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MumsnetGuestPosts (MNHQ) Wed 01-Oct-14 12:04:44

Guest post and Q&A: Changes to SEN legislation - what you need to know

Under the new Children and Families Act, extensive changes have been made to Special Educational Needs provision. Here, discrimination barristers Natasha Joffe and Samantha Cooper explain how the law has changed, and urge parents to keep talking

On Friday October 3, Jane McConnell - the Chief Executive of Independent Parental Special Education Advice - answered questions on the thread about the new legislation

Natasha Joffe and Samantha Cooper

Discrimination law barristers, Outer Temple

Posted on: Wed 01-Oct-14 12:04:44

(66 comments )

Lead photo

What do parents need to know?

Five years ago, the Lamb Inquiry into special educational needs (SEN) provision said this about the UK system: “In many places and for many parents it can and does work well, but for too many parents it represents an unwarranted and unnecessary struggle” - a description that no doubt chimed with many parents of children with SEN.

The government has been making a big fanfare about the changes to the SEN regime introduced this September in the Children and Families Act 2014 – there are new regulations and a vast (281 pages!) new Code of Practice. The government's emphasis has been on involving parents and young people in decisions and giving them greater control - but how much of the new regime is really new? And what do parents need to know?

First off, statements of Special Educational Needs and Learning Difficulties Assessments (LDAs) for young people will be replaced by ‘Education, health and care plans’ (EHCs).

This isn't particularly radical. Jane McConnell, the chief executive of the charity Independent Parental Special Education Advice (IPSEA), describes EHC plans as ‘SEN statements with a bit of health and a bit of care. The commitment had been to a holistic approach to education, health and social care but legally it is not clear that will happen.’ Although, as the name suggests, EHC plans will cover health and social care needs, those aspects of the plan - unlike the education parts - cannot be appealed to the Special Educational Needs and Disability Tribunal. So, it will still be harder to challenge decisions about health and social care and harder to get the help children need. Commentators have also expressed disappointment that there will be no EHC plans for disabled children who don't have SEN in order to give them the statutory protection children with SEN have.

In theory, personal budgets could give families more control over the SEN support their child receives and who provides it - but it is an entirely new system, and local authorities will have to figure out how to make it work.


What’s important for parents to know is that now, any child or young person who has a SEN statement/LDA should ultimately be entitled to an EHC plan, unless there has been a change in needs.

There is some good news in the form of a new upper limit on what age young people are entitled to a plan – something Jane McConnell describes as ‘the saving grace of the whole legislation’. Up until now, a young person up to the age of 19 with SEN who remained at school was entitled to a statement. A young person who went to a further education college at 16 or left school at 19 would have to have an LDA instead. Now, all children and young people with SEN up to the age of 25 who need one will have an EHC Plan and the right to challenge that plan at a SEN and Disability Tribunal.

However, it’s worth noting here that now, in most cases, before you can challenge an EHC Plan in the Tribunal, you will need to get a certificate to say you have spoken to a mediator, even if you are not interested in pursuing mediation. Whilst for some, mediation could sort out disagreements about EHC plans without the need to go to the Tribunal, having to take this step will delay resolution for other children. The requirement to get the certificate and the process of mediating (if that’s what you decide to do) will eat into the time you have available to appeal to the Tribunal, so it’s worth taking specialist advice or reading up early so you don’t miss any deadlines.

Personal budgets are something entirely new. A personal budget is a notional amount of money allocated to a child to pay for the special educational provision in the EHC plan. Any child or young person with an EHC plan who wants a personal budget is entitled to have one. There are various ways a personal budget could work. At one end of the spectrum, direct payments would be made to the child’s parents to arrange SEN provision. At the other end, the budget would be managed by the local authority.

In theory, this could be good news - having a personal budget could give a family more control over the SEN support a child receives and who provides it. But it is an entirely new system and local authorities and clinical commissioning groups are going to have to figure out how to make it work in a cost-effective way, particularly where different bits of the budget relate to education, health and social care. Expect some teething problems and don’t expect it to be easy to get direct payments.

Local authorities will now have to publish comprehensive information (on a website but also somewhere else for those without internet access) about the support they expect to make available for children and young people with SEN. This is called ‘the local offer’. Again, this has the potential to be great - the local offer could provide up-to-date, accurate information, but it needs to work. Look out for ways to contribute to discussion of what the local offer should include by way of parent carer forums, young people’s forums or other local groups.

So, what now? If you have a child with a statement of SEN, or an LDA, your local authority has four years to move all children and young people to an EHC plan. Young people who now have an LDA and request an EHC plan should get one within 20 weeks of a request, and young people with LDAs who stay in further education or training after 1 September 2016 must also get an EHC plan. But Jane McConnell from IPSEA fears that local authorities have simply not been provided with the resources or training necessary to achieve the changes in the time-scale, and that they are ‘being set up to fail children’. Sadly, under the new regime, as under the old, it looks like it is the children whose parents are able to work the hardest who will get the help they really need.'

