Correspondence

SEND Review consultation: YJB response

Published 5 August 2022

Applies to England and Wales

1. SEND review consultation: response by the Youth Justice Board for England and Wales, July 2022

2. The Youth Justice Board for England and Wales^{[footnote 1]}

The YJB is a non-departmental public body (NDPB) with a unique focus on children in the youth justice system. Our statutory responsibilities along with the expertise of our Board enable us to set standards for, and monitor the operation of, the youth justice system. Our work with the youth justice system gives us an operational focus, which allows us to inform national policy and maintain a focus on the continuous performance improvement of the youth justice system. The YJB is the only official body to have oversight of the whole youth justice system and so is uniquely placed to guide and advise on the provision of youth justice services (YJSs).

2.1 Vision

Working to ensure a youth justice system that sees children as children, treats them fairly and helps them to build on their strengths so they can make a constructive contribution to society. This will prevent offending and create safer communities with fewer victims.

2.2 Youth Justice System Aims

Our Board have established the Youth Justice System Aims which are not only for the YJB to work towards but for the youth justice community as a whole. They are:

1. To reduce the number of children entering the youth justice system.
2. To reduce reoffending from children in the youth justice system.
3. To improve the safety and wellbeing of children in the youth justice system.
4. To improve the positive outcomes of children in the youth justice system.

2.3 Our role

The role of the YJB is to oversee the youth justice system in England and Wales. The statutory responsibilities of the YJB include:

• advising the Secretary of State on the operation of, and standards for, the youth justice system
• monitoring the performance of the youth justice system
• identifying and promoting good practice
• commissioning research and publishing information

While the YJB is responsible for monitoring the performance of the youth justice system including community based multi-disciplinary youth justice services, the YJB is not an operational or commissioning body. Youth justice services (YJS) are Youth Offending Teams in statute as specified within the Crime and Disorder Act ^{[footnote 2]}.

3. Introduction

At the YJB we are committed to our over-arching guiding evidence-based principle of Child First^{[footnote 3]} outlined below.

1. Prioritise the best interests of children and recognising their particular needs, capacities, rights and potential. All work is child-focused, developmentally informed, acknowledges structural barriers and meets responsibilities towards children.
2. Promote children’s individual strengths and capacities to develop their pro-social identity for sustainable desistance, leading to safer communities and fewer victims. All work is constructive and future-focused, built on supportive relationships that empower children to fulfil their potential and make positive contributions to society.
3. Encourage children’s active participation, engagement and wider social inclusion. All work is a meaningtul collaboration with children and their carers.
4. Promote a childhood removed from the justice system, using pre-emptive prevention, diversion and minimal intervention. All work minimises criminogenic stigma from contact with the system.

In line with our Child First vision, the YJB wants to make sure that children are not unnecessarily criminalised as a result of their vulnerabilities and the challenges they face. The YJB’s vision is an evidence-based youth justice system that treats children as children and is effective in addressing the issues underpinning offending behaviour, resulting in long term change. As adults, we have a moral responsibility and legal duty to protect children in our society from all harms that might hinder their growth and their ability to realise their potential. If we fail in this responsibility, children will almost inevitably fail to thrive. We welcome the focus on the responsibilities of adults within this guidance.

A Child First approach is needed now, more than ever. The COVID-19 pandemic and the current economic climate is creating challenges for many children and families. As a result of the pandemic, children have been exposed to further hardships, often cumulative in their impact. Schools play a hugely significant role in identifying these potential issues so that support and services can be put into place.

We are particularly interested in this consultation because we know that SEND needs are prevalent in the cohort of children we see in the youth justice system. For example, the YJB/MOJ ‘assessing the needs of sentenced children’ report 2021^{[footnote 4]} highlights 71% of children sentenced between April 2019 and March 2020 had speech, language and communication needs. It also shows that learning and education, training and employment is one of the factors that has the most influence on desistance. These figures indicate the importance of ensuring that children with SEND receive appropriate and effective support whilst in school.

