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

[MumsnetGuestPosts]

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.

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.'

[Olayemi]

Hello, I have a 13 year old daughter on the autism spectrum, who has an EHCP that does not meet her need in whatever way. She was assessed in a mainstream school where she was only attending 3 hours 3-times weekly for 1 month. I wrote to the school to advise I would be send an independent Ed Psych and a SALT to come carry out a re-assessment and they called to advise they would be paying for an independent ED Psych to come in themselves. I am skeptical about this as I feel their report is going to be biased bearing in mind that I have been talking to them about my daughter's watered down EHCP before now. I am considering taking her to an independent school under sectional 41, as present school seem to just a generic school that cant meet up with her educational and speech need (no 1-1 whatsoever, they are all lumped together regardless of their needs.)

My questions: **should I allow the school to carryon knowing that I will still be contesting the report as they are not going to be doing anything about the speech and language?

**Also, can I get a testimonial about the Sec 41 independent schools in Gloucestershire, namely; Aurora Hedgeway school and Sheiling School Thornbury. As i do not want to change her school and then have it bite me at a later date. Thanks

[holeinyourhead]

My DS is in Year 2 and we have just learned that a year ago he was placed on the SEN register and is now on a SEN pathway. We've been to see the teachers on several occasions over the last 2 years about his disruptive behaviour in class and no reference has ever been made about his learning difficulties. I am not even very clear now what the problem is as he seems to be doing fine when I sit with him to do homework, nothing is a struggle. He was placed on a behaviour report last summer term with a harsh and inconsistent punishment system that taught him nothing (no follow through), and this affected his confidence in a big way.

His most recent school report however was glowing - to the extent I struggled to recognise my own child in it - and no mention was made about his lack of attainment nor his behaviour. I went to see the head teacher about this behaviour report last month and was told by the head my DS is a bright child. So bright that he's on the SEN Register and has been for a year. I am very upset that he has been treated so badly by the school, that we weren't informed either then or since, and the opinion of his ability is so clearly inconsistent amongst the staff. Our own opinion is that academically he's doing well, that he shouldn't be on this pathway, but if he does need help I am happy to do whatever is necessary to support him. What should have happened do you think and what should I do next? We have made another appointment with the head teacher to discuss next steps. Thanks.

[handybook]

The new SEN legislation can mean parents of Dyslexic children can request schools obtain handybook a new e-reader app on cheap android tablets. It is designed specially for dyslexics with the support of dyslexia experts. It is new so few SEN teachers are yet to catch up with it. School tests show it can improve reading by up to 650% & concentration by 300%. Handybook offer schools the service to render all their reading material & documents onto android tablets for easy reading with the handybook app. See a free trial demo at handysoftware.co.uk and then tell SEN teachers of handybook!

[homerdonna]

Hi my daughters been struggling from the first year,shes now in year 6 .School think that shes got auditory processing disorder but no one knows where I can get her a test for it.I have been into school class after class trying to get her help.School say shes not bad enough for a statement.

[Tanukisan]

(Many many thanks for such a detailed response to my question, by the way. Sorry, should have said that earlier)

[Tanukisan]

I applied before 1 September for this reason, although I'm interested to see that Jane's reply suggests I seriously consider agreeing to proceed under the new legislation.

I get the LAs should know what they're doing, and that 90% of them say they do, but I'm not convinced.

[WhoKnowsWhereTheTimeGoes]

I thought that if you applied before 1st September, not got agreement then you could go the statement route. Also they aren't allowed to make up their own criteria, our LA just use them to fob people off with.

[StarlightMcKenzie]

DG Do you ever attend tribunals on the 'side' of the children and their parents?

[StarlightMcKenzie]

'All children with SEN, for whom requests for Staturoty Assessment have been approved after the 1st September 2014, will be awarded an EHC, not a Statement. Again, this assumes they meet the Local Authority's criteria.'

Goodness. That is illegal.

