New SEND guidance for health professionals - is it any clearer?

Since the special educational needs and disability (SEND) reforms came about with the Children and Families Act 2014 coming into force in September 2014, we have expressed our concerns about health and social care not engaging with the process. Read here.

We were told that the new SEND regime would bring together education, health and social care to provide a more holistic approach to support children and young people (CYP) with SEND in all aspects of their life. Our experience is that this is not happening yet. It seems that the Department for Education (DfE) shares our concerns. It has issued advice for clinical commissioning groups, health professionals and local authorities reiterating what health professionals must do. This is a clear sign that, despite, the SEND reforms, we are experiencing the same problems we had under the ‘old’ SEN Statement regime, only, the expectations have now been placed higher and parents expect more. The name itself, an ‘Education, Health and Care Plan’ (EHCP), gives parents the impression that all three areas will carry equal weight under one legally binding document. That is not so.

We have read the guidance and do not think it is very clear – in fact, we think it could be misleading.

Education provision v health provision

We know from talking to parents, therapists, schools and local authorities that there is a great deal of confusion about whether support, such as speech and language therapy or occupational therapy, is to support an ‘educational’ need or a ‘health’ need. This guidance does not make it any clearer. Under ‘The Local Offer’ on page 14, in brackets, it says that the Local Offer should include:

“therapy services including speech and language therapy, physiotherapy and occupational therapy and services relating to mental health, such as arts therapies (these must be treated as special educational provision where they educate or train a child or young person”

The guidance then goes on to advise health professionals that they will need to contribute to section G, i.e. the ‘health’ section. Nowhere in the guidance does it mention Section F, the ‘education’ section.

Under ‘Drawing up the EHC plan’ on page 21 there is advice tucked at the end of that section that states:

“Health care which educates or trains a child or young person must be treated as special educational provision but will be covered under joint commissioning.”

In our view, this is the most important bit of advice for health professionals contributing to EHCP.

What the advice should have made clear is that this goes under Section F (education section) of the EHCP. Why is this so important? Because if parents do not agree with the content of the EHCP, they can only challenge the content of Section B (educational needs), F (educational provision) and I (placement) to the Special Educational Needs and Disability Tribunal. The Tribunal has no jurisdiction to make an order about Section G (health provision). Currently, the Tribunal is running a pilot scheme whereby they can make a recommendation in respect of health and social care – but only 17 local authorities are taking part. Also, a recommendation does not carry the same weight as an order.

Other guidance that is helpful is as follows:

Joint commissioning requirement

  • Clinical commissioning groups (CCGs) must ensure practitioners and clinicians will support the integrated Education, Health and Care (EHC) needs assessment
  • CCGs and local authorities (LA) must include arrangements for securing EHC needs assessments and the education, health and care provision specified in the EHCP

Our experience is that assessments are not being carried out, often because of a shortage of educational psychologists and therapists. We wrote about this here. What has happened to the joint commissioning arrangements, forward thinking and planning that should have/should be happening?

Need for provision to be specific and quantified

Another problem that parents encounter is that recommendations from health professionals are often vague. The guidance states that provision should be “detailed and specific and should normally be quantified, for example, in terms of the type of support and who will provide it”.

The DfE advice came out last week, 24 February 2016.  You can read the entire advice here.

I am so happy at the outcome, I don't think we would have had such a comprehensive service from any other law firm, and you took the worry away...I do not regret a single second of the whole process, apart from the bit before you got involved. 

James' mother, Boyes Turner client

Get in touch

Please get in touch 0118 467 6547

Or we are happy to call you back at a time that suits you

Office open Mon - Fri: 08:30 - 18:00