“What You Need To Know”
(Current/Future SEN/Disability Law)”
Presentation by
Douglas Silas
East Sussex Parent & Carers’ Council (ESPaCC)
13th February 2014
@douglassilas
douglassilas
Douglas Silas
www.SpecialEducationalNeeds.co.uk
+DouglasSilas
WHO I AM
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Solicitor who runs small/niche/nationally acclaimed
firm specialising exclusively in SEN cases
Advise/represent parents throughout ‘statementing’
process/appeals to & against SEND Tribunal
Popular website at
www.SpecialEducationalNeeds.co.uk
Lawyer who tries to avoid litigation/disputes
Always remember child/young person:
• Seems obvious but easy to forget
• Too much focus on policies/rights/funding/the law
• SEN provision should be based on practicalities not ideology
2
www.SpecialEducationalNeeds.co.uk
PURPOSE OF DAY
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3 sessions (2 pre-lunch/1 post-lunch)
Focused on Education/Health/Care
Will look at system through SEN prism
3 aims overall:
1. Look at current framework (history/criticism etc.)
2. Look at proposed framework (from Sept. 2014?)
3. Answer questions as best I can
• 4th session for Q & A (write questions over lunch)
• Only overview/Lots to get through (further reading)
• May already know things (apologies in advance )
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OVERVIEW
10:15: “Education, Health & Care – Part 1: The Past”
11:15: Break
11:30: “Education, Health & Care – Part 2: The Present”
12:30: Lunch (write questions for later)
13:15: “Education, Health & Care – Part 3: The Future”
14:00: Short Breaks etc. /Questions/Comments
15:00: Close
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EDUCATION,
HEALTH & CARE
PART 1: THE PAST
www.SpecialEducationalNeeds.co.uk
“When one teaches,
two learn”
(Robert Half)
www.SpecialEducationalNeeds.co.uk
HISTORY
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Warnock Report 1978
Education Act 1983/1996 (consolidation)
SENDA 2001
Other amending legislation/caselaw over years
Statutory duties on:
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Parents
Local Authorities (‘LEAs/LAs’)
Schools
Other education providers
www.SpecialEducationalNeeds.co.uk
STATISTICS
• Office of National Statistics:
• 20% of pupils have SEN/only 2-3% have statements
• 85-90% of pupils with SEN in m/s schools without
statements
• 1993 – present: SEND Tribunal appeals for disputes
• 2001: right to ‘inclusion’/Revised SEN Code of Practice
• Most education litigation about SEN
• Most SEN litigation about assessments/statements
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DEBATE
• Debate on statements always overshadowed SEN
• Emotions run high/mistrust:
• Between parents/LAs & schools
• Between schools/LAs
• Between LAs/parent orgs
• Why?:
• Parents say they have to fight LAs/schools for statement
• Schools say LAs are not supporting them (financially etc)
• LAs/schools say parents have unreasonable expectations
• Parent orgs. say LAs too bureaucratic/resource-led
• LAs say others don’t appreciate dilemma of limited
resources/extensive statutory duties
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OVERVIEW
• Not all difficulties caused by potential SEN
• SEN law is complex/different to parents/schools/LAs but
essentially goal is same :
• To sort out problems quickly/efficiently/painlessly/amicably
• To get child with SEN appropriate provision/placement ASAP
• Audit Commission (2002):
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69% SEN resources focused on 2-3% of pupils with statements
Postcode lottery?
Schools/LA policies are key factors but so are parental means
Parents often feel that SEP/preferred school only achieved
through threat of/actual Tribunal appeal
• Statement/Appeal process – drives parties apart not together?
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www.SpecialEducationalNeeds.co.uk
WHAT IS A
TRIBUNAL APPEAL?
• Parents can appeal to SEND Tribunal if
LA:
1. Refuses to carry out re/assessment
2. Refuses to issue a statement after
assessment
3. Makes/amends statement but dispute Parts
2/3/4 (school/type of school/other placement)
4. Refuses to change name of school (if M/T)
5. Refuses to change statement after AR
6. Decides to cease to maintain statement
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www.SpecialEducationalNeeds.co.uk
WHAT IS A
TRIBUNAL APPEAL?
