The SEN Framework
This is a very long and detailed page analysing the current/proposed SEN framework which is based on our factsheet which may be easier to download and read offline.
If you need to keep up to date with SEN issues, you should also refer to out Latest News updates which are done at the beginning of the academic terms (i.e. Autumn (September), Spring (January) & Summer (April/May)).
THE CURRENT SEN FRAMEWORK
It is commonly reported that only about 3% of pupils across all schools in England have Statements of SEN (Special Educational Needs) whereas about 20% of them have SEN of one form or another. The current SEN framework was originally set out in Part 4 of the Education Act 1996 which has gradually been amended by other legislation over the years and also we have to have regard to the SEN Code of Practice which was amended in 2001.
In essence, an LA must currently conduct a ‘statutory assessment’ of a child where it believes that the child has special educational needs which are either not being met through school based intervention or where those needs are so substantial that a mainstream school would not be able to meet them effectively from within their own resources.
An assessment can also be requested by the child's parents or the child’s school, provided that a previous assessment request has not been made within six months, ending with the date on which the request is made. The LA will need to be satisfied that the child 'probably' has special educational needs and that the LA 'needs,' or 'probably needs', to determine the special educational provision (SEP) for them themselves by making a statement of SEN.
A statutory assessment will only be undertaken by the LA where the evidence suggests that the child's learning difficulties have not responded to ‘relevant and purposeful measures’ taken by their school and/or external specialists, and, where their learning difficulties may call for SEP, which cannot be reasonably provided within the resources available to maintained, mainstream schools within the LA's area.
Unless it initiates the assessment itself, the LA will have six weeks in which to respond to any request by the parents or the school for an assessment, following which it will issue a decision. If the decision is to refuse an assessment, the parents will be sent a decision letter giving them reasons why and informing them of their right to appeal to the Special Educational Needs & Disability (SEND) Tribunal within two months of being sent the decision. Where the LA initiates an assessment itself, or agrees to a parental or school request for one, it then has a period of ten weeks within which to carry it out. It will do this by seeking written reports known as ‘Advices’ from a number of different people and professionals including the parents, an educational report (usually from the child's school), a medical report (usually from the local paediatrician), a psychological report (usually from their own educational psychologist), a report from the social services (although they may have had no previous contact with the child), as well as any other reports which are considered necessary such as from a speech & language, occupational, or physio therapist. Furthermore, where a child may have sensory difficulties, the LA must also obtain an Educational Advice from a qualified teacher of the visually impaired or the hearing impaired, as well as from the school.
After the assessment is complete, the LA will consider all the available evidence from the school, education, and health professionals, as well as from the parents. Having received the Advices, the LA must then decide whether to make a statement and, if agreeing to do so, must then within a further two weeks, draft and send a proposed statement to the parents with a copy of all the Advices received, (referred to as the ‘Appendices’ to the statement) or notify them that they believe that the making of a statement is unnecessary. If refusing to make a statement the LA will usually issue the child with a document known as a ‘Note in Lieu’.
A Note in Lieu is in a similar format to a statement but does not have any legal status. The LA must also give the parents reasons why they are refusing to make a statement and again notify the parents of their right to appeal to the SEND Tribunal, which must again be lodged within two months of the date of the LA’s letter giving them notice of their right to appeal.
Where the LA agrees to make a statement it will issue one in a proposed form. The statement will be made up of six parts. Part 1 will set out the personal and contact details for the child and his or her parents. Part 2 will describe the child's special educational needs, (that is, his or her learning difficulties), whilst Part 3 will set out the special educational provision that the LA considers necessary to meet those needs. In a proposed statement the LA will leave blank Part 4 which will refer to the school, type of school or other placement that the child should attend, in order to allow the parents to express their own preference for a school. Parts 5 and 6 will also state the child's non-educational needs and non-educational provision.
