SEN law changes in Wales - a Special Educational Needs solicitor's view

We have been asked for our views on the proposed SEN law changes in Wales. This is what we think.

SEN law in Wales is changing. The proposed changes are, in some ways, similar to the changes following from the Children and Families Act 2014 in England, but also differ in some respects. A worrying proposed change (highlighted below) is the removal of statutory assessments and placing the duty on schools and further education colleges to prepare and maintain the equivalent of Statements.

The changes are on hold until after the elections in May 2016 when a new government may take forward the changes proposed in the draft Additional Learning Needs (ALN) and Education Tribunal (Wales) Bill consultation.

The proposed SEN law changes

The draft bill was published for consultation on 6 July 2015. Comments were requested by December 2015 and a new draft ALN Code of Practice was published at the end of September 2015. A summary of the consultation will be published by the next Government. Key aspects of the SEN law changes are:

• Statements, School Action and School Action Plus to be replaced by single category of ALN (equivalent to Special Educational Needs (SEN) in England)
• Additional Learning Provision (ALP) is to replace Special Educational Provision – no real change
• All children under ALN will have an Individual Development Plan (IDP) to be reviewed annually (equivalent to an Education, Health and Care Plan (EHCP) in England)
  • The IDP will go up to 25 years
  • The IDP will include health and social care needs and provision.
• Duty on local authorities (LA) to favour education at mainstream maintained schools
• The power of LAs to secure ALP at independent schools will be limited
• The draft ALN Code of Practice is similar in many ways to the new SEND Code of Practice in England

The most concerning changes in our view is below:

• Removal of statutory assessment – leaving schools/FE colleges to identify ALN in place of expert assessments. If the school identifies ALN, it must prepare and maintain an IDP.
• Teacher assessment is to follow guidance in the proposed Code of Practice – this throws up concerns about unqualified assessments. Also, the Code of Practice is guidance only. Although schools and LAs should have regard to the Code, the proposals give less legal protection against inadequate assessments.
• For IDPs following teacher assessments, the duty is on the school (governing body) or FE college to secure the ALP – not the LA.
• For more complex cases, the school/FE college can refer the matter to the LA to but only if it is beyond the school’s capability or the ALP would not be reasonable for the school to secure. However, the absurdity is that for maintained schools, the LA can send it back to the school i.e. direct the school to prepare and maintain the plan. Maintaining the plan would presumably include organising the Annual Reviews (which many schools already do), arrange assessments as required, amend the plan and make provision. It is unclear whether there will be any additional funding  for provision agreed in plans but  the proposals exclude board and lodging and other ‘prescribed provision’ from the need to maintain the plan. ‘Prescribed provision’ is not explained in any further. This is likely to fleshed out in accompanying Regulations at a later date.

This bill appears to be shifting responsibility from LAs to teachers. What do you think? What do teachers think about this new workload? What do assessing professionals (Educational Psychologists, Speech and Language Therapists, Occupational Therapists etc) think about teachers assessing instead of them?

How often have we succeeded in appeals against refusals to carry out a statutory assessment and then found out as a result of detailed professional assessments, that there were undiagnosed SEN requiring support?