Changes in SEN Law - training to Scope's Independent Supporters

Laxmi Patel, Head of Education at Boyes Turner, ran a training session on 17 February 2015 at Scope’s head office in London on the recent changes in Special Educational Needs (SEN) law. The training was attended by Scope’s Independent Supporters and coordinators.

“Very useful and a good follow up to face to face training.”

“Very useful information. Very informative, clear and precise.”

“Very good addition to CDC training.”

On 7 January 2014 the Department for Education announced that, “More than 1,800 champions will be on hand from this September to help parents navigate the new special educational needs process following a £30 million funding boost.” On 29 April 2014 we wrote about the £30 million allocated to recruit and train 1800 ‘champions’ to support parents as reforms are implemented and a further £70 million grant to help local authorities prepare for the reforms.

The Independent Supporters are true ‘champions’ – they are the people on the ground helping parents navigate the new system. We had interesting discussions about how different local authorities are putting the transition to the new SEN regime in place and how the Independent Supporters can best inform parents. We include here a sample of the points discussed:

• Supporting young people over 16 years
• Best possible outcomes
• Personal Budgets

Supporting young adults over 16 years

The Children and Families Act 2014 sets out that when a young person reaches 16 years, they are regarded as a ‘young person’ rather than a ‘child’. If the young person has mental capacity, they will have rights to:

• Request an Education, Health and Care (EHC) needs assessment
• Make representations about the content of their Education, Health and Care Plan (EHCP)
• Request that a particular school or college is named on their EHCP
• Request a personal budget for the support set out in the EHCP
• Appeal to the Special Educational Needs and Disability (SEND) Tribunal

The SEND Code of Practice 2015 states (from para 2.9) that local authorities should recognise the different needs of children, young people and parents and provide support accordingly. So, staff working with young people should be trained to support them so that they can fully participate in decisions about the outcomes that they wish to achieve. ‘Young people may be finding their voice for the first time, and may need support in exercising choice and control over the support they receive (including support and advice to take up and manage Personal Budgets. Advocacy should be provided where necessary. Local authorities must provide independent advocacy for young people undergoing transition assessments, provided certain conditions are met (see section 67 of the Care Act 2014). 

Best possible outcomes

Section 19 of the SEND Code of Practice 2014 sets out the principles underpinning the Children and Families Act 2014 for children and young people with SEN.  It makes clear that local authorities must:

• Have regard to the views, wishes and feelings of the child or young person and parents
• Have regard to the importance of participation and to be provided with the tools necessary to enable participation
• Support the child or young person and their parents to help them ‘achieve the best possible educational and other outcomes, preparing them effectively for adulthood’.

Clearly, what is meant by ‘best possible outcomes’ will need to be tested by cases being brought before the Special Educational Needs and Disability Tribunal. ‘Best possible outcomes’ could imply ‘Rolls Royce’ provision, something which case law under the ‘old’ SEN regime made clear was not the case. Under the ‘old’ regime, case law makes it clear that the LA/Tribunal is under a duty to secure provision which meets the child’s SEN but is not “under an obligation to provide a child with the best possible education.  There is no duty on the authority to provide such a Utopian system or to educate him or her to his or her maximum potential……”, R v Surrey CC ex p H [1984] 83 LGR 219 and Judge Burton’s comments at paragraph 51 in Hammersmith & Fulham v Pivcevic & SENDIST [2006] ELR 594.

Also, what is meant by ‘and other outcomes’? Does this include health and/or social care? 

Personal Budgets

A Personal Budget is a sum of money that the local authority identifies to deliver SEN provision. Parents or young people will be able to request a Personal Budget once the local authority has agreed it will issue an EHCP or during the annual review process. Local authorities must consider the request but there are exceptions which mean that they do not always have to provide a Personal Budget. They will not have to provide a Personal Budget if:

• There are concerns that it will negatively impact on other people or will be poor value for money; or
• There are concerns about the young person or family’s ability to manage the money.

Provision of a Personal Budget does not necessarily mean that the local authority will agree to make direct payments. To make payments the local authority has to be satisfied that:

• The recipient will use them to secure the agreed provision in an appropriate way;
• The recipient will act in the best interests of the child or young person;
• The direct payments will not have an adverse impact on the other services that the local authority provides for other children or young people with an EHCP which that local authority maintains; and
• Paying for provision by direct payments is an efficient use of the local authority’s resources.

Read more about Personal Budgets in our factsheet here.