Draft SEN legislation published

17th September 2012

  • On 3 September 2012, the Government published draft legislation intended to reform the special educational needs (SEN) system in England. The draft clauses aim to put into practice the vision outlined in the SEN Green Paper, published in March 2011.

    It is worth pointing out that the draft clauses are only intended to provide the “bare bones”. Much of the detail will be set out later in regulations and guidance (including a revised SEN Code of Practice!).

    The Government has said that the final package of legislation will be informed by the pre-legislative scrutiny process and the 20 pathfinder areas, which are currently testing the reforms in practice. An interim evaluation of the pathfinders will be published in October 2012.

    Integrated plans
    One of the most important reforms is the introduction of Education, Health and Care (EHC) plans, to replace Statements of SEN (and Learning Difficulty Assessments for young people in post-16 education). These will offer the same statutory protections as statements.

    EHC plans will extend statutory rights currently associated with statements to young people up to the age of 25, including the right to appeal to the SEND Tribunal – a welcome change. But there’s a catch: this only applies to young people in further education or training (excluding apprenticeships).

    Although EHC plans will also record a child’s health and social care needs, the arrangements are still very education-centred:
    – EHC plans will only be issued if a child has special educational needs (the legal definition of SEN stays the same, but it is not yet clear whether the criteria for issuing an EHC plan will differ from those for statements). Disabled children whose primary need is for social care or health support will miss out.
    – Local authorities will only have a legal duty to make the educational provision prescribed by the plan – there will be no corresponding duty on health and social care.
    – The SEND Tribunal will only consider appeals relating to educational needs and provision detailed in the plan.
    – When a young person leaves education or training, their EHC plan will cease. Worryingly, this could mean that support will fall away if young people “drop out” or are excluded from education.

    According to the Department for Education, a quarter of disabled children DO NOT also have SEN. Every Disabled Child Matters is calling on the Government to ensure that ALL disabled children benefit from the reforms.

    Joined-up thinking
    The Government recognises that there is a need to create a much more joined-up approach. The draft clauses require local authorities and Clinical Commissioning Groups (groups of GPs responsible for designing local health services) “co-operate” and make arrangements for jointly commissioning services for children with SEN. They will also need to agree “reasonable provision” to meet the needs of all children with SEN in the area.

    Personal budgets
    On the whole, it looks as though EHC plans will be very similar to statements. There’s one big change though, and that is a new right for parents to request a personal budget in relation to an EHC plan. In Sheffield, personal budgets for children are still a rarity, although Direct Payments (for social care services, such as short breaks) are becoming more popular. Personal budgets can combine funding from several agencies (health, social care and – possibly – education). They can take the form of direct payments or notional budgets. Further details (including the role of key workers) will be set out in the Regulations.

    The draft legislation brings welcome clarity to the thorny issue of Academies and SEN. Earlier this year, an Academy in London refused to admit a statemented pupil with cerebral palsy on very dubious grounds. The new Bill should prevent Academies from acting like this, because will apply equally to all state-funded schools, including Academies, Free Schools an Further Education Providers. Admission to mainstream Academies for children with EHC plans will be on exactly the same basis as to mainstream maintained schools.
    Despite earlier announcements that the Government wanted to “remove the bias towards inclusion”, the statutory presumption in favour of mainstream is retained. If parents want their child to be educated in mainstream, local authorities must comply unless this would be incompatible with the efficient education of other children – resource considerations do not come into this.

    Tribunal appeals
    The government has long held the view that appeals to the SEND Tribunal cost the taxpayer too much money. The draft provisions aim to reduce the number of appeals by introducing compulsory mediation before an appeal can be made. A requirement on local authorities to make arrangements for “avoiding or resolving disagreements” between parents of pupils with SEN and schools or local authorities appears to serve a similar purpose. This service would be voluntary.
    The draft clauses insist that mediators must be independent, i.e. not employed by the local authority. It is not clear how Parent Partnership Services fit into this new system.

    Parents of disabled children have long complained about a lack of clear, accessible information, and the draft legislation attempts to address this. Local authorities will be required to publish a “local offer”, detailing the education, health and care services available for children with disabilities/SEN. It should be noted, however, that the local offer does not establish a set of “minimum standards” for services, and will not be legally enforceable. Regulations will set out what information the local offer should include, and who should be consulted. In a similar vein, schools will have to publish an annual “SEN Information Report”.

    SEN duties
    The draft clauses widen the scope of who must “have regard” to the SEN Code of practice to include further education colleges, Academies, Pupil Referral Units and Early Years providers.
    Local authorities will be given a duty to identify all the children with SEN in their area. This is wider than the current duty which only requires them to identify children who may need a statement of SEN.

    What happens next?
    The draft clauses will be debated by the Education Select Committee (a group of cross-party MPs) between now and Christmas. The new legislation will be included in a Children and Families Bill which will be introduced into the House of Commons in January 2013, and is expected to become law in 2014.

    Please note: The current legal framework regarding statements of SEN has not changed and will remain in place until the new provisions come into force in 2014. Transitional arrangements between the old and the new system are yet to be decided.