With the coming into force of the Children and Families Act 2014 as of 1 September 2014, it is important to get to grips with the true extent of the changes in the framework surrounding special educational needs.
At grass roots level, it is also necessary to determine the application of the transitional arrangements. It will be interesting to see whether the new system will be properly understood by parents and how effectively relevant information has been disseminated.
Something that has remained unchanged is the definition of special educational needs (SEN). A child or young person has SEN if they have a learning difficulty or disability which calls for special educational provision to be made for them. It is worth keeping this constant in mind when considering which aspects of the SEN landscape have changed the most during the first major overhaul for more than 30 years.
Chapter 6, part 3, of the Act has introduced a new system for children and young people from birth to age 25 who have special educational needs. A synchronised framework that, ostensibly, incorporates aspects of education, health and social care.
The Council for Disabled Children, Nasen, 4 Children; Preparing for Adulthood and Mott MacDonald have been working together as the SEN and Disability Strategic Reform Partners to the Department for Education. There is a wealth of information available in the public domain to instruct and inform. This is in line with section 19 of the Act which states that the local authority must have regard to:
“(a) the views, wishes and feelings of the child and his or her parent, or the young person; (b) the importance of the child and his or her parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned; (c) the importance of the child and his or her parent, or the young person, being provided with the information and support necessary to enable participation in those decisions; (d) the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes…”
The duty to provide information and advice is further encapsulated in the Local Offer (section 30 of the Act) where details about (a) education, health and care provision; (b) other educational provision; (c) other training provision; (d) arrangements for travel to and from schools and post-16 institutions and places at which relevant early years education is provided; (e) provision to assist in preparing children and young people for adulthood and independent living,” must be provided.
The Department for Education continues to issue supporting information. The Transitional and Saving Provisions July 2014 (made under section 137 of the Act) relating to Part 3 of the Act (Children and Young People in England with Special Educational Needs or Disabilities) is a nod in the right direction in acknowledging the need for continuing departmental application to the implementation of the changes. This is significant given that approximately a quarter of a million children and young people in England have Statements of Special Educational Needs, or receive support in further education or training as a result of a Learning Difficulty Assessment (LDA), at any one time.
There will be no new assessments for Statements or for an LDA offered. Instead, any Education, Health and Care (EHC) assessment will take place under the Act and the associated statutory instruments or statutory guidance and non-statutory advice (for example, the Special Education Needs and Disability Code of Practice 2014; the Special Educational Needs and Disability Regulations 2014; and the Special Educational Needs (Personal Budgets) Regulations 2014).
A child who had a Statement before 1 September 2014 will transfer to the new regime by 1 April 2018, within four years, while young people with LDAs will transfer to the new regime by 2016, within two years. The legal force of Statements and LDAs will remain until such time as each child/young person has completed the transition onto an Education Health and Care Plan (EHC plan).
If the local authority is considering a request for a statutory assessment or conducting such an assessment (the request having been made before 1 September 2014) the old regime applies, unless the local authority and the child’s parents or the young person agree that it should progress under the new regime. Similarly, where a local authority is conducting an LDA (following a request for assessment made before 1 September 2014) it may issue an EHC plan with the young person’s agreement.
Those children and young people with a statement that was issued before 1 September 2014 will be transferred onto an EHC plan after a transfer review as part of the EHC assessment process. A parent or young person cannot ask for an EHC assessment to be carried out until the child’s statement has been transferred to an EHC plan, although they can make an informal request, which the local authority can agree to, but the refusal does not create a right to appeal.
The local authority must not seek any of the advice referred to in Part 2 (6)(1)(b) to (h) of the regulations if such advice has previously been provided for any purpose and the person providing that advice, the local authority and the child’s parent or the young person are satisfied that it is sufficient for the purposes of an EHC assessment. The requirement to seek advice and information from the child’s parent or the young person cannot be set aside, which resonates with the clear focus, promulgated within the Code, on ascertaining their views.
A young person with an LDA can request that a local authority carries out an EHC assessment and the local authority must respond within six weeks. The transfer period is shorter in respect of LDAs. It is worth noting the lack of statutory obligation on a local authority regarding an LDA as opposed to the statutory duty imposed on the local authority by the EHC plan which creates a duty on the local authority to make the special educational provision specified in the EHC plan as well as a duty on the health body to make the specified health provision.
Joint Commissioning Clause
The notion of a triad of provision in education, health and social care was much lauded during the lead up to the enactment of the Children and Families Bill. Further scrutiny has led to no small amount of scepticism about the actual changes that will materialise, with section 25 of the Act crystallising the local authority’s general duty to ensure the integration of educational, health care and social care provision.
Section 26 of the Act requires the local authorities in England and their partner commissioning bodies (health and social care) to make arrangements about the education, health and care provision to be secured for children and young people for whom the authority is responsible who have special educational needs, and children and young people in the authority’s area who have a disability. While the arrangements may include other provisions, they must include arrangements for (a) securing EHC needs assessments; (b) securing the education, health and care provision specified in EHC plans and (c) agreeing personal budgets under section 49 of the Act (section 26 (4)). The form of such arrangements is to be agreed at local level.
It is also important to note that, under the Care Act 2014, when a young person with an EHC plan has been assessed for social care and support and has a care plan, the care plan can form part of the EHC plan. Further, joint commissioning arrangements will include joint strategic needs assessments and joint health and wellbeing strategies, in line with the Local Government and Public Involvement in the Health Act 2007, as amended by sections 192 and 193 of the Health and Social Care Act 2012.
The working platform for schools has also been subject to a major overhaul, with a system called Special Educational Needs Support replacing School Action and School Action Plus. The governing bodies of maintained mainstream schools and the proprietors of mainstream academy schools (including free schools) have a duty to put in place a qualified teacher designated as Special Educational Needs Co-ordinator (SENCO) for the school. All pupils will move to SEN support by September 2015.
The new regime creates some, prima facie, possibilities for the parent/young person to have greater involvement: for example, section 49 of the Act states that if a local authority maintains an EHC plan for a child or young person, and is asked to do so by the child’s parents or young person, it must prepare a personal budget. The Special Educational Needs (Personal Budgets and Direct Payments) Regulations  clause 6 states, however, that the local authority has to decide whether securing the agreed provision by means of direct payment is compatible with the authority’s efficient use of resources. Therefore, there is no straightforward guarantee of a personal budget.
It will be interesting to see how much such prima facie options within the new regime are actually invoked successfully, and to observe the extent to which the new regime will help lead to better outcomes.
This article was published in the Solicitors Journal on 23 September 2014.