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DfE statistics on the Special Educational Needs and Disability reforms – could do better?

The Department for Education (DfE) has released its 2016-2017 statistics looking at special educational needs and disabilities (SEND) (25 May 2017). The statistics include information on the progress of transferring Statements of SEN (SSENs) and learning difficulty assessments to Education, Health and Care Plans (EHCPs) and relate to the period since the introduction of the Children and Families Act 2014 (CFA) which replaces SSENs with EHCPs.

All SSENs must be transitioned over to EHCPs by 31 March 2018. We have around two terms left for all transitions to take place. This means that, if your local authority (LA) has not already started the transition process for your child, it must do so, at the very latest, in the coming autumn term, in order that the twenty week process can be completed in good time.

The DfE statistics were collated in January 2017, around two-thirds into the timeline for full transition. They reveal how well LAs are adhering to the transition timetable and how likely it is that LAs will be ready by 31 March 2018.

In my view, the most notable key findings are:

  • The number of children with a SSEN/EHCP has increased each year since 2010. The increase from January 2016 to January 2017 is 12.1% (combined total in January 2016 of 256,315 and 287,290 in January 2017).

    SEND reforms - Statements and EHC plans in place

  • The age group that is increasing most significantly is the 16-19 year olds (8.9% of all CYP with an SSEN in January 2010 were 16-19 years, compared to 20.2% in January 2017). The CFA brings young people aged 20-25 years into the system for the first time. They accounted for only 2.7 of all EHCPs. I expect this figure will increase over time.
  • Only 32.7% of SSENs in January 2016 were transitioned to EHCPs by January 2017. If adhering to the timeline set out in the CFA, this figure should be more like 66%.
  • The number of CYP with a SSEN/EHCP attending mainstream or special school is split fairly evenly with 44.8% in mainstream school and 42.5 % in special school. Interestingly, as a direct result of the CFA, we have, for the first time, 11.5% of young people with an EHCP in further education.
  • There were 14,795 initial requests for an EHC needs assessment in 2016 that were refused, an increase of 35% from 2015. This corresponds to the numbers of enquiries that we get.
  • The overwhelming majority of CYP assessed are issued with an EHCP (95.6%).
  • In 2016 only 55.7% of new EHCPs were issued within the 20 week lime limit. Looking at individual LAs – it looks like Dorset is in trouble, with only 1.9% of new EHCPs issued within 20 weeks. This is from a total of 268 EHCPs issued. Ten LAs have issued fewer than 10% of EHCPs within the 20 week time limit.
  • The statistics states that there were 6,442 personal budgets in place in EHCPs or reviewed in 2016. It’s unclear whether these led to direct payments but I am assuming, perhaps generously, that they did lead to payments. At first glance, the relatively high figure is surprising. I have only come across a handful of agreed personal budgets. Upon closer inspection, the majority of these were for social care, with only 525 agreed for education support. I’m unsure what percentage this is but it must be a very low figure and not in line with the spirit of the CFA.
  • There were 1,886 mediation cases in 2016 and, of these, 25.3% proceeded to an appeal in 2016 (this does not include those that went to appeal in 2017 following mediation in 2016). I’m not sure that we can draw any firm conclusions about the success of mediation from statistics alone. A more detailed study of what parents are hoping to achieve and reasons why they do not proceed to appeal following mediation needs to be carried out to establish its success in resolving disagreement.
  • A key problem with the EHCP is the difficulty or lack of joined up working between Education, Health and Social Care. The SEND Code of Practice 2015 states that a Designated Medical Officer (DMO) or Clinical Officer (DCO) should be employed to support clinical commissioning groups in meeting its statutory responsibilities for CYP with SEND. The DMO/DCO should be the point of contact for LAs, schools and colleges seeking health advice for CYP with SEND. The DMO can support schools with their duties under ‘Supporting Pupils with Medical Conditions’ guidance and should routinely be involved in assessments and planning health support. Some clinical commissioning groups may delegate key decisions, such as agreeing the health services in an EHCP, to the DMO/DCO. Sixteen LAs did not have a DMO or DCO in place. That represents just over 10% of all LAs. That, I would say, is simply not good enough.


For all the statistics on increases/decreases of CYP with a SSEN/EHCP in individual LAs and also where apprenticeships, traineeships and supported internships are taking place, take a look at the full DfE statistics here.

If you would like to talk about your child’s special educational needs then please contact us at [email protected] or call 0800 884 0723 – our specialist SEN solicitors are here to help.

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Labour’s manifesto for disabled people: Replacing the EHCP

Wading through the “sound bites” of election manifestos and general press coverage, there was one that caught my eye in particular. Labour released details of their separate mini manifesto specifically on disability policy, “Nothing About You, Without You: A Manifesto With And For Disabled People”.

So, I had to take a look to see what they were planning to deliver for those with Special Educational Needs and Disabilities (SEND).

Labour’s pledges include:

  • tackling discrimination in accessing education;
  • delivering a strategy to promote inclusivity and more substantially embed SEND into training for teachers and support staff;
  • ensuring that the Modern Apprenticeship programme is open to all and increase the numbers of disabled trainees participating; and
  • placing a duty on higher education institutions to ensure accessibility and support to disabled students.

There was one particular Labour pledge, however, which particularly drew my attention:

  • “We will address the disability education gap, which stops disabled children fulfilling their potential, replacing the flawed Education, Health and Care Plan assessment, which has been used to restrict access to support. We will also address issues with skilled support and resourcing, and ensure effective transitioning to adult services”.