This submission does not seek to answer all of the questions posed by the consultation, rather it focusses on the most pertinent elements relating to children who may also fall into the youth justice cohort.

3.1 Youth Justice Board response

A single national SEND and alternative provision – chapter 2

We agree there is a need for greater consistency in how the needs of children are identified and assessed, and that decisions about support and provision should be made based on the needs of the child. Co-production with the family and with the child themselves is vital. We would support all of the proposals in this chapter.

In relation to establishing new local SEND partnerships the chapter refers to bringing together local education, health and care partners, we would advocate there is consideration on how youth justice partners can be part of or feed into local SEND partnerships. Youth justice services (YJS) will have a not insignificant number of children with SEND needs on their caseloads, and these children will often be some of our most vulnerable children with the most complex needs. YJSs have knowledge and skills in dealing with these children that would support local partnerships and would ensure there is some join up and alignment of services for those vulnerable children. It is vital that YJSs are able to work with local partners to ensure appropriate education, training or employment is in place for their children so join up here would be very welcomed. It would also be helpful to note that there is likely to be learning from the cases of children who are working with YJSs. There may be learning which highlights missed opportunities and where they may have fallen through the net in their history. Using these types of case study gives us rich information on where we might be able to target earlier intervention and prevent children from escalating through services and potentially ending up in the youth justice system.

National SEND standards are helpful for consistency and ensure all partners are clear on expectations. Similarly, children and their families are clear on what is on offer for them and the standard they should receive. Moving away from a ‘local SEND offer’ to a nationally based offer should help offer consistency and reduce the ‘postcode lottery’ that can occur when local areas are all taking different approaches. Again, the chapter expresses the plan to use the national SEND standards across education, health and care, could there be consideration on the inclusion of local youth justice services (or local authority children’s services where YJSs often sit) and the youth secure estate. We would want to ensure that children in contact with the youth justice system, and those in secure establishments, similarly have the national SEND standards applied where appropriate in order that children’s needs are appropriately met. There are times whereby the identification of SEND needs happens at the YJS during the assessment process, or even later in their journey with youth justice professionals or in secure settings, so it is important the same standards are applied in all of these cases. It is also important that YJS professionals are aware of SEND standards in order to play their role in holding partners accountable and advocating on behalf of the children they work with.

We absolutely agree that co-production with children and families is a fundamental principle, one which aligns entirely with our Child First principles and Article 12 of the UNCRC ^{[footnote 5]}. Children should be meaningfully engaged with including on policies and any changes that will impact their lives, with a clear strategy being in place to enable this to happen.at every stage including policy making, points of decision making and any review of support that is in place. We are aware the consultation is open to children and families but would be interested to know whether there have been proactive steps taken to ensure children and families have fed into the SEND review and its proposals. If this is a gap we may be able to support you with engagement with children, and in particular, children with lived experience of SEND and the youth justice system.

The factors we would want to see including in national standards are the timeliness of identification, quality of support and provision, appropriateness of provision in terms of meeting the child’s needs, quality of the offer of education, attendance in groups of children with SEND groups, proportion of exclusion for children with SEND (including repeated short term suspensions), timely EHCP process that ensures children get the support they need without burden on schools and school budgets, value for money, access to health services, meaningful participation, attendance of children with SEND, effectiveness of transition between settings and outcomes/progress for children with SEND.

The proposal on standards sets out that “the national standards will set out the full range of appropriate types of support and placements for meeting different needs. This will include setting out when needs can and should be met effectively in mainstream provision, and the support that should be made ordinarily available in mainstream settings to facilitate this. It will also bring clarity to the circumstances in which a child or young person needs an EHCP, and additionally whether their needs should be met in a specialist setting (including alternative provision).”

Whilst it is helpful to set out some guidance in national standards, we would advocate for a needs-based approach and one which puts the child at the centre of any decision which accounts for the individual needs, wishes of the children and family and offer from the school setting. The appropriateness of mainstream education may differ from child to child even if they have similar needs for several reasons so we would caution against standards being so prescriptive they remove the ability to take an individualistic approach.

