Well-meant, but Failing on Almost all Counts: the Case Against Statementing

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Well-meant, but failing on almost all counts:the case against Statementing

Hugh Williams and Sheelagh Maloney

Statements: an unfulfilled promiseThe process of making Statements of special educationalneeds, which replaced the 1975 SE (Special Education)system in 1983, was based upon progressive thinkingabout children with special educational needs rather thanhandicaps, and the protection of the provision for thosechildren. The Education Act of 1981 (DES, 1981) whichintroduced Statementing had been the Government’sresponse to the Warnock Report (DES, 1978). The Act,however, focused the complex Statementing system on the2% (deemed to need special provision over and above thatusually found in mainstream schools) rather than on the18% assumed to have some degree of special need. Parentswere to be consulted at every stage of a comprehensiveassessment leading to the making of the Statement, thepurpose of which was to be a document designed to matchprovision to the needs of each individual, and to make itlegally binding for the local authority to ensure thatprovision.

Until 1988 the new system appeared to work reasonablywell. While there had been no significant reduction in thenumbers of children in special schools, there was aslowly increasing number of children whose needs werebeing met in mainstream schools through Statements. Thenumbers gaining Statements did not change markedly.The rhetoric of the ‘Protection of a Statement’, however,was often not substantiated; in the authors’ experiencethere was little real difference between the provisionwhich children received after gaining a Statement andthat which might have expected under the pre-1981 Act

procedures. But after the Act the procedures leading to aStatement were far more bureaucratic and lengthy, andtime scales of two years were not unusual (House ofCommons Education, Science and Arts Committee, 1987;Audit Commission/HMI, 1992).

From 1988, Statementing, far from being a protection forchildren with special educational needs against thenegative aspects of the Education Reform Act and itssuccessors, tended to exacerbate the inherent weaknessesin the system (see Bowers, 1995 for a discussion of theeffect of market forces on SEN). Schools were encouragedto see financing, and particularly gaining their fair share(indeed more than their fair share) of the available money,as a crucial area of activity and concern. Whilst it wouldbe an exaggeration to say that this led to an unrestrainedfrenzy of competitive market behaviour between schools,there is no doubt that it led to schools examining moreclosely all aspects of resourcing and of being more likelyto demand special resources for activities seen by them asoutside the ordinary.

The most obvious effect has been the rapid increase in thenumber of children with Statements in mainstreamschools since 1990. Special schools have, by and large,remained full except in a few areas of strongly inclusiveendeavour. Without evidence of relatively higher levels ofinherent need in the overall school population, it islikely that the rise in Statement numbers comes directlyfrom groups of children, for whom schools would havepreviously made provision without Statements.

The provision attached to Statements has almost alwaysbeen based on an increase in ancillary support (classroomassistants). It is difficult to see how the provision of extratime from potentially untrained people can be an adequateresponse to severe and complex difficulties. Yet, until theadvent of the Code of Practice there was scant evidencethat Statemented children in mainstream could expect anydifference in their curriculum or method of delivery beyondthe extra time made available through the classroomassistants.

These developments occurred alongside a marked increasein the funding (as a proportion of education budgets)directed towards special educational needs, although in realterms there was no overall increase. However, as such monieshave not been separately identified within governmentbudgets as growth for special needs, it is likely that theywould otherwise have gone towards mainstream schools’general budgets. In reality ‘the growth’ probably marks ashifting of the emphasis away from funding for childrenwith SEN without Statements to those with Statements.

This article (written before the publication of therecent Green Paper) by Hugh Williams andSheelagh Maloney, Senior Educational Psychologists:Birmingham Education Department, is timely as itprovides practical solutions to the problems of‘Statementing’. Their suggestions are not onlywithin the spirit of the Paper, but go even further insuggesting practical solutions to the ending of‘Statementing’. The approach proposed is based onextending the ideas behind the SEN Code ofPractice, and they describe how children’s andparent’s rights, and their involvement, could beadvanced through a fluent process: reducedbureaucracy; shorter time-scales; and the greaterinvolvement of schools in ensuring appropriateresources. Further, the proposed system wouldenhance the prospects of encouraging increasinglyinclusive practices, and would remove a majorconceptual barrier to all children being educated inmainstream schools.

16 British Journal of Special Education Volume 25, No. 1 (March 1998)

With estimates of the cost of making a Statement touchingthousands of pounds and the consequent increasedbureaucracy, litigation, and the diversion of support services,it is possible that the real proportion of money and effortgoing directly to meeting children’s needs is reducing.

