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The Children and Families Act 2014 - One year on
The Children and Families Act (CFA) came into effect a year ago, on 1 September 2014. At that time, we felt hopeful that we were on the brink of a significant cultural shift. We questioned whether the transition would be smooth, whether there would be much change and whether, in the long run, there would be improvements to the lives of children, young people and families of children with special educational needs (SEN).
So, what has happened over the year?
Costs and lack of professionals leading to short-cuts
From the very beginning there were concerns from various bodies around the additional cost of the reforms. The Association of Educational Psychologists (AEP) raised concerns about the lack of educational psychologists in schools.
After the implementation of the reforms, it has become apparent that there are also not enough medical professionals and social workers to be able to meet requirements. Both social care and medical professionals are now required to be involved in the assessment of children with special educational needs. In our experience, the health and social care elements of Education, Health and Care Plan (EHCP) tend to be blank, even when the child clearly has needs in these areas. This is simply because health and social care teams do not have the capacity to respond to requests for advice within the timescales that are required of them.
The new SEN regime requires local authorities (LAs) to carry out a complete Education, Health and Care (EHC) needs assessment when transitioning from a Statement of SEN to an EHCP. There are few exceptions. It was expected and known that the cost of transitioning all Statements to EHCPs would come at considerable cost to LAs. An estimate of the national cost is around £1.2 billion. There should have been no surprises. We had thought that the Department for Education (DfE) had planned for this and provided additional funding to implement the changes.
However, in March 2015, we attended an SEN conference where several LAs stated that they did not believe the new SEN regime required them to carry out a full EHC needs assessment. We wrote about this here.
Our own experience is that LAs differ on this point. Some LAs are carrying out the full assessment but others will not do this unless specifically requested to do so by parents. In our view this is wrong. The law states that a complete assessment must be carried out, unless parents and the expert and the LA all agree that it is not needed. Time and time again, LAs are issuing draft EHCPs with no new reports, simply transposing the old Statement into a new document with a different layout and adding a section on the views of the child, or young person, and parents. The social care and health sections are often blank (as before) and the personal budget section is empty.
Before the implementation of the reforms the DfE repeatedly set out that they did not expect any children to ‘lose’ provision as a result of moving from Statement of SEN to EHCP. In our experience, many children are facing the situation of either ‘losing’ some provision, or all of it, as their Statement of SEN comes to an end and their local authority refuses to issue an EHCP.
Too much to do in too little time
Almost as soon as the Act came into effect the Council for Disabled Children and National Union of Teachers were saying that LAs needed more time to implement the reforms. The transition arrangements gave LAs until April 2018 to transfer all Statements to EHCPs but some LAs were rushing too many transitions through. In November 2014 Edward Timpson MP, Minister of State for Children and Families, wrote to LAs emphasising the need for gradual change. The only transitions that needed to be done in the first year were those in Year 11, those going to FE colleges and those in pathfinder areas with non-statutory EHCPs.
What’s in store for year 2?
At the end of the first full school year of the reforms, The Department for Education (DfE) released two reports assessing the impact of the special educational needs and disability reforms. The reports refer to the findings of the pathfinders, which were 20 trials across 31 LAs set up in October 2011 to trial the changes brought about by EHCPs. The pathfinders have been working under the new EHC regime for 3-4 years so give a good indication of where we may all be in 3 years. The findings were mixed. Whilst there was some improvement of family satisfaction, there were still difficulties reported around delays, general lack of information, lack of specificity in the Plan and Plans not being followed.
On 13 July 2015 Edward Timpson MP wrote an open letter to all directors of children’s services and all lead members of children’s services at every LA. The letter clearly indicates that the government has noted problems with the SEN reforms. The letter sets out concerns that the 16 week time limit is too short. This is to be changed to 20 weeks from 1 September. There is also a warning that the EHCP must not be a re-branded Statement.
Our own experience reflects the findings in the reports and DfE letter above.
On 10 March 2015 we wrote about the SEND Tribunal (First-tier Recommendation Power) (Pilot) Regulations 2015 which came into force on 1 April 2015. Under the Regulations the Special Educational Needs and Disability (SEND) Tribunal has the power to make recommendations in respect of health and social care aspects in the EHCP. It remains to be seen what the outcome of Tribunal recommendations will be and we look forward to an analysis from the SEND Tribunal in due course.
This is what we are hoping to see this year:
- A report on the way LAs are carrying out the changes reflected in the CFA – whether they are adhering to timescales, issuing notices in the correct format, carrying out a complete EHC needs assessment when required to do so, evidence of collaborative working with health services and social care and evidence of good working practice in relation to the personal budget.
- Guidance from the DfE, setting out LA duties and good practice and pulling up LAs where the law is consistently misinterpreted.
- The SEND Tribunal using its powers effectively to make recommendations in respect of health and social care; reporting on the outcome and whether it has made a positive contribution for the support that the child or young person receives.
- Most of all, parents and young people feeling confident that they are at the centre of the process and feel listened to and that appropriate support is received to target specific needs with robust monitoring and reviews.
A year ago we were all quite excited with s19 CFA which creates a statutory duty to support a child so that they achieve their “best possible educational and other outcomes”. Our interpretation of this is that LAs need to go beyond “adequate” and deliver a bespoke, tailored, highly differentiated education for all children. We are still some way off this but hopefully we will be moving closer towards this in the next year.
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