Introduction
Particular dilemmas are posed for schools when different central government policy initiatives in the area of special needs appear, in practice, to be at variance with one another. For example, since the 1988 Education Reform Act market-oriented practices such as comparison and competition between schools have been increasingly encouraged. These practices at best promote the individualisation of difficulties in learning with an emphasis on attraction of additional resources to support individually-defined learning needs. At worst they may operate to squeeze some pupils out of mainstream schools altogether. It is obvious that a market-orientation in the education system cannot sit comfortably with the policy of moving towards an inclusive approach as expressed in the Green Paper (DfEE, 1997) and in the 'inclusion' sections of Curriculum 2000 (QCA, 2000).
A difficult problem is created for practitioners in the area of special educational needs with the promotion of school 'improvement' through market-oriented practices which view the parent of a pupil identified as 'having special educational needs' as a consumer with the right of free choice. At variance with this notion of the parent-consumer is that of teacher-as-professional in the special education industry where the dominant view of pupils' difficulties remains 'medical' and the teacher's role is to make and implement informed decisions about 'treatment' based on knowledge and experience. One example of policy-conflict in practice lies in implementing the guidance in the Code of Practice on the identification and assessment of special educational needs (DfE, 1994) regarding the maintenance of a school Register of Special Needs. To date (January, 2001) this Code is still in force. Although the Code has the status of guidance only maintaining a Register appears to be taken as a given. For this reason it is especially problematic that no advice is given to elicit parental consent to the inclusion of children in the Register as would be expected of a consumer-with-free-choice model. In addition, no account seems to have been taken of the fact that parents might have very good reasons for not wishing their child's name to be recorded on a Register and, if so, what the consequences should be.
Parents as consumers in the area of special educational needs
Under the terms of the Education Acts of 1981 and 1993 (now subsumed into the 1996 Act), maintained schools are under a statutory obligation to 'use their best endeavours to make provision for pupils with special educational needs' (DfE, 1994). The 1988 Education Reform Act heralded a change of direction in education towards a more clearly market-oriented approach. From a market-oriented perspective both pupils identified as 'having special educational needs' and their parents may be viewed as consumers of the special provision made statutory by the 1981 and 1993 (now 1996) Acts. The main features of the 1988 Act which affected the area of special educational needs were the introduction of the National Curriculum, local management of schools, Grant Maintained Status and open enrolment in schools. Garner (2000) notes that, since that time, an 'increasingly inspection-, evaluation- and performance-led approach to education has led to far greater accountability than ever before in the history of education'.
After 1988 a number of mechnisms to bring about greater accountability to parents of pupils with difficulties in learning were incorporated into the system and given status which may be either statutory or advisory. For example, a document first published in 1992 by the Department for Education in the 'Citizen's Charter' series: Children with special needs. A guide for parents, supported the rights of parents to be involved in decisions about their children's education. One innovative feature of the 1993 Act in relation to the rights of parents is its introduction of a legal system of appeal against the decisions of LEAs. Parents were given legal remedies against injustices to their children in the identification and assessment process. The 1994 Code of Practice was introduced partly as a shared text to guide tribunal practice. Following the model of industrial tribunals, the appeals panels organized by LEAs to hear complaints from parents who contested statements of special education needs were replaced by 'independent' tribunals chaired by lawyers (Booth et al, 1996). This strengthened the legal powers of parents, since schools are now legally required to treat them as partners. Additionally, the duties of the school governing board have been framed in the language of accountability. Under the terms of Part 1V of the 1996 Education Act, governors must:
Status of parent partnership in the Code Much has already been said about the status of the Code of Practice (DfE, 1994), to which schools must 'have regard', (Foreword to the Code, para 6). Prior to the Code's implementation, Lady Blatch commented that schools can make provision in an alternative fashion than that outlined by the Code providing that the results produced are 'at least as beneficial' as those which would have resulted from implementing the Code (Hansard, April 29,1993). Subsequently, in February 1994 Eric Forth, Junior Minister in the Department for Education stated (ACE, 1994):
... schools must of course follow the aims and objectives of the Code, but will be free to manage their 'systems' as it suits them to do so.