By Natasha Joffe and Samantha Cooper

Twitter: @outertemple

Tanukisan Wed 01-Oct-14 17:34:37

I applied for statutory assessment for my nearly four year old back in August. Last week they wrote back refusing to assess. The main reason was that they didn't receive the nursery report in time - not a legal basis for refusal, I don't think. They have said candidly to our SENCO that they want us to reapply under the new system.

I have a letter ready to send back saying that we will dispute the decision not to assess with the SENDIST. And the dispute form ready to go. Is this a good use of my time/effort, or should I let it drop and apply again under the new system.

I'm so worried. My son only received his formal diagnosis yesterday and I am all over the place. I don't want a bloody fight to get him what he needs. I don't want to be a guinea pig for a system none of the professionals I have spoken to understand. I just want the support he needs and is entitled to.

fairgame Wed 01-Oct-14 17:42:25

In my area you can only apply for direct payments if you have an active CAF and TAC meetings. I have had dp in the past but i stopped them as it wasnt working out. If i wanted to have dp again, would i be able to do it through the EHC plan or would i still have to go through the CAF and TAC process?
My CAF and TAC's were closed 2 years ago and i'm not prepared to go through the whole process again.

StarlightMcKenzie Wed 01-Oct-14 17:56:00

Wow, thanks MNHQ!

CheshireEditor Wed 01-Oct-14 18:33:31

What about those who seem to always bubble under the 'statement' level? My son in y8 has dyslexia and does get great help from his secondary school, but I still feel he is lumped together with every other SEN child and viewed the same, when all SEN children are very different.

His barrier to learning means he needs more help which takes up too much time so is automatically put in the lowest sets with the easiest work which requires the least effort from everyone. It's lazy and see the dyslexia before the child.

What new legislation is in place for children like my son, who, only get help if the school is switched on and active? A 'finger in the wind' approach is not good enough.

Nerf Wed 01-Oct-14 19:14:06

Am on my phone - who is the guest? (Do we get told in these blogs, sorry don't know the rules).

headlesslambrini Wed 01-Oct-14 20:47:11

Id like to know what happens to those young people who currently have a statement and who dont get transferred to an EHC plan. Will they still be entitled to get an LDA as technically their statement will still be in force until the end of the school year or do they completely lose out? I know the CoP says no new LDAs can be started but in many cases the process starts with the information gathering not the written document. If they have been sitting in reviews for the last year then surely the information gathering has started.

inappropriatelyemployed Wed 01-Oct-14 21:19:54

Fantastic! This is so helpful to parents.

My DS's statutory assessment is currently underway (started end of Aug) so I'm still apparently entitled to a statement not an EHC plan (if it is agreed). Is there any point holding out for a statement when they'll all get converted at some point?

Also do SALT and OT fall under health or educational needs in the new system? The lack of these is a very significant factor in my sons SENs, if I go with an EHC plan can I appeal with respect to these seevices?

yongnian Thu 02-Oct-14 07:45:54

My DD has recently been diagnosed via CAMHS and has moved schools to one where SEN in mainstream is apparently dealt with well. The informal advice has been to statement her. Being newly diagnosed and a bit bewildered by the terminology I am not sure what to do. Many of her issues are masked in school and much more apparent out of school.
How do I decide if she needs a statement and should I make this decision more urgently due to the proposed change in system? Is she actually still entitled to a statement?
Thanks, yours confusedly.

Tanukisan Thu 02-Oct-14 07:53:23

Jane McConnell of IPSEA is doing the Friday webchat, Nerf. The piece itself is by two specialist Barristers (can scroll back up for the names if that helps?)

Ps - you haven't inadvertently selected 'hide OP' have you? I did that and got v confused when all of a sudden they vanished.

Tambaboy Thu 02-Oct-14 08:16:42

My LEA is a pathfinder and they are issuing an EHC plan for my DS but it seems they are doing a pick'n'mix of both legislations. They are doing bits of the statement process including the time frame (27 weeks!) but we've had the multidisciplinary meeting and parent consultation like the new legislation suggests.
The paperwork says Statutory Assessment and not EHC assessment but the draft says EHC plan. I'm am very confused.

Nerf Thu 02-Oct-14 09:41:28

Thanks tanukisan, thats exaclty what I seem to do have done blush

Tanukisan Thu 02-Oct-14 11:02:31

grin it took me two days to work out why none of the threads I was reading made any sense. TWO DAYS

Ixashe Thu 02-Oct-14 17:50:06

What is the exact process for transferring from a statement to a single plan? The transition guidance says that there should be a transfer review and an education needs assessment, but then down in the paragraphs below this it says that they have to write to give 2 weeks notice of a meeting to discuss transfer, and that this meeting can be to discuss the draft EHC plan. My local authority are interpreting this so that the first the parents know of a transfer is when they get a letter with a draft plan inviting them to a meeting to discuss it. This is different to the education needs assessment described in the COP, is this right?

Myfavouritebookis Thu 02-Oct-14 18:31:10

My son is dyslexic, but his school has recently sent us a letter to say that he no longer needs to be on their SEND register and therefore will simply be monitored in class. His reading has improved greatly, but his writing has not. I do not think the dyslexia has suddenly gone away, but he no longer has an IEP or any extra support. When he did his SATs he was allowed 25% extra time, in recognition of his dyslexia. Should dyslexic children still be allowed extra time in exams, or does he need to be on the school's SEND register for this to happen? Should the school still be giving extra support with writing? He is very slow at writing and his 'spelling age,' according to a recent school test, is 3 years lower than his actual age.

