Special Educational Needs Update - Autumn 2014

Much has happened in the world of special educational needs (SEN) over the last few months. Many of us had doubts that the legal changes that were to take place from 1^stSeptember 2014 would not happen and some groups were campaigning for a later start. It was felt that there was simply too much to do in too little time and some people were concerned that the proposed Children and Families Act and associated guidance were being rushed through without full and proper consideration.

The government’s initial consultation on the new law, which ended in December 2013, was followed by a second consultation during Easter. This resulted in further amendments to the Act, which was finally signed off just before schools broke up in July 2014. It signalled the go ahead for all the other necessary guidance and regulations to accompany the Children and Families Act 2014.

Those of you who attended my Kidz South talk in June 2014 will know that there were some remaining issues to be ironed out, for example,

• about how young people over 16 years of age could be in control of their own Education, Health and Care Plan (EHCP),
• questions about the mental capacity of young people and their ability to appeal to the Special Educational Needs and Disability (SEND) Tribunal in their own right,
• how and if parents could remain involved in the process,
• and where to seek help if challenging health and social care aspects of the EHC plan.

Much of this has now been clarified. The main source of guidance for the Act is in the amended SEND Code of Practice: 0-25 years.

What we had hoped for was a concise new Act with clear guidance outlining the key issues for parents:

• What support their child can expect to receive in school without an EHC plan.
• What support they can expect to receive with an EHC plan.
• Who will provide that support.
• What they can do if that support is not provided?

Parents also wanted a holistic approach to their child’s care, i.e., for Education, Health and Social Care departments to work together, to conduct joint assessments, joint meetings and produce a joint plan of care and approach. This could happen…perhaps. The requirements are all there – the Act requires all three bodies to co-operate, to hold joint meetings wherever possible, to share information, etc. However, we all know that it is fairly easy to attend meetings and to be seen to be co-operating. The real sticking point has always been when discussions turn to decision-making and funding. This is when people start to shift uncomfortably in their seats with Education perhaps saying, for example, that any input for occupational therapy must be provided by Health because they have an arrangement with Health to do so. The significance is, of course, that only the Education part of the old Statement could be challenged at the SEND Tribunal. There was nothing that parents could do about the Health or Social Care aspects. Whilst there was hope that the new regime would change this, it was clearly a change too far. The Educational aspects of the plan can still be appealed to the SEND Tribunal but Health and Social Care aspects cannot, which means that parents will need to resolve these issues through other avenues.

There are, however, positive aspects of the new regime:

• The EHC plan now goes up to 25 years of age if the young person is still in further education or in an apprenticeship and their outcomes have not been met.
• There is a clearer focus on the views of children and young people and more engagement with the family.
• There is a possibility of a personal budget for provision in the EHC plan.
• The requirement to consider mediation for most appeals to the SEND Tribunal will hopefully encourage both parties to engage in the issues early in the process.

Lastly, s19 of the Children and Families Act 2014, which describes the general principles of the local authority’s function, includes the need to support the child and family to achieve the ‘best’ possible educational and other outcomes. This is new. Under the old regime only adequate education provision was provided for. Did the government really mean to provide for the best possible outcomes? Perhaps this is will be one of the first points that will have to be clarified by litigation. We will be keeping a close watch.