When sending them the proposed statement the LA should also provide parents with information on maintained schools in their Authority which they can then express a preference for to be named in Part 4 in the final version of the statement, as well as information about ‘independent’ or ‘non-maintained’ special schools around the country. After receiving the proposed statement, the parents will be given 15 days in which to make any representations they want to the LA about its contents as well as to express their preference for a maintained school. Parents will also have a right to request and attend a meeting with an officer of the LA, in order to discuss the proposed statement. Following this meeting the parents will have a further 15 days in which to make additional representations or to request a further meeting. The LA normally has eight weeks from issuing the proposed statement (which includes the 15 days for making parental representations) to have to finalise the statement with the name of a school, type of school or other placement, after considering the parental representation and preference for a school. A statement of SEN must always do the following:
The LA must always name a school, type of school, or other type of placement in Part 4 that it believes will be able to meet the child's needs. It should also be the parents' preferred school, as long as that school can meet the child’s needs and will not amount to an ‘inefficient use of the LA's resources’ or be ‘incompatible with the efficient education of other children' (if it is a maintained school) or is considered to be 'unreasonable public expenditure' (if it is an independent or non-maintained school). The school or placement named will usually be expected to be able to provide all of the SEP set out in Part 3 itself, but may only be able to do this with the LA's support or additional funding, which must be specified and quantified in Part 3 of the statement.
The statement must also be maintained and monitored by the LA after this and reviewed annually. The parents will be invited to take part in the review meetings together with all other educational professionals who are involved with the child. When the final statement is issued, the parents will be given a right to appeal to the SEND Tribunal if they dispute its contents in relation to Parts 2, 3, and/or 4, but as before, with refusals to assess or refusals to make a statement, must do this within two months of the LA issuing the final signed statement with a covering letter giving notice of their right to appeal.
Historically, the debate around the issue of statements has always seemed to overshadow the general debate on special educational needs and is often a heated and controversial one. Emotions run high about this issue and there has always been a great deal of mistrust between parents and LAs, parents and schools, schools and LAs, or LAs and organisations supporting parents. This is normally because parents feel that they have to fight LAs (and sometimes schools as well) to get a statement for their child. Schools feel that LAs are not supporting them properly (both financially and otherwise) or that parents are being unreasonable in their expectations and organisations feel that LAs are often overly bureaucratic and resource driven and sometimes seem to try and avoid doing what is right for the child in the first place by only providing minimal support, and then waste time and tax-payer’s money defending Tribunal appeals or other legal actions that are consequently brought against them.
On the other hand, LAs feel that all the other parties do not fully understand or appreciate the dilemma that they find themselves in, having limited resources yet at the same time extensive statutory duties to have to meet them with. LAs have also sought in recent years to 'delegate' more of their funding to maintained mainstream schools and have often been seeking to shift the balance of their central support services towards early intervention. In fact, it is even sometimes argued that if schools get better at dealing with children with learning difficulties the SEN label might eventually become unnecessary or inappropriate in future years.
The process is never smooth nor very quick. Ideally, it should take six months from requesting an assessment to getting a statement. But, year on year, the SEND Tribunal reports a high number of appeals being brought by parents against LA refusals to assess or reassess, refusals to make a statement or appeals against the contents of a statement, including the provision in Part 3 and/or the school placement named in Part 4. In fact, it is actually after a statement is finalised that is often the point where disputes start, as either the LA does not agree to name the parentally preferred school in Part 4 or the parents are not happy with the description of their child's needs set out in Part 2 or, more usually, feel that the provision identified in Part 3 is inadequate. For example, this may be because the level of learning support or teaching assistance stipulated is not considered sufficient or because the overall special educational provision is not sufficiently specified or quantified. It may also be because there is no reference to direct or indirect therapeutic support put in or because any therapeutic support included is not identified as an educational need or provision (as opposed to a non-educational need or provision).
THE PROPOSED SEN FRAMEWORK
In order to put things in context, before we look at the future SEN framework which may come into effect in September 2014, it is important here to first look at recent history.
The need for a new SEN framework really came about in 2006 when the Education Select Committee said that the current SEN system was ‘not fit for purpose’. There were then four separate inquiries conducted between 2007 and 2010 including:
But the main Inquiry that everyone now refers to is the Lamb Inquiry which was conducted by Brian Lamb (who was then Chair of the Special Educational Needs Consortium) in 2008/2009. He was commissioned by the Labour Government in power at the time and asked to consider ways that we could improve parental confidence in the SEN system.
He reported back in full at the end of 2009 after making a couple of interim suggestions. Although he made a number of recommendations, only two of these eventually made it onto the statute book before Parliament was dissolved in late spring 2010 which then led to the election of the Coalition Government (between the Conservatives and Liberal Democrats) in May 2010.
