ responsibilities are effectively extended to over 100,000 IDPs, i.e 94,363 children and young people of compulsory school age with ALN plus a further 8,905 with LDD in FE. Local authorities, for example, may be asked to revise a school or FEI-based IDP, to take over responsibility for an IDP or to reconsider a decision by a school governing body to cease an IDP. The decisions authorities take in these circumstances can be appealed to the Education Tribunal. 

 

  1. The RIA estimates local authority education services could make savings of £11,839,600 over 4 years as a result of the Bill removing the distinction between statutory and non-statutory plans (see Annex 2)[2]. This is on the basis that there will be no costs to authorities in future relating to disagreements or appeals about not having a statement and the expectation that the use of PCP and greater focus on resolving disputes at local level is unlikely to give rise to any more disagreements/appeals than now. The RIA suggests that the risk of additional disagreements/appeals in the extended age ranges 0-2 and 16-25 is low.

 

  1. The WLGA and local government consider the risk is underestimated. The RIA states that the rate at which children and young people disagreed with the content of a statement in 2015-16 was 5.4%, i.e an average of 721 disagreements funded by local authority dispute resolution services in a population of 13,318 statemented children and young people (para 8.325, p208). It does not seem unrealistic to expect a similar rate of disagreement with school-based IDPs, which would mean an additional 5095 disagreements annually about the content of an IDP. Even if many of these disagreements could be expected to be resolved at school level, authorities would still have to make dispute resolution services available. It is highly likely that requests could be made to a local authority to take on a proportion of the IDPs subject to disagreement, or to reconsider a school’s decision about the content. A proportion of those cases could be appealed to the Education Tribunal.

 

  1. Even if only 1% of the additional 93,363 children and young people with IDPs disagreed with the content of their IDP and requested a local authority to revise it, that is 944 cases annually that authorities would have to consider. If only half of those went to appeal, that is 472 appeals for local authorities to defend – more than four times the number of appeals in 2015-16 under the current system.

 

  1. There are implications here for local authorities not only in terms of the additional number of children and young people who will have statutory plans in future but also the work involved in, for example, reviewing a school-based IDP in order to decide whether to revise it. The authority will not have been involved in developing the IDP and will come to it without the same knowledge of the child and their ALN/ALP as the school. The authority will have to make disagreement resolution services available as part of the process both at the school and authority level. If the local authority decides not to revise the plan, the decision may be appealed to the Education Tribunal. The same applies for local authority involvement in responding to a request to take over responsibility for an IDP from a school or FEI or reviewing a school’s decision to cease an IDP.

 

  1. The WLGA and local government accept that local authorities’ role in putting place dispute resolution/avoidance services will be very important and that there is good practice to draw on from authorities that have been using new approaches, such as Carmarthenshire and Torfaen. It is nonetheless highly likely that the system will be tested in the short to medium term and there is a risk that local authority resources could be stretched if the full implications of extending the statutory system in terms of additional disagreements/appeals are not properly addressed now. It is equally the case that any rise in appeals will have a significant impact on the Education Tribunal, and the WLGA believes the RIA requires much closer scrutiny in this respect.   

 

Role of Additional Learning Needs Coordinator (ALNCo)

 

  1. Local government has concerns about the proposed statutory ALNCo role, in particular that ALNCos should all have Qualified Teacher Status (QTS) and acquire a Masters qualification. Not all school staff currently in a SENCO or SENCO type role are necessarily QTS. There is no guarantee that enough QTS staff will wish to become ALNCos and take the Masters; or if they commence it that they will complete it; or if they do qualify, that they will remain in post with the school that met the costs long enough for that school to recoup the benefit.

 

  1. There are also big cost implications for schools. Welsh Government estimate a total cost to schools of over £9m (Table 68, p259) and a further £163k to PRUs. On p262 the RIA states that Welsh Government will provide funding via the ALN Implementation Grant to assist with the cost of funding the Masters qualification. However, the projected transition costs to schools in 2017-18 of £1,503,170 are more than four times the proposed amount of Implementation Grant to all 22 local authorities of £374k (Table 5, p124). 

 

  1. The WLGA recognises that training is necessary for the ALNCo role, but is not convinced a Masters is necessarily the best way and the money intended to deliver it could alternatively be redirected to broader training and transition work to the benefit of the workforce across local authorities and schools. Local government looks forward to continuing to work with Welsh Government as the ALNCo role and qualifications, which will be set out the Code of Practice and in regulations in due course, are developed. 

