14th June 2016

Moving in the right direction

Moving in the right direction Cover Photo

Douglas Silas, Principal of Douglas Silas Solicitors, says progress with new SEN legislation has been positive – if slow...

Well, another year has gone by and the trepidation in September 2014 that surrounded changes to a new legal SEN framework, seems a long time ago now…

As I write this (in March 2016), we have just completed 18 months of changing from ‘Statements of SEN’ (‘Statements’) to ‘Education, Health & Care (EHC) Plans’. Whilst there have been some teething problems and some problems are continuing, the general sense is that things now seem to be falling into place.

We have all also started using new terminology like: ‘Outcomes’, ‘Transfer Reviews’, ‘Joint Commissioning’ and ‘Working Together’; but some people now say that the changes we hoped for have all been a bit of a damp squib as, whilst we were promised a lot of new things, many things have not really changed that much. It’s like the ‘Emperor’s New Clothes’ they say.

We were also led to believe that there other new things would make our lives easier, such as ‘Local Offers’, ‘Personal Budgets’ (with the promise of ‘Direct Payments’) and there being more of a focus now on getting the ‘best possible outcomes’ for a child or young person with SEN. I am afraid that many of these things have not really materialised yet.

That being said, after initial delays in transferring Statements to EHC plans because many Local Authorities (LAs) were in confusion (some even openly admitted to there being ‘chaos’ during the first academic year of changes in 2014/15), I have noticed that, in this past academic year (2015/16), many LAs now are trying to transfer as many Statements as possible.

The Transitional Guidance, issued just before the changes came into effect (in September 2014, but amended again in April 2015), made clear that the process of transition from a Statement to an EHC plan, would start off with a ‘Transfer Review’ meeting (which would usually take place at the same time as the Annual Review of a Statement) and would then take 14 weeks to complete. But, by September 2015 (one year from the implementation of the changes), it became very clear that many LAs were struggling to comply with these legal timescales.

Therefore, the Government amended the statutory requirements to allow LAs a further 4 weeks from then to complete the process (i.e. 18 instead of 14 weeks). Yet, I am afraid that many LAs are still struggling at the present time to complete transfers within these new extended timescales. I am not saying that LAs are going over by just one or two weeks, but sometimes by more than one or two months. I have even had cases where Transfer Reviews have been started in one month in one year, but still not completed by the same month of the following year!

The fact is that the new SEN framework was supposed to create a new way of doing things. There was supposed to be more integrated ‘Education’, ‘Health’ and ‘Care’ provision but, most importantly, children and young people with SEN (and their families) were supposed to now be put at the heart of the process. But, whilst many people (both parents and professionals) like the idea of now focusing more holistically on a child or young person’s needs and the idea of ‘working together’ towards ‘mutually agreed outcomes’, which now include health and care as well as educational needs; in practice, many parents say that nothing has really changed and new things are really just part of a tick-box exercise.

Many also feel that, whereas before there were not enough meetings about their child with the LA represented, there are now too many meetings being held by LAs which hold up the process! Many schools (as well as parents) are now being asked to complete long ‘standard’ application forms when making assessment requests, but then finding that, having done all of this work which is time-consuming, requests are often turned down at the first hurdle. It can be quite soul-destroying and, obviously, wastes a lot of man-power.

A number of common problems have been flagged up:

  • Reforms not bringing about the desired results;
  • LAs using the opportunity of transferring statements to EHC plans, as a chance to reduce provision or make provision less specific;
  • More assessments for children under 5 but few post-19 assessments taking place (but another main aim of the changes was the need to prepare young people for adulthood).

It is great in theory to have joined-up thinking (I wonder how many times I have heard that said before); but this also doesn’t work practically without there being good joint local commissioning being in place.

I still remain positive and I am still optimistic that we have moved to a better system overall. I also think that we have to be realistic and realise that big changes are not going to happen overnight. We have to be pragmatic about what we can achieve and, instead of complaining, look at how we can make things better and better manage people’s expectations. The shame is also that we are trying to undertake massive changes in a time of funding cuts.

On the whole, I believe that we are moving in the right direction. I know that significant changes take time (especially large ones) and that sometimes the pendulum has swung too far one way and has to go back too far the other way before it settles in the middle. There also has to be enough time to effect a proper cultural change, both for parents and for LAs.

One thing that I have noticed is how every LA now has a different way of doing things (and sometimes those differences are significant). The irony, of course, is that each LA thinks they are doing things correctly and that it is other LAs who are wrong! This is completely nonsensical.

I remain hopeful that things will sort themselves out in the near future - who knows, we may even find ourselves in a better position!

Douglas Silas Solicitors specialise exclusively in SEN, whose website is www.SpecialEducationalNeeds.co.uk
Douglas is also the author of ‘A Guide To The SEND Code of Practice (What You Need To Know)’ which is available for all eBook readers. For further information visit: