Consultation outcome

Draft equalities impact statement

Updated 29 November 2022

Applies to England

Introduction

This equalities impact statement sets out how Ofsted and CQC consider that the proposed area special educational needs and disabilities (SEND) framework will fulfil the requirements of the Equality Act 2010, including the public sector equality duty (PSED) set out in section 149 of the Equality Act 2010.

The PSED requires Ofsted and CQC, when exercising their functions, to have due regard to the need to:

• eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010

• advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it

• foster good relations between persons who share a relevant protected characteristic and persons who do not share it

We are publishing this statement as part of our consultation relating to the proposed area SEND inspection framework and handbook. This statement sets out our pre-consultation assessment of the equality, diversity and inclusion (EDI) implications of our proposals.

We will consider any consultation responses that raise matters related to EDI. This may result in changes to the proposals or to this statement.

Proposals

The consultation asks for comments on aspects of our proposed inspection system, which we have set out in our draft framework and handbook for the proposed area SEND inspections. The draft framework and handbook set out the criteria against which we will inspect local areas’ arrangements for children and young people with SEND.

The purpose of the framework for area SEND inspections is to support improvement in local areas’ arrangements for children and young people with SEND.

There are 2 types of inspection:

• full inspections of local areas, which evaluate and report on the impact of the area partnership’s strategy and commissioning on the experiences, progress and outcomes of children and young people with SEND

• monitoring inspections, which evaluate progress in local areas where we have identified systemic weaknesses; Ofsted and CQC may also, at their discretion, carry out monitoring inspections where concerns have been identified

Inspections will also consider whether the local authority has an effective strategy and system in place for commissioning alternative provision.

The inspection report will include an overall summary judgement for each local area, as well as:

• the likely timing and type of the next inspection

• recommendations for improvements that the area partnership should act on and the type of action plan required following inspection.

There are 3 possible outcomes for the next inspection activity:

• a full inspection in approximately 5 years

• a full inspection in approximately 3 years

• a monitoring inspection in approximately 18 months, and a full inspection in 3 years

Following an inspection, all areas will be asked to update their strategic planning in response to recommendations made in the inspection report.

Where inspectors identify widespread and/or systemic weaknesses, inspectors will identify areas for priority action and His Majesty’s Chief Inspector (HMCI) will require areas to produce a priority action plan (area SEND) to address these.

In addition to inspections, Ofsted and CQC will also carry out annual engagement conversations. These are meetings between our representatives and the local area partnership to discuss the partnership’s ongoing strategy, and any arising concerns. Following a full inspection, we will also discuss at the annual engagement conversation the recommendations that inspectors made and the area partnership’s action plan to address these.

How the area SEND inspection framework and inspection activity may affect people in terms of protected characteristics

We have considered how the draft framework, handbook and subsequent inspection activity could have an impact on individuals or groups of people with protected characteristics. We have identified that the following protected characteristics are of particular relevance:

• age

• disability

• race

• sex

Children and young people with SEND

We have considered the characteristics of children and young people with SEND, which is the group that the proposed inspection framework will have the most impact on.

When developing the framework, we engaged with a range of stakeholder groups that represent disabled children and young people, including:

• children and young people themselves

• SEND organisations

• academics

Engagement with children and families and those who represent them has enabled us to develop inspection guidance that is informed by the needs and ambitions of children and young people with SEND.

Children and young people with SEND are a varied group. While some special educational needs equate to or co-exist with a disability, others do not. The purpose of the proposed framework for area SEND inspections is to support improvement in the local area arrangements for all children and young people with SEND aged 0 to 25. We anticipate that the inspection activity will have a positive impact on disabled children and young people.

In addition, a child or young person with SEND may have other protected characteristics. The latest Department for Education data from January 2021 about children and young people with SEND highlights that:1

• certain ethnic groups are more likely to have an education, health and care (EHC) plan than others; travellers of Irish heritage have the highest percentage of pupils with an EHC plan at 5.6% and Indian pupils have the lowest percentage of pupils with an EHC plan at 2.3%

• there is a disparity between the sexes: special educational needs (SEN) are identified in more boys than girls; 73.1% of pupils with an EHC plan are boys and 64.2% of pupils receiving SEN support are boys

Research has highlighted that the way some of the protected characteristics intersect with SEND may have an impact on how some groups experience their local area’s SEND system. This includes:

• an ethnic disproportionality in the identification of SEN

• inconsistencies in the identification, help and support available for girls and women with SEND needs such as autism, dyspraxia and attention deficit hyperactivity disorder

How the proposed area SEND inspection framework and inspection activity meet the 3 PSED aims

We also considered how, if at all, the new inspection activity and the associated inspection framework and handbook would satisfy the 3 parts of the PSED.

Eliminating discrimination

The proposed area SEND framework and inspections are intended to support the improvement of local area SEND systems. Inspections will evaluate the impact of the local area partnership’s strategy and commissioning on the experiences, progress and outcomes of children and young people with SEND. As part of this, inspectors will assess the extent to which the local area complies with the relevant legal duties as set out in the Equality Act 2010.