• Last SEND Tribunal report (2009/10):
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Registers around 3,500 SEN appeals/year
<2,000 appeals needed resolution
<1,000 appeals needed decision (after full hearing)
Rest conceded/about 50 – 60 struck out
• Types of case:
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40% against refusals to assess/2% to re-assess
25 – 30% against part 2, 3 & 4
12%:parts 2 and 3 only/10 – 11%: part 4 only
2 - 3% against decisions to cease to maintain statement
<1% against refusals to change named school
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A BIT ABOUT POST-16
• Learning & Skills Council replaced by Skills Funding
Agency (from April 2010)
• Unless YP still in school Learning Disability Assessments
(LDA) used instead of statements
• Dept. of Ed. delegates oversight of Post-16 to:
1.Young People’s Learning Agency (agency of DoE)
2.Skills Funding Agency (agency of D for Bus/Innov/Skills)
3.LAs (have general duty to secure suitable ed./training):
• Must fund statements in schools up to 19
• Must arrange LDA if Post-16 student intends to leave
school but continue education elsewhere
• (Since 2010) also responsible for commissioning
high-value placements
• Complex arrangements/different statutory frameworks
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A BIT ABOUT POST-16
Year 9 AR reviews young person’s statement AND:
• Drafts/reviews Transition Plan (with Careers Service)
• Considers cont. ed./vocational training (inc. work exp.)
• Year 10/11 AR reviews update ‘Transition Plan’
• See how different agencies will work together to meet
agreed aims (e.g. Ed./Health/Social Services/Careers)
• Difficulties:
• LAs suggest unsuitable college placements
• LAs issue decisions to cease to maintain statements
• LAs do not agree to fund ind. school/college
• LAs do not agree to pay for 3rd year of courses
• No provision Post-16/19? (if no stat./not in school)
• LDAs not as specific/enforceable as statements
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NEED FOR CHANGE
• 2006 Ed/Skills Committee:
SEN system ‘not fit for purpose’
• 2007-2010: 4 Inquiries conducted on SEN/Disability
• (Dec) 2009: Lamb Inquiry – improv.par. confidence
• (May) 2010 – Coalition Government elected
• (Sept.) 2010 – SEN Green Paper – ‘Call for Views’
• (Sept.) 2010 - Ofsted report:
‘A Statement is Not Enough’
• (Oct) 2010 ‘Comprehensive Spending Review’:
• Cut of around 35% for Govt. departments
• 7.1% cut in LA revenue which will have ‘knock
on’ effect on services to schools
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CRITICISMS
• (Dec.) 2010: Govt. publishes results of ‘Call for Views’
• (March) 2011: Govt. publishes SEN Green Paper
• Promises ‘Biggest reforms to SEN in 30 years’ to avoid:
• Parents having to ‘battle’ to get support for child
• Statements not joining up Education/Health/Care
• Children having multiple assessments
• Too much paperwork/bureaucracy/delay
• Confusing/adversarial process
• Perceived conflict of interest of LA (assess/provision)
• Over-identification of SEN/low expectations
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www.SpecialEducationalNeeds.co.uk
INITIAL PROPOSALS
• Govt. proposes to:
• Include parents in assessment process
• Introduce right to give control of funding for support
• Replace statements with single EHC assessment/plan
• Make assessment/plans run from birth to 25 years old
• Replace existing SA/SA+ system with one simpler
school-based category (help teachers raise attainment)
• Greater independence from LAs through voluntary orgs.
• Give parents greater choice of school
• Give parents/others power to set up special ‘Free’
schools
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INITIAL PROPOSALS
• 15 May 2012 - Govt. issues response to SEN Green Paper
• 3 Sept. 2012 – Govt. issues ‘draft provisions’ of C&F Bill:
• Will replace Part 4 of EA1996 (and s.139A of LDA 2000)
• Definition of SEN/SEP will remain same
• Statements to be replaced by EHC assessments/plans
• EHC plans to extend rights into FE (not apprenticeships)
• LAs/CCGs must ‘jointly commission’ services for SEN
• LAs must have info. on services available (‘Local Offer’)
• No duties on Health/Care to deliver contents of EHC plan
• EHC plan ceases if not in education/training
• All provisions will apply to Academies
• Parents must attend compulsory mediation before Appeal
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WHAT
HAPPENS NEXT?
