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SEN Annual Conference 2015: Special Educational Needs Q&A Seminar - Your questions answered!
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Boyes Turner SEN team hosted their annual conference on 20 October 2015.
We discussed the first year of the Children and Families Act 2014 and how Education Health Care Plans (EHCPs) should be prepared. Ruth Meyer, Partner from our Court of Protection Team, also kindly provided a guest talk about the Care Act and the Mental Capacity Act.
During the event, a lot of questions were raised. We have included here a sample of the questions asked. Click the question below to follow to our answer.
- Does section 19 Children and Families Act 2014 apply to Statements of Special Educational Needs?
- Is there an automatic transition from Learning Difficulty Assessment (LDA) to Education, Health and Care Plan (EHCP)?
- Is it possible to have ‘partial’ capacity?
- For a young person needing social support, would they seek a Care Act assessment or an Education Health and Needs (EHC) assessment?
- How far can parents insist on maintained mainstream schools when the LA /other professionals believe a special school would be more appropriate?
- What are Outcomes? How should they be written?
- What’s the difference between a Notional Budget and Direct Payments? How can I get a Personal Budget?
The Children and Families Act 2014 applies to all children being supported with special educational needs and disabilities (SEND), except those who are still supported by a Statement of Special Educational Needs.
Section 19 Children and Families Act 2014 introduces new ‘core’ principles to how children with SEND are to be supported. This includes making families, children and young people central to the decision-making process and requires that LAs deliver all support in such a way that it helps children and young people achieve their “best possible” outcomes.
Section 19 has always seemed promising, although we are waiting to see just how far this extends local authorities’ duties.
Children who have a Statement of Special Educational Needs still fall under the Education Act 1996 and the 2001 SEN Code of Practice. This means that section 19 Children and Families Act 2014 does not apply to them.
Q. Is there an automatic transition from Learning Difficulty Assessment (LDA) to Education, Health and Care Plan (EHCP)?
A. No. Young people who are supported by an LDA must ask to make the transition to EHCP. It is important to note that LDAs must all come to an end by 1 September 2016. We are currently strongly advising that any young person currently supported by an LDA should be asking their local authority for an EHCP.
A. Yes. A person may have issue-specific capacity.
That means that a child or young person (CYP) may have capacity when making a decision (for example) about what after-school activities they want to engage with, but may not have capacity to make a decision about which school to attend, or whether they require the additional support of an EHCP.
As a CYP approaches the age of 16, their local authority should be taking their lead from the young person, rather than their parents. The CYP’s parents may still help the CYP. From the age of 16, however, a CYP’s views should take primacy. That means that if parents and the young person disagree, the presumption is that the local authority will take the young person’s views. Parents will need, therefore, to decide early on whether they consider if their CYP has capacity about the issue in dispute. If they do not, parents may need to seek advice from their GP, social worker and/or any medial consultant involved. It seems that if the issue continues, an application to the Court of Protection may be necessary to decide on the issue of capacity.
Q. For a young person needing support from social services, would they seek a Care Act assessment or an Education Health and Needs (EHC) assessment?
A. Both – if there is an education need and if there is a social care need. If a young person has special educational needs and disabilities (SEND) they may qualify for a complete EHC needs assessment.
Part of the EHC needs assessment is to seek advice from social care. Part of that assessment should also include consideration of whether any of the obligations under the Care Act have arisen.
As such, if a young person would seem to meet the requirement for an EHC needs assessment, it would always be advisable to seek that assessment, rather than specifically an assessment further to the Care Act. That is because the EHC needs assessment will include consideration of Care Act obligations.
Q. How far can parents insist on maintained mainstream schools when the LA/other professionals believe a special school would be more appropriate?
A. The law creates a presumption that all children and young people will be educated in mainstream education. It goes further to give parents / young people a ‘power’ to choose a particular maintained school that they want to attend.
If parents or the young person themselves choose a particular maintained mainstream school, there is a very strong presumption that they should be admitted to that school. The only situation where admission cannot happen is if there is very clear evidence that the admission of the child or young person will cause a negative impact on the efficient education and/or welfare of the children at the school.
This requires a high level of evidence. If a local authority wishes to place in a school other than the selected maintained mainstream school, clear evidence of a negative impact on education and/or welfare will be needed. Concern and speculation is not enough; clear evidence of such an impact is required.
A. Outcomes are defined within the law as being a “benefit or difference made as a result of the intervention”. They should be written so that they are Specific, Measurable, Achievable, Realistic and Time-bound (SMART).
Outcomes should flow from the Hopes and Aspirations within Section A. That is to say that if a child, young person or parent has a particular aspiration, a set of short-, medium- and long-term outcomes should be prepared in order to help work towards that hope or aspiration. Hopes and aspirations themselves can also be included as Outcomes, provided that they can be written in a SMART way. If they cannot, they should be included in Section A with SMART Outcomes working towards that hope or aspiration.
Outcomes are described by the Department for Education (DfE) as being central to EHCPs. They should set out what the goals of the EHCP are. Seen in that way, it is clear that whilst Outcomes remain to be achieved, the EHCP should remain in force (provided the child or young person remains in education or training and is under 25).
Q. What’s the difference between a Notional Budget and Direct Payments? How can I get a Personal Budget?
A. The Personal Budget is, in essence, the amount of money that the local authority (with the advice of social care and health commissioning group) believes should be enough to obtain all the therapies, support and care which is detailed within the EHCP.
A Personal Budget can be delivered in the following ways
- Direct payments – where you buy and arrange the services yourself
- Notional Budget – where the local authority, school or college hold the funds and arranges the services
- Third party arrangements – where the funding is paid to a person or organisation who acts on your behalf.
- A combination of the above.
Direct Payments are one form of managing the Personal Budget. They represent a significant change to the way in which SEN support is administered.
Direct Payments mean that you can take over control of the funding that is made available for the services within the ECHP. If Direct Payments are made, the local authority will set out which elements of support those payments are expected to cover. They should not be used for anything else. For example, the Direct Payments cannot be used to pay independent school fees.
The regulations set out that before a local authority is able to make any Direct Payments it must be satisfied that:
- The person receiving the direct payments will make proper use of the payments to obtain all of the provision within the ECHP
- If direct payments are to be sent to a third party acting your behalf, that third party will act in the best interests of the CYP when obtaining the provision within the ECHP
- Making the direct payment will not negatively impact other services that the local authority provides to other children with ECHPs
- The provision of Direct Payments is in line with the “efficient use of [the local authority’s] resources”
As such, there are a number of reasons why the local authority may refuse to make Direct Payments. If the local authority does refuse to make Direct Payments, this is challengeable by way of an application for Judicial Review. It is not something that the Special Educational Needs and Disability Tribunal is able to deal with.
Because of the obligations and duties that are carried with Direct Payments, it is strongly advisable that you seek independent legal advice about your situation before deciding on a particular course of action. We are very happy to provide this advice.
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