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Changes in Special Educational Needs and Disability

February 11, 2015
Hannah Lynch

Children and Families Act 2014 Summary

On March 13^th 2014, the Children and Families Act received royal assent. The Act made sweeping changes to several areas, from family justice to shared parental leave and flexible working, foster care, and special educational needs and disability. A key feature of the act was a much bigger all round focus on children’s needs, as opposed to focusing on issues from the perspective of the parents.

Special Educational Needs and Disability Within the Children and Families Act

Part 3 of the Act made changes to provision for children and young people in England with special educational needs and disabilities (SEND).The Act made significant reforms to the previous SEND regime, and was 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 came into force on 1st September 2014, and on this date, Part IV of Education Act 1996 no longer applied.

What are Special Educational Needs and Disabilities According to the Act?

Section 20 of the act categories special educational needs and disability as follows;

A child has special education 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 remained the same under the 2014 Children and Families Act as under previous legislation, with the aim of ensuring continuity for children who had previously met the threshold to qualify as special education needs and/or disabilities to be issued with a statement. However, we can see in hindsight that this transition did not go as smoothly as anticipated, particularly in terms of long wait times between the transitioning of ‘statementing’ and ‘EHC plan’ systems. This affected individuals holding statements at the time of the 2014 Act’s initiation, as well as individuals newly applying for an EHCP, all of whom faced (and still face) lengthy delays.

System Differences Pre and Post 2014 Act

With the 2014 Act, several key changes came into place. A summary of the most important changes from the previous legislation is as follows;

Statements were replaced with ‘Education, Health and Care Plans’ (EHCPs), and these plans became available to children and young people with significant SEN, from 0-25 years of age (under the previous system, statements were only issued for children between 2-16 years of age).

For children not deemed to need an EHCP, the old categories of ‘School Action’ and ‘School Action Plus’ no longer existed, and were instead replaced with the ‘graduated response’.

The 2014 Act bound academies and free schools. Under previous legislation, these institutions were only required to ‘have regard’ to SEN legislation.

The aim of the 2014 statutory framework was to make the overall care system significantly more joined up for individuals with special educational needs and disability, with the goal of health, education and social services working seamlessly together, and thereby more focused on, and effective for, the child.

The system put forth within the 2014 Act aimed to focus more on outcomes for the child, and less on the provision they received.

What are the Advantages and Disadvantages of the System Under the 2014 act?

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). Below you will find a Children and Families Act 2014 summary of the specific and more imperative advantages/disadvantages for the 4 key parties affected.

For Parents/Children

Advantages:

The Act entitled parents to apply for a ‘personal budget’ for a child with an EHC plan (s. 49), so that they could choose how to spend the money provided by the local authority to address their child’s SEN as best possible. ‘Personal budgets’ in theory gave far greater control to parents as to how they could use resources for the personalised 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.
S. 37F of the Act imposed a requirement to put required social care intervention/packages in a plan. This meant that, for the first time, parents became able to 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’. Upon the 2014 Act’s commencement, regulations were still required to ‘flesh out’ this section, which at the time remained vague. However, this amendment ultimately hoped to make social care provision enforceable by the SEN Tribunal.
The Act replaced ‘School Action’ and ‘School Action Plus’ with ‘Graduated Response’ (for children/young people with SEN but without an EHC plan) which had the goal of reducing the artificial boundaries between categories, and encouraging schools to provide support for children with SEN and disabilities that is more flexible and tailored to their individual needs. As before, we can see that complications have since arose regarding the understanding and accommodating of individuals who are SEN but do not qualify for an EHCP, making the switchover from School Action and School Action Plus to Graduated Response highly questionable. Previously, School Action recognised a child who’s learning difficulties were not being properly accommodated for, or who was not progressing at their expected rate, and subsequently outlined where action needed to be taken to counteract this, such as additional teachers or increased access to special equipment. School Action Plus came into play where a school had not been able to help, causing external support to be sought from such places as the local authority and social services. Graduated response, on the other hand, entails a 4-step process of assessing, planning, actioning and reviewing. Graduated Response features less external support, with the subject teacher remaining responsible for the child’s progression.
One of the grounds on which a local authority could refuse access to mainstream education was removed in the Act: with the Act’s initiation, LAs can no longer rely on ‘inefficient use of resources’ (s. 33.2).
As the definition of ‘SEN’ under the 2014 Act remained the same as the previous system, the criteria for issuing plans stayed broadly similar to that for issuing statements under the previous system.
Young people between ages 16-25 who wish to stay in education/training became entitled to remain on an EHC plan. This reduced the difficulties around transition, as statements no longer automatically ended at 16/18, and local authorities became obliged to fund post-18 education/training under a plan, if required.
The requirement (under s. 30 of the Act) for local authorities to publish a ‘local offer’ (listing services available in their area for children with SEN and disabilities) made 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 made it compulsory for local authorities to address perceived inadequacies in the locality.