• (Sept. 2012) Ed/Select Committee announces scrutiny
• (Dec. 2012) Ed/Select Committee report (on time) says:
• Welcomes proposals/advises no delay in implementing
• Lack of detail means proper evaluation impossible
• Current protection for statements must be maintained
• Health law needs change for successful joined up services
• Should engage with Post-16 providers immediately
• New CoP must be laid before Parliament (not planned)
• Only ‘consideration’ of mediation should be compulsory
• Must include disabled children without SEN/apprentices
• Must include Independent special schools/colleges
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www.SpecialEducationalNeeds.co.uk
POTENTIAL
PROBLEMS?
• Govt. says will draw lessons from ‘Pathfinders’ pilot projects
(20 Pathfinders over 31 LAs/Health Authorities)
• Committee notes Pathfinders still at early stage so need to
be extended (some only set up in Sept. 2012)
• Legal process for change already started
• Still waiting for Pathfinders results (will report Sept. 2014)
• Bill due Royal Assent in early 2014/implemented Sept. 2014
• Pathfinders reporting back only after new law implemented?
• Potential problem?
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www.SpecialEducationalNeeds.co.uk
NEW PROPOSALS
• February 2013:
• Govt. issues C&F Bill (England):
• Duty still on LA but now must also keep health/care under
review
• Must issue CoP as statutory guidance (& consult on)
• Health/Care is SEP if now mainly for education/training
• If Health feels child has SEN must inform parents/LA asap
• Joint commissioning must secure proper provision
• LA must ensure SEP integrated with Health/Care provision
(if it promotes well-being/improves quality of SEP)
• LA duty to cooperate with local partners in area
• LA must make ‘Local Offer’ (i.e. appropriate provision
available in area)
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www.SpecialEducationalNeeds.co.uk
WHAT ABOUT SCHOOLS?
• Child without EHC plan must still be educated in m/t school
(if there is no cost to LA)
• LA must name preferred m/t school in EHC plan unless:
• Incompatible with wishes of parent/young person and
• Incompatible with provision of efficient education
• LA must name preferred school in EHC plan unless:
• School unsuitable for age/ability/aptitude/SEN of child or
• Incompatible with efficient education of others/resources
• LA must use ‘best endeavours’ to make SEP
• EHC plan maintained until end of academic year when 25
• LA must prepare ‘personal budget’ if parental request
• Parents can still appeal but only if mediation adviser issues
certificate (whether they have participated or not)
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•
IPSEA’S
RESPONSE
Good:
1. Parents/schools (now also YP) can request assessment
2. LAs retain duty to ‘specify’ (not ‘set out’ as suggested)
3. EHC plan remain until appeal of decision to cease
4. CoP now scrutinised by Parliament before becoming law
5. No need for compulsory mediation before appeal
• But 6 criticisms:
1. Special Academies can admit without assessment/plan
2. Loss of time limits & form/content of EHC plan
3. No minimum level of evidence during assessment
4. Personal budgets (PBs)/direct payments – not yet clear
when duty fulfilled/no right of appeal
5. No single EHC assessment/plan covering needs/prov.
(still only LA education duty)
6. ‘Local Offer’ still not legally enforceable (no details yet)
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www.SpecialEducationalNeeds.co.uk
www.SpecialEducationalNeeds.co.uk
BREAK
www.SpecialEducationalNeeds.co.uk
“What You Need To Know”
(Current/Future SEN/Disability Law)”
Presentation by
Douglas Silas
East Sussex Parent & Carers’ Council (ESPaCC)
13th February 2014
@douglassilas
douglassilas
Douglas Silas
www.SpecialEducationalNeeds.co.uk
+DouglasSilas
EDUCATION,
HEALTH & CARE
PART 2: THE PRESENT
www.SpecialEducationalNeeds.co.uk
“Common sense is instinct and
enough of it is genius”
(Josh Billings)
www.SpecialEducationalNeeds.co.uk
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•
WHAT WE
HAVE BEEN TOLD
Indicative CoP issued March 2013
Draft CoP consulted on Oct-Dec 2013 (9 not 12 weeks)
Draft CoP runs to 174 pages (much > than current CoP)
Meant to be more accessible to YP/families (as now more
involved in decision-making)
• Initially pleased as:
• Protections for children with SEN without EHC Plan
• Time limits for LA decisions
• Still ARs of EHC Plans (and consultation with parents)
• Now more of a standard format for all EHC Plans
• Provision more legally enforceable
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www.SpecialEducationalNeeds.co.uk
BUT LOOK CLOSER…
• Lots of omissions from current CoP/confusing wording
• Will replace other statutory guidance for LAs (i.e. Inclusive
Schooling Guidance/LDA Guidance)
• Will do away with SA/SA+ (most SEN children now
unregulated)
• Will do away with IEPs (i.e. a standard way to outline
provision/progress/outcomes)
• ‘Local Offer’ will still be legally unenforceable
• Will do away with standardisation of EHC Plans (i.e. each LA
can design its own)
• Will still allow children to be placed in Special schools
indefinitely without assessment/EHC plan (as long as LA
reviews placement termly)
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www.SpecialEducationalNeeds.co.uk
ANALYSIS
• IPSEA did excellent analysis comparing Draft CoP with
current CoP (available on their website)
• I also summarised 10 things in Draft CoP (see my ‘SEN
Update’ in Jan. 2014 on:
www.SpecialEducationalNeeds.co.uk
• Strongly advise you to sign up to future updates/read last
update in full
• However, going to attempt to outline what I said here…
31
www.SpecialEducationalNeeds.co.uk
SUMMARY OF COP
1) “TO WHO WILL THE DRAFT SEN CODE OF PRACTICE
APPLY?”
