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Bristol Safety Valve Could See Legal Action Against City

Bristol City Council joins contentious Safety Valve programme with potential legal challenges

Bristol City Council’s secret Safety Valve plan could see them subject to legal action, if campaigners in Bournemouth, Christchurch and Poole Council are successful with their own legal challenge.

Consternation and upset was caused this week after Bristol City Council revealed it was applying to be part of the Government’s Safety Valve programme.

It was just a month ago Cabinet rubber stamped cuts to Top Up funding. This will see an end to Send pupils without Education Health Care Plans (EHCPs) receiving additional money to support their needs in school. This was cut, with the money being allocated to a new Targeted Support Fund and Outreach service.

Now it’s come to public attention that Bristol City Council was ‘invited’ by the Department for Education (DfE) to apply for the Safety Valve Programme on the 18 July 2023.

The council was already on the DfE’s Delivering Better Value (DBV) programme. Both the DBV and Safety Valve programme, target Local Authorities with big deficits on high needs spend. The Safety Valve is for local authorities with the biggest deficits. Being on the Safety Valve would see Bristol receive more financial assistance from the DfE but it must agree to contain its spending on Send so deficits do not build up again.

If the Safety Valve proposal is accepted by the DfE, Bristol must ‘undertake all necessary means’ to reach a positive in-year balance on the Dedicated Schools Grant at the least by the end of 2028/29 – and every subsequent year afterwards. For this, the DfE will pay out an additional £53m of DSG in installments ‘subject to continued satisfactory progress’.

The revelation that Bristol had agreed to go on the Safety Valve came as a surprise last minute Cabinet agenda item this week.

Papers submitted as part of the agenda item state yet another new Send inclusion strategy will be implemented: ‘A new city-wide SEND Inclusion Strategy will be a means to ensure there is commitment to addressing the high needs deficit. Reform and improvement to services will enable successful collaboration and innovation to change the future of SEND for the benefit of all Children and Young People.’

Safety Valves have become a subject of concern and controversy since they were introduced.

In July last year, Send law charity IPSEA wrote to every local authority on a Safety Valve agreement asking them to confirm they will fulfill their legal duties to children and young people with Send.

At the time, CEO of IPSEA, Ali Fiddy, said: “While early intervention, effective multi-agency working and inclusive practices are all vitally important, there will always be children and young people who need additional statutory support. The Children and Families Act 2014 and the SEND Regulations 2014 set out clearly children and young people’s entitlement to provision that meets their individual needs. However, the steady rise in appeals to the SEND Tribunal, and the high volume of unlawful decision-making evidenced by the overwhelming number of appeals upheld by the Tribunal, indicates that local authorities do not always prioritise compliance with SEND law.”

Bristol’s surprise entry onto the Safety Valve has caused upset and outrage in both Bristol’s Send community as well as with other residents frustrated by the impact on local democracy.

Despite being engaged in secret talks since last summer and agreeing to go onto the Safety Valve in January 2024, the paper was not submitted to the agenda until 24 hours before Cabinet. Bristol City Council’s website did not indicate it possible to submit late public forum statements, although a rumour that they would be allowed before 10am on the day saw some last minute contributions published.

Bristol Send Justice said ahead of the meeting: “It has come to light that Bristol City Council has been in secret talks with the DfE about going on to the Safety Valve scheme that several local LAs are already part of. The Safety Valve scheme is problematic because in order to fulfil the terms of the scheme, LAs generally will then breach their statutory responsibilities because of cost cutting.

“Worse still, this decision has been stealthily brought in with no consultation or warning and so late before the relevant meeting that members of the public could not submit questions or statements on it. This is undemocratic and smacks of acting in bad faith.”

Conservative Councillor for Stockwood, Graham Morris informed campaigners on Twitter X that the late agenda item would have been accepted ‘In accordance with the Council’s Constitution (APR16 Special Urgency). ‘Cabinet obtained agreement from the Chair of the OSMB that the taking of the decision cannot be reasonably deferred,’ he wrote, adding ‘I don’t like rushed decisions.’

Chair of OSMB – Overview Scrutiny Management Board – Councillor Tony Dyer for the Green party in Southville – has said very little publicly around his decision to allow the item.

The outrage from the Send community is not just about the lack of ability to contribute democratically. The Safety Valve has proven controversial in other local authorities.

Last month, BCP Alliance for Children and Schools, a group of parents, young people and educators in Bournemouth, Christchurch and Poole (BCP) started to protest against its own council’s proposed use of the Safety Valve.

On West Country Voices last month, campaigner Adam Sofianos wrote of BCPC’s intention to enter the Safety Valve agreement: ‘In particular, Safety Valve focuses on reductions in EHCPs and special-school places. These targets are based not on need, but on quota. Critics of Safety Valve argue this is the ultimate aim of the scheme: to reduce SEND services.’

The report to Bristol Cabinet written by Director of Education and Skills Reena Bhogal-Welsh states that as an ‘inclusive culture’ becomes ’embedded’ then more children and young people will have their needs met earlier.

‘This will result in less children requiring specialist provision, reducing the demand for specialist places and costly INMS,’ it continues.

Bhogal-Welsh’s paper also anticipated that more children with Education Health Care Plans will be able to remain in mainstream provision.

These are some of the big concerns campaigners of the BCP Alliance have – as well as campaigners in Bristol.

In the Cabinet meeting, Asher Craig said: “This is a huge opportunity for Bristol to accelerate the reforms needed to help improve outcomes for children and young people with special educational needs and disabilities whilst operating in a financial, sustainable way.”

Craig stated that Bristol’s Safety Valve submission is ‘underpinned’ by an updated DSG deficit management plan which built on the council’s Delivering Better Value for Send programme.

She said Bristol City Council had been openly working on this with updates to Bristol Schools Forum as to its progress.

Published papers to Bristol Schools Forum don’t appear to show any updates of information relevant to the council joining the Safety Valve programme. Since the 12 July 2023, members of the public are no longer able to view the meeting on YouTube catch-up to see what was said.

Craig told Cabinet they were expecting to hear if their submission was successful by the end of the month and said ‘our ambition is to transform Send services is not dependent on the oucome of this submission and is ongoing.”

Elaborating, she said: “Bringing about the Safety Valve agreement will require a whole city approach, which is why as a key stakeholder we are seeking agreement going forward.”

Send campaigner Jai Breitnauer told Cabinet during public forum: “Bristol City Council have been in secret talks with the DfE since July 2023 and applied for Safety Valve in secret on 12 January 2024. The report was only published yesterday with no time for questions and limited time for statements. This decision will have a huge impact on vulnerable young people, especially as the cessation of high needs block funding was announced on the 06 of February. That was an £8m cut to the high needs block.

“Bristol City Council is going to drive up the need for EHCNAs whilst at the same time doing a backdoor deal with the DfE to restrict access to statutory funding. This hasn’t been handled transparently or democratically. The Safety Valve report needs to be deferred so proper consultation and co-creation can take place with stakeholders. Anything less is dictatorial and disrespectful to the people of Bristol. Allow democracy to run its course.”

Green party Councillor Christine Townsend, who is also Chair of People Scrutiny Commission and Shadow Cabinet Member for Education said: “There are a couple of public meetings that are listed as so say being part of consultation. I looked back at all of the dates, all of the documentation, all of the minutes and there’s not one mention of Safety Valve in any of it. That isn’t a consultation if you’re not actually talking about the thing that you’re supposed to be.

“This is a six year contract, so what that tells us is despite what the media would have us believe, that there’s going to be a National Labour government, no one in this Labour administration has got any confidence that either the Send system or our education system is going to get anything better than what it is that you’ve been offered after 14 years of a Tory government. What does that say about what it is that Labour is going to be offering both our city and our country that you lot, two months before you’re out are signing up for 14 years of Tory austerity for the most disadvantaged children in our city.”

Councillor for Hengrove and Whitchurch Park and and Chair of Audit Committee, Andrew Brown said: “I think we all accept the situation with the DSG is a difficult position and the actions required. And that this is probably the only realistic way forward for the council from a financial point of view. There’s no guarantee that anything better will come down the tracks in the future.

“My issue with this is the way it’s been handled and we’ve got to the point where it’s been published at short notice, with a lack of public scrutiny and a lack of the chance for the public to have their say through the usual process of questions and statements. So what I think we need is a bit more clarity about how this has come about to be on the papers today at short notice, why the papers weren’t published on Friday when the chair of OSMB gave the go-ahead. More public scrutiny is required on this. There was private briefings of audit committee and others, but they were done under the terms of strict confidentiality rather than consultation.”

Ahead of passing the paper, Marvin Rees said “Announcement of being part of the Safety Valve was embargoed. So we weren’t allowed to say anything publicly about it. We could talk to people about the content that would eventually go into it, but as for being a part of it and announcing it, that’s what the DfE wanted to do. So there’s a bit of a dance between us and DfE about our Cabinet, our decision to go for it and them wanting the rights to announce it.”

Following the meeting, CEO at Sinclairs Law, Michael Charles wrote on Facebook: ‘It appears that today Bristol City Council has approved “entering into the safety valve agreement” to secure an additional £53m of DSG (dedicated Schools Grant) allocation payable over the next 6 years to reduce the accumulated deficit on the councils DSG reserve.

‘If this “agreement” is anything like those that I have already seen, it appears to me to be more money in return for the council making less provision.

‘When the Government introduced the Children and Families Act, the idea was to ensure more support for children in need. No sensible Government should advocate support for holding councils to a commitment to “repatriate” children back into the state sector without proper regard toward statutory obligations – you know the ones – it includes responding to the needs of the children rather than the needs of Government.’

Bristol City Council will likely want to pay heed to what he has to say. Charles has just been instructed by a parent local to BCP Council to force it to share the full details of its Safety Valve proposal to the DfE.

Following a campaign and petition presented to Full Council, BCP’s Safety Valve proposal was the subject of a full council debate last month. The vote was on a motion put forward by Labour councillors to ensure that full council has a say on the Safety Valve arrangements before any agreement is signed. The motion was passed unanimously.

It’s a huge difference to the secrecy in Bristol.

Bristol Parent Carers assured Bristol campaigners that they had no knowledge of Bristol’s decision to apply for the Safety Valve.

A spokesperson said: ‘We do attend strategic meetings with Bristol City Council but we found out about this news via Twitter. Sorry that we can’t be more helpful. We will update our families.’

After the paper had been passed, Bristol Send Justice shared a post from one of their campaigners which said: ‘Bristol City council bought the Safety Valve agreement to the Cabinet meeting as an “urgent” agenda item, giving less than 36 hours notice. Thereby completely circumventing the democratic process of public consultation and right to reply. They have been in secret talks with the Government since July, but apparently, this needed to be urgently approved.

‘Of the 34 other councils on the safety valve programme and the 5 applications currently going through, no other council has behaved like this.’

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