Disadvantages:

The new system effected by the 2014 Act imposed a heavy burden on parents to engage with the system (through the EHC assessment process, personal budgets etc). This caused a disadvantage to children of parents who cannot, or will not, engage. Section 80 addresses the issue of parents who lack capacity, but very few fall into this niche category.
The 2014 statutory framework continued to focus heavily on children/young people with SEN who meet the criteria to be issued with an EHC plan, even though most children/young people with SEN do not meet the criteria for a Plan. Once again, this lack of SEN support has been a key issue in the years following the 2014 Act’s implementation.
The 2014 Act did not create any mechanism for ‘transforming’ an existing statement into an EHC plan, meaning that every child with a statement at the time of the 2014 Act’s introduction (which did not cease before the transition regulations’ end) had to be re-assessed before being issued with an EHC plan.
As per s. 80, legal rights began to apply directly to the child after the age of 16, which could cause massive difficulties if parents have very different views from their child as to the further education/training they should undertake, or if the child does not have the capacity to make these decisions.
The content of the local offer ceased to be legally enforceable, meaning that if a service was to be listed, but then discontinued, a family would have no redress.
Despite earlier governmental proclamations to the contrary, the 2014 Act did 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), meaning that it remains still only the LA Education department which can be taken to Tribunal. Whilst the 2014 Act provided a duty on health, social care and education services to ‘jointly commission’ services for young people, this legislation was not nearly as specific or enforced as many had hoped.
The 2014 Act did not impose a specific duty on Social Care to jointly commission services with a local authority’s Education department; instead, references were to the LA as a whole, which meant the Act consequently did not take account of tensions between Education and Social Care departments.
Although ‘personal budgets’ in theory gave families more control and flexibility over the support provided to them and their child, the 2014 Act gave little available redress 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).
With the 2014 Act, EHC plans do not apply to young people at university (although they would apply to a young person doing, for example, a degree at an FE college).

For Local Authorities

The main disadvantage for local authorities came from the lack of clarity surrounding which duties imposed by the 2014 Act were to remain consistent with previous legislation (Part IV of the Education Act 1996); i.e. which were wider and which were narrower.

Examples include:
i.    The requirement to consider whether a young person over 18 requires additional time to complete their education/training (s.36.10);
ii.    The duty to ensure the integration of educational/training provision with health care and social care provision (s.25.1); and
iii.    The requirement to consult children and young people in its area with SEN, as part of keeping its education and care provision under review (s.27.3).

Advantages:

Under the 2014 Act, the assessment system for an EHC plan required for the same professionals to be consulted as the previous SEN Code of Practice required for statutory assessment. Therefore, although the process of assessment changed within the 2014 Act, its’ fundamental cornerstones of professional advice remained the same.
S. 25 of the 2014 Act imposed 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 was ‘an institution with the further education sector’, such as an FE college. This meant that colleges became obliged to work more closely with LAs to meet the needs of young people with SEN, for whom post-16 education in a local college is (or may be) appropriate.
Under s. 28 of the Act, ‘local partners’ (including proprietors of Academies and independent special schools) became obligated to cooperate with the local authority in the exercise of its functions.
S. 33.6 continued to allow parents to ‘make own arrangements’ for their child’s education, so that a local authority remained 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 of the introduction of the 2014 Act was that the cost of implementing the new system to the standard required was notably high, and the funds required to implement the newer system had to be found at a time when local authorities’ budgets were being significantly cut. For example, the requirement for the EHC assessment to be overseen by a ‘Plan Coordinator’ created a much more child-focused system, and so one that is also much more time consuming to deliver than the previous statutory assessment framework.
The Code of Practice and the transition regulations introduced in the 2014 Act (which set out arrangements for ending the statement system, and brought in the EHC plan system) were not finalised until several months after the Act was given royal assent (e.g. S.36.11 allowed 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, at the time of the Act’s introduction, it was concerning that this had not yet been finalised, and made it difficult for local authorities to plan for the switch across (see also s.77-78).
Despite apparent earlier governmental intentions to the contrary, it remained the case that only a Local Authority could be taken to the SEN Tribunal. S.21.5 re-stated 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, in most cases, continued to be considered educational provision. Whilst this in itself is not objectionable to Education departments, it is still the case (despite the duty to ‘jointly commission’) that only a Local Authority Education department could be taken to Tribunal for a failure by Health to supply, for example, Speech and Language Therapy/Occupational Therapy.
Under the previous system, the contents of a statement did not apply to a child in custody. The 2014 Act imposed duties on local authorities to oversee the quality of education provision in Youth Offender Institutions/ secure training facilities. Whilst this theoretically provided important safeguards for young people with SEN/disabilities in custody, this requirement also created a heavy burden on local authorities, causing numerous practical difficulties in discharging (s.70-75).
Clause 19 of the 2014 Act imposed a duty on the local authority to provide the ‘best’ provision for a child/young person, rather than the previously accepted ‘adequate and appropriate’ provision, subsequently causing significant cost impacts for local authorities. For example, situations arose where local authorities were required to pay for private special schools, where it could previously have insisted on a local authority special school on the grounds that it was ‘adequate and appropriate’.
The 2014 Act did not create any mechanism for ‘transforming’ an existing statement into an EHC plan. Every child with a statement at the time of the Act’s implementation therefore had to undergo a statutory re-assessment in order to obtain an EHC plan. Given that the definition of ‘SEN’ remained the same, this was heavily considered bureaucratic and time-consuming for all involved.

