Douglas Silas, Principal of Douglas Silas Solicitors, gives some thoughts on the the new SEN legal framework
When I wrote an article for Which School? for Special Needs 2014/15, we were still awaiting the Children and Families Bill to be given Royal Assent to allow for a new SEN framework to apply from September 2014.
My concerns a year ago
Last year I said: ‘I do not have a crystal ball to be able to look into the future and see what will happen...’ But, with only a few months left to go, I expressed the following concerns even at that late stage:
- About there still not being clear guidance to schools and Local Authorities (LAs);
- About the language and structure of the (already by then 2nd draft) Code of Practice still seeming inaccessible to parents of children with special educational needs (SEN) and young people with SEN; and
- About there still not being a clear, detailed and unambiguous framework for Education, Health and Care (EHC) assessments and plans (which were due to replace Statements of SEN).
I also expressed a fear that this system could again lead to another ‘postcode lottery’ if there was no national set of standards.
Fortunately, the Government subsequently issued a revised final draft of the Code of Practice and made some amendments to the Bill before it received Royal Assent and a new Code of Practice was issued at the end of July 2014 (after schools had already broken up for the summer) to come into effect in September 2014. To many people’s great concern, the Government only produced a revised version of its ‘Transitional Guidance’ at the end of August 2014, just a few days before the new law came into effect.
A year on
Well, here we are a year on and I now have the advantage of talking about what I have seen during the past seven months or so. I am pleased to say that the whole SEN system did not come to a standstill on 1 September 2014, but it does seem to me that there has already been a lot of confusion and anxiety generated amongst both parents and professionals during these first few months.
The definitions of SEN and special educational provision (SEP) remain roughly the same as they were before. However, as well as children, ‘young people’ are now referred to in their own right if they are over 16 years of age (at least at the end of the academic year in which they turn 16). It is again still not SEN if a child or a young person has a different home language as before, although now health and care provision can be considered as special educational provision, where it is provided for educational or training purposes.
Part 3 of the Children and Families Act 2014 covers things like:
Education, Health and Care (or EHC) provision, including the need for integration between services and the joint commissioning of services:
- The need for cooperation and assistance (both internally and externally) to do this;
- The provision of information and advice;
- The procedures for EHC needs assessments and the making of EHC plans following assessments;
- Information about appeals, mediation and dispute resolution processes; and
- Functions of LAs and schools, etc.
One of the main concerns expressed before the new SEN framework came into effect was the structure of EHC plans. Now that there is more flexibility and ‘localism’ to be able to do things in their own way (as opposed to before when things were more prescribed by law), each LA has taken advantage of this fact and seems to be doing things a bit differently to the next. This means that we now have up to 152 different types of EHC plans!
Now, rather than having the same six parts as a Statement had…
- Part 1 – Personal Details
- Part 2 – Special Educational Needs
- Part 3 – Special Educational Provision
- Part 4 – School or Other Placement
- Part 5 – Non-educational Needs
- Part 6 – Non-educational Provision
… EHC plans have a minimum of 12 statutory sections…
- Section A – Views/Interests/Aspirations of the child/young person (and his or her parents);
- Section B – Special Educational Needs;
- Section C – Health Needs (which relate to the SEN);
- Section D – Social Care Needs (which relate to the SEN);
- Section E – Outcomes;
- Section F – Special Educational Provision(required to meet the SEN described);
- Section G – Health Provision (reasonably required by the SEN or disability);
- Section H1 – Social Care Provision (made under the Chronically Sick and Disabled Persons Act 1970);
- Section H2 – Other Social ;Care Provision (reasonably required by the SEN or Disability);
- Section I – Placement (which includes both the name and type of school/nursery/post-16 or other institution). Section I is left blank in a draft EHC Plan to allow parents/young people to express a preference for an educational institution to be named
- Section J – Personal Budget (if agreed, including any arrangements that have been made for any direct payments);
- Section K – Advice/Information used to prepare the EHC plan (referred to previously as the ‘Appendices’ to a Statement).
