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Changes in Special Educational Needs

On 13th March 2014, the Children and Families Act received royal assent.  The Act makes sweeping changes to several areas, from family justice to shared parental leave and flexible working.

On 13th March 2014, the Children and Families Act received royal assent. The Act makes sweeping changes to several areas, from family justice to shared parental leave and flexible working.

This article will focus on Part 3 of the Act, which makes changes to provision for children and young people in England with special educational needs and disabilities (SEND). The Act makes significant reforms reforms to the current SEND regime; and is widely considered to be the most ambitious set of reforms in this area of law for 30 years. The majority of sections of Part 3 will come into force on 1st September 2014: after this Part IV of Education Act 1996 will no longer apply.

What are special educational needs and disabilities?

The above terms are defined as follows under section 20 of the Act:

"A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.

A child of compulsory school age or a young person has a learning difficulty or disability if he or she—

  •     has a significantly greater difficulty in learning than the majority of others of the same age, or
  •     has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.


A child under compulsory school age has a learning difficulty or disability if he or she is likely to be within subsection (2) when of compulsory school age (or would be likely, if no special educational provision were made)".

The definition of special educational needs is the same as under the old legislation, which should ensure continuity for children who currently meet the threshold to be issued with a statement.

Leaving aside the above similarity, some 'headlines' about the new system under the Act are as follows:

  • Statements will be replaced with 'Education, Health and Care Plans'; and these plans will be available to children and young people with significant SEN, from 0-25 years of age. (Under the current system, statements can only be issued in respect of children between 2-16 years of age).
       
  • For children are not deemed to need a Plan, the old categories of 'School Action' and 'School Action Plus' will no longer exist. These have been replaced with the 'graduated response'.

  • The new Act will bind academies and free schools. Under the previous legislation, they only have to "have regard" to SEN legislation.

  • The aim of the new statutory framework is to make the system much more joined up (with health, education and social services working seamlessly together) and thereby more focused on the child.

  • It is intended that the new system will focus more on outcomes for the child; and less on the provision which they receive.

  • It is not yet clear how long the transition period will be, between the 'statementing' system and the 'EHC plan' system; and therefore how children with current statements will be affected.


What are the advantages and disadvantages of the new system?

The answers to this question will depend to an extent on the person asking the question (whether a parent, child, school, health professional or local authority):

For parents/children

Advantages:

  • The Act entitles parents to apply for a "personal budget" for a child with an EHC plan (s49), so that parents can choose how to spend the money provided by the local authority to address their child's SEN. The details of these arrangements will be set out in regulations which are still to be drafted, but 'personal budgets' should give far greater control to parents as to how they use resources for the benefit of their child. For example, a parent may choose to spend money for respite care, on having 2 hours respite per week, rather than 2 weekends per year.

  • Section 37(f) imposes a requirement to put required Social Care intervention/packages in a Plan. This may mean that, for the first time, parents can take Social Care to Tribunal for failure to provide "any social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs". Until the regulations required to 'flesh out' this section come into force, it remains to be seen exactly how this will work in practice. It is to be hoped that social care provision will be enforceable by the SEN Tribunal.

  • Replacing 'School Action' and 'School Action Plus' with a 'graduated response' (for children/young people with SEN but without an EHC plan) should reduce the artificial boundaries between categories; and encourage schools to provide support for children with SEN and disabilities which is flexible and tailored more to their individual needs.

  • One of the grounds on which a local authority can refuse access to mainstream education has been removed: LAs can no longer rely on 'inefficient use of resources': s33(2).

  • The criteria for issuing plans should be broadly similar to that for issuing statements under the current system, given that the definition of 'SEN' under the Act is the same as the current system.

  • Young people between ages 16-25 who wish to stay in education/training will be entitled to remain on an EHC plan. This will reduce the difficulties around transition, as statements will no longer automatically end at 16/18; and local authorities will have to fund post-18 education/training under a plan, if that is required.

  • The requirement (under section 30 of the Act) for local authorities to publish a 'local offer' (listing services available in their area for children with SEN and disabilities) should make it easier for families to know which facilities and services are available to them, both from the LA/schools/health providers; and from third sector charitable organisations. The Act also requires the local authority to address perceived inadequacies in its local offer.


Disadvantages:

  • The new system imposed by the Act imposes a heavy burden on parents to engage with the system (through the EHC assessment process, personal budgets etc). This may disadvantage children of parents who cannot, or will not, engage. Section 80 addresses the issue of parents who lack capacity, but very few will fall into this category.

  • The new statutory framework continues to focus heavily on children/young people with SEN who meet the criteria to be issued with an EHC plan. Given that most children/young people with SEN will not meet the criteria for a Plan (assuming the 'thresholds' under the new system remain similar to those under the outgoing system), this is disappointing.
       
  • The Act does not appear to create any mechanism for "transforming" an existing statement into an EHC plan. This appears to suggest that every child with a current statement (which will not cease before the transition regulations end) will have to be re-assessed before being issued with an EHC plan.
       
  • Legal rights apply directly to the child after the age of 16- this could cause difficulties if parents have very different views from the child as to the further education/training they should undertake; or if the child does not have the capacity to make these decisions: s80.
       
  • The content of the local offer is not legally enforceable: if a service is listed, but then discontinued, a family has no redress.

  • Despite earlier governmental proclamations to the contrary, the Act does not impose any obligation on health authorities or social services to provide services or facilities (such as Speech and Language Therapy, Occupational Therapy, respite or short breaks). Therefore it is still only the LA Education department which can be taken to Tribunal. The Act provides a duty on health, social care and education services to "jointly commission" services for young people, but this does not go nearly as far as many had hoped.
       
  • The 2014 Act does not impose a specific duty on Social Care to jointly commission services with a local authority's Education department: references are to the LA as a whole, which does not take account of tensions between Education and Social Care departments.

  • Although "personal budgets" should give families more control and flexibility over the support provided to them and their child, there is little redress available if a family feels that their budget is too low. The Act only provides for "internal review" by the local authority (though technically any such decision could be made the subject of an application for judicial review).

  • EHC plans will not apply to young people at university (although they would apply to a young person doing eg. a degree at an FE college).


For local authorities

The main disadvantage for local authorities comes from the need to establish which duties imposed by the 2014 Act are the same as under the previous legislation (Part IV of the Education Act 1996), which are wider and which are narrower. Some sections of the legislation are far from clear.

Examples include:

i.    A requirement to consider whether a young person over 18 requires additional time to complete their education/training (s36(10));
ii.    A duty to ensure the integration of educational/training provision, with health care and social care provision (s25(1)); and
iii.    A requirement to consult children and young people in its area with SEN, as part of keeping its education and care provision under review (s27(3)).

Advantages:

  • The system for assessment for an EHC plan requires for the same professionals to be consulted as the current SEN Code of Practice requires for statutory assessment. Therefore although the process of assessment will change, its fundamental cornerstones of professional advice remain the same.

  • Section 25 imposes an obligation on its local partners to "co-operate with the local authority, in the exercise of the authority's functions": one of the "local partners" identified is "an institution with the further education sector", such as an FE college. This may mean that colleges are obliged to work more closely with LAs to meet the needs with young people with SEN, for whom post-16 education in a local college is (or may be) appropriate.

  • Under section 28 of the Act, "local partners" (including proprietors of Academies and independent special schools) must cooperate with the local authority in the exercise of its functions under Part 3 of the 2014 Act.

  • S33(6) continues to allow parents to "make own arrangements" for their child's education, so that a local authority remains under no obligation to pay for (mainstream) independent school for a child with SEN (assuming there is appropriate maintained provision available), simply because the child's parents prefer it.


Disadvantages:

  • The main disadvantage to local authorities is that the funds required to implement the new statutory system must be found at a time when local authorities' budgets are being significantly cut. Narrative evidence from Pathfinder local authorities suggests that the cost of implementing the new system to the standard required will be high. For example, the requirement that the EHC assessment to be overseen by a "Plan Coordinator" creates a much more child-focused system, but one that is much more time consuming to deliver than the current statutory assessment framework.

  • The new Code of Practice and the transition regulations (setting out arrangements for ending the statement system; and bringing in the EHC plan system) will not be finalised until several months after the Act is given royal assent (eg. S36(11) allows for regulations to be made to determine the time limits and other details of EHC assessments). As the Code provides the day-to-day working guide for local authority SEN departments, it is concerning that this is not yet finalised; and makes it difficult for local authorities to plan for the switch across: see also ss77-78.

  • Despite apparent earlier governmental intentions to the contrary, it remains the case that only a Local Authority can be taken to the SEN Tribunal. Section 21(5) re-states the previous position that "health care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision)". Therefore Speech and Language Therapy and Occupational Therapy will, in most cases, continue to be considered educational provision. Whilst this in itself will not be objectionable to Education departments, it is still the case (despite the duty to "jointly commission") that only a Local Authority Education department can be taken to Tribunal for a failure by Health to supply eg. SLT/OT.

