Providing Advice & Support to the Public Sector Legal Implications of the SEND Reforms

Replacing SEN Statements and Learning Difficulty Assessments (for year olds) with a single, simpler 0-25 assessment process and Education, Health and Care Plan from An “EHC needs assessment” is an assessment of the educational, health care and social care needs of a child or young person. Local authorities and other services will set out a local offer of all services available to support disabled children and children with SEN and their families. Right to mainstream education retained. Duty to integrate SEN into health and social care functions. Key Principles

Where a young person of compulsory participation age leaves education or training but does not start paid employment the local authority must maintain their EHC plan and take appropriate steps to re-engage them in education or training as soon as possible. There is no entitlement to continued support or an expectation that those with an EHC plan at age 18 must be allowed to remain in education or training from age 19 to 25. Key Principles

The local authority should continue to maintain an EHC plan for a year old where all of the following conditions apply: -The education and training outcomes set out in their plan have not yet been achieved -The young person wants to remain in education or training so they can complete or consolidate their learning, including accessing provision that will help them prepare for adulthood -Special educational provision is still needed -Remaining in education or training would enable the young person to progress and achieve those outcomes Key Principles

Parental Involvement Parents/carers figure heavily in the document, particularly in relation to helping for develop services at a strategic level and on a family level about schools fully involving parents when it comes to how their child will be helped. Some teachers and indeed, many parents, will find this quite difficult for many reasons and this is why culture change on both sides is vital. The CoP document talks about Parent-Carer forums and the support and remuneration they need to be fully engaged, although it does not detail what this should be. Schools and colleges need to ensure that they fully engage parents and young people with SEN when drawing up policies that affect them. Key Principles

Person-centred planning A key approach that ensures that parents and carers, children and young people are actively placed at the heart of the system is person centred planning. A person centred approach to planning means that planning should start with the individual (not with services), and take account of their wishes and aspirations, and the support they need to be included and involved in their community. It aims to empower parents, children and young people so that they have more control over assessment and decision-making processes. It enables continual listening and learning, focusing on what is important to someone now and in the future, and acting on this in partnership with their family and their friends. Key Principles

Local Offer A “Local Offer’ should not be simply a list of existing services but should be used to improve the local offering for children with SEN. A ‘common framework’ is still not a ‘minimum standard’ The accompanying Regulations document is aimed at providing a common framework for the local offer. They specify the requirements that all local authorities must meet in developing, publishing and reviewing their local offer:  The information to be included  How the local offer is to be published  Who is to be consulted about the local offer  How children and young people with SEN and parents will be involved in the preparation and review of the local offer  The publication of comments on the local offer and the local authority’s response KEY PRINCIPLES

Additional Support “Additional Support” will replace the School Action & School Action + levels of SEN. All teachers should be teachers of children with special educational needs Before providing a child or young person with the Additional SEN Support, a rigorous assessment of SEN should be undertaken by the institution using all available evidence/data sources, such as attainment and historical data, the child or young person’s development in comparison to their peers, information from parents and, if relevant, advice from external support services. KEY PRINCIPLES

Eligibility for an Assessment Sections 20, 21 and 36 of Children and Families Act Learning difficulty or disability Require special educational needs provision Must be “necessary” for the LA to have to arrange the child’s SEN provision Eligibility for EHC Assessment

Section 37 Children and Families Bill An LA must issue an EHC Plan where it is necessary for special educational provision to be made for a child or young person. The plan is divided into Sections A-K and must: - Specify the child’s SEN - The outcomes sought for him or her - The SEN provision required - Any health or social care provision reasonably required by the learning difficulties The LA must have regard to the age of the child/young person in creating an EHC Plan. When issuing a draft plan, the child’s parents or young person have the right to make representations for a school or institution to be named. This includes FE provision. No requirement to have to draw up the EHC Plan at a meeting with parents. Issuing a EHC Plan

EHC Assessment Timescales The whole assessment and planning process, from the point an assessment is requested or that a child or young person is brought to the LA’s attention until the final EHC plan is issued, must take no more than 20 weeks. Specific requirements: LA’s must respond to any request for a statutory EHC assessment within a maximum of 6 weeks. When LA’s request information as part of the assessment process, those supplying the information must respond within a maximum of 6 weeks from the request for assessment. If an LA decides, following an assessment, not to issue an EHC plan, it must inform the parents or young person within a maximum of 16 weeks from the request for assessment. The parents or young person must be given at least 15 days to consider and provide views on a draft EHC plan and ask for a particular school or other institution to be named in it.

The provision set out in the plan must continue to be specific and quantified Parents have greater control over the services they and their family use with:  every family with an Education, Health and Care plan having the right to a personal budget for their support and  parents whose children have an Education, Health and Care Plan having the right to seek a place at any state- funded school, whether that is a special or mainstream school, a maintained school, Academy or Free School. Children and Families Act Key Points

The new ‘Education, Health and Care Plan’ will provide the same statutory protection to parents as the statement of SEN and will include a commitment from all parties to provide their services. Section 42 - Duty to secure special educational provision and health care provision in accordance with EHC Plan. If the plan specifies health care provision, the responsible commissioning body must arrange the specified health care provision for the child or young person. The local authority must secure the specified special educational provision for the child or young person. Duty to Implement EHC Plan

Section 21 Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision. If it is deemed special educational provision the Local Authority is responsible for providing and delivering it (section 42(1)). Definition of Educational Provision

Extends parental rights to express a preference for a greater number of schools, including  Maintain schools and nurseries  Academy schools, which includes Free Schools  Further education colleges  Sixth form colleges  Non-maintained special schools  Independent schools approved by the DfE independent specialist colleges approved by the Secretary of State. Parental Preference and Admissions

In considering preferences for FE places the LA is required to observe the following requirements (Section 39) It must consult the governing body, proprietor or principal of the institution; and The LA which maintains the institution, if applicable. Duty to name the preferred institution unless: (a)The institution is unsuitable for the age, ability, aptitude or SEN of the young person (b)The attendance of the young person is incompatible with the provision of efficient education of others or the efficient use of resources. Naming an Institution

Section 43 provides that the governing body, proprietor or principal of A maintained school A maintained nursery school An Academy An institution within the FE sector in England A non-maintained special school An institution approved by the SoS under s 41 Must admit the child/young person where it is named in the EHC Plan. Naming an Institution

Duty to have regard to the Special Educational Needs Code of Practice; Duties in relation to pupils with special educational needs; o Ensuring that children with SEN and disabilities are able to access the same opportunities as peers; o Ensuring that staff are trained to support children with SEN; o Ensure that resources are used effectively to meet the needs of children. Duty to advise parents that special educational provision is being made); and Duty to admit the child where a school is named in an EHC Plan. Duties on Education Providers

Right of Appeal to the SEN Tribunal remains and is extended to include the young person (aged over 16). Mediation enhanced and extended to incorporate health and social care. Dispute resolution introduced for non-appeal matters which can be accessed by schools and parents. Appeals and Redress

CHALLENGES

Increased administration Ensuring that health and social care are integrated into the decision making process Complying with timescales and creating the EHC Plan in accordance with legal requirements Agreeing outcomes Dealing with requests for personal budgets and challenges Challenges for LAs – My Top 10

Approach to Annual Reviews Amending the EHC Plan and timescales involved Approach to Cessation Approach to post 16 Dealing with increasing numbers of SEN Tribunal Appeals and Mediation Challenges for LAs – My Top 10

Baker Small Solicitors 2 Whittle Court Knowlhill Milton Keynes MK5 8FT Telephone: Fax: