Question 5: Is the commentary and the reflective questions on each of the exemptions helpful?
Yes/no responses – all respondents
The above question was asked in relation to the How and why could the exemptions be applied? section of the draft guidance document. This section provides further detail on the three exceptions and a set of reflective questions for each of the exemptions to assist local authorities in their decision making processes.
Overall, just over half of respondents thought that the commentary and reflective questions were helpful. Still, 27% did not agree and a further 21% did not know or did not provide an answer.
Responses to this question split between providing commentary on the drafting of the section itself and how that might be improved and general comments on the section and issues around implementation. Respondents from organisations were more likely to comment on the drafting of the section and individuals more likely to comment on what was currently happening in practice.
Just over half (52%) of respondents found the commentary and reflective questions helpful. Those that responded that they found them helpful indicated that they thought that the reflective questions would help the decision making process. It was felt that if local authority decision makers did use the questions as intended this would help to make the process more transparent. Respondents also found it helpful to have the exemptions set out and to have commentary on what they meant in practice.
The majority of those that indicated that they found them helpful provided comments on the drafting of the section in the draft guidance document. Comments were evenly split between the three exceptions with a similar proportion offering general comments on the drafting of the section. The comments received on all the exemptions were very wide ranging and did not cluster significantly around a particular theme. However, there were areas of some common interest and they are highlighted here.
On ability and aptitude, some respondents expressed concerns that the section implied that consideration of alternative placements could only be explored when mainstream had been tried first with the implication that children had to experience problems first before alternatives could be explored. Some respondents also commented on assessment – how would ability and aptitude would be assessed, who should be involved in this process and the importance of ensuring that this assessment was undertaken with consideration of how a child would respond with appropriate supports in place.
On incompatible with the efficient education for other children, some respondents expressed concern about the reference to physical interventions and thought it would be more useful to mention the range of supports and strategies that could be put in place to support the child. A few respondents felt that what was meant by an 'efficient education' needed to be explored. A few respondents expressed concern about the language of the legislation.
On unreasonable public expenditure, some respondents expressed concerns that this exemption could allow local authorities a reason not to make appropriate decisions for children because of wider resource concerns. A few respondents expressed the view that supporting children with additional needs would be more likely to require a higher level of resource to provide a level of equity so it was important there was further guidance on what constituted unreasonable public expenditure.
The general comments on the exemptions were wide ranging and did not cluster around particular issues however some respondents did express concern about the language in this section, although there was acknowledgment that this came from the legislation, it was still felt that it was not as child centred as the rest of the document. There were also concerns expressed that the commentary and questions were too subjective and not prescriptive enough.
Of those that responded saying they would be helpful, many expressed concern that current practice didn't match what was set out in the section. The concerns clustered around whether resources were in place to support this, that they were aspirational and respondents felt that the system was not adequately resourced to ensure that appropriate decisions were made around placement.
Of those that did not find the commentary and reflective questions helpful and commented on implementation more generally, their concerns clustered around a number of different issues. They had concerns that the resources were not in place to allow decision making to happen in this way, there were concerns that if mainstream was not appropriate that there were not alternatives in some local authority areas and there were concerns that it was not realistic to expect them to be used as practice at the moment did not reflect this.