I hope that you had a good break.
It’s always amazing isn’t it, how quickly the year/academic year seems to go by? So, if you haven't done so already, you should probably be planning your summer holidays by now!
In this update you will find sections entitled:
As I always say, I know how busy everyone is, so please feel free to read just the sections that are of interest to you or read everything; the choice is always yours.
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I’m afraid that the first two sections of this Update are quite technical and detailed, as they concern ‘Phase Transfers’ (between stages of schooling) and Post-16/Post-19 education and training.
As such, they may only be appreciated by those people who are concerned now (or in the future) with one of these issues.
So I really don’t mind if you want to skip over them if you think that they do not concern you; although they may be worth quickly perusing still, just in case they may be of help to someone you know who you can share them with.
TIME TO MOVE ON (PHASE TRANSFERS)
It also amazes me that, whilst there is a good few years to prepare for transfers between Primary and Secondary school, or between Secondary school and Post-16 education (and less for transfers between Post-16 and Post-19 and even less for transfers to Infant/Primary school), there always seems to be such a last minute rush every year to deal with the transfers themselves.
For example, those of you involved with children and young people with Statements of SEN/Education, Health & Care (EHC) Plans, are probably already aware that, for many years, there has been a statutory legal deadline of 15 February for Statements (and now also EHC plans) to be amended by their Local Authority (LA) in Year 6, ahead of a transfer from Primary to Secondary school that September. This is supposed to allow sufficient time to appeal to the Special Educational Needs & Disability (SEND) Tribunal, if they dispute the school or placement named.
However, the problem with this, is that a normal appeal to the Tribunal usually takes about six months or more, due to the following:
*[The frequent need for parents to also appeal against other parts of the EHC plan as well, in order to justify a change of placement/the school wanted, is one of the most commonly misunderstood issues and is often not realised by many parents/young people until the day of the hearing itself when the Tribunal themselves say that, as a consequence, they are now restricted in what they can do!]
The 15 February deadline was decided upon arbitrarily many years ago, when appeals usually took around three to four months (a different/shorter timetable was followed at that time). This meant that, theoretically at least, appeals about transfers to Secondary school would usually be heard by the Tribunal before the end of the academic year in July (although I recall that there were a few that had to be heard in the Autumn term still).
Over the years though, appeals have become more complicated and now also follow a different/longer timetable. This means that, since the Tribunal does not usually hear appeals in August (as it is hard to get witnesses together during the summer holidays), if the Tribunal were to follow its normal timetable of 20/24 weeks, then the hearing of the appeal regarding the appropriate Secondary school that a child should attend in September, would not be heard until October/November.
This would leave many parents in the unenviable position of having to decide whether to send their child to a Secondary school proposed by the LA, which they consider inappropriate (or may not want them to go to for other reasons), or to keep them out of school and educate them at home (or extend their summer holidays), in the interim. Neither of these options are satisfactory, as they all have their advantages and disadvantages.
To try and rectify this, in recent years the Tribunal has adopted an ‘expedited’ (i.e. shorter) timetable of 12-weeks from registration to hearing. This means that, even if parents leave it until the last minute of the two-month appeal deadline in which to appeal (i.e. by mid-April if they have received an amended Statement/EHCP by mid-February), these appeals should still, theoretically, be heard by the end of the academic year in July.
“That all seems fine” I hear you say.
But it gets worse…
As I am sure that some of you will already have noticed, the difficulty now is that, in appeals concerning EHC plans, if parents leave appealing until the last minute, but then also extend the time in which to appeal by 30 days, because they have obtained a certificate of mediation close to that deadline (perhaps they are waiting for a report or similar), then the Tribunal is going to struggle to hear the appeal before the end of the academic year, if still trying to keep to a 12-week timetable.
So the Tribunal has now also been agreeing to sit in August where possible or necessary, to ensure that everyone knows where the child is going to Secondary school in September.
But it gets even worse…
In respect of Post-16 transfers, there has never been a legal deadline for LAs to name new school placements for Statements and Statements couldn’t name other placements anyway, aside from schools (e.g. colleges). They also only went up to 19 years old.
As for EHC plans (which, theoretically, go up to 25 years old), from this (academic) year onwards, the legal deadline for LAs to amend them to name a college/placement for the forthcoming September in respect of Post-16 transfers, is only by 31 March in the academic year before (or at least five months prior to the transfers). This means that young people (if they are over 16 and are deemed to have ‘mental capacity’), or usually their parents (if they are over 16 and are deemed not to have ‘mental capacity’), may then not have enough time to appeal to the Tribunal by the end of the academic year in July/by the beginning of September.
Last year (where the legal deadline was even worse, as it was two months later, by 31 May), the Tribunal decided to automatically apply a 7-week timetable for Post-16 appeals, so that they could be heard by the end of July/in August). Following concerns expressed by a number of people (mainly LAs), as to how they were expected to deal with appeals like this in such a short space of time, the Tribunal has said that this year, they will instead automatically apply a 12-week timetable also to these types of appeal, but will be willing to hear more expedited appeals within 7-weeks, provided both sides agree to it.
It’s all a bit of a mess really isn’t it? From my perspective, anecdotally, a number of LAs are still struggling at the moment with carrying out transfers from Statements to EHC plans and regarding amending Statements/EHC plans in relation to Secondary transfers and Post-16 (and over) transfers.