Nerf Thu 02-Oct-14 18:31:39

Tanukisan grin normal service resumed grin

Calaveras Thu 02-Oct-14 18:45:08

Message withdrawn at poster's request.

sickofsocalledexperts Thu 02-Oct-14 19:47:50

Do you think the Personal Budgets are a damp squib, or will we parents be able to use them for our choice of interventions (eg ABA in my case)?

NoRunAround Fri 03-Oct-14 10:45:44

Dear Jane

I understand the criteria for whether a CYP needs an EHC assessment is whether their needs can be met from the Local Offer.

How would anyone considering requesting an assessment now, know what's available, as most LAs have only published an Initial LO?

JaneMcConnellIPSEA Fri 03-Oct-14 12:15:58

Testing testing 1, 2 3

StarlightMcKenzie Fri 03-Oct-14 12:31:28

Hi Jane,

Thank you for coming.

I'm hearing from many professionals and parents that the new changes will require much more 'working together' and then stating that this is a good thing.

My question therefore is how will this 'working together' be defined and how will it differ from before the changes? My understanding is that 'working together' has always been what Local Authorities claimed be delivering.

I would also be interested to know that should 'working together' not occur, what can a parent do to ensure it does.

Finally, what safeguarding is there in the process to ensure that 'working together across agencies' is done purely for the benefit of the child rather than to ensure a joined up approach to deny provision?

JaneMcConnellIPSEA Fri 03-Oct-14 13:01:34

Good afternoon to you all.

My name is Jane McConnell. I am a barrister by training but my day job is as Chief Executive to the amazing charity that is IPSEA (Independent Parental Special Education Advice). Most importantly for me, I am the mum to a young man who is now 15, has blond hair, blue eyes and happens to have Downs Syndrome and other complex needs.

IPSEA provides free independent, information, advice and support to parents who have a child with SEN and/or a disability as they navigate the education system. We do this via our website www.ipsea.org.uk, social media – Facebook or twitter, helplines and by providing casework support and advocacy for parents taking cases to the SEND Tribunal. Our services are delivered by our team of over 250 volunteers who are trained to be specialists in this area of law. They are supported by a very small but dedicated team of legal support and administration staff.

IPSEA take what parents tells us of their experience of the system as evidence to Local and Central Government to inform policy development. We will also support individual cases through the legal process to develop case law which gives clarity as to what support children and young people should be getting and how.

Ask away! I will do my best to answer as clearly as possible

Jane

JaneMcConnellIPSEA Fri 03-Oct-14 13:03:04

Tanukisan

I applied for statutory assessment for my nearly four year old back in August. Last week they wrote back refusing to assess. The main reason was that they didn't receive the nursery report in time - not a legal basis for refusal, I don't think. They have said candidly to our SENCO that they want us to reapply under the new system.

I have a letter ready to send back saying that we will dispute the decision not to assess with the SENDIST. And the dispute form ready to go. Is this a good use of my time/effort, or should I let it drop and apply again under the new system.

I'm so worried. My son only received his formal diagnosis yesterday and I am all over the place. I don't want a bloody fight to get him what he needs. I don't want to be a guinea pig for a system none of the professionals I have spoken to understand. I just want the support he needs and is entitled to.

You are right that not having a nursery report in time is absolutely no reason to refuse your request that you son’s needs are assessed. Disgraceful. Speed is of the essence for you son. I suggest that you register an appeal against the decision at the SEND Tribunal as soon as you can. This will help focus the LAs mind on the decision they made and whether it would be defendable at all (it would not be!). Send a copy of the appeal with any further evidence – such as his new diagnosis - to the LA and ask them to review their decision in the light of the new evidence. I would seriously hope they would do so. Come back to us at IPSEA for individual support if they do not.

Once they agree to assess, you can – if you want – agree to the assessment being carried out under the new law i.e. an EHC (education, health and care) needs assessment. I would seriously consider that. Professionals should be fully geared up to do this – apparently 90% of LAs told the DfE they were ready for implementation! Make sure you are informed about what that assessment process should involve- download the briefing on the IPSEA website about what an EHC needs assessment is. The new EHC needs assessment process means LAs must consult with any professionals from education, health or social care that a parents reasonably requests they do. This allows parents who know this to access say CAMHS (child adolescent mental health services) in a more timely way than otherwise as once requested by an LA to provide information and advice they must respond within 6 weeks.

This is a completely unnecessary aggravation for you which could of so simply been avoided. Consider contacting your local Parent Carer Forum and let them know what you have experienced. They should be made aware of the LA not working with parents constructively and not applying the law.

Good luck

noblejennings Fri 03-Oct-14 13:07:44

Hi my daughter is dyslexic and on the SEN register. She was very well supported with her difficulties last year. This term she has had all her one to one sessions taken away and I have been told by the Senco this is because of the new reform, is this correct and what help is she really entitled to?

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