Ofsted’s planned inspection of inclusion should be strengthened so it examines whether schools are meeting their legal duties towards children with special educational needs and disabilities (SEND), MPs have been told.

The Commons Education Select Committee held a session today on how SEND services should be held to account as part of its ongoing inquiry into solving the SEND support crisis.

Ofsted is planning to make inclusion one of the evaluation areas that it measures schools on when it launches new inspections later this year.

However, legal experts on SEND have called for the watchdog’s plans to be strengthened to ensure they hold schools to account on inclusion.

SEND: Ofsted inspecting inclusion

Georgina Downard, a senior solicitor for the SEND charity IPSEA, said Ofsted should use its planned new inspection framework “to assess the extent to which settings and schools are complying with their existing legal duties to be inclusive”.

Ofsted has just closed a consultation on its plans to create inspection report cards and inspect schools across at least nine evaluation areas. It has also produced toolkits showing how inspectors would make judgements in each area.

Ms Downard told MPs today that Ofsted’s toolkit does not mention schools’ legal duties.

“The inspection toolkit that’s being consulted on refers to the SEND code of practice, but that’s not the same as primary legal duties, and there are a couple of those duties that, in our experience, are frequently being breached. This could be the accountability mechanism to help avoid that,” she said.

Ms Downard told the committee that, under the Children and Families Act, mainstream schools have a duty to include children with SEND in activities of the school with children who do not have those needs.

And she added: “We know from calls to our helplines that it’s not happening and that children with SEND are frequently excluded from the activities of the school; things like clubs and school trips and even from the classroom itself.”

Ms Downard highlighted examples of pupils being directed off-site or excluded “for behaviour that’s arisen due to unmet needs or disability”, or even being placed full-time in a special resource provision or SEN unit.

She told the committee that the inspection framework could be strengthened so that legal duties and familiarity and compliance with the Equality Act are looked at during inspections.

Ms Downard said this could ensure that schools are understanding and do not treat pupils “unfavourably because of their disability or something arising from disability” and have a willingness to make reasonable adjustments.

Tes revealed last year that inclusion was set to be a focus of Ofsted inspections.

Area inspections highlight inconsistency

During the evidence session, Ms Downard also said that SEND area inspections, carried out by Ofsted and the Care Quality Commission, should look at whether local authorities are complying with the law.

Adam Sproston, Ofsted’s senior HMI for SEND and alternative provision, told MPs on the committee that, of the 64 local authority areas inspected, less than quarter had received the top rating. He said just 23 per cent of these areas have arrangements in place that typically lead to positive experiences for children and young people with SEND.

Around half of the areas inspected have arrangements that lead to inconsistent experiences for children and young people with SEND, and around a third were given the lowest rating of having widespread and systemic failings.

Ombudsman wants power to investigate

The committee also heard calls for the Local Government and Social Care Ombudsman (LGSCO) to be given the power to investigate SEND support issues in schools.

Sharon Chappell, assistant ombudsman for the LGSCO, said the accountability system should be strengthened by giving the body jurisdiction over maintained schools, academies and free schools.

She said that the LGSCO has repeatedly asked government for this.

“We also have asked for jurisdiction for admissions and exclusions. And in doing so, we’re very conscious that children and young people with SEND are disproportionately affected in terms of admission arrangements and expulsions,” Ms Chappell said.

She explained that currently the LGSCO can look holistically at issues but “only through the lens of the local authority”. “We have to stop at the school gates,” she added.

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