So there is not much more I can say about this, apart from the fact that I am currently trying to help as many parents/young people as I can, who have found themselves in these kinds of situations.
Which leads me on nicely to talking more substantively about Post-16/Post-19 transfers....
“IT’S LIKE FALLING OFF A CLIFF…” (POST-16/POST-19)
I am afraid that there is also an added complication for young people seeking Post-16/Post-19 support for education or training, but who have an LDA (‘Learning Difficulties Assessment’, sometimes referred to as a ‘Learning Disabilities Assessment’).
If a young person (i.e. someone who has turned 16 by the end of the academic year in question), wishes to continue in education or training but still has an LDA, which have usually been given to those young people who have left school to go to college or similar (as you cannot still have a Statement Post-16 unless you are remaining in a ‘school’), according to the statutory Transition Guidance, that LDA needs to be transferred to an EHC plan by 1 September 2016.
Remember, I have just said that there are only statutory requirements for EHC plans to be amended to name a Post-16 placement by 31 March in the academic year before transfer so, unfortunately, there may be a bit of a ‘car-crash’ in this academic year, because of the difficulties with everyone trying to do the things that they are required to do by the given deadlines.
This is not me being critical for the sake of it, as I realise that many LAs are over-stretched at the moment and that many LA officers are working very hard to do everything that they have to do within deadlines. However, I also see the parents of young people and young people themselves who are very worried about their future.
As I have said before in these Updates, I am not sure that the Government thought all of this out properly when they brought in the new SEN legislation/framework a couple of years ago. They should have realised that, not only would people struggle to identify what they needed to do and when (and have trouble fitting everything in under the new system), but this would also be taking place against a backdrop of austerity measures and public funding cuts. This may need a bit of a re-think, but so much attention is now being focused at the moment on transferring Statements to EHC plans.
As I said above, it is all a bit of a mess really. The issue here for me is also a wider one, as I am concerned that we seem to be prepared to spend so much money getting the right educational and therapeutic support for a child during their early years, Primary and Secondary schooling, but when they turn Post-16 and, particularly, Post-19, it feels like they are just ‘falling off a cliff’, as there is then no appropriate provision made for them. What a waste.
I have already written a FAQ page for this website about Post-16 provision, which you can find here.
However, I am conscious that there are many people out there who are desperate for information about LDAs and transfers, so I have asked my colleagues, Joshua Garrod and Alberto Antonelli, to also write a separate page about this, which you can find here.
RECENT/FORTHCOMING SEN EVENTS
As you know from my last update, things have been fairly quiet during the Spring Term in terms of SEN events, although there was one exception, being the Jordan’s SEN Annual Conference, now in its 21st year, on 10 March 2016, where I spoke again (for the 14th time!)
We were entertained by very good presentations from two Tribunal Judges, Judge Meleri Tudur and Tribunal Judge Jane McConnell, who, respectively, spoke about the latest statistics/issues for the Tribunal and what the Tribunal is seeing ‘on the ground’ (which I will explain more about in my next Summer (Half-Term) SEN Update for 2015/16).
We also received an excellent update from David Wolfe QC on SEN caselaw over the past year and heard more about EHC plans from His Honour Judge Simon Oliver and also received a perspective from the charitable sector from Elaine Maxwell, the new Chair of IPSEA (Independent Parents for Special Educational Advice).
As ever, I learnt a lot from attending the event. It was probably best put by one of the delegates when they said afterwards:
“[It is] the best training conference in SEND.”
So, if you are professionally involved in SEN, I strongly urge those of you who can afford it (I am afraid that it is quite expensive) to attend next year.
In terms of forthcoming events in the next few months, I would highlight the following:
“NOW YOU SEE ME, NOW YOU DON’T!”
Unfortunately, over recent years, I have found that people invariably miss seeing me when I am in my wheelchair, probably because I am not at their eye level.
This can result in, at best, people sometimes knocking into me accidentally in crowded situations or, at worst, people failing to see me when I am rolling down the pavement in front of them (usually because their eyes are focused on their mobile phones as they are walking), or sometimes, more dangerously, when I am crossing roads.
This became very noticeable to me at the end of last year when I found that, especially in the dark, cars would not see me waiting at zebra crossings ready to cross and so just go through them at speed, or even when I was already starting to cross them.
(Frighteningly, on one occasion, a car came skidding to a halt just before it would have hit me, when I was already on the crossing - I cannot be sure whether the driver just didn’t see me because he/she was looking too far ahead, or if he/she had their eyes/mind elsewhere, perhaps also on a mobile phone!)
As you are probably aware if you have read my Updates before, I always like to be quite proactive about things so, reluctantly, I invested last year in a bright luminous yellow jacket, which I made myself wear during the Winter/early Spring, to give me the best chance of being seen.
Since then, I have had to put up with a lot of teasing from those around me, saying things to me, like I now look like a security guard (to which I like to reply “And don’t you feel safe now?”), or making other comments, such as “Couldn’t you find anything brighter?” (to which I like to reply “Do you think that I really like having to wear this?”). But I am sure that it has helped people to see me more.
So I guess it’s a case of: “Now you see me, now you don’t!”
With best wishes
by Douglas Silas, specialist SEN Solicitor