The cumbersome nature of the Statementing process leftmany children with special educational needs in limbo,while the lengthy procedures were being conducted(Audit Commission/HMI, 1992). The lucky ones mighthave received ‘provisional placement’ for long periods oftime, but of course these were outside the letter andprotection of the law. No system was required to monitorthe process and to ensure that all its aspects were operatedproperly, for example, that:

• annual reviews would fully and individually examinethe child’s needs;

• there would be a check on the full implementation ofthe stated provision;

• provision was fairly based on need and not onsources of inequality, such as parental pressure andgeography.

Instead, in years of tight education budgets and a diminutionof LEA powers, the systems could be squeezed, with onlythose children with the most articulate parents beingassured that responses to their needs were unfettered bylimits to funding. Recourse to the wholly adversarialcomplaints system was seen by many as their only courseof action (Rabinowicz & Friel, 1994).

There is little evidence of a fundamental questioning ofthe whole process. Even the seemingly measured critiqueof the Statementing system by the Special EducationalNeeds Initiative (Coopers & Lybrand, 1996) has beenmet by a furious response from those wishing to see itcontinue unchanged (IPSEA, 1997). But it is arguable thatStatementing has had few benefits. It undoubtedly madesome special schools more aware of individual needs and,at least in its early days, moved thinking away from theidea of categories of need (DES, 1978). It increased theawareness of mainstream schools to their role in meetingspecial educational needs and introduced the idea thatsignificant needs could be met within ordinary schools.But, we would argue, for all its cost and bureaucracy,Statementing has nowhere near approached the level ofbenefit that was expected, and has not been a deterrentagainst the ‘survival of the fittest’ tenet of other educationlegislation since 1988. Nevertheless, the Education Act1993 (DfE, 1993a) has brought some hope for a moresensible future.

The Code of PracticeThe SEN Code of Practice (DfE, 1994) was a landmark inrecent education legislation, not only in its content but inthe manner in which it was constructed. A draft of theCode (DfE, 1993b) was published for consultation sixmonths before the final date for submissions. This was incontrast to the previous White Paper (Choice andDiversity, DfE, 1992) which had allowed just over one

month for responses (most of it in the schools’ summerholidays!). The whole Code was a model of co-operationbetween practitioners in the field of SEN and officialsfrom the (then) Department for Education.

The result was not perfect, but was considered a substantialmove forward which has changed the way that specialneeds is dealt with in almost every mainstream school(Derrington, Evans & Lee, 1996). In a very short time,schools have moved towards a systematic approach tospecial needs with, amongst other things:

• a clear concept of the need for targets and plans;• a recognition of the importance of recording;• a structure designed to involve all staff, and the

identification of SENCos;• a greater appreciation of the wider issues of special

educational needs provision across the whole rangeof need.

A completely new and more fertile environment fordevelopment was created. Countless in-service trainingsessions had been conducted by psychologists and otherson the subject of Targets and Plans (stemming fromseminal works such as Ainscow and Tweddle, 1979) overthe years. Sadly, the wash-out effect was high, and manyparticipants failed to adopt the techniques. Nevertheless,following the publication of the SEN Code of Practice andits concentration on the IEPs (Individual Education Plans)in school-based stages, the authors’ local authority had a90% take up (over 300 schools) for a similar INSET(Cardwell, DuPree, Hess, Mallon, Reid, Scott, Wylie,Willey, Williams & Williams, 1995), the clear effects ofwhich are still seen in many schools.

The Code produced a higher profile for special educationalneeds than at any other time since the introduction of the1981 Act, and to more purpose. In most schools, theposition of those responsible for special needs (nowknown as ‘SENCos’) was reviewed and in general thebrief widened far beyond that of teaching special groups.The creation of the role of the SENCo gave an importanceand a focus to the co-ordination of special educationalneeds that had been missing in many schools.

The Code’s stages properly emphasised the crucial role ofparents in a way that had not been spelt out in such detailbefore. They were to be informed from the point of earliestconcern and, if the intervention became more extensive,would be involved in regular reviews. In principle, atStage 3 (below the level of Statementing) parents wouldbe consulted at least twice yearly about specific targetsto be worked on by their children. The paradoxicalsituation arose whereby following government advice andlegislation could mean that consultations with parentswere fewer for a child with a Statement than for one onStage 3.

There was undoubted logic, however, in the first threeschool-based stages and, crucially, in all but the mostunusual circumstances, the stages would be followed by

17British Journal of Special Education Volume 25, No. 1 (March 1998)

all maintained schools before Statutory Assessmentswere considered. Whilst the Code has brought its ownbureaucracy, and many SENCos claim that they haveinsufficient time to service it, this approach has receivedwidespread acceptance as a fair and effective way ofdealing with special needs in mainstream schools.

On the other hand, the use of Stage 4 for the StatutoryAssessment process is confusing. For example, there is nodiscussion in the Code of provision at Stage 4, andfurthermore, there is some feeling that using the title‘Stage 4’ for the Assessment process implies an inevitableroute map toward the prize of a Statement.

While it can be argued that it is odd that this process ofmoving from one stage of provision (3) to the next (5),requires its own stage number, it would be better toquestion whether the Statutory Assessment andStatements are necessary at all.

Statements and the Code: a unified system to protectchildren’s needs?The purpose of Statements, as we have seen, is to providea legal description of a child’s special educational needs,and the provision which the LEA will determine isnecessary to meet those needs. They are intended tosubstantiate parental rights to consultation, to have theirviews taken into account, and to act as a sort of promissorynote given by the LEA in order that parents can be surethat their children’s needs will be met.

It is not clear, however, why such a formal promise andcontract should be required only at the point where anLEA becomes involved in directing the provision (andoften actually making the provision directly). Childrenhave special educational needs at all stages of the SENCode of Practice, including Stages 1 to 3, and it could beargued that they (or their parents) are entitled to as muchreassurance as any others. Of course, where a Statementmeans that the child will change to segregated provisionextra safeguards are understandable, but it is to be hopedthat more children will remain in mainstream with theirStatements. Somewhat perversely, the transfer to segregatedprovision, once a child already has a Statement inmainstream, can be effected through the simple procedureof an amendment to the Statement. This could, in theory,be completed in 16 days with only the involvement of theLEA, the parents and the receiving school.

Our experience as educational psychologists suggests thatthe more informal and co-operative style of the process, inthe early stages of the Code, provides a much bettermodel for real consultation and involvement, than thelegalistic, and often adversarial, statutory procedures. Forthis reason, we propose that these early stages should beextended in order to remove the need for Statements, tothe benefit of children’s and parental rights.

A non-Statementing modelConveniently for our proposal, the Code already has fivestages, and although we feel that they are not yet fully

developed, we would suggest no immediate change in thefirst three stages. With changes to Stages 4 and 5 wesuggest a system that would have significant benefits overthe present (see Figure 1).

Figure 1: Stages under the proposed system

Stage 4 would become the next stage of provision: itwould be characterised by the child’s mainstream schoolmaking provision, assisted by extra resources from theLEA. These could be any of the type currently included inStatements for children in mainstream schools: additionaldirectly funded teaching or other adult support; and directlyfunded physical resources or sums of money for schoolsto utilise in supporting the child. This stage, however,would require fully inclusive mainstream education.

Stage 5 would cover any child who was deemed to needprovision, including educational provision made outsidehis or her mainstream school, whether on a full orpart-time basis. It could include the provision for eachchild to remain registered with a nominated mainstreamschool, even when currently attending a segregatedprovision full-time.

Stage 0

‘Normal’ Mainstream Provision

–––––––––––––––––––––––––––––––––

Stage 1

As under Code of Practice

Stage 2


Stage 3


–––––––––––––––––––––––––––––––––

Stage 4

LEA assisted provision in mainstreamschool with Contract-based IEP

Stage 5

Assisted provision wholly or partly inexclusive provision with

Contract-based IEP

Scho

ol-fo

rmul

ated

IEPs

LEA

Ann

ual C

ontr

act I

EPs


It would be expected, as with the rest of the stages of theCode, that the new Stage 4 would not be circumventedexcept in exceptional circumstances, and then only aftersignificant investigation by the LEA. In most cases,therefore, children would not go into segregated provisionfrom mainstream schools without first having provisionsupported directly from the LEA within their own school.The experience of delivering provision to children at thislevel could be fundamental in enhancing an inclusivephilosophy in mainstream schools (Thomas, 1997).

To move to Stage 4 from Stage 3, the process would bethat the school, in conjunction with parents and withadvice from LEA support workers, would request themove by preparing a Stage 4 IEP. The LEA would thenhave a number of options and it could:

• agree with the proposed IEP;• agree that Stage 4 is necessary but suggest a different

IEP;• state that the child should stay at Stage 3;• argue on grounds of needs, resource or provision that

the child should move to Stage 5.

A Stage 4 or 5 IEP (probably lasting for one year) wouldinclude the agreed role and provision of the LEA, andappropriate binding commitments made by otherproviders such as health authorities and social services.These IEPs would inevitably have enhanced status andformality when compared with IEPs at the Code ofPractice Stages 2 and 3. There would be formal contractsbetween the different parties: the school, the LEA, otherproviders, the parents and older children. They would bebased upon long-term aims for the child and wouldinclude annual goals and termly targets.