Not all children and young people with SEND have a disability, and they may have multiple protected characteristics. Inspectors will evaluate the extent to which all children and young people with SEND receive consistently high-quality help and support that are appropriate for them. This is likely to have a positive impact on those with the protected characteristics of disability, race, sex, age and gender reassignment.

When developing the proposed framework, we engaged with a range of children and young people with different types of SEND, of different ages, races and both sexes. This collaboration has informed our understanding of the impact of local area SEND arrangements on different groups of children and families.

As a result, we are aware that, to evaluate the impact of the local area’s partnership strategy on children and young people effectively, we need to understand a range of experiences of the local SEND system. To do this, we are proposing to carry out case tracking and case sampling:

• case tracking focuses on individual experiences; it allows inspectors to look at specific children and young people’s experiences and journeys through the SEND system from end to end

• case sampling is where inspectors visit a number of providers and services across education, health and care to gather evidence about the experiences of specific groups of children and young people

When choosing which children and young people to track, inspectors will consider the demographic make-up of the local area. This will include protected characteristics and any contextual issues specific to the local area.

In addition, the parent/carer and young people’s surveys will offer the opportunity for children, young people and families to discuss their experiences of local SEND arrangements. The survey for children and young people will include questions about relevant protected characteristics, and we will monitor responses.

We will consider a range of different experiences of the SEND system through case tracking and hearing from wider groups through case sampling and surveys. This means that the proposed framework should also have a positive impact on children and young people with SEND, including those who are disabled and those who have a range of protected characteristics.

Where inspectors identify critical or systemic weaknesses in a local area, we have proposed to carry out monitoring visits to evaluate progress. These weaknesses could lead to unlawful practice. Therefore, further visits will enable inspectors to check that progress is being made in addressing priorities for improvement.

Advancing equality of opportunity

One of the aims of the proposed area SEND framework is to ensure that local areas are supporting all children and young people with SEND to achieve ambitious educational, health and care outcomes.

The proposed inspection activity will evaluate the extent to which all children and young people receive consistently high-quality help and support that are appropriate for them. In this way, the framework and guidance should ensure that inspection activity focuses on advancing equality of opportunity between children and young people with SEND and their peers.

Our research has indicated that there is a continuing lack of ambition for children and young people with SEND in education. Our 2021 report ‘SEND: old issues, new issues, next steps’ found that their attendance at school remained below the national average, rates of exclusion were high and only a small minority of young people ended up in sustained employment.

The evaluation criteria for the proposed framework reinforces the principle that children and young people with SEND should have access to the same opportunities as their peers. The framework is clear that local areas should support all children and young people with SEND consistently and appropriately to achieve ambitious outcomes.

However, we are mindful of the range of different experiences that children and young people have of their local SEND system. These experiences may also be affected by how some of the protected characteristics intersect with SEND.

Research by the University of Oxford in 2018 found unequal representation of ethnic minorities in special education in England. Black Caribbean pupils and mixed White and Black Caribbean pupils had much higher rates of identification for social, emotional and mental health (SEMH) needs, whereas all Asian groups had substantially lower rates of identification for SEMH needs and autism spectrum disorder compared with White British pupils.2

There is also a disparity between the sexes, with boys more likely to receive SEN support and have an EHC plan compared with girls. Additionally, there are various studies that demonstrate a gender gap in the diagnosis of autism, with men and boys being 3 times more likely to be diagnosed than women and girls.3 There is a further disparity related to alternative provision, as boys make up nearly 75% of the pupils educated in these settings.4

To understand the range of experiences of children and young people with SEND in a local area, we propose to use case tracking, sampling and surveys, as outlined in the previous section.

We will use this evidence to evaluate the extent to which a local area SEND system is providing the right help and support to children and young people with SEND. This should have a positive impact on all children and young people with SEND, including those who are disabled. By seeking a range of different experiences of the SEND system, inspectors will be able to identify where there are weaknesses in services for certain groups to help these services improve.

In addition, we will consider whether the local authority has an effective strategy and system for commissioning alternative provision for all children educated in those providers. This should be of benefit to the children and young people from certain ethnic groups who are more likely to be educated in alternative providers: Black Caribbean, mixed White and Black Caribbean, and Gypsy, Roma and Travellers.5

Fostering good relations

The proposed area SEND inspection framework and handbook will evaluate local areas on whether their strategy and commissioning arrangements support improved experiences and outcomes of children and young people with SEND. To evaluate experiences, inspectors will consider a number of factors, including the expectation that all children and young people with SEND are valued, visible and included in the communities where they live and work.

By carrying out case tracking, case sampling and the survey of children and young people and their parents and carers (as described above), inspectors will be able to hear from a range of voices from different communities.

This will likely have a positive impact on all children and young people with SEND, including those with protected characteristics and specifically those who are disabled.

Consultation, monitoring and evaluation

We consider that we have given full and appropriate consideration to all elements of the PSED. The consultation process on the proposed new arrangements will provide an opportunity for all stakeholders to raise any concerns they may have in relation to EDI.

We may revise this statement, as well as the proposed framework and handbook, in the light of any responses we receive. If we revise it, we will re-publish it with our report on the outcome of the consultation.