Education Law Monitor, October 2015 - Guest article from Boyes Turner's Laxmi Patel

We have recently written an article for the periodical, Education Law Monitor. Within our article, we explored the developments of the special educational needs system over the last year and what we hope to see in the next year.

Special Educational Needs – All Change!

In our latest guest article, Laxmi Patel considers the state of the SEN regime a year after the advent of the Children and Families Act.

The special educational needs (SEN) reforms in the Children and Families Act (CFA) took force on 1 September 2014.

Before 1 September 2014, support for children with SEN was provided through a staggered approach. The children with the most severe needs were supported with a Statement of Special Educational Needs (SSEN). Roughly 20% of all children have SEN whereas only 2% of all children have a SSEN.

From 1 September 2014, the staggered levels of support have been replaced with one form of support, now called Additional SEN Support. SSENs are replaced with Education, Health and Care Plans (EHCPs) which cater for social and health needs as well as SEN.

At the time of the reforms, there were concerns that transition to the new system would be difficult, but we felt hopeful that we were on the brink of a positive cultural shift.

Every new system does have teething problems, the SEN reforms are no different.

Lack of professionals and money leading to short-cuts

Before the CFA took effect, professional bodies warned of a lack of experts. The Association of Educational Psychologists raised concerns about the lack of educational psychologists in schools.

After the implementation of the reforms, it has become apparent that there are also not enough health professionals or social workers.

When a young person moves to from SSEN to EHCP, an EHC needs assessment must be conducted by the local authority (LA). This should involve both social care and medical professionals. In our experience, health and social care are rarely involved and the relevant sections are often blank in EHCPs.

Some LAs also claim that they are not required to conduct an EHC needs assessment when converting from SSEN to EHCP. This has prompted the DfE to publish numerous advices throughout the year which all stress that an EHC needs assessment must be completed.

In addition to the lack of professionals, the cost of the reforms to local authorities is enormous. The cost comes at a time of significant budget cuts. An EHC needs assessment is expensive and needs to be conducted for every conversion. The estimated national cost of this is around £1.2 billion.

Before the implementation of the reforms, the DfE repeatedly set out that they did not expect any children to ‘lose’ provision as a result of moving from SSEN to EHCP. In our experience, many children are facing the situation of either ‘losing’ some provision, or all of it, as result of the change.

Too much to do in too little time

Almost as soon as the CFA took effect, the Council for Disabled Children and National

Union of Teachers advised that LAs needed more time to implement the reforms.

The transition arrangements give LAs until April 2018 to transfer all SSENs to EHCPs but some LAs are rushing. In November 2014 Edward Timpson MP, Minister of State for

Children and Families, wrote to LAs emphasising the need for gradual change. This has been followed by revised secondary legislation increasing the time LAs have to transition each SSEN to EHCP from 16 to 20 weeks.

Fewer children receiving support

On 23 July 2015 the Department for Education (DfE) released data which tracked changes in the SEN population. It also detailed how those children were supported.

Two significant issues are apparent:

• In 2015, 15.4% of children were recognised as having SEN. In 2014 the figure was 17.9%. In real numbers, that means nearly a quarter of a million children ‘fell out’ of SEN provision in 2014/2015.
• The number of children recognised as having SEN has been decreasing since 2010. Each year the drop has been around 1 percentage point. The drop in 2015 was therefore 2.5 times as much as previous years.
• The biggest drop in number of children ‘diagnosed’ with SEN is at age 12. This figure dropped by 4.1 percentage points compared to the 2.5 percentage point drop nationally. This is the age at which children move to secondary school. It is also the age where many children will have moved from an SSEN to EHCP, suggesting that that transition point is resulting in children ‘losing’ provision, despite promises from the DfE that this would not happen.

The CFA makes clear that the definition of SEN has not changed. The DfE have made clear that they expect that children will not ‘lose’ provision because of the changes. It seems likely, however, that that is exactly what is happening. 

What’s in store for year 2?

At the end of the first full school year of the reforms, the DfE released two reports assessing the impact of the reforms. The findings were mixed. Whilst there was some improvement of family satisfaction, there were still many difficulties in delays, lack of information, lack of specificity in EHCPs and EHCPs not being followed.

This is what we are hoping to see this year:

• A report on the way LAs are carrying out the changes reflected in the CFA – whether they are adhering to timescales, issuing notices in the correct format, carrying out a complete EHC needs assessment when required to do so, evidence of collaborative working with health services and social care and evidence of good working practice in relation to the personal budget.
• Guidance from the DfE, setting out LA duties and good practice and pulling up LAs where the law is consistently misinterpreted.
• The Special Educational Needs and Disability Tribunal (SENDIST) using its powers effectively to make recommendations in respect of health and social care; reporting on the outcome and whether it has made a positive contribution for the support that the child or young person receives.
• Most of all, parents and young people feeling confident that they are at the centre of the process and feel listened to and that appropriate support is received to target specific needs with robust monitoring and reviews.

A year ago we were all quite excited with s19 CFA which creates a statutory duty to support a child so that they achieve their “best possible educational and other outcomes”. Our interpretation of this is that LAs need to go beyond “adequate” and deliver a bespoke, tailored, highly differentiated education for all children. We are still some way off this but hopefully we will be moving closer towards this in the next year.