Even though, by law, the Code has the status of guidance only, OFSTED has, however, produced review reports (OFSTED, 1996; 1997) evaluating its implementation. The implication of this evaluation by a government inspectorial body is that the Code, together with its guidance on parent partnerships, has become an overt component of central policy in the area of special educational needs (Garner, 2000).
One clearly stated intention of the Code is that parents are to be full partners in the process of the education of their children with Special Needs. Paragraph 2:28 states:
Children's progress will be diminished if their parents are not seen as partners in the educational process with unique knowledge and information to impart. Professional help can seldom be wholly effective unless it builds upon parents' capacity to be involved and unless parents consider that professionals take account of what they say and treat their views and anxieties as intrinsically important.
The Code (paragraphs 2.28-2.32) clearly acknowledges the importance of effective and positive working relationships with parents. Teachers are enjoined to 'take account of the wishes, feelings and knowledge of parents at all stages' of the 'carefully planned and recorded actions' (op cit. para 2.28) taken in response to a child's difficulties. In theory, therefore, reference to partnership with parents in the Code can be seen to reflect the notion of promoting consumers' rights and entitlements, and consumer choice.
Status of the school Register of Special Educational Needs
Theoretically the drawing up of an SEN Register in a school has the status of a recommendation only. Paragraph 2:25 of the Code advises:
Schools should keep a register of all children with special educational needs ... The school's SEN coordinator should have responsibility for ensuring that the register and records are properly kept and available as needed.
And, interestingly, a reason is given for keeping records:
Records at each stage will inform the school's approach at the next.
(Para 2:25)
However, no reason is given for the Register. Further reference is made to a Register in specific guidance given on the role of the SEN coordinator:
In all mainstream schools a designated teacher should be responsible for (amongst other duties): ... maintaining the school's SEN register ... (Paragraph 2.14)
Circular 6/94 elaborated on Schedule 1.3 of the Education (Special Educational Needs) (Information) Regulations (1994) and read (para 32):
... the Code 'advises' that a designated teacher should be responsible for '... maintaining the school's SEN Register.'
Despite these recommendations, it would appear that, from the Code's implementation, maintaining a school Register of Special Educational Needs has often been assumed to have the force of a requirement. For example, Section 3.1 of Form 7, the annual census form issued to schools by the Department for Education, required that schools should supply numbers of pupils with Special Needs, both with and without Statements, from information on the school's SEN Register. The instructions for completion of this form read:
The Code of Practice ... which states that maintained schools should keep a register of such children, presents a five-stage model for children with SEN ...
For the purpose of Form 7, however, the only distinction required is between pupils with statements and the other pupils without statements ... In Column B include pupils on the school's SEN Register who have been identified as having SEN but who do not have a statement ... For each age band in section 3.1 enter ... the number of pupils with special educational needs.
(SECTION 3: PUPILS WITH SPECIAL EDUCATIONAL NEEDS - Identifying children with special educational needs, no. 17)
The descriptor of pupils with difficulties as 'registered', in frequent use since 1994, has added further weight to the perception of the Register as a requirement. For example, Circular 6/94, 88 read:
The governing body ... are responsible for ensuring that special educational provision is made for their registered pupils with SEN.
Some publications have adopted the same terminology. For example, 'The Head's Legal Guide' (1995) advised schools that when implementing the Code from Stage 1 onwards, the SENCO: ' ... must register a child's Special Educational Need.' Some Local Education Authorities have sent out documentation to schools with the assumption that all schools kept a Register. For example a document in use at the time of the research discussed here was Bedfordshire Local Education Authority's Form SEN/REG: 'Special Educational Needs Register: Children at Stage 3 of assessment'. Computer software has been advertised widely to help to reduce the bureaucratic demands made on Special Needs Coordinators by keeping a record of their 'registered' pupils on electronic file.