  • Under the current system, the contents of a statement do not apply to a child in custody. The 2014 Act imposes duties on local authorities to oversee the quality of education provision in Youth Offender Institutions/ secure training facilities. Whilst this would theoretically provide important safeguards for young people with SEN/disabilities in custody, this requirement creates a heavy burden on local authorities, which there may be many practical difficulties in discharging: ss70-75.

  • Clause 19 of the new Act appears to impose a duty on the local authority to provide the "best" provision for a child/young person, rather than the currently accepted "adequate and appropriate". This could have significant cost impacts for local authorities. For example, it may result in a situation where a local authority is required to pay for a private special school where it could previously have insisted on a local authority special school on the grounds that it was "adequate and appropriate".

  • The Act does not appear to create any mechanism for "transforming" an existing statement into an EHC plan. This appears to suggest that every child with a current statement will have to undergo a statutory re-assessment in order to obtain an EHC plan. Given that the definition of "SEN" remains the same, this will prove bureaucratic and time-consuming for all involved.



For schools

Advantages:

  • Although personal budgets potentially allow parents to pay anyone they choose to provide support to their child, a headteacher retains a power of veto as to who provides support to a child at their school.

  • The requirement to publish a "school offer" (to form part of the Local Offer) is not onerous for schools, as most of the information required replicates that which will already be set out in a school's SEN/disability policies: s69.

  • The above is true for SEN Support Plans, which will function in the same way as IEPs (which have been scrapped under the new legislation): an SEN Support Plan must be reviewed at least termly, so in practice these will be similar to IEPs.


Disadvantages:

  • There is no standard format for the new EHC plans, which may make it difficult for schools (particularly those which accept children from more than one LA) to know a particular Plan is asking them to provide.


For Health Authorities

Advantages:

  • It is to be hoped that the requirement on local authorities to promote integration of educational/training provision with health care provision (s25) will lead to working practices which are convenient for health professionals and children/parents alike.

  • Practical arrangements such as holding Speech and Language Therapy clinics on the premises of nurseries and primary schools promote integration between services and make it easier for health professionals to liaise with teaching staff.

  • "Joint commissioning arrangements" between local authorities and Health must include (amongst other things) arrangements for resolving complaints about education, health and care provision. If such arrangements are effective, then more parents should be able to resolve complaints with Health about (eg.) Speech and Language Therapy and Occupational Therapy directly, without the need to lodge Tribunal appeals to address these issues.


Disadvantages:

  • The duty to co-operate with a local authority in exercising its functions in relation to children with SEN, may conflict with restrictions imposed on NHS bodies by budget cuts. However, the Act does allow for non-compliance in limited circumstances, provided reasons are given: s31(3).

  • Implications of the new system for appeals to Tribunal

  • Section 51(1) of the 2014 Act establishes the right to appeal to the SEN Tribunal regarding certain decisions made by a local authority regarding EHC plans for children and young people with SEN. That being said, the 2014 Act has a strong focus on mediation, with the obvious intention that more mediation will result in fewer appeals to the Tribunal.

Mediation as an alternative: 

The mediation provisions do not go as far as many had hoped: whilst it is necessary in certain types of appeal for a parent to produce a certificate demonstrating that they have been advised about and refused/unsuccessfully completed mediation, it has not been made compulsory to undergo mediation before lodging an appeal to the Tribunal.

Local authorities, though, will welcome the provisions of section 53, which require the health authority to arrange the mediation where the only issues the parent is considering appealing, relate to Health provision for their child.

Types of appeal

The matters which can be made the subject of an appeal are the same as with statements; namely:

  •     Refusal to carry out an EHC assessment.
  •     Decision not to issue an EHC plan following a needs assessment.
  •     Where an EHC plan is maintained for a child, an appeal against:
    1. the description of needs;
    2. the special educational provision specified in the Plan; or
    3. the school/other institution named in the Plan, or the fact that no school/institution has been named.
    4. Refusal to re-assess; and
    5. A decision to cease to maintain an EHC plan for a child/young person.


One would hope that this means the existing case law will continue to be considered by a Tribunal in making their decision.

However, s51(4) allows for making of regulations which may widen the situations in which appeals can be brought.

Section 51(6) and 51(7) provide welcome new powers for the Tribunal to compel disclosure of documents/ attendance of witnesses to give evidence in appeal hearings. Failure to do so is now a criminal offence.

The scene is therefore set for some quite significant changes to SEN appeals. It remains to be seen how much practical impact the new and different provisions will have.

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