As though there had not been enough Inquiries into SEN already, the Government then issued a document entitled ‘SEN Green Paper – ‘Call for Views’’ in September 2010.
In October 2010 they also issued their much anticipated ‘Comprehensive Spending Review’ which said that, amongst other things:
Around the same time (September 2010), Ofsted issued a report entitled ‘A Statement is not Enough’. It made a number of criticisms and said that that schools were over-diagnosing children with SEN (which the media then used as a way to criticise schools for trying to get more funding, although it was basically Ofsted saying that many children would not be diagnosed with SEN if they just had better teaching/pastoral support and we had higher expectations for them).
In December 2010 the Government published the results of their ‘Call for Views’ and then in March 2011 they published an ‘SEN Green Paper’ which promised the ‘biggest reforms to SEN in 30 years’.
They said that the proposals in the SEN Green Paper would avoid problems like:
The SEN Green Paper also said that the Government now proposed to:
Although there was a lot of debate by parents, schools, LAs, education/disability organisations and the media in the meantime, unfortunately, it was not until over a year later on 15 May 2012 that the Government issued their response to the SEN Green Paper. In fact, it was only on 3 September 2012 that they issued a set of ‘Draft Provisions’ setting out what would happen to the SEN framework in a forthcoming ‘Children & Families Bill’.
The ‘Draft Provisions’ stated that:
Just a few days later, on 6 September 2012, the Education Select Committee then announced that they were holding an immediate Inquiry into the ‘Draft Provisions’ and would scrutinise the proposals. They invited evidence from interested parties to help them decide if the reforms would actually increase support for children/young people with SEN/disabilities and their families,
After receiving both written and oral evidence, the Education Select Committee published their report on 19 December 2012 (on time unlike the Government’s response to the SEN Green Paper) and said, broadly, that they welcomed the proposals and advised that there be no delay in implementing them; but they also said that health legislation would need changing if ‘joined-up services’ were to be successful and they also said that the lack of detail in the proposals meant that a proper evaluation was impossible.
In addition the Education Select Committee made a number of criticisms such as:
In fact, the Government had said that they would also draw lessons from pilot projects known as ‘Pathfinders’ (there are 20 Pathfinders over 31 LAs and associated Health Authorities) but the Committee noted that many of these Pathfinders were still at an early stage and needed to be extended (especially as some had only been set up as late as September 2012).
By this stage it was already clear to a number of observers that we were getting into a strange position since:
Effectively, this meant that the Pathfinders would be reporting back only after (or at the same time) as the new law was implemented! (Although the Coalition Government later responded by saying that they were also basing changes on them receiving interim findings from the Pathfinders [although this evidence was not in the public domain].)
On 4 February 2013, the Government issued the Children & Families Bill, Part 3 of which would cover the new legal duties for children with SEN in England. It states, amongst other things, that:
In respect of schools, the Children & Families Bill also states the following:
Although the provisions of the Bill have been broadly welcomed, there have also been criticisms. The best summary of this criticism was from the charity IPSEA (Independent Parents for Special Education Advice) who said that whilst there were five previous issues that had successfully been addressed by the Children & Families Bill such as:
However, IPSEA also made six criticisms, as follows:
In the meantime (in March 2013) a Draft Code of Practice has now been published.
Personally, whilst WE agree with the basic aspirations for change, WE think that we still have to recognise that the SEN system is still an emotive one in which there is always going to be an inherent tension as parents understandably want the ‘best’ for their child but LAs still only have to provide them with an ‘adequate’ education.
Parents will often say that LAs are short-sighted because less provision may be less cost now but more cost to the state in the future whereas more provision may be more cost now but less cost to the state in the future. LAs though say that parents still only focus on the present.
The main concerns that WE have are four-fold:
What we do know is that no-one has a crystal ball to look into the future and WE have found that, although WE specialise in SEN cases and have done so for well over 15 years, WE still sometimes struggle to keep up with what is going on, so WE wonder how parents/schools/LAs are expected to manage/present cases. It is arguable that if we just have to leave it to the SEND Tribunal to decide at a hearing, we may have already effectively failed (as we should have been able to resolve the dispute earlier). There is also more case law to have regard to, more potential issues to resolve and more potential consequences to consider.