Parents and the Register
In the Spring of 1995, the Head of a Learning Support Department at a mainstream urban upper school in a prosperous market town in an East Midlands county in England proposed to establish a Register of Special Needs as part of her plan to implement the recommendations of the Code of Practice in her school. Some members of staff were concerned about issues of confidentiality, stigma, labelling. categorisation and segregation. Some, additionally, were concerned about the reactions of parents to this proposal and expressed their fear that parents might be very unhappy about this. Consequently, the Head of a Learning Support Department sent a letter out to a random cross-section of 42 parents of pupils identified as having Special Needs from Stages 1 to 5 were contacted by letter. This letter requested their reactions to the proposed inclusion of their children's names on the new SEN Register and read:
In September 1994, The Government introduced a new Code of Practice for Special Educational Needs into schools. One of the proposals for the purpose of record keeping and monitoring pupils' progress is that each school should maintain a register on which is entered the name of every child with Special Needs.
However, prior to drawing up any official register at XXX (school) we would first like to ascertain whether parents would have any concern about their children's names being included on such a document.
I would therefore be grateful if you could fill in and return the slip below, adding any additional comments as you see fit.
Return slip:
I have no objection to my child's name being included on the Special Needs Register/
I do not wish my child's name to be included on the Special Needs Register because:
(Wearmouth, 1996)
Parents' views of the Register
Twenty-seven of the forty-two parents who had been contacted replied to the letter. Out of these, sixteen parents said that they had no objections to their child's name being included on an SEN Register, nine said that they would not wish this to happen, and two signed the slip at the bottom of the form to indicate that they had received the letter, but did not disclose their feelings.
Out of the sixteen parents with no objections, some added comments:
It will guarantee my son the necessary extra resources.
I think it is a shame that children can go through Lower School and Middle School without any special needs being given and have to wait until XXX School for anything to be done - as is the case with my son.
I have no objection as long as A. is not singled out in any way. At the moment he is happy to do his extra (literacy/curriculum support) lessons and is not made to feel inferior or stupid where friends are concerned. I mention this because this is how he was made to feel at lower school. He was always being told he was lazy and stupid and that when he got to middle school they would send him back to lower school. Of course this didn't happen but we had a dreadful 6 weeks with a child who, according to the doctors, was having what would be classed as a nervous breakdown in an adult. I wouldn't want to have to cope with this again.
Please inform us of the degree of R's Special Needs.
I think this is a very good idea, it is a shame that it has not been done before because I think G. would have benefited from it.
Thank you for the help Special Needs teachers have given C. It is very important that these teachers are employed to help teachers with learning difficulties.
(Wearmouth, op cit)
The nine parents with objections comprised 33% of those who responded. Their comments read as follows:
Discussion
Parents have considerable power to influence the organisation of a school, especially when supported by the force of law. Parent power in action can be illustrated by the way in which teachers at 'Downland', a secondary school attempting to adopt a whole-school approach to pupil learning, were forced to re-structure its overall curriculum response to meeting the diversity of pupil learning needs (Clark, Dyson, Millward and Skidmore, 1997):
In Downland there were a number of pupils with statements of special educational needs, largely for specific learning difficulties. These statements had included reference to individual non-specialist support.
This was at odds with the ethos of inclusion and non-withdrawal from the mainstream classroom. Initially, the response of the school had been to provide non-specialist support in the context of the classroom, but this had been challenged by the parents of the statemented pupils who demanded that the requirements of the statement were fulfilled. The response of the school was to set up an alternative system in which the statemented pupils were to become the responsibility of a former member of the girls' school and to receive the 'entitlement' of their statement through her specialist teaching ... The solution was in effect to 'hive off' a small sub-group of pupils ... .