[DeiseGirl66]

I am the SENCO in a London Primary School. My understanding is that children who currently have Statements of SEN will migrate automatically to an Education and Health Care Plan (EHC) at the child's next Statutory Annual Review, assuming the needs and targets are still valid. All children with SEN, for whom requests for Staturoty Assessment have been approved after the 1st September 2014, will be awarded an EHC, not a Statement. Again, this assumes they meet the Local Authority's criteria. This is the trickiest area, I find, and the one I frequently have to appeal on behalf of children and parents, because LA funding thresholds are being raised all the time as budgets tighten and schools are expected to deal with increasingly complex SEN without additional funding. A child who might have received a statement for Dyslexia five years' ago may not now meet these stringent thresholds. Regarding SEN support in schools, I see no reason why a child with Dyslexia cannot receive additional one to one or small group support within the new system, so I would advise noblejennings to query this with the school's SENCO. Parents worried about the changes to the system might find the attached document useful. In my own practice I've adopted the strategy: "Keep calm and carry on!" www.gov.uk/government/uploads/system/uploads/attachment_data/file/344424/Special_educational_needs_and_disabilites_guide_for_parents_and_carers.pdf

[StarlightMcKenzie]

Thank you so much Jane.

There seem to be a variety of organisations and systems (some just developed) that are supposed to be on the side of our children with SEN but that seem to be so intermingled with the system it is hard to see how they can possibly be objective.

It's great to know that there is a truly independent organisation out there.

[LucySMumsnet]

A massive thank you to Jane for coming on to answer questions - and for staying an extra half an hour! As she says, more info can be found on IPSEA.

[Sleepstarved]

Totally new to SEN world, new legislation or not. DD being assessed now but she is 3.5 so we have to apply for schools by Jan.
If the report is not done will we be able to get guidance on choosing schools? If she has an EHC or not will affect our choices.
Ed pysch doing assessment seems approachable enough, available on email ect but I have no idea of the threshold and whether DD is 'bad' enough to need one.
If she gets EHC then we get priority and would probably go for school with SEN unit, if not we will have to go to nearest probably.

[JaneMcConnellIPSEA]

Thank you all for your questions. As always to the point and flushing out some of the real issues that are being faced during this period of change.

Please don't forget to go to the IPSEA website //www.ipsea.org.uk - follow us on Facebook I.P.S.E.A. - follow us on twitter @ipseacharity - e-mail our Information Service - call us or book us to call you back - contact your local IASS (Information Advice and Support Service - used to be called Parent Partnership). I will be doing q & A's on the blogsite Special Needs Jungle www.specialneedsjungle.com/ on a regular basis.

You are not alone!

Jane

[JaneMcConnellIPSEA]

@OneInEight

As a follow on with Starlights question I am particularly intrigued as to how the healthcare element of the plan is going to be implemented & enforced as presumably it comes from a totally different budget.

Totally different budget, totally different culture, totally different set-ups - Clinical Commissioning Groups (CCGs) have only just come into being and most have no idea re the duties towards the health sections of an EHC plan.

It is a wait and see exercise - hopefully not at the expense of some of our children.

[JaneMcConnellIPSEA]

@Schoolissuenamechange

Hi,

My son has ADHD and is medicated, should he have an IEP? He made inadequate progress last year and is apparently not even on school action.

How can we stop schools blaming the parents and getting defensive when we ask that our child makes adequate progress? He was only medicated because he wasn't progressing but I know there was a clause in the last sencop that said he was entitled to make progress with good teaching, withour medication...we would like to know. Where the equivalent clause is in this sencop?

You need to seek individual advice on this one as there are more questions that need to be asked. Call the IPSEA Advice Line or book them to call you back. I strongly suspect he should be on the SEN role.

[JaneMcConnellIPSEA]

@NoRunAround

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?

Aghhhhhh! The legal test for whether a child needs an EHC needs assessment has nothing to do with the Local Offer at all! Who on earth told you this. Misinformation. The test can be found in Children & Families Act 2014 s. 36(8)

The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted ... the authority is of the opinion that—
(a) the child or young person has or may have special educational needs, and

(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

This is a really simple and low test which does not require you or a school to prove that your child has even got SEN (its already been proved if they have been on SA or SA+) or that they must have an EHC plan - just may.