For Schools

Advantages:

Although the personal budgets introduced in the 2014 Act allowed parents to pay anyone of their choosing to provide support to their child, headteachers retained the power of veto as to who provided support to a child within their school.
As per s. 69, the requirement to publish a ‘school offer’ (to form part of the Local Offer) was not onerous for schools, as most of the information required replicated that which had already been set out in a school’s SEN/disability policies.
The above is true for SEN Support Plans too, which function in the same way as IEPs (IEPs were scrapped under the 2014 legislation); as SEN Support Plans must be reviewed at least termly (as set out in the 2014 Act), in practice these are very similar to IEPs.

Disadvantages:

As there is no standard format for EHC plans, this made it difficult for schools (particularly those which accept children from more than one LA) to know what a particular Plan is asking them to provide.

For Health Authorities

Advantages:

The requirement on local authorities to promote integration of educational/training provision with health care provision (s. 25) has lead to working practices which are more 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 has promoted integration between services and made it easier for health professionals to liaise with teaching staff.
‘Joint commissioning arrangements’ between local authorities and Health according to the 2014 Act were made to include (amongst other things) arrangements for resolving complaints about education, health and care provision. This enabled more parents to resolve complaints with Health directly, for example about Speech and Language Therapy and Occupational Therapy, 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 conflicted with the restrictions imposed on NHS bodies by budget cuts. However, as per s. 31.3, the Act did allow for non-compliance in limited circumstances, provided reasons are given.
Implications of the 2014 system for appeals to Tribunal.
Section 51.1 of the 2014 Act established 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, as the 2014 Act also has a strong focus on mediation, this evidences the hope that more mediation would result in fewer appeals to the Tribunal.

Mediation As An Alternative

The mediation provisions outlined in the 2014 Act did not go as far as many had hoped. Whilst it became necessary in certain types of appeal for a parent to produce a certificate demonstrating that they had been advised about and refused/unsuccessfully completed mediation, it was not made compulsory to undergo mediation before lodging an appeal to the Tribunal.

Local authorities, though, welcomed the provisions of s. 53, which required that where the only issues the parent is considering appealing relate to Health provision for their child, that the health authority arrange the mediation.

Types of Appeal

With the introduction of the 2014 Act, the matters which could be made the subject of an appeal remained 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.

This meant that the existing case law continued to be considered by a Tribunal in making their decision. However, s. 51.4 of the 2014 Act allowed for the making of regulations which widened the situations in which appeals could be brought. Sections 51.6 and 51.7 provided welcome new powers for the Tribunal to compel disclosure of documents/ attendance of witnesses to give evidence in appeal hearings, with failure to do so becoming a criminal offence. The Children and Families Act 2014 consequently set the scene for several significant changes to SEN appeals.

In the years following the Act’s introduction, several issues have subsequently arisen (as one would expect with any new and ambitious Act), and these are still being tackled today. However, whilst the Children and Families Act 2014 has indeed given rise to some major frustrations, several positives have also been birthed, and adequate reasoning given. Whether this makes up for the prevention and delay of special educational needs and disability support which the Act caused is entirely dependent on the individual, whose experiences have proven to vary. For a Children and Families Act 2014 Summary regarding the Act’s impact in the years since implementation, please see our post judging the effectiveness of the 2014 SEND reforms.