22nd May 2012

• You probably heard it on the news – the Government has now set out the next steps to the Green Paper on Special Educational Needs (SEN) and Disability. Although it’s been almost a year since the Green Paper consultation closed, the Next Steps document does little more than confirm the Government’s intention to implement the original proposals. Very little practical detail has been added; the report states that the legislation will draw on evidence from the 20 local pathfinders which were set up in September 2011.

  It is worrying, however, that the Government already wants to publish a draft Bill this summer, before the pathfinder pilots have even published their interim evaluations. We know from parent carer forums in some of the pathfinder areas that they only began piloting the new practices a few months ago. For example, a number of the pathfinders have only just started recruiting families to trial single assessment and planning processes. According to SEN advice charity IPSEA, “it would be easy to conclude that there is a determination to place on statute the practices piloted through the Pathfinder Schemes well in advance of knowing whether these practices will bring any actual benefit to children and their parents.”

  The key elements of the report are:

  Statutory assessments and statements of SEN will be replaced with a single assessment process and a combined Education, Health and Care Plan (EHCP) from birth to age 25. The Government says that this will provide the same legal protections as a statement, and that those protections will be extended to young people over 16 in further education. However, it is not clear whether this will only apply to educational support, or whether new legislation will be introduced to place an equivalent duty on health and social care providers to provide the services in the plan. (Currently, health agencies are under no legal duty to quantify provision or deliver it – which impacts on therapies such as Speech and Language Therapy). The document gives no indication how agencies would determine which child should have a single assessment, or how existing statements could be converted into a single plan.

  Every family with an EHCP will have the right to a personal budget for their support, but will not be forced to take up that option. Learning from pathfinder areas will be used to determine which services the budget would cover (e.g. childcare, short breaks, therapies, equipment, school support).

  School Action and School Action Plus will be replaced with a single school-based SEN category. The SEN Code of Practice will be revised to give clear guidance on identifying children with SEN. The report contains several references to last year’s Ofsted report which claimed that there was widespread over-identification of SEN, and there are indications that the Government is seeking to redefine what constitutes SEN using a more “medicalised” approach.

  Local authorities will be required to provide a clear, easy to understand local offer, developed in collaboration with local families. This would show what provision is normally available to children and young people with lower-level SEN/disabilities from birth to 25, and cover Education, Health and Social Care. The local offer would also set out how families can access more specialist support, and how decisions are made about provision of that support. It would enable parents to compare services offered in their local authority with those in neighbouring areas. All of this is most welcome; however, IPSEA has raised concerns about a proposal that the SEND tribunal would consider the local offer when making decisions. This could potentially weaken the law on SEN, removing children’s right to the provision required to meet their individual needs and replacing it with a right to what can be “reasonably expected”. There are no indications that the local offer itself would be legally enforceable.

  Children and parents will be able to “express a preference” for any state-funded school and have their preferences met by the local authority, unless the placement would not meet the needs of the child, be incompatible with the efficient education of other children, or be an inefficient use of resources. Crucially, the right to express a preference will now also apply to state academies and Free Schools. This is long overdue, as parents are currently unable to appeal to the SEND Tribunal for a place in an Academy unless the Academy agrees to be named in a statement (two appeals against refusal to admit disabled pupils have just been referred to the Upper Tribunal – click here for more information).

  Early identification of children’s needs will be improved through a new progress check for children at age two (carried out by Health Visitors) and improved teacher training.

  Reform proposals relating to school funding arrangements will support the SEN reforms. Under a proposed new funding approach, high needs pupils would be funded equally, regardless of whether they attend a mainstream or a special school. Whilst schools would still be required to support pupils with low-level needs from their delegated budgets (calculated using proxy indicators like Free School Meals), local authorities would provide targeted “top-up funding” for those with more severe needs. This is similar to how SEN funding is currently distributed to mainstream schools in Sheffield, but with a much lower threshold for top-up funding (likely to be around £6,000 per year, which roughly equates to 10 hours of TA support per week) and a lot more money in the high needs pot. All this sounds like good news for pupils with high-level needs in mainstream schools – but potentially less good news for those with more moderate needs, especially if they don’t have a diagnosis. We are waiting to hear what special schools think about the proposals.

  Click here to read the Government’s response to the SEN Green Paper consultation.

  A special bulletin published by the Council for Disabled Children contains lots of additional information and an interesting Q&A with the Minister of State for Children and Families, Sarah Teather. Click here to download it