Speed Kills (the Children and Families Act 2014)

Part 3 of the Children and Families Act 2014 promised to be the most significant change in special educational needs law for 30 years. However, academic commentary about the benefits of the Act is divided and its implementation could prove to be its undoing.

Summary of the changes

What Part 3 of the Children and Families Act 2014 (CFA) did, in overview, was to introduce a holistic support network for children with special educational needs (SEN). It created the Education, Health and Care Plan (EHCP) which details all the education, health and care provision a child needs as a result of their SEN. This document replaces the old Statement of SEN. Both documents are legally binding and detail the support for a child’s SEN.

The other key changes are:

  • To raise the maximum age of SEN provision from 19 to 25;
  • To introduce general principles, the most significant being that a child or young person should be supported to achieve their ‘best possible outcome’. This is a marked departure from the maxim of ‘adequacy’ which ran through the previous regime;
  • To require that local authorities (LAs) publish a Local Offer (LO), setting out the SEN provision available in its area and nearby;
  • To enable LAs to require Academies to admit children with SEN under their direction. Previously, Academies could refuse to do so unless directed to by the Secretary of State.

As such, health, education and social care are expected to work together and undertake substantial additional work at a time of unprecedented cuts. Whilst the Department for Education (DfE) has made some funding available for LAs, it is uncertain that agencies will be able to cope with this additional demand.

What is working?

The new law has stumbled out of the starting blocks. As such, we are yet to see much benefit.

One immediate benefit has been that schools seem to be very welcoming of the principle of clear communication. Whilst not new, the CFA has certainly put a spot-light on this principle. It has given schools the opportunity to clearly communicate with parents, involving the LA, so that parents can be reassured that schools are doing all they can.

What is not working?

The crucial failure is implementation. In practice, this is where LAs are struggling. This is likely because of insufficient budgets, understanding and personnel. Ultimately, if not correctly implemented, the CFA’s promised benefits will not come to fruition.

It is worth noting that the DfE published its final Guidance about the implementation of the CFA three calendar days before it took force on 1 September 2014. The principal guidance document is again under consultation in respect of children in custody. Therefore, it would be unfair to entirely blame LAs for the difficulties with implementation.

From my experience so far, the following areas are currently failing:

  • The Local Offer (LO)
    LAs are left to a frolic of their own when it comes to the LO. The five page LO Regulation and 15 pages of Guidance give little to LAs but general information about who to consult with, broadly what information the LO should contain and how to publish it. This has resulted in another postcode lottery. Some LAs have prepared very detailed and informative LOs, others have done little more than provide a Yellow Pages of SEN provision.A DfE-commissioned review in November 2014 found that the quality, and value, of the Local Offer varied significantly between LAs.
  • Personal Budgets
    A Personal Budget is, basically, the amount of money needed to ‘buy’ all the support detailed in the Education, Health and Care Plan (EHCP). However, even these don’t seem to be working. A DfE-commissioned report in November 2014 concluded that LAs did not know what services, resources or functions to draw on when calculating the Budget.
  • Transition
    All children currently supported by a Statement of SEN will be moved across to the EHCP.There is a statutory timetable for this transition, with priority given to certain groups. The process for transition must involve a transition meeting and an assessment of the child’s needs with specific exceptions. Given the requirements for cooperation and achieving best outcomes, it makes sense for the transition meeting to involve a psychologist, social worker and health representative. Sadly, none of the transition meetings I have attended have involved a social worker and only half have been attended by a health professional.LAs have been permitted to flesh out the statutory timetable for transition. As a result, some LAs are attempting transition too quickly, trying to complete as many as 10 transitions per day. This has prompted Parliamentary Under Secretary of State for Children and Families, Edward Timpson, to write to all LAs to stress that the focus should be quality, not speed.In all transition meetings I have attended, LAs are simply transposing the content of the Statement into the format of the EHCP which is expressly unlawful per the statutory guidance. The LA’s presumption has been that there will be no further assessment. Substantial discussion is then necessary to secure compliance with obligations.

The DfE has offered further detailed guidance to LAs and has set up a helpdesk email address at sen.implementation@education.gsi.gov.uk.

Conclusion

SEN provision is important. Current research is that SEN is the biggest cause of the attainment gap, and it is getting worse. SEN among the prison population is disproportionately high and children with SEN have significantly higher rates of non-attendance. Children with SEN are seven times more likely to face permanent exclusion.

The CFA promises many things. It should provide a holistic and reliable support network facilitating a smooth transition into adulthood. However, LAs are rushing implementation, cutting corners and preparing poor EHCPs. If things are not right from the outset, the benefits envisaged will not materialise.

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

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