(Clark, Dyson, Millward and Skidmore, 1997, p. 65)
The exercise of power by parents-as-consumers, however, depends upon a number of factors. Gross (1996) comments that exercising rights requires a high level of motivation and determination as well as, sometimes, access to legal representation and financial resources. The inevitable consequence of this is that some parents will be better able to exercise their rights than others. It is clearly the case that some parents/carers are unable, or unwilling, to support the progress of their child through school. However, the sine qua non of exercising parental power is that parents should know and be given a choice about provision for their children. This includes the practice of recording children's names on a school Register. Lady Blatch (op cit) has asserted that the Code is part of a 'system which protects the children with special needs' and 'gives new rights to parents'. However, nowhere is there any official guidance to obtain parents' consent to the inclusion of their child's name on a Register whose confidentiality is not guaranteed, readership is unknown, purpose is unspecified in the Code, and, importantly to the parent-as-consumer, is not mentioned at all in the Parent's Guide. It is difficult to see how a school Register of Special Needs, open to view 'and available as needed' to anyone who can claim a legitimate purpose can give parents 'new rights' especially when they may know nothing about it.
The parents in the current study, as consumers and users of the system, when asked, held clear views about the use of a school special needs Register. The comments of the parents with no objections to it in part reflected opinions about the quality of the provision currently made for their child. In part they also revealed a perception that the registration of the needs of their child on an official document would act as a 'guarantee' of continuing extra provision. Clearly they were anticipating that such a Register would have an obviously positive function for their children. Additionally, one parent had used the opportunity to ask for further clarification about the naturs of her son's difficulties in learning. Between them, the comments of the parents with objections summarised all the concerns previously expressed by the staff themselves: issues of confidentiality, stigma, labelling. categorisation and segregation.
This particular school now found itself in a dilemma as the staff considered what to do next. On the one hand central government moves towards a market-orientation in educational provision promoted the view of parent-as-consumer with an entitlement to choice and to express personal views. Some parents had expressed very strong objections to the implementation of official guidance to maintain a Register of special educational needs. Some parents had raised no concerns. On the other hand use of a school Register had the status of official guidance. The way in which the school organised its privision would be subject to OFSTED inspection procedures. Any deviation from recommended practice would have to be shown to be at least as good. The solution reached in this school was not to keep a Register, but to set out clearly the forms of provision which necessitated higher levels of resourcing. Then lists of the pupils in each group for which special provision were published in the same way as lists of pupils in option groups. The Head of Learning Support knew that this left open the question of how the solution would be judged in any forthcoming OFSTED inspection.
The future:
i) parents as partners
The area of special educational needs, as noted for example by Norwich (1996), Dyson (1997) and Mittler (1999) is characterised by contradictions and tensions which often relate to principles of individuality and sameness, inclusion and separateness. There is often a large discrepancy between what is perceived as fair and necessary by different groups of parents and between parents or carers and the school and/or the local education authority. The extent to which competing or conflicting voices of parents-as consumers can be reconciled within the walls of one school is questionable. Since the introduction of the 1994 Code of Practice which, to date, is still current, there has been an assumption of the school Register as good practice, without recourse to parental opinion. In this situation, assuming an unproblematic view of parent-as-consumer with a right of free choice is bound to be fraught with difficulties. For example, since 1994 a number of concerns have been expressed about the working of the Code of Practice and its associated practices. One serious issue is the degree to which the increasingly market-orientation of special educational provision in schools has generated antagonism between home and school in some circumstances. The new arrangements have been described as:
… too litigious. The process has enhanced the adversarial nature of the process and polarised the positions of parents against LEAs and the school.
(Booth et al, 1996)
A revised Code of Practice is proposed for the year 2001 to take account of some of these concerns about the operation of the 1994 Code. In a document entitled The SEN Code of Practice and Associated Legislation - proposed changes and areas for revision (DfEE, 1999) the DfEE has indicated its intention to 'expand' the guidance given on a number of topics and 'revise' the Code in certain respects to take account of particular issues. Among the topics on which it is proposed to offer expanded guidance are arrangements for conciliation between home and the education service. It is also proposed in the DfEE (1999) document that the revised Code will offer guidance on a number of areas, among which is the 'Parent Partnership Service': the government expects 'Independent Parental Supporters' to provide 'a similar service to parents as that offered at present by Named Persons'. Advice will be offered on the role and functions of local parent partnership services.