I am all for this new more comprehensive structure. However, parents have been very surprised and angry to find out that they can still only appeal about the SEN, the SEP and school/institution that is named in, respectively, sections B, F and I (as opposed to parts 2, 3 and 4 of Statements). So, although EHC plans now have new sections about Health ‘needs and provision’ and Care ‘needs and provision’ (both H1 and H2) and, even more importantly, dedicated sections about ‘Outcomes’ (section E) and ‘Personal Budgets (section J), parents cannot appeal against these new sections.
The whole theme behind the new SEN framework was to try and resolve disputes as early as possible and start ‘working together towards mutually agreed outcomes’; but parents have been shocked to find out that ‘Outcomes’ in an EHC plan cannot be appealed against if they are disputed (unlike with the ‘Objectives’ in statements). Instead, they have to be agreed during the EHC needs assessment or as a result of the Annual Review of the EHC plan. I have already heard parents complaining: “They have given with one hand and taken back with the other”.
Also, although, theoretically, EHC plans now go from 0-25, practically, there is no automatic expectation or entitlement that they will continue until then, only if the ‘Outcomes’ on them (which I have said cannot be challenged) have not yet been achieved. There is already a fear on behalf of children/young people with SEN that some LAs will put low achieving ‘outcomes’ in EHC plans so that they can later argue that the ‘Outcomes’ in the plan have been achieved and it is therefore no longer necessary to maintain it. This is very worrying.
There is now a duty to admit a child or young person, not only to a maintained school named in an EHC plan, but also to other types of schools or institutions that may be named in it, such as an academy, a further education (or FE) institution, a non-maintained special school, or a ‘Section 41 approved’ independent institution.
There is just too much detail in the new SEN Code of Practice, so I would not be able to do it proper justice here in such a short article. Although, as before, in relation to statutory assessments for Statements of SEN, a request for an EHC needs assessment can still be made by parents or a school; a request for an EHC needs assessment can now also be made by a young person themselves, or if a child is brought to the attention of the LA by another body, such as a health or care agency.
Overall, there seem to be lots of ‘teething’ difficulties as would normally be expected but I have already seen that, although the aim was to try and make EHC plans more ‘understandable, accessible, clear and concise’ than Statements, many EHC plans that I have seen, are running to about 15-20 pages. I have even been told by one legal colleague that she has seen an EHC plan of over 50 pages!
Conclusion
I have noticed that Statements have become lengthier and more detailed over the years, so are we again overcomplicating things? How does this sit with what we are used to and what we are aiming for now? Perhaps this is the difference between ‘theory’ and ‘practice’? The Children and Families Act says that the new SEN Code of Practice must be revised from time to time. Believe it or not, as I write this at the beginning of April 2015, a new version has just been issued.
I often say that it took us 10-20 years to get used to the old system, but we now seem to be starting again. The main thing to realise is that it will take time to effect proper cultural change. Are EHC plans really just ‘E’ plans with a bit of ‘H’ and ‘C’ tagged on? Are we going to be able to change things from a ‘fight’ culture between ‘warrior parents’ and LA ‘bureaucracy’ to now ‘working together towards agreed outcomes’? Are we going to see a lot of inter-agency disputes? How are we going to square the concept of ‘best possible’ outcomes with the previous requirement to only provide an ‘adequate’ education and the fact that no pupil is entitled to a ‘Rolls Royce’ education?
Although the House of Lords approved the final version of the Code of Practice at the end of July 2014, in June 2014, when the final draft of the Code of Practice was issued, its Scrutiny Committee stated that: ‘There is a ‘real risk’ that [the Code of Practice] may imperfectly achieve its glossy objectives’
I truly hope that SEN provision will not prove again to be a ‘postcode lottery’. I think that we now need to take a more pragmatic approach and work with what we have. Importantly, we always need to remember the child or young person. I know that this seems obvious, but it is very easy to forget the child or young person sometimes, with too much focus on policies, rights, funding and the law. We must also remember that children, young people and their families have now been put at the ‘heart’ of the process. As I said last year, EHC plans are not meant to be just statements by another name that now go up to 25.
I guess it is still early days for everyone and we should just look at things as a ‘Work In Progress’…
Douglas Silas Solicitors are the only solicitors specialising exclusively in SEN, whose website is www.SpecialEducationalNeeds.co.uk