Practitioners need to see each child as an individual rather than adopting a process-based approach. Clarity on the circumstances in which and EHCP application would be successful would be helpful, would manage expectations and may help to mitigate the numbers of applications but whether a child needs an EHCP is a judgement for the school, the professionals and the wishes of the family to consider an application. We need to ensure decision making is right so that children are getting the support they need. At the moment the success rate of appeals at tribunal on EHCP decision is 89% ^{[footnote 6]}, this is a real indication there is an issue somewhere with the process or decision making and will cause children and families unnecessary stress and anxiety and prolong the period whereby the child’s needs may not be being met.

The rising number of school exclusions ^{[footnote 7]} is a concern for us in many ways. It removes the protective factor of school and increases the risk of exploitation and offending behaviour; it has a negative impact on the outcomes and life chances of children and is stigmatising and can increase poor behaviours rather than solve them. However, it is also a concern because it increases pressure on specialist settings such as alternative provision and on the funding.

As the joint policy paper published in November 2021 by the Association of Directors of Children’s Services (ADCS), the Association of YOT managers (AYM) and Local Government Association (LGA) ‘A youth justice system that works for children’ ^{[footnote 8]} highlights: “Pursuing a more inclusive education and school’s system would contribute to both prevention and diversion agendas (for youth justice). School is a protective factor and permanent exclusion has been identified as a critical event that can lead to young people becoming vulnerable to criminal exploitation (Child Safeguarding Practice Review Panel, 2020) ^{[footnote 9]}. The rate of fixed term and permanent exclusions are high, as is the prevalence of ‘off-rolling’ and elective home education, meaning children can fall out of sight. This cannot be right given we know the longer term social and financial costs of allowing children to get to the point of exclusion are huge; for many this is the first step on a journey that ultimately ends with social exclusion in adulthood too.”

We believe there should be reform of the alternative provision sector in education with a focus on making exclusion a last resort, improving the quality of alternative provision, ensuring routes back into mainstream education are strengthened and increase accountability on education providers for the destinations of children excluded from mainstream settings and so welcome the focus on this within the SEND review.

The Alliance for Youth Justice (AYJ) in their submission for the Commission for Young Lives call for evidence ^{[footnote 10]} quoted feedback from some of their young advocates (a group of people with experience of the youth justice system supported by AYJ and Leaders Unlocked). They identified education as one of the top 3 issues affecting the lives of children. They conducted peer research with over 120 children examining these issues and the following are direct quotes from children cited in their evidence.

Experiences of school and exclusions:

In mainstream education the worst thing was they didn’t listen. They isolate you and they only give you a few chances. They would punish me but that would make things worse…

Getting kicked out of school is like being pasted onto the roads - it made me hate authority

If I didn’t go to PRU I would put money on it, I would not be in here in prison…I stopped playing football when I went to PRU and I lost my old friends from mainstream and made new ones that were negative influences. You have to fit in with them and put on a front.

It’s vital that alternative and specialist provision meets the needs of children and they provided with the most suitable provision for their needs.

An improvement in standards and practice across alternative provision is needed. However, we should take care that any policy to increase places in alternative provision to meet demand does not have a perverse impact of reducing the incentive to keep children in mainstream education wherever possible.

In a system where we have high stakes accountability for schools for attainment there may be little incentive to work through budget challenges and against expectations on school performance and improve the support for inclusion for children with SEND. Where there is no other choice and where a specialist or alternative provision is in the best interests of the child the offer they receive should be as high quality as their mainstream alternative.

However, unless it is in the best interests of the child for an alternative placement the default should be to remain in mainstream education with the support they need. Where the review suggests that all schools should move to a family of schools in multi-academy trusts we need to take care there is no conflict of interest whereby a trust has alternative provision and children are unnecessarily squeezed out of mainstream schooling, there needs to be regulation that prevents a trust moving children out of mainstream (and ‘off the books’ in terms of data and attainment) and into AP with no checks and balances. We would advocate for high quality alternative provision that works to really meet the needs of children but with the necessary support in place to help the child return to their mainstream placement wherever possible.