However, unlike Statements, Stage 4 and 5 IEPs would bewholly renewable each year, although they should includesome views on the probable, long-term needs. Eachrenewal (based on evidence gathered throughout the year)would have to be agreed upon by all parties. Differencesof opinion could be resolved through a binding arbitrationprocess, to which any party could refer a case. Arbitrationdecisions would be open, should reflect a nationalframework with published local interpretations, and localcriteria for triggering stage changes and for makingresources available. Production of publicly availablecriteria would be a mandatory duty for LEAs, with reviewand renewal every two years. Work being piloted in anumber of authorities, including Northampton (Hinnegan& Forrest, 1996), Coventry (Muncey & Palmer, 1995) andBirmingham (Powell, 1997), could provide a basis forprecise and non-discriminatory decisions which would beopen to objective audit, rather than the current Tribunals’seemingly rather arbitrary case-by-case conclusions.

However, where there was unanimous agreement, theprocess would take no more time than a move at presentfrom Stage 2 to 3; clearly LEAs would have to set up thenecessary budgetary and placement procedures. Once theStage 4 (or 5) IEP was agreed by all providers and parents

(and the pupil, where appropriate), it could be broughtinto immediate effect. There might also be regulationsstating that LEAs should, when evaluating each case,utilise no more bureaucracy than is absolutely necessary.In cases of moves to Stage 4, the LEA should be able toshare the decision-making responsibilities with localgroups of schools (Gray, 1997).

Any assessment should be carried out during, and in thelight of, the current Stage 3 interventions, and in advanceof the formal process of changing stages. Parents, asalways under the Code, should be informed of theschool’s intentions. This process would have two benefits:

• adequate time would be assigned for parentalinvolvement (before they need to respond toformal proposals on a pupil’s move to Stage 4) inorder to allow them to have the opportunity to playan active role in their child’s special provision andassessment;

• the change would eliminate the need for time limitsfor assessment and the consequent temptation to use‘snapshot’ norm-referenced instruments, includingIQ tests.

(Williams & Mallon, 1997)

Is such a model possible?In the present climate of tribunals, litigation and newlabelling, the above proposal would seem to be swimmingagainst an unstoppable tide. There may seem to be toomany people becoming increasingly invested in a highlyadversarial approach to special educational needs, and anapproach which reflects the traditions of British legalpractice rather than those of British education. Much isunderstandable in a context where public expenditure islimited and parents (amongst others) have a scepticalview of the willingness of LEAs to fund their commitmentsfully. But this trend must be a cul-de-sac. Its logicaloutcomes could be an uncontrolled increase and aneconomically unsustainable reliance upon Statementing.Possibly even worse, would be an attempt by LEAs tolimit such growth, which could lead to major disagreementswith those putting on pressure, within the system, to breakthose limits. In either case, the concept of children havingprovision based on need, regardless of their parents’ levelof education and access to legal and other representation,will be destroyed.

Much of this argument has been extensively covered inthe Coopers and Lybrand report (1996), although theirrecommendations understandably refer to modifying thecurrent situation without the need for a change in the law.We would argue that this is a relevant view, but isinadequate as a means of avoiding increasing difficultieswithin current legislation and that more radical proposalshave a real prospect of being accepted. Such changeswould result in substantial benefits: a speeding up ofprocedures; a completely coherent process; and theprospect of a major reduction in bureaucracy. Attempts towork towards such goals (within the current legislativecontext in Nottinghamshire) appear to be receiving a


favourable reaction (Gray, 1997), but may be underminedby the misguided belief that only Statements can guaranteethat needs are met.

An LEA-supported ‘stage’ in mainstream schools wouldbe tried and evaluated in almost all cases, before segregatedprovision was considered. Mainstream schools wouldhave more experience of working with children withhigher levels of need and consequently become lessapprehensive of its practicability. Many would beencouraged to develop their special educational needsprovision as a matter of course, rather than as anexception. Thus inclusive practice would be encouragedand supported.

As there would no longer be the shibboleth of the‘protection of a Statement’, developments in specialeducational needs would be more likely to be consideredby all on their real merits. Attempts to redistributeexpenditure towards the less formal stages is suggested inCoopers and Lybrand (1996) and described as ‘redefinitionof resources’ (p.61). All the disadvantages listed arebased on problems arising from the Statementing processand would therefore be solved by the proposals in thisarticle.