• Local Authorities;
• Early Year Providers, Schools, Academies, Free Schools;
• Sixth Form Colleges, Further Education Colleges;
• Pupil Referral Units (‘PRUs’);
• Independent Special Schools/Specialist Providers;
• Clinical Commissioning Groups/NHS Trusts;
• Local Health Boards, NHS England
• Other Education/Health Service providers
• Emphasis on holistic approach (duty to ensure co-ordinated)
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www.SpecialEducationalNeeds.co.uk
SUMMARY OF COP
2) “WHAT ARE THE KEY CHANGES MADE BY THE DRAFT
CODE?”
• 7 key issues:
1. Definition of Types of SEN;
2. A Single School Based Category of Support;
3. A Co-ordinated Statutory Assessment Process;
4. Education Health and Social Care (‘EHC’) Plans;
5. Maintaining EHC Plans;
6. Personal Budgets;
7. Dispute Resolution.
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SUMMARY OF COP
• Main changes:
• EHC plans will (i.e. can) cover children from birth-25 (but
no presumption it will continue until 25 as only maintained
until outcomes achieved)
• EHC plans will replace Statements from Sept 2014 (i.e. no
further Statements issued - within 3 years all existing
Statements will change to EHC Plans);
• Clear focus on including children/YP’s views in
assessing/provision (only positive);
• Joint commissioning of services across
Education/Health/Social Care providers (i.e. co-ordinated
assessment/plans;
• SA/SA+ substituted by ‘Additional SEN Support’
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www.SpecialEducationalNeeds.co.uk
SUMMARY OF COP
3) “HOW WILL SEN NOW BE CLASSIFIED?”
• SEN now classified into 4 categories (Chapter 6.3):
a.
b.
c.
d.
Communication and Interaction difficulties
Cognition and Learning
Social, Mental and Emotional Health
Sensory and/or Physical
• MLD/behavioural difficulties now removed (states explicitly
that behavioural difficulties do not necessarily mean SEN)
• Shift of focus - should not be automatically registered if
behavioural (so <children will be registered as having SEN)
• Now clear distinction between medical needs/disability and
SEN (again so <children will be registered as having SEN)
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SUMMARY OF COP
4) “HOW WILL CHILDREN WITH SEN NOW BE
SUPPORTED?”
• Currently two school-based levels of support – (SA/SA+) but
now replaced by single category of school support
• Presumption of ‘inclusion’ – Draft CoP explicitly states that
vast majority of children with SEN will have needs met in m/s
without additional support/intervention
• Lot of detail about how should go about providing support for
children without a plan (whole chapter on how m/s
providers/specialists can improve attainment/secure good
outcomes
• Still only ‘best endeavours’ duty on schools to secure SEP
(but now more detail as to what ‘best endeavours’ are)
36
www.SpecialEducationalNeeds.co.uk
SUMMARY OF COP
5) “WHAT WILL THIS MEAN IN PRACTICE?”
• ‘Early identification of SEN’ built into overall approach to (i.e.
monitor progress/development of all pupils);
• SEN not sufficient explanation for low achievement/teaching?