We shall still have to wait and see what actually happens in September 2014 (or when the Children & Families Bill is eventually implemented).
If you need to keep up to date with SEN issues, you should also refer to out Latest News updates which are done at the beginning of the academic terms (i.e. Autumn (September), Spring (January) & Summer (April/May)).
THE CURRENT SEN FRAMEWORK
It is commonly reported that only about 3% of pupils across all schools in England have Statements of SEN (Special Educational Needs) whereas about 20% of them have SEN of one form or another. The current SEN framework was originally set out in Part 4 of the Education Act 1996 which has gradually been amended by other legislation over the years and also we have to have regard to the SEN Code of Practice which was amended in 2001.
In essence, an LA must currently conduct a ‘statutory assessment’ of a child where it believes that the child has special educational needs which are either not being met through school based intervention or where those needs are so substantial that a mainstream school would not be able to meet them effectively from within their own resources.
An assessment can also be requested by the child's parents or the child’s school, provided that a previous assessment request has not been made within six months, ending with the date on which the request is made. The LA will need to be satisfied that the child 'probably' has special educational needs and that the LA 'needs,' or 'probably needs', to determine the special educational provision (SEP) for them themselves by making a statement of SEN.
A statutory assessment will only be undertaken by the LA where the evidence suggests that the child's learning difficulties have not responded to ‘relevant and purposeful measures’ taken by their school and/or external specialists, and, where their learning difficulties may call for SEP, which cannot be reasonably provided within the resources available to maintained, mainstream schools within the LA's area.
Unless it initiates the assessment itself, the LA will have six weeks in which to respond to any request by the parents or the school for an assessment, following which it will issue a decision. If the decision is to refuse an assessment, the parents will be sent a decision letter giving them reasons why and informing them of their right to appeal to the Special Educational Needs & Disability (SEND) Tribunal within two months of being sent the decision. Where the LA initiates an assessment itself, or agrees to a parental or school request for one, it then has a period of ten weeks within which to carry it out. It will do this by seeking written reports known as ‘Advices’ from a number of different people and professionals including the parents, an educational report (usually from the child's school), a medical report (usually from the local paediatrician), a psychological report (usually from their own educational psychologist), a report from the social services (although they may have had no previous contact with the child), as well as any other reports which are considered necessary such as from a speech & language, occupational, or physio therapist. Furthermore, where a child may have sensory difficulties, the LA must also obtain an Educational Advice from a qualified teacher of the visually impaired or the hearing impaired, as well as from the school.
After the assessment is complete, the LA will consider all the available evidence from the school, education, and health professionals, as well as from the parents. Having received the Advices, the LA must then decide whether to make a statement and, if agreeing to do so, must then within a further two weeks, draft and send a proposed statement to the parents with a copy of all the Advices received, (referred to as the ‘Appendices’ to the statement) or notify them that they believe that the making of a statement is unnecessary. If refusing to make a statement the LA will usually issue the child with a document known as a ‘Note in Lieu’.
A Note in Lieu is in a similar format to a statement but does not have any legal status. The LA must also give the parents reasons why they are refusing to make a statement and again notify the parents of their right to appeal to the SEND Tribunal, which must again be lodged within two months of the date of the LA’s letter giving them notice of their right to appeal.
Where the LA agrees to make a statement it will issue one in a proposed form. The statement will be made up of six parts. Part 1 will set out the personal and contact details for the child and his or her parents. Part 2 will describe the child's special educational needs, (that is, his or her learning difficulties), whilst Part 3 will set out the special educational provision that the LA considers necessary to meet those needs. In a proposed statement the LA will leave blank Part 4 which will refer to the school, type of school or other placement that the child should attend, in order to allow the parents to express their own preference for a school. Parts 5 and 6 will also state the child's non-educational needs and non-educational provision.