No mention of the Local Offer!

If you feel your child needs an assessment please request it today. Read the information on the IPSEA website and use our model letter.

[OfCourseThisIsNotMyUsualName]

Completely ignoring the SENcode of practice (well in our particular case.)

[StarlightMcKenzie]

Thank you Jane.

It's been grating on me for quite a while, the implication that there is a new law to make people work together. What on earth were they doing before that supposedly required this 'new law'?

[JaneMcConnellIPSEA]

@Calaveras

my son has severe dyspraxia (diagnosed) and possibly ADHD which we've just done the CAF assessment for with a view to getting a referral to CAHMS for a proper diagnosis and booked the follow up TAC meeting.

He already has an IEP under the School Action Plus scheme, but is it worth pushing for this EHCP, i dont really understand the differences.

To get an EHC plan you need to have had an EHC needs assessment. This may well be a useful process for your son to go through as it should identify his educational, health and social care needs – including CAHMS and OT. Once this assessment has been completed then the LA will need to decide based on the evidence gathered from the assessment – whether they need to issue an EHC plan for him. An EHC plan is a legally binding document. It binds the LA to make the educational provision identified in section F and means that that any school/ college setting named in section I has to admit your child. Any healthcare provision named in section G must be provided by the local healthcare provider – usually the CCG (Clinical Commissioning Group).

Apply for an EHC needs assessment. See the model letter on the IPSEA website //www.ipsea.org.uk.

[fairgame]

Thanks for replying Jane. I have clearly been confused between dp for EHC and dp for social care so thanks for clearing it up for me

[WhoKnowsWhereTheTimeGoes]

Thank you Jane.

[JaneMcConnellIPSEA]

@StarlightMcKenzie

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?

You are right. There is a lot of talk about “working together” along with “co-production” and “cultural change” being at the heart of the reforms.

I am not aware of any definition of what “working together” actually means or any of these other terms in the law
s.19 of the Children and Families Act does require LAs to “have regard to” the following principles:

(a) the views, wishes and feelings of the child and his or her parent, or the young person;

(b) the importance of the child and his or her parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned;

(c) the importance of the child and his or her parent, or the young person, being provided with the information and support necessary to enable participation in those decisions;

(d) the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes.

“Having regard to” is a legal duty which cannot be ignored. My understanding is that they have to do it unless they have a exceptional reason not to but this will I suspect be tested in the court sooner rather than later.

You are also right it is something that LAs have always been tasked to do and if they don’t do it then I am not aware of any new or stronger duty than under s. 19 to make them do it. Likewise there is nothing to ensure it is for the benefit of the child.

The establishment of Parent Carer Forums in most LAs and the requirement to consult with parents in developing the Local Offer are "soft" ways to ensure that working together happens. Where these work well it is where parents know what should be happening - are aware of the law and can challenge - and LAs value that input. Unfortunately this is not happening consistently!

[Myfavouritebookis]

Thank you very much for your reply, Jane. I wasn't sure how to proceed, but your advice has helped me see the issue more clearly.

[JaneMcConnellIPSEA]

@Ixashe

What happens with a childs health needs that need met in school but doesn't impact on their education? My son has a tracheostomy which requires 'constant supervision from someone fully trained in its care', and so his statement provides fulltime 1:1 to meet this need. While the tracheostomy doesn't effect his ability to learn he can't attend school without having trained people available, so does this count as a special educational needs and how does this fit into the new EHC plan?

Yes it does "count" as a special educational need. Your son I presume is disabled - I'm not sure of the reason he has to have a tracheostomy but I am presuming it is more than a short-term thing - and without the 1:1 support you say he cannot attend school and therefore access an education. He falls within the definition of SEN under the new Act in the same way as he did under the old law.

School I presume cannot provide this level of support from their existing resources? If they can't then he needs an EHC plan.

In any case as he has an existing statement you should expect him to be transferred to an EHC plan when your LA let you know it is his moment to jump!

Good luck