• ‘Evidence-based interventions’/‘Graduated approach’ then:
• ‘Assess’: teacher/SENCO/others? have regular reviews;
• ‘Plan’: agreement in consultation with parent as to support
provided (guided by clear set of expected outcomes);
• ‘Do’: teacher retains responsibility (incl. for those with
1:1/small group teaching);
• ‘Review’: everyone regularly reviews effectiveness of
support/impact on progress towards outcomes (incl. termly
meetings)
37
www.SpecialEducationalNeeds.co.uk
SUMMARY OF COP
6)“WILL THIS AFFECT TEACHING?”
• Clear responsibility now of every teacher for every student
(teacher of every pupil - whether or not they have SEN)
• Also responsibility for identifying/supporting pupils with SEN
• Different approach to current CoP (sees SEN as specialism)
• Says most SEN pupils can progress if high quality teaching
• Schools should ‘regularly/carefully’ review quality of teaching
(incl. teachers’ knowledge of SEN frequently encountered)
• SEN/progress now core part of school’s performance
• Wide implications – need high quality CPD to ensure all staff
have knowledge/skills/expertise needed
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www.SpecialEducationalNeeds.co.uk
SUMMARY OF COP
• Only best practice recommendation
• But will have to be taken seriously
• Recognises there will be situations where children with SEN
make inadequate progress despite higher quality teaching
• Says schools should always consider involving
specialists/outside agencies – EPs/CAMHS/therapists/
behaviour support services/ specialist teachers/others
• ‘Joint commissioning arrangements’ focus
• But how available is external support in reality? (ever tried
getting an appointment with CAMHS?)
39
www.SpecialEducationalNeeds.co.uk
SUMMARY OF COP
• 7) “HAS THE STATUTORY ASSESSMENT PROCESS
CHANGED?”
• Theoretically yes – as now greater emphasis on coordination
of assessment process across Education/Health/Care;
• But LA still must seek advice from/consult some of same
people:
•
•
•
•
•
•
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Parents and Young Person;
School/Education provider (if child is not in school);
Medical Professionals;
Educational Psychologist;
Social Care;
VI or HI teacher (if applicable)/other relevant people/orgs.
www.SpecialEducationalNeeds.co.uk
SUMMARY OF COP
• Test for assessment still if LA considers SEP required
‘cannot reasonably be provided from within the resources
normally available’ to m/s providers
• EHC assessment can still be requested by parents/schools…
• But now assessment can also be requested by YP over
16/Post-16 institutions/guardians/health professionals/youth
offending teams etc.
• Also now greater emphasis on incl. parents/YP & providing
them with full information throughout process
• Very different approach to current assessment process
• More streamlined process is admirable but work in practice?
41
www.SpecialEducationalNeeds.co.uk
SUMMARY OF COP
• Main change is whole assessment/planning process must
now take <20 weeks (instead of 26 weeks):
• 6 weeks for assessment/6 weeks for other info to be given
• Parents/YP have 15 days to respond to draft EHC plan
• LA now has total of 16 weeks to notify parent/YP of
decision not to issue EHC plan
• Therefore LA seems to have only 4 weeks to finalise draft
EHC plan unless earlier stages completed more quickly
• Incentive for LA to now speed up at assessment stage – but
is difficult if trying to bring together health/care information?
• Logistical changes may also be needed to ensure shorter
timescales are met by LA
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www.SpecialEducationalNeeds.co.uk
SUMMARY OF COP
8) “WHAT SHOULD BE INCLUDED IN AN EHC PLAN?”
• Remember, that currently layout of EHC plan will differ locally
(no prescription of how they - look left to each LA)
• They must be clear/understandable/accessible and…
• …written so LA professionals can understand them
• (but nothing specifically said about parents/YP)
• Must now be evidence-based/focused on outcomes
• SEND Tribunal have asked for a standard format as they do
not want 132 different formats to contend with!
• Draft CoP specifies what will be covered in each EHC plan…
43
www.SpecialEducationalNeeds.co.uk
SUMMARY OF COP
1.
2.
3.
4.
5.
Views/interests/aspirations of child/YP/parents;
Description of SEN;
Outcomes sought (incl. for adult life if appropriate);
SEP required (detailed/specific/normally quantified);
Any health/social care provision reasonably required
(but has to be tied into education);
6.