There are problems. Special schools and units might havedifficulties in planning if their pupils were only guaranteed

to be placed on a year-by-year basis. Without clearguidelines the annual process of reviewing IEPs at Stages4 and 5 could become more onerous and bureaucratic thanat present. The proposals fail to answer questions about thebest way to specify appropriate provision for individualpupils when almost all pupils would benefit fromever-greater resources. Nor do they, in themselves, ensurethat whatever provision is made would be equitable; ofequal quality whatever the background and home area ofthe child.

All such difficulties reflect existing problems. Where theyare already being tackled by the use of, for example: audits,moderating groups, criteria for assessment, provisioncriteria, ‘dimensions of provision’ (Muncey & Palmer,1995), such developments could be utilised in the proposedsystem without the need for Statements. One, hard toanswer, criticism is that any system based solely onevaluating the needs of individual children makes anyplanning and coherent development difficult. Further,such systems tend to concentrate upon the child, withoutreference to the quality of the education already received.This can have the effect of high levels of resourcesbeing put into the schools of children whose progress isleast, leading to the danger of rewarding schools whichfail. Both criticisms are valid, but, despite the undoubtedproblems, we believe that these proposals would lead to apractical way forward.

ReferencesAinscow, M. & Tweddle, D. (1979) Preventing

Classroom Failure: an Objectives Approach.Chichester: Wiley.

Audit Commission/HMI (1992) Getting in on the Act:Provision for Pupils with Special Educational Needs.London: HMSO.

Bowers, T. (1995) ‘Special needs and market forces:touched by the invisible hand?’, Support forLearning. 10 (3), 113-118.

Cardwell, A., Du Pree, P., Hess, A., Mallon, F., Reid, J.,Scott, A., Wylie, K., Willey, R., Williams, H. &Williams, J. (1995) Programmes for Progress:Birmingham Code of Practice Training, Phase 3.Birmingham: Birmingham City Council EducationDepartment.

Coopers & Lybrand (1996) The SEN Initiative:Managing Budgets for Pupils with SpecialEducational Needs. London: Coopers & Lybrand.

Department of Education and Science (1978) SpecialEducational Needs: Report of the Committee ofEnquiry into the Education of Handicapped Childrenand Young People (The Warnock Report). London:HMSO.

Department of Education and Science (1981) EducationAct. London: HMSO.

Department for Education (1992) Choice and Diversity.London: HMSO.

Department for Education (1993a) Education Act 1993.London: HMSO.

Department for Education (1993b) Draft Code ofPractice on the Identification and Assessment ofSpecial Educational Needs. London: HMSO.

Department for Education (1994) Code of Practice onthe Identification and Assessment of SpecialEducational Needs. London: HMSO.

Derrington, C., Evans, C. & Lee, B. (1996) The Code inPractice: the Impact on Schools and LEAs. Slough:NFER.

Gray, P. (1997) ‘Criteria for statutory assessment’,Educational Psychology in Practice. 12 (4), 210-211.

Hinnegan, L. & Forrest, J. (1996) ‘An integrated LEAframework for resourcing special educationalarrangements to meet individual needs’, EducationalPsychology in Practice. 12 (1), 50-56.

House of Commons Education, Arts and ScienceCommittee (1987) Special Educational Needs:Implementation of the Education Act 1981, Volume 1.London: HMSO.

IPSEA (Independent Panel for Special EducationAdvice) (1997) Briefing on the SEN Initiative.Suffolk: IPSEA.

Muncey, J. & Palmer, C. (1995) ‘Dimensions ofspecial needs: a non-categorical approach to specialeducational needs’, British Journal of SpecialEducation. 22 (3), 125-8.

Powell, M. (1997) CRISP: Assessment and ProvisionCriteria (Pilot Edition). Birmingham: BirminghamCity Council Education Department.


Rabinowicz, J. & Friel, J. (1994) ‘The new tribunal: firstresponses’, British Journal of Special Education.21(1), 27-28.

Thomas, G. (1997) ‘Inclusive schools for an inclusivesociety’, British Journal of Special Education. 24(3), 103-107.

Williams, H. & Mallon, F. (1997) ‘The Birminghamcriteria for statutory assessment: a non-psychometricapproach’, Educational Psychology in Practice. 12(4), 203-209.

Address for correspondenceHugh WilliamsBirmingham City Council (Education DepartmentPsychological Service: South Area)74 Balden RoadHarborneBirmingham B32 2EHE-mail: [email protected]

Accepted for publication: September 1997


Documents

Well-meant, but Failing on Almost all Counts: the Case Against Statementing