Catriona Moore, policy manager at SEND legal advice charity IPSEA, looks at the impact of safety valve agreements on local SEND provision.

The Government’s safety valve programme aims to reform local high needs systems in order to improve provision for children and young people with SEND within the constraints of available funding. Is this possible? Can local authorities fulfil the conditions set out in their safety valve agreements without breaching their statutory duties to children and young people with SEND?

The steady rise in appeals to the SEND Tribunal, and the high rate of unlawful decision-making evidenced by the overwhelming number of appeals upheld by the Tribunal, suggests that local authorities do not always prioritise compliance with the law. So how are they making sure that children and young people have their needs identified and met as the law requires?

To understand more about what local authorities have agreed to do, and to understand the likely impact on children and young people, we made requests under the Freedom of Information Act in October 2023 to each local authority with a safety valve agreement. We wanted to find out whether targets existed to limit special educational provision.

From information set out in Dedicated Schools Grant management plans, safety valve monitoring reports, lists of key performance indicators and minutes of Schools Forum meetings, we identified some common themes.

Across the board, local authorities with a safety valve agreement are intent on reducing the number of children and young people who receive specialist support. The aim is to improve their finances by ‘managing demand’ for Education, Health and Care (EHC) plans, expecting more children and young people with EHC plans to attend local mainstream schools and colleges, and reducing expenditure on children and young people with the most complex needs.

Local authorities report that they have targets for ‘de-escalating’ requests for EHC needs assessment. Some make clear that they consider requests for assessment made by parents/carers to be generally ‘inappropriate’ and they wish to deter these, even though most appeals against a local authority’s refusal to assess are upheld by the SEND Tribunal.

We see some local authorities implementing alternatives to the EHC needs assessment pathway – a potentially concerning development if these alternatives bypass the statutory process, including the right to appeal.

One local authority has a candid table setting out ‘safety valve conditions’ alongside a description of ‘what this really means’. In this table, one of the conditions is ‘improving decision-making on awarding EHC plans’ and ‘what this really means’ is ‘increasing the number of times local authorities refuse to carry out an EHC needs assessment or issue a plan’. Not surprising as an approach, but slightly startling to see it spelled out in black and white. The assumption is not that children and young people may actually need special educational provision and support, but that numbers have to be reduced by any means necessary.

Ceasing to maintain existing EHC plans is an explicit priority in a number of local authorities, with targets for increasing the number of plans they cease to maintain each year. Some have dedicated teams in place to focus on ceasing young people’s EHC plans once they reach the age of 16. It may well be the case, of course, that individual young people’s needs can be met without an EHC plan, or they no longer wish to engage in education or training, or they have moved onto higher education or into employment. But most safety valve monitoring reports talk only about numbers and make little reference to the needs or wellbeing of children and young people.

The focus on reductions in expenditure rather than the needs of children and young people with SEND is a huge cause for concern. It’s hard to see how the Department for Education (DfE) can be certain that children and young people aren’t missing out on provision they need and are entitled to, as there seems to be no quantifiable way of checking. Reporting to DfE is focused on financial targets and not on children and young people’s outcomes.

The aim of the safety valve programme is a reduction in costs, but the effect appears to be a reduction in SEND provision, potentially putting children and young people’s education and wellbeing at risk. Given that the law remains unchanged, the safety valve programme may expose more local authorities to more legal challenges than ever before.