Excellent provision from early years to adulthood – chapter 3

Again, we broadly welcome the proposals in this chapter. Increasing funding and using evidence of ‘what works’ to improve provision is welcomed particularly with a focus on early intervention which we believe is the right place to target funding and resource to support children to live positive and constructive lives and avoid potential contact with the youth justice system altogether.

Although not specifically within our area of expertise, we welcome the proposal to assure any teacher appointed to a SENco post is in the process of (or begins straight away) gaining any qualification. At present the buffer period between appointment and needing to complete the current qualification may mean the importance of this role, and the relevant training, are not always given the gravitas it deserves and could lead to SENco’s changing frequently within a school. This is unlikely to help consistency and development of knowledge and skills of how to support children with SEND effectively. It is crucial, however, that all teaching and school staff are skilled in identifying and supporting children with SEND and, as such, you should be assured that ITT and ECT training sufficiently covers this and adequate training is given to support staff. In your chapter your quote figures on the number of SENco’s who feel they have sufficient time for their role with a large percent feeling they do not have enough time to ensure children with EHCPs can access the provision they need. It is crucial that these children have their needs met so you may wish to consider, as part of these proposals, how SENco’s can be given sufficient time within their workload and schools are supported to provide enough time within teaching timetables.

Investment in high needs provision is commended, currently the high needs block funding is inconsistent and stretched so investment in this area is a priority so that the system can work to the best interests of all children.

A reformed and integrated approach to alternative provision – chapter 4

The proposals in this chapter to create a framework for alternative provision with robust standards on progress and re-integration and to offer funding stability to deliver focus on early intervention is very helpful. The focus on increasing places through alternative provision free schools and building system capacity through multi-academy trusts is a key part of ensuring all children have a suitable school place, however, as above needs to come with checks and balances. Delivering evidence-led practice is crucial, it would be helpful to outline some of the evidence behind some of the proposals in the review for the sector and stakeholders including, for example, the evidence around the benefit of all alternative provision being part of multi-academy trust or plans to join or form one. We certainly welcome plans to deliver greater oversight and transparency of pupil movements including placements into and out of alternative provision which helps with the checks and balances as mentioned.

We would want to see that tiered package of support for mainstream schools in place to prevent the need for alternative provision placements wherever possible. We are really pleased to see the following included “children will receive quality support, such as coaching and self-regulation skills, as soon as they need it from skilled practitioners they can trust. They will know that no-one has given up on them and that they will be supported to reach their full potential.” which is very much aligned with our vision for children.

We would agree that the proposals in this chapter, paragraph 8-11, are a step in the right direction to improve outcomes for children. It would be helpful to see more detail on how these proposals will be delivered and what that looks like in practice. Again, we are pleased to see reference to all decisions being in the best interests of the child although are interested in how this might be measured?

Where a child is involved with the youth justice service there may be a role for youth justice practitioners in working with alternative provision and mainstream schools to provide holistic support such as those suggested in this proposal, certainly it will be helpful for them to be joined up. This includes children who are in a secure setting and their case workers.

We absolutely agree with the proposal for multi-year budgets (ideally a minimum of 3 years) which enables strategic longer-term planning.

Delivering change for children and families – chapter 6

We would be pleased to see the proposed publication of a national SEND and alternative provision delivery plan setting out government’s response to this public consultation and how change will be implemented in detail and by whom to deliver better outcomes for children. It would be helpful to also see the planned governance and accountability process to monitor the delivery of the plan via the new national SEND delivery board.

We note the plan to task the SEND and Alternative Provision Directorate within DfE to work with system leaders from across education, health and care and the Department of Health and Social Care to develop the national SEND standards. We would be happy to offer any input from a youth justice perspective or facilitate input from the youth justice sector and also encourage you to engage with relevant colleagues in MoJ and within the Youth Custody Service. Likewise, input as a youth justice partner in the SEND delivery board. There may be an opportunity to align the planned dedicated SEND and Alternative Provision Directorate within DfE which will be aligned with DfE’s new Regions Group with our regional oversight and operations function and the unique soft intelligence this gives us on the performance of youth justice partnerships including health and education partners.