When sending them the proposed statement the LA should also provide parents with information on maintained schools in their Authority which they can then express a preference for to be named in Part 4 in the final version of the statement, as well as information about ‘independent’ or ‘non-maintained’ special schools around the country. After receiving the proposed statement, the parents will be given 15 days in which to make any representations they want to the LA about its contents as well as to express their preference for a maintained school. Parents will also have a right to request and attend a meeting with an officer of the LA, in order to discuss the proposed statement. Following this meeting the parents will have a further 15 days in which to make additional representations or to request a further meeting. The LA normally has eight weeks from issuing the proposed statement (which includes the 15 days for making parental representations) to have to finalise the statement with the name of a school, type of school or other placement, after considering the parental representation and preference for a school. A statement of SEN must always do the following:
- In Part 2, set out the child's special educational needs in terms of the child's learning difficulties which calls for SEN provision as assessed by the LA;
- In Part 3, set out the special educational provision which the LA thinks is necessary to meet those needs; and
- In Part 4, name a school, type of school or other type of placement.
The LA must always name a school, type of school, or other type of placement in Part 4 that it believes will be able to meet the child's needs. It should also be the parents' preferred school, as long as that school can meet the child’s needs and will not amount to an ‘inefficient use of the LA's resources’ or be ‘incompatible with the efficient education of other children' (if it is a maintained school) or is considered to be 'unreasonable public expenditure' (if it is an independent or non-maintained school). The school or placement named will usually be expected to be able to provide all of the SEP set out in Part 3 itself, but may only be able to do this with the LA's support or additional funding, which must be specified and quantified in Part 3 of the statement.
The statement must also be maintained and monitored by the LA after this and reviewed annually. The parents will be invited to take part in the review meetings together with all other educational professionals who are involved with the child. When the final statement is issued, the parents will be given a right to appeal to the SEND Tribunal if they dispute its contents in relation to Parts 2, 3, and/or 4, but as before, with refusals to assess or refusals to make a statement, must do this within two months of the LA issuing the final signed statement with a covering letter giving notice of their right to appeal.
Historically, the debate around the issue of statements has always seemed to overshadow the general debate on special educational needs and is often a heated and controversial one. Emotions run high about this issue and there has always been a great deal of mistrust between parents and LAs, parents and schools, schools and LAs, or LAs and organisations supporting parents. This is normally because parents feel that they have to fight LAs (and sometimes schools as well) to get a statement for their child. Schools feel that LAs are not supporting them properly (both financially and otherwise) or that parents are being unreasonable in their expectations and organisations feel that LAs are often overly bureaucratic and resource driven and sometimes seem to try and avoid doing what is right for the child in the first place by only providing minimal support, and then waste time and tax-payer’s money defending Tribunal appeals or other legal actions that are consequently brought against them.
On the other hand, LAs feel that all the other parties do not fully understand or appreciate the dilemma that they find themselves in, having limited resources yet at the same time extensive statutory duties to have to meet them with. LAs have also sought in recent years to 'delegate' more of their funding to maintained mainstream schools and have often been seeking to shift the balance of their central support services towards early intervention. In fact, it is even sometimes argued that if schools get better at dealing with children with learning difficulties the SEN label might eventually become unnecessary or inappropriate in future years.
The process is never smooth nor very quick. Ideally, it should take six months from requesting an assessment to getting a statement. But, year on year, the SEND Tribunal reports a high number of appeals being brought by parents against LA refusals to assess or reassess, refusals to make a statement or appeals against the contents of a statement, including the provision in Part 3 and/or the school placement named in Part 4. In fact, it is actually after a statement is finalised that is often the point where disputes start, as either the LA does not agree to name the parentally preferred school in Part 4 or the parents are not happy with the description of their child's needs set out in Part 2 or, more usually, feel that the provision identified in Part 3 is inadequate. For example, this may be because the level of learning support or teaching assistance stipulated is not considered sufficient or because the overall special educational provision is not sufficiently specified or quantified. It may also be because there is no reference to direct or indirect therapeutic support put in or because any therapeutic support included is not identified as an educational need or provision (as opposed to a non-educational need or provision).
THE PROPOSED SEN FRAMEWORK
In order to put things in context, before we look at the future SEN framework which may come into effect in September 2014, it is important here to first look at recent history.
The need for a new SEN framework really came about in 2006 when the Education Select Committee said that the current SEN system was ‘not fit for purpose’. There were then four separate inquiries conducted between 2007 and 2010 including:
- Toby Salt (on Provision for Children with Severe Learning Difficulties ‘SLD] and Profound & Multiple Learning Difficulties [PMLD]);
- John Bircow, MP (on Meeting the Needs of Children with Speech, Language & Communication Difficulties [SLCD]);
- Sir Jim Rhodes (on Teaching Children with Literacy Difficulties and Dyslexia); and
- Aiming High for Disabled Children (on Better Support for Families).