Name/type of school/maintained nursery/Post-16
institution/other institution or type of school;
7. If Personal Budget – details/outcomes intended;
8. Advice gathered during assessment (in appendices);
9. Other Health/Care provision unrelated to SEN (but not
directly enforceable);
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SUMMARY OF COP
•
•
•
•
•
•
•
•
45
Formal reviews of EHC Plan still take place annually
Broadly similar to current system but now ‘holistic’ approach
Greater emphasis on children/YP/parents involvement
Now strong presumption that majority of SEN children will not
need EHC plan
Emphasis on high expectations for all children/YP with SEN
Remember no presumption that EHC plan will continue until
25 - only if outcomes still to be achieved
Maybe reluctance by some LAs to put high achieving
outcomes in EHC plans (as will then have to fund support in it
until 25)?
But driving principle of high aspirations?
www.SpecialEducationalNeeds.co.uk
SUMMARY OF COP
• 9) “WHAT IS A ‘LOCAL OFFER’?”
• LA has duty to publish information about provisions expected
to be available for children/YP with SEN in their area – incl.
info on how to seek EHC assessment/plan &
transport/training etc.
• Hoped to be way to improve quality of strategic SEN planning
in LAs
• ‘Local Offer’ has two key purposes:
1. To provide clear/comprehensive/accessible info about
support/opportunities available locally
2. To make provision more responsive to local
needs/aspirations by directly involving children/YP with
SEN & parents/carers/service providers in
development/review
46
www.SpecialEducationalNeeds.co.uk
SUMMARY OF COP
10) “WHAT ARE PERSONAL BUDGETS?”
Monies identified by LA to deliver all/part of prov in EHC plan
YP/parents have right to request preparation of PB
LA has duty to prepare even before EHC plan issued (but
only where LA has agreed to prepare one)
• Provision for formal review if disagreement
• Doubtful that parents given lump sum of money to pay for
support (which originally many believed would happen)
• Range of delivery (?) including: direct payments/joint
commissioning arrangements (i.e. for ‘economies of
scale’)/3rd party arrangements/nominees (i.e. 3rd parties who
manage funds)/or even a combination
•
•
•
•
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www.SpecialEducationalNeeds.co.uk
SUMMARY OF COP
• Must include provisions LA expects to be used by children/YP
they have responsibility for (even if operates outside of LA
control - i.e. in neighbouring authority)
• Not meant to be just a directory of services – should be:
• Collaborative – i.e. involve key participants meaningfully
• Accessible – i.e. easy to understand/factual/clearly
structured/jargon-free
• Comprehensive – i.e. set out entitlements about
provision/support/eligibility criteria/accountability
• Transparent – i.e. clear about how decisions are made/
who is accountable & responsible for them
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BREAK
www.SpecialEducationalNeeds.co.uk
EDUCATION,
HEALTH & CARE
PART 3: THE FUTURE
www.SpecialEducationalNeeds.co.uk
“What You Need To Know”
(Current/Future SEN/Disability Law)”
Presentation by
Douglas Silas
East Sussex Parent & Carers’ Council (ESPaCC)
13th February 2014
@douglassilas
douglassilas
Douglas Silas
www.SpecialEducationalNeeds.co.uk
+DouglasSilas
“An expert is someone
who knows more and
more about less and less
until eventually he knows
everything about nothing”
(Anonymous)
www.SpecialEducationalNeeds.co.uk
PRESENT POSITION
•
•
•
•
Parental organisations say Draft CoP etc needs overhaul
Govt. also consulted on Draft Regulations (e.g. transition)
IPSEA say 5 things:
1. Draft CoP ‘not fit for purpose’:
• Does not even give basic practical guidance
• Structure/language unclear/inadequate/caselaw omitted
• Needs totally rewriting/re-consultation – so needs time
• 2. Majority of children with SEN without EHC plan will now
be worse off:
• Omits guidance to schools
• Clear accountability will be removed
54
www.SpecialEducationalNeeds.co.uk
PRESENT POSITION
3. Will now lose protections against being placed
inappropriately in special schools without EHC plan:
• Now possible for child (without EHC plan) to be placed
permanently without having needs assessed first
• Current guidance on right to inclusive schooling now not
there anymore
• Maybe now in breach of international treaty obligations/
UK equalities legislation (i.e. inclusive schooling)
4. Regulations do not provide clear/detailed/unambiguous
framework for EHC Plans:
• LAs will be able to do their own thing/’postcode lottery’
• Need clarity of nationally set standards
55
www.SpecialEducationalNeeds.co.uk
PRESENT POSITION
5. Serious omission that ‘mental capacity’ not clarified in
Regulations as:
• Legal rights to engage/challenge LAs now
automatically transfer from parents to YP at 16
• Now potential for parents to be barred from continuing
to act as advocates for their child is real so needs
addressing immediately
56
www.SpecialEducationalNeeds.co.uk
PRESENT POSITION
• 27 Dec 2013 - Govt. issued PR: “Families happy with SEN
reforms and £70 million for councils”
• PR refers to interim report of Oct 2013 – : “Impact
Evaluation of the SEND Pathfinder Programme” and says:
• Findings of 2,000 families/31 LAs show:
• Parents feel more empowered/supported/happier
with services they are receiving (88%)
• Professionals overwhelmingly supportive of new
approaches/feel more family-centred way of working
• LAs gearing up for intro of reforms in Sept. 2014 with
majority already laying groundwork for new system
57
www.SpecialEducationalNeeds.co.uk
PRESENT POSITION
• Twitter questions credibilitty of PR/ IPSEA’s response asks:
• Why is PR talking about ‘feelings’;
• What about real ‘outcomes’ ?