Working in the area of special educational needs law there have been frequently documented difficulties and frustrations following  the 2014 Children and Families Act which heralded the introduction of the Education, Health and Care Plans (EHCP) (as replacement for the Statement of Special Educational Needs (SSEN)). Our article last year highlighted some of these.

The recent publication of the statistics and analysis on SSENs and EHCPs in England did not make for a more reassuring read.

We have seen parents struggling to get their child assessed, assessments being incomplete or the quality of information collated as part of the assessment process being unacceptable, with subsequent either refusals to issue an EHCP or draft plans being produced with lack of adequate identification of the child’s needs and lack of specification in the educational provision for that child. Not to mention the difficulty in adhering to timescales for the process. However, to get an adequate EHCP is only part of the journey, the next stage is to ensure that the provision detailed in the EHCP is provided. With recognised issues around funding, resources and communication/working across agencies it can be a wearing process for parents, schools and the children and young people concerned.

But is replacing the system that has only so recently been introduced the answer? It could be argued that there still needs to be some bedding in of the current system. There are still misconceptions out there and misinformation being provided creating confusion. Further Regulations and case law have gone some way to providing further clarity and most would agree that this is still work in progress. Will replacing the system not create at least the same uncertainty as we have experienced over the last few years and further increase the workload on an already strained system? Not to mention the cost. There are certainly well documented issues with EHCPs and the processes surrounding them. While no one can deny an improvement is desired, the lack of accompanying detail to this pledge on how a better system will be achieved may leave some feeling that this is a sound bite without substance. Certainly if replacing the current system is attempted then great care will need to be taken and lessons must be learned from past difficulties. The end result must be kept in sight. Having a good document detailing a child/young person’s needs and the provision to support them in their education is invaluable to all involved, but it is only of value to that child or young person if what is in the document actually happens and is evaluated and develops with the child in an appropriate way. It must not become just a paper exercise.

If you would like to talk about your child’s special educational needs then please contact us at [email protected] or call 0800 884 0723 – our specialist SEN solicitors are here to help.

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Education, Health and Care Plans for young people aged 19-25

Requesting an Education, Health and Care Needs assessment

Young people who have Special Educational Needs (SEN) but do not have an Education, Health and Care Plan (EHCP) have the right to request an assessment of their SEN at any point before their 25th birthday (unless an assessment has been carried out in the previous six months).

Where a request for an Education, Health and Care (EHC) Needs Assessment is made, or the young person is brought to the attention of the local authority as being someone who may have SEN, the local authority must follow the guidance for carrying out EHC needs assessment. When making decisions about whether a Plan needs to be made for a 19- to 25-year-old, local authorities must consider whether the young person requires additional time, in comparison to the majority of others of the same age who do not have SEN, to complete his or her education or training.

Where an EHC Plan is already in place

Where an EHCP is already in place for a young person aged 19 or over, it must continue to be reviewed at least annually. The EHCP must continue to contain outcomes which should enable the young person to complete their education and training successfully and so move on to the next stage of their lives.  This includes employment or higher education and independent living. This will happen at different stages for individual young people and EHCPs extended beyond age 19 will not all need to remain in place until age 25.

Decision to cease an EHC Plan

In line with preparing young people for adulthood, a local authority must not cease an EHCP simply because a young person is aged 19 or over. Young people with EHCPs may need longer in education or training in order to achieve their outcomes and make an effective transition into adulthood. However, this position does not mean that there is an automatic entitlement to continued support at age 19 or an expectation that those with an EHCP should all remain in education until age 25.

A local authority may cease a plan for a 19- to 25-year-old if it decides that it is no longer necessary for the EHCP to be maintained. Such circumstances include where the young person no longer requires the special educational provision specified in their EHCP. In deciding that the special educational provision is no longer required, the local authority must have regard to whether the educational or training outcomes specified in the plan have been achieved.

The local authority should also consider whether remaining in education or training would enable the young person to progress and achieve those outcomes, and whether the young person wants to remain in education or training so they can complete or consolidate their learning. In both cases, this should include consideration of access to provision that will help them prepare for adulthood. Young people who no longer need to remain in formal education or training will not require special educational provision to be made for them through an EHCP.

Local authorities should ensure that young people are given clear information about what support they can receive, including information about continuing study in adult or higher education, and support for health and social care, when their plan ceases.

Maintaining an EHC Plan after young person’s 25th birthday

A local authority may continue to maintain an EHCP for a young person until the end of the academic year during which the young person turns 25.

An academic year is the period of twelve months which ends on the day that the young person’s course is scheduled to end, or on the day before the young person turns the age of 26, if earlier.

Challenging the local authority decision to cease to maintain an EHC Plan

The decision to cease to maintain an EHCP may be challenged to the Special Educational Needs and Disability Tribunal. If the local authority has made an error in fact (about whether it is still responsible for your young person) it is likely that the matter can be resolved by mediation. If the decision to cease to maintain the EHCP is made on the basis that the local authority considers that it is no longer necessary it is less likely that mediation will resolve the situation and an appeal to the Tribunal may be necessary.

This area can be complicated and it may be in your best interests to speak to a specialist solicitor.

If you would like to talk about your child’s special educational needs then please contact us at [email protected] or call 0800 884 0723 – our specialist SEN solicitors are here to help.

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