Alignment to the response to the Independent Care Review and the introduction of Integrated Care Boards (ICBs) will be crucial to ensure a coherent response and system moving forward. Bringing partners together in a new national SEND delivery board which holds the system to account and focuses on pace of delivery is likely to make the biggest difference to implementation. The biggest barrier will be ensuring appropriate funding and resource across the sector to deliver these proposals and ensuring coherence with expectations of inspections, accountability and performance in schools so that expectations are clear, and policies are not working against each other and creating confusion or change fatigue in the sector.

Any additional information

The SEND review proposals do not directly reference education in secure settings, however, over two thirds of children in custody have special educational needs ^{[footnote 11]}. These needs are often unrecognised or behaviours mislabelled, and crucially needs unmet. Delivering effective SEND provision in the secure estate is not only difficult because of the environment, but also because the children themselves are more likely to have experienced significant trauma.

Using the SEND code of practice, staff must have the expertise to accurately identify special education needs, without negative labelling. Children in secure settings (and more broadly within YJS) are likely to be experiencing a comorbidity of complex needs; SEMH, autism, ADHD, dyslexia, and many other conditions including the less widely discussed foetal alcohol spectrum disorder, which affects 3-5% of the child population. Identifying needs accurately can help to guide children, their families and practitioners supporting them. Therefore, it is crucial that this cohort of children are not forgotten about with looking at SEND reform.

The Howard League for Penal Reform and IPSEA (Independent Provider of Special Education Advice) recently wrote about the issues with education in the secure estate ^{[footnote 12]}. They found that many children in custody who require EHCPs do not have them and those in place are often poor quality and the support specified within them not provided. They also noted that law and practice around education in custody for children, including those with special educational needs, is not equivalent to that in the community and suggested legal protections and frameworks should be strengthened to ensure that children have the same educational entitlements and provision in custody and in the community. The report also highlights that at present, the rights of children with SEND in custody are watered down, for example, children in custody and their parents can only bring appeals related to SEND in a limited set of circumstances and very rarely bring cases to the First-tier Tribunal (Special Educational Needs and Disability). Rights should be equitable for all children regardless of the setting. We also agree with their findings that more should be done to ensure that children in custody receive their educational entitlements within the existing framework and laws.

We look forward to the first secure school opening, which will offer a fresh approach to sure accommodation which similar to secure children’s homes offers an environment with children’s needs at its heart but perhaps with a greater focus on the enabling power of education. Additionally, that there may be learning from this approach that we can use across the system not exclusive to secure settings to support us to understand ‘what works’, develop practice, and further develop the evidence base.

Working within the system is never an easy task. There is an opportunity for us collectively to build on the good practices that exist and create a new approach for these children. By improving systems and practice, we can help children to overcome the inequalities and hardships they have faced, and support them to create a fulfilling life, free from crime.

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1. YJB Business plan 2022-23 ↩

2. Crime and Disorder Act 1998 (legislation.gov.uk) ↩

3. Case S. and Browning A. (2021) Child First Justice: the research evidence-base Loughborough University. ↩

4. YJB and MOJ (2021) ‘Assessing the needs of sentenced children in the youth justice system 2019/20’ available at experimental-statistics-assessing-needs-sentenced-children-youth-justice-system-2019-20.pdf (publishing.service.gov.uk) ↩

5. UNCRC summary ↩

6. SEND and alternative provision: is policy on the right path? - Education Policy Institute (epi.org.uk) ↩

7. Statistics: exclusions - GOV.UK (www.gov.uk) ↩

8. A Youth Justice System that Works for Children ↩

9. Safeguarding children at risk from criminal exploitation - GOV.UK (www.gov.uk) cited in the ADCS, AYM, LGA policy paper ↩

10. AYJ submission to the Commission on Young Lives ↩

11. Education inside penal detention(howardleague.org) ↩

12. Education inside penal detention(howardleague.org) ↩