• What about integration of Education/Health/Care?
• What about quality of EHC Plans vs. statements?
• Argues:
• DfE/LAs cherry picked parents to arrive at conclusion
• Strong positive statements actually only 17%/40 families
(context - Jan 2013: 229k pupils with statements)
• Researchers themselves say: “While positive, overall
level of change appears modest at relatively early stage”
58
www.SpecialEducationalNeeds.co.uk
PRESENT POSITION
• Special Educational Consortium (SEC) also issues briefing:
• Says will be unable to support Draft CoP in current form
• Overwhelming view of members is Draft CoP does not
fulfill its fundamental purpose as statutory guidance as:
• Does not tell professionals what they must do;
• Not written to help parents/YP understand entitlements;
• Legal duties not clearly explained (also C & F Bill/draft
SEN regulations)
• Accepts still draft but needs significant redrafting/
restructuring if to work - currently draft won’t achieve aims
• Asks DfE to work with them during redrafting/in advance
of publication of final version
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LATEST POSITION
• Consideration of C & F Bill by Parliament almost complete
(recent 3rd Reading)
• Many amendments made in HL:
• Now inclusion of disabled children/YP within some of
strategic elements of Bill
• Now duty on health to provide what is in EHC Plan
• Now clarification of duty on LAs in relation to social care
• Now announcement of review/set of pilots to explore idea
of single point of appeal in more detail
• But further clarification still needed
• And still concerns about Draft CoP
60
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MY OBSERVATIONS
• No-one has crystal ball:
•
•
•
•
Tension: Parents want ‘best’/LAs provide ‘adequate’
Parents: LA short-sighted/LAs: Parents focus on present
Less provision: maybe less cost now/more cost in future
More provision: maybe more cost now/less cost in future
• Agree with aspirations but still concerns:
•
•
•
•
•
61
Perceived delay/quickness of change (contradictory?)
Insufficient evidence for wholesale change
Where will funding come from?
Post-16/19 providers not ready/engaged
Will EHC plans just be Education Statements until 25?
www.SpecialEducationalNeeds.co.uk
AND FINALLY…
• Cases getting more complicated over years:
• more case law to have regard to
• more difficult issues to resolve
• more potential consequences to consider
• I specialise in SEN but still struggle to keep up with what
is going on!
(so how are parents/schools/LAs expected to
manage/present cases?)
• Can’t always just leave to Tribunal to decide – (could
argue that we have already failed if at hearing?)
• No-one has crystal ball to look into the future
62
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www.SpecialEducationalNeeds.co.uk
BREAK
www.SpecialEducationalNeeds.co.uk
“What You Need To Know”
(Current/Future SEN/Disability Law)”
Presentation by
Douglas Silas
East Sussex Parent & Carers’ Council (ESPaCC)
13th February 2014
@douglassilas
douglassilas
Douglas Silas
www.SpecialEducationalNeeds.co.uk
+DouglasSilas
Open Discussion &
Questions/Comments
www.SpecialEducationalNeeds.co.uk
“What You Need To Know”
(Current/Future SEN/Disability Law)”
Presentation by
Douglas Silas
East Sussex Parent & Carers’ Council (ESPaCC)
13th February 2014
@douglassilas
douglassilas
Douglas Silas
www.SpecialEducationalNeeds.co.uk
+DouglasSilas
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The SEN Legal Framework