But the main Inquiry that everyone now refers to is the Lamb Inquiry which was conducted by Brian Lamb (who was then Chair of the Special Educational Needs Consortium) in 2008/2009. He was commissioned by the Labour Government in power at the time and asked to consider ways that we could improve parental confidence in the SEN system.
He reported back in full at the end of 2009 after making a couple of interim suggestions. Although he made a number of recommendations, only two of these eventually made it onto the statute book before Parliament was dissolved in late spring 2010 which then led to the election of the Coalition Government (between the Conservatives and Liberal Democrats) in May 2010.
As though there had not been enough Inquiries into SEN already, the Government then issued a document entitled ‘SEN Green Paper – ‘Call for Views’’ in September 2010.
In October 2010 they also issued their much anticipated ‘Comprehensive Spending Review’ which said that, amongst other things:
- There would be a cut of around 35% in funding for government departments;
- There would be a 7.1% cut in LA revenue which would have a ‘knock on’ effect on auxiliary services to schools;
- There would be more support for children with disabilities/long term health conditions; and
- ‘Personal budgets’ would be introduced and extended for children with SEN.
Around the same time (September 2010), Ofsted issued a report entitled ‘A Statement is not Enough’. It made a number of criticisms and said that that schools were over-diagnosing children with SEN (which the media then used as a way to criticise schools for trying to get more funding, although it was basically Ofsted saying that many children would not be diagnosed with SEN if they just had better teaching/pastoral support and we had higher expectations for them).
In December 2010 the Government published the results of their ‘Call for Views’ and then in March 2011 they published an ‘SEN Green Paper’ which promised the ‘biggest reforms to SEN in 30 years’.
They said that the proposals in the SEN Green Paper would avoid problems like:
- Parents having to battle to get the support their child needs;
- SEN statements not joining up education, health and care support;
- Children falling between gaps in services or having to undergo multiple assessments;
- Lots of unnecessary paperwork/bureaucracy adding delays to children getting the appropriate support/equipment;
- A confusing/adversarial assessment process;
- A perceived conflict of interests if the LA were providing the support and identifying needs; and
- The over-identification of children as having SEN resulting in lower expectations for them.
The SEN Green Paper also said that the Government now proposed to:
- Include parents in the assessment process;
- Introduce a new legal right by 2014 to give parents control of funding for their child’s support;
- Replace statements with a single assessment process leading to an ‘Education, Health & Care Plan’;
- Make EHC assessment plans run from birth to 25 years old;
- Replace the existing complicated ‘school action/school action plus’ system with one simpler school-based category (which they said would help teachers raise attainment);
- Inject greater independence from LAs by getting support from voluntary organisations; and
- Give parents a greater choice of schools including the power for them/others to set up special ‘Free’ schools.
Although there was a lot of debate by parents, schools, LAs, education/disability organisations and the media in the meantime, unfortunately, it was not until over a year later on 15 May 2012 that the Government issued their response to the SEN Green Paper. In fact, it was only on 3 September 2012 that they issued a set of ‘Draft Provisions’ setting out what would happen to the SEN framework in a forthcoming ‘Children & Families Bill’.
The ‘Draft Provisions’ stated that:
- The Bill would replace Part 4 of the Education Act 1996 (and sections 1 through 9A of the Learning & Skills Act 2000 for those young people who were Post-16/19);
- The definition of SEN/SEP (special educational needs/special educational provision) would remain the same;
- Statutory assessments/statements would be replaced by EHC (Education, Health & Care) assessments/plans;
- EHC Plans would extend statutory rights to Further Education (FE) for the first time (except Apprenticeships);
- LAs and clinical commissioning groups for health bodies would have to make arrangements for jointly commissioning services for children with SEN in their area;
- LAs would have to produce information on local EHC services available (known as the ‘Local Offer’);
- There would be no duties on Health/Social Care in relation to delivering the contents of an EHC Plan;
- EHC Plans would cease when the young person was no longer in education or training;
- All provisions in the Bill would apply to Academies in full;
- Parents and young people (over 16 who would have a right to appeal for the first time in their own right) would have to attend compulsory mediation before they could appeal.
