When it comes to SEND support, it's quality that matters. Does banding offer a fresh approach?

15 August 2016 by Rob Webster

Colleagues and I recently completed the fieldwork stage of a major new project. As part of our SEN in Secondary Education (SENSE) study, we tracked 60 pupils in Year 9 who had either a Statement of SEN or an Education, Health and Care Plan (EHCP) in order to build a picture of their day-to-day experiences of school.

The SENSE study follows on from our 2012 Making a Statement (MAST) study, which provided an insight into the educational experiences of 48 pupils with Statements in mainstream primary schools. One of key findings to emerge from the MAST study concerned what we called the 'currency' of Statements. We found that a set number of hours of TA support could get in the way of schools thinking through appropriate pedagogies and alternative or complementary options for pupils with pronounced learning difficulties.

We’re currently in the analysis phase of the SENSE study and we’ll report the results in 2017. One thing we’ll be interested to see is to what extent the currency of TA hours persists, and if so, whether similar issues are evident in secondary school settings as well as primary. The 2014 SEND reforms were supposed to do away with hours, and instead focus on outcomes. However, the early signs are that the language of hours is residual within the system. It remains, it seems, an immutable part of the SEND discourse.

One example of why hours have been resistant to change comes via a blog by Ed Duff, from the specialist SEND solicitors, Boyes Turner. Given the eye-popping revelations about another SEN solicitor earlier this year, Boyes Turner mark themselves out as one of the more expert and reputable firms acting on behalf of children and young people with SEND and their families. What Ed and his colleagues have to say on SEND matters is well informed and always worth reading.

The blog attempts to clarify the law on the specification and quantification of support in EHCPs. It was prompted by a flyer from a local authority (LA) informing parents of a proposal to use bands of funding, rather than set hours of TA support. Ed draws on his extensive experience of systems used elsewhere to illustrate what the LA might be proposing. He gives the following example:

  • Band A = 0–5 hours per week
  • Band B = 5–10 hours per week
  • Band C = 10–15 hours per week
  • Band D = 15–20 hours per week
  • Band E = 15–20 hours per week
  • Band F = 20–25 hours per week.

Ed goes on to explain why banding could be problematic with respect to the law. Referring to bands, rather than x number of hours, means parents would not be able to appeal to tribunal if these definitions changed:

“…what happens if the policy is changed? It may be that the local authority’s policy for 2015 is that Band C caters for up to 15 hours of support. What happens if, in 2016, the policy changes Band C so that it provides for only 2 hours of support?”

Ed’s central point is that the nature of banding “is unlikely to be lawful” because it works against the stipulation within the SEND Code of Practice that states:

“Provision must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise, including where this support is secured through a Personal Budget”. [Paragraph 9.69]

So why is this worthy of further comment? Before I go any further, I should point out that I’m not arguing for either a diminution legal protections or against Ed’s interpretation of the Code of Practice. What I’m challenging is the desirability for precise quantifications of support in EHCPs in terms of an exact number of hours, and particularly where hours are expressed as (or converted into) TA time.

I suspect much of the wariness towards banding is rooted in concerns that it’s little more than a cost-saving measure. However, assuming the potential problem of definitions Ed highlights can be guarded against, I think banding could be a more fruitful way of allowing schools to be more effective in how they meet the needs of children and young people with SEND. I’ll return to this at the end of this blog, but first, it’s worth setting out the two main problems with high specificity and exact quantifications of support underpinning current arrangements.

Firstly, auditing the operationalisation of a Statement/EHCP in terms of the ‘type, hours and frequency of support’ is far from straightforward. There is (to my knowledge) no secure method for verifying this much beyond what we found in the MAST study. We interviewed nearly 200 SENCos, teachers, TAs and parents, and when we asked how they assessed the extent to which the provision listed on the Statement matched the provision pupils actually received, very few offered an answer much beyond, “He gets his hours”. So the main indicator was not the support itself, but whether schools employed TAs on contracts that covered the hours on the Statement.

In fact, one of our early objectives in the MAST study was to try and establish whether pupils received the number of hours of support on their Statement and what this looked this. While we achieved the second aim (you can read the results here and here), finding a conceptually rigorous and fine-grained way of tabulating support time-wise was problematic. What counts as ‘support’? Is it when a TA interacts with a pupil, and vice versa? Does it always have to be on a one-to-one basis? What if they’re talking about last night’s football, and not the task at hand? How proximal does a TA need to be to a child for it to qualify as support? Sat next to them? Not next to them, but nearby? How nearby? What if the child is in a group with a TA, but the TA is interacting with another pupil? Does that count as TA support? What if the child is not supported by an adult because they need to be either alone in order to develop independence, or with peers in order to practise their teamwork skills?

