Draft SEN legislation - worrying!

[AgnesDiPesto]

SOSSEN views on draft legislation here

If you have views you can submit them to Ambitious About Autism by 11 October here although probably other routes too.

SOSSEN urging everyone to complain to their MP about removing parental rights.

Actually I think if this bit does get through, the govt would probably hastily change it after realising how much money they're spending on mediation which won't make a blind bit of different.

The draft says that parents would be required to go to mediation but parents can still go ahead and appeal if no agreement is reached.

difference

The bit that worries me is, as SOS SEN highlight, the wording that the LA must only use their "best endeavour" to arrange provision specified in a statement.

How often do we see on this board a parent asking "how do I make my school comply with statement"? I have been in that situation myself and only got action by writing to the LA and reminding them of their statutory duty. Very worrying - vague wording like this will only give them a green light to exploit a woolly bit of law. Even if parents successfully challenge this it would be at the cost of huge expense and stress.

Yes, thank you SOS SEN and SNJ

Yes, Jane McConnell at IPSEA is extremely knowledgeable and I will be listening closely to what she has to say.

I'm worried that Best Endev, as well as enabling LA's to get away with continued incompetence, delays, communication breakdowns etc, will give LA's permission to say that they ran out of money, didn't have enough staff/resources/budget/expertise etc etc.

HHP, I think that's sensible. I will hold fire too until I've heard from IPSEA.

I think the reason other charities haven't publicised these things is that the stuff on the SOS SEN website isn't totally accurate. For instance, they're not correct in saying there will be no right of appeal against refusal to assess. It's definitely there in the draft Bill. They're also wrong to say that local authorities won't have any duty to supply what is in the statement. Section 21 says that they will have to provide the educational support in just the same way as they do now. The section about using best endeavours that the SOS website refers to relates to the duties of other bodies like schools and health authorities. On mediation, it says that there will be penalties for failure to co-operate, but there's nothing that says that would be against parents.

I think the main problem is that it's all too vague because the DfE are probably intending to put most of the detail into regulations. That's OK for some things, and in fact it's what happens now in relation to things like time limits for the assessment process. The trouble with this, however, is that it's much easier for the government to slip through a change in regulations in the future than it would be for them to change a statute