Among the 'Critical Success Factors' listed in the new Draft Code (DfEE, 2000) due to take effect later in 2001 is that
(Para 1.4)
Section 2.1 of the new Draft Code sets out some principles for the development of this partnership:
All parents of children with special educational needs should feel they are treated as partners, able and empowered to:
However, as noted above, the national perspective on education has a market orientation. In this context, the model of special educational provision is that of a commodity and the model of the parent is as consumer. Given the controversial nature of the field of special educational needs and the continuing existance of the tribunal appeals procedure, one can only question the likely success of any conciliation process.
ii) the fate of the Register
As noted above, a number of references to the Register are embedded in the current system, for example through the OFSTED inspection procedure, in computer programmes, in past copies of The Head's Legal Guide, and in Form 7. The guidance given to maintain a school Register has been removed from the new draft Code. It is debatable, however, whether and how quickly the practice of maintaining a Register will disappear. It will be interesting to note whether parents are consulted about how records are kept of the difficulties experienced by their children and the programmes planned to address their learning needs.
Conclusion
One of the major challenges facing those with responsibilities in the area of special educational provision in schools is that of engaging with the perspectives of the users of the system, including parents and carers, in a positive and meaningful way. Throughout the 1980s and 1990s there has been a series of initiatives designed to support parents in exercising their rights as consumers. At the same time use of the school Register as a 'given' has become embedded into various points in the system. The guidance given to schools in the 1994 Code of Practice to maintain a Register of Special Educational Needs appears to be at variance with the notion of parent-as-consumer in the current market-oriented context. At the time of writing (January, 2001), this Code is still in use. In the draft revised Code of Practice due to be implemented later in 2001 all reference to the Register has disappeared. As Wedell (1995) notes:
The procedures of the Code clearly only have value in so far as they make it easier to carry out the process of good practice.
We will have to wait to see how long it takes before the practice of maintaining Registers disappears from the system.
References
ADVISORY CENTRE FOR EDUCATION (1994) Draft Code of Practice - ACE response. ACE Bulletin, 57
BEDFORDSHIRE LOCAL EDUCATION AUTHORITY, Special Educational Needs Register 1995/6: Children at Stage 3 of assessment', Form SEN/REG
BOOTH, T., SIMMONS, K. & WEARMOUTH, J. (1996) 'How should we react to government policies? Responding to the Code of Practice', in E829 Developing Inclusive Curricula, Milton Keynes: Open University
DEPARTMENT FOR EDUCATION (1994-5) Schools' Census 1994-5, Form 7
DEPARTMENT FOR EDUCATION (1994) Code of Practice on the Identification and Assessment of Special Educational Needs, DfE: London
DEPARTMENT FOR EDUCATION (1994) The Organisation of Special Educational Provision, Circular 6/94, DfE: London
DEPARTMENT OF EDUCATION AND SCIENCE (1992) Parent's Charter: Children with special needs, DfE: London
DYSON, A. (1997) 'Social and educational disadvantage: Reconnecting special needs education', British Journal of Special Education, 24(4)
GARNER, P. (2000) 'What's the weight of a badger?' in E831 Developing inclusive curricula, Milton Keynes, Open University
HOUSE OF LORDS PARLIAMENTARY DEBATES, (April 29th, 1993) Weekly Hansard , No. 1563, London: HMSO
MITTLER, P. (1999) 'Equal opportunities - for whom?' British Journal of Special Education, 26(1)
NORWICH, B. (1996) Special Needs Education, Inclusive Education or Just Education for All? London: Institute of Education, University of London
QUALIFICATIONS AND CURRICULUM AUTHORITY (2000) Curriculum 2000, London: QCA The Head's Legal Guide, 1995, Cromer Publishing: London
WEARMOUTH, J. (1996) 'Registering special needs: For what purpose?', Support for Learning, 11(3) pp 118-22
WEDELL, K. (1995) Putting the Code of Practice into practice, Inst of Ed, London Univ
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