 

Collaboration with Health

 

  1. The WLGA welcomes the strengthening in the Bill of the Designated Education Clinical Lead Officer (DECLO) role as a strategic coordinator of health bodies’ input into the assessment of ALN/ALP and development of IDPs. The outcome of the trials of the role currently underway across two Local Health Board areas will help to inform the final job description and best practice in terms of collaboration with local authority education and social services under the Bill.

 

  1. In terms of the respective accountabilities of local authorities and health services, if so requested, an NHS body will have a statutory duty to consider if there is a relevant treatment or service that is likely to be of benefit in addressing a child or young person’s additional learning needs (section 18(4)), and; if there is a treatment, to secure it in the IDP (section 18(5)). The decision will be a matter of clinical judgement. If section 18(5) applies, the school governing body or local authority is absolved from securing the treatment or service (sections 19(4)(a) and (19(4)(b) respectively).

 

  1. Local government welcomes these provisions but would also welcome greater clarity as to the position of local authorities or schools if the clinical judgement is that there is no relevant treatment or service and whether this means the need will be deemed to be an education need not a health one and revert to the authority or school to provide and pay for. There also remain concerns that the health provision can be changed or removed at the request of an NHS body, and the local authority or governing body must comply.

 

  1. The Education Tribunal will not have a role in appeals where they relate to the provision (or not) of relevant health treatments or services. The rationale is that there is an existing NHS complaints procedure which children, young people or their parents can access and the Tribunal should not duplicate this. If this remains the case, much more awareness raising is needed of the procedure and how it will work in practice under the new ALN legislation. For example, if the health body decides there is no relevant treatment or service and a parent or young person disagrees, who is responsible for ensuring those involved are aware of how they make a complaint, what the procedure involves, what form(s) of redress may be available and to what timescale; whether local authorities would be required to provide advocacy services in the same way as for an appeal to the Education Tribunal; and what will happen to the child or young person’s IDP pending, during or after the complaint process is completed (bearing in mind the ALP set out in it will likely be a combination of health and local authority or FEI provision). Having two separate avenues of complaint is potentially a very confusing situation, not least for children and young people or their parents, and tends to undermine the rationale of the Bill to have a streamlined and more equitable ALN system.

 

 

CONCLUSION:

  1.  As stated at the outset of this evidence the WLGA and ADEW support the principles of the proposed legislation which has the needs of individual learners and their families and carers at its centre. The evidence that has been provided in this document reflects the complexity associated with this legislation and a strong wiliness by local government to ensure that the transition from the current system to the new framework is seamless and does not disadvantage leaners in any way.

 

  1. It is clear that additional training and support will be needed for all of the public sector bodies, including schools and local authorities, who will be expected to implement the legislation should it be passed and this needs to be a priority for Welsh Government. In addition, it is essential that the costs associated with the implementation of the Bill do not overshadow the intention of the legislation to improve the system for the benefit of learners. It is within this context that the WLGA welcome the work that has been done to date in this area, and will continue to support work on developing a realistic cost base for the proposals in the Bill.

 

  1. Much of the detail associated with the implementation of the Bill is contained in the Code of Practice which was not available to the WLGA or ADEW when this evidence was drafted. It is hoped that the Code will provide additional details in the areas of concern raised in this evidence.

 

 


ANNEX 2

 

How RIA identifies savings to Local Authority Education Services from not responding to disagreements/appeals about not having a statement

 

LA costs of £10,834,500 from 1533 disagreements about having/not having a statement in (para 8.207, p178 – refer to Table 18 p143)

 

Estimated costs of 812 disagreements about not having a statement = £5,742,200 = saving to LAs by removing distinction between statutory and non-statutory plans

 

LA costs of £1,306,700 as a result of 105 appeals about having/not having a statement (para 8.208, p178 refers to Table 21 p146)

 

Estimated costs of 57 appeals about not having a statement = £705,600 = saving to

LAs by removing distinction between statutory and non-statutory plans

 

Total saving (predicated on only 721 disagreements – ie 1533 minus 812 - about having a statement and 48 appeals about having a statement – ie 105 minus 57) = £6,447,800 (ie £5,742,200 + £705,600)

 

Taking mid-range saving of £3,223,900 (para 8.211, p179) less additional costs to LAs of £264,000, which are:

 

 

(Total £107,400 – para 8.193, p175)

 

PLUS

 

(Total = £156,600) (NOTE – total in para 8.201, p177 incorrectly says £137,900)

GRAND TOTAL = £264,000

 

So £3,223,900 minus £264,000 = £2,959,900 x 4 = potential identified savings to LAs over 4 years of £11,839,600

 


[1] A WLGA summary of the costs in Table 70 of the RIA

[2] A WLGA summary of the savings as calculated in the RIA