How could we be sure our version of ‘support’ would be valid and consistent with that of SENCos, teachers, TAs, parents and even the pupils? And how do we ensure that we get good inter-rater reliability across a high number of observers for such a high inference category? In other words, how can we be certain that we all agree what support looks like when we see?

To some, this may seem a bit fussy, but it’s an essential part of good empirical research. In the end, we concluded that if we couldn't do it well, it was better not to do it at all. So, the portrait of classroom life we eventually painted with the quantitative data from the MAST study is made using fairly broad brushstrokes. Expect the same when the SENSE study reports.

Conceptualising and itemising occurrences of support is far from a crunchy problem to keep researchers busy. I experienced very similar difficulties in pinning down the nature of support when I worked as a SEN Officer in an LA. For me, this begs a question about how effectively data can be produced to rigorously challenge an LA over the provision a pupil receives under Paragraph 9.69. The ‘he gets his hours’ defence seems insufficient to the task.

The key point here is that discussions about the provision for children and young people with SEND, framed within the context of a SENDIST tribunal, do not interact well with discussions about provision in the context of the school. Put another way, the rigid legal form (important though it is) gets in the way of discussing, agreeing and doing the things that really make a difference for pupils, day-by-day, moment-by-moment in the classroom.

The second reason we should be cautious about precise quantifications of support relates to the risks inherent in what I call the “Statement = hours = TA = one-to-one support = pupil’s needs met” equation. Bolstered by the law, this – in many ways, common-sense – equation seems to underpin and sustain practice in mainstream settings. Yet, analysis of hard-won research data collected by colleagues and I show the consequences of arrangements whereby TAs take on the role of primary educator for those with SEND: pupils spend less time in class, have less time with the teacher, and have fewer opportunities to interact with their peers. Put this way, it’s perhaps not surprising that our large-scale study of school support staff found these factors were a big part of the explanation for why pupils who received the highest amounts of TA support – essentially those with SEND – made less academic progress compared with those who received little or no TA support. Crucially, as myself and others have argued, it’s completely false to see TAs as the ‘problem’ within this set-up.

I suggest we have reason enough to seriously rethink how we construct provision for pupils with SEND. We need to blend alternative provisions and pedagogies with more effective TA support. In fact, the final MAST study report (which was published as the government was drafting the new SEND reforms) recommended replacing the currency of hours with a more rigorous specification of specialist teaching and strategies to meet carefully defined outcomes; chiming, therefore, with the SEND Code of Practice's general direction of travel.

For me, the tweet-length, take-home message from the research evidence is this: the quality of support is more important than the quantity. We’re mistaken if we believe that easily auditable proxy measures, such as TAs’ hours of work, are sufficient for holding schools and LAs to account for the provision recorded on Statements and EHCPs.

Coming back to the Boyes Turner blog then, what is the case for banded hours? Ed says:

“the point of an EHCP is to let the reader now exactly what support is required. Any uncertainty is not only unhelpful, it is unlawful”.

My argument from an educational perspective is that a sliding scale of hours permits schools flexibility when it comes to operationalising provision and trialling new ways of working. It's helpful insofar as it's more responsive to pupils’ individual needs and development than a fixed number of hours, which school feel duty-bound to fulfil and can result in unintended consequences. I’ve witnessed over and over how schools fall into a kind of ‘locked-in’ thinking in relation to support for those with Statements/EHCPs: the documentation says 25 hours of TA support, therefore a TA must be with the child for 25 hours, come what may.

Properly implemented, banding could enable schools to use EHCP hours more creatively. For example, teachers could deploy TAs to work with other pupils while they spend time with individuals or small groups with high level SEND; release staff for essential training connected to a pupil’s needs, to prepare resources for them, or for teachers and TAs to plan and discuss. We think of this as examples of indirect support. Specialist support and interventions could be more easily dialled up or down, so pupils are not separated from the classroom any longer than necessary. Banding allows support (direct and indirect) to be adjusted depending on immediate need, the complexity of the task, the skills to be practised, and the level of teaching or subject knowledge expertise required to secure understanding and progress.

Indeed, it’s worth noting that documentation on the website of the LA referred to in the Boyes Turner blog suggests similar progressive thinking is behind the proposal to introduce banding:

“The aim of banding is [to] take away discussion of Hours... It is also intended to give School/Academy Settings more freedom to meet the child/young person’s need in a range of ways, rather than only providing hours of TA support”.

I write as a researcher and practitioner who is au fiat with the contemporary issues within the field, but admittedly without the inside-out knowledge of the law. Therefore, I will happily give way to legal experts, like Ed, who would correct me if my interpretations are way off beam.

In the last few months, the issue of SEND law has received unprecedented - and perhaps overdue - media attention. It’s clear that despite the SEND reforms, there remain deep issues that require urgent attention, ranging from the procedural to the cultural. For me, the debate is incomplete without a discussion of the unresolved tensions and alignment between the legal processes of the courtroom and the pedagogical processes of the classroom.