Just a few days later, on 6 September 2012, the Education Select Committee then announced that they were holding an immediate Inquiry into the ‘Draft Provisions’ and would scrutinise the proposals. They invited evidence from interested parties to help them decide if the reforms would actually increase support for children/young people with SEN/disabilities and their families,
After receiving both written and oral evidence, the Education Select Committee published their report on 19 December 2012 (on time unlike the Government’s response to the SEN Green Paper) and said, broadly, that they welcomed the proposals and advised that there be no delay in implementing them; but they also said that health legislation would need changing if ‘joined-up services’ were to be successful and they also said that the lack of detail in the proposals meant that a proper evaluation was impossible.
In addition the Education Select Committee made a number of criticisms such as:
- Any revised SEN Code of Practice would need to be laid before Parliament before being enacted as statutory guidance (the Government were not originally planning on doing this);
- The Government had not engaged with Post-16 education providers yet and should do so immediately;
- The Government was too heavily reliant on a duty of joint commissioning but Health would need to play a bigger part as currently there was no requirement on them to provide anything (e.g. provision of speech & language therapy [SALT]);
- EHC assessments would need more rigorous testing;
- The current protection afforded by statements would have to be maintained in any new legislation;
- Whilst they agreed with the concept of early/meaningful engagement by LAs with parents regarding EHC assessments/plans the issue of compulsory mediation (which had met strong resistance in the evidence they had received) was not correct and that instead there should only be ‘consideration’ of mediation;
- The scope of entitlement to EHC assessments/plans should be extended to disabled children without SEN and young people undertaking apprenticeships;
- Whilst they welcomed the extension of the right to increase parental preference to include requesting Academies/Free Schools/non-maintained schools, they felt that independent special schools and colleges should also be included; and
- Parents/Young People should be involved in the development of ‘local offers’ and that there should also be minimum standards for these with a national framework and improved accountability.
In fact, the Government had said that they would also draw lessons from pilot projects known as ‘Pathfinders’ (there are 20 Pathfinders over 31 LAs and associated Health Authorities) but the Committee noted that many of these Pathfinders were still at an early stage and needed to be extended (especially as some had only been set up as late as September 2012).
By this stage it was already clear to a number of observers that we were getting into a strange position since:
- The legal process for change had already started;
- Until there was new law/guidance, the current SEN framework would still apply;
- We were still waiting to get results/evidence from the Pathfinders; and
- The Children & Families Bill was due to get Royal Assent in Spring 2014 but be implemented in late 2014.
Effectively, this meant that the Pathfinders would be reporting back only after (or at the same time) as the new law was implemented! (Although the Coalition Government later responded by saying that they were also basing changes on them receiving interim findings from the Pathfinders [although this evidence was not in the public domain].)
On 4 February 2013, the Government issued the Children & Families Bill, Part 3 of which would cover the new legal duties for children with SEN in England. It states, amongst other things, that:
- The definition of SEN/SEP will stay the same;
- EHC assessments/plans will replace statements;
- There will still be a duty on the LA for Education but they will now have to keep Health/Social Care under ‘review’;
- A revised Code of Practice will be issued as Statutory Guidance (and a draft of it must be laid before each House of Parliament);
- A request for an EHC assessment can be made by a parent/young person/school;
- Health and Social Care provision will be considered SEP (‘Special Educational Provision’) if it is made mainly for the purposes of education/training of a child;
- If Health bodies believe a child has SEN they must inform the child’s parents/LA;
- Joint commissioning arrangements will be made to secure proper EHC assessments/provision;
- LAs must ensure SEP is integrated with Health/Social Care provision if it promotes the well-being of children with SEN or will improve the quality of delivery of SEP;
- LAs will have a duty to cooperate with local partners in their area;
- LAs must make ‘local offers’ setting out provision in their area; and
- LAs will have a duty to arrange SEN advice for parents/young people/schools.
In respect of schools, the Children & Families Bill also states the following:
- Children without an EHC Plan must be educated in a maintained school (unless this is not at a cost to the LA);
- Governing Bodies/Proprietary of a school/educational institution must report relevant SEN information, such as their SEN policy or steps taken to avoid discrimination/admission arrangements/facilities;
- An LA must name the parentally preferred maintained school in an EHC Plan unless it would be incompatible with the wishes of the parents/young person and the provision of efficient education for others;
- An LA must name a parentally preferred school in an EHC Plan unless the school is unsuitable for the child’s age/ability/aptitude/SEN or their attendance would be incompatible with the efficient education of other children or the efficient use of resources;
- LAs must use their ‘best endeavours’ to ensure that SEP is made for children with SEN;
- An EHC Plan must be maintained until the end of the academic year where the young person turns 25 years old;
- LAs must prepare a ‘Personal Budget’ for a child with SEN if prompted by their parents; and
- Parents can still appeal to the SEND Tribunal against EHC assessment decisions/plans but only where a mediation ‘advisor’ has issued them with a certificate to say that they have received advice about mediation (whether they have participated in it or not).
Although the provisions of the Bill have been broadly welcomed, there have also been criticisms. The best summary of this criticism was from the charity IPSEA (Independent Parents for Special Education Advice) who said that whilst there were five previous issues that had successfully been addressed by the Children & Families Bill such as:
- Parents/school still have the right to request an assessment;
- LAs retain their duty to ‘specify’ (not ‘set out’ as had been originally suggested);
- EHC Plans will continue to be maintained until an appeal against a decision to cease it is completed;
- The new SEN Code of Practice will now be scrutinised by Parliament before becoming law; and
- There is no need for parents/young people to take part in compulsory mediation before lodging an appeal.
However, IPSEA also made six criticisms, as follows:
- Special Academies can now admit children with SEN into the school without an EHC assessment or plan;
- There is a loss of requirement for time limits or how to prescribe the form/content of an EHC Plan (which there is with statutory assessments/statements);
- There is no minimum level of professional evidence to be collected during the EHC assessment (as there is with statements);
- Personal Budgets/Direct Payments are still not clear and there will still be arguments as to whether or not a duty had been fulfilled and there is no right to appeal about this;
- There is still no single EHC Assessment/Plan which will set out ‘Health’ & ‘Social Care’ needs/provision as the LA still only has an ‘Education’ duty; and
- The ‘local offer’ is not going to be legally enforceable and there are still no details about it.
In the meantime (in March 2013) a Draft Code of Practice has now been published.
Personally, whilst WE agree with the basic aspirations for change, WE think that we still have to recognise that the SEN system is still an emotive one in which there is always going to be an inherent tension as parents understandably want the ‘best’ for their child but LAs still only have to provide them with an ‘adequate’ education.
Parents will often say that LAs are short-sighted because less provision may be less cost now but more cost to the state in the future whereas more provision may be more cost now but less cost to the state in the future. LAs though say that parents still only focus on the present.
The main concerns that WE have are four-fold:
- There seems to be both a delay and quickness of change (which sounds a bit contradictory) without the Pathfinder results in yet; and therefore;
- There seems to be insufficient evidence at the moment to make wholesale change by September 2014;
- Where will the funding for changing the SEN system come from?; and
- Will EHC Plans just be statements by another name but now go up to 25 and still only focus on education?
What we do know is that no-one has a crystal ball to look into the future and WE have found that, although WE specialise in SEN cases and have done so for well over 15 years, WE still sometimes struggle to keep up with what is going on, so WE wonder how parents/schools/LAs are expected to manage/present cases. It is arguable that if we just have to leave it to the SEND Tribunal to decide at a hearing, we may have already effectively failed (as we should have been able to resolve the dispute earlier). There is also more case law to have regard to, more potential issues to resolve and more potential consequences to consider.
We shall still have to wait and see what actually happens in September 2014 (or when the Children & Families Bill is eventually implemented).
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Although the information we have provided here is meant to be helpful to you, Douglas Silas Solicitors cannot be held responsible for any damage or loss caused by reliance placed upon it.
If you have any concerns about your child, you should seek professional advice as soon as possible.
Although the information we have provided here is meant to be helpful to you, Douglas Silas Solicitors cannot be held responsible for any damage or loss caused by reliance placed upon it.
If you have any concerns about your child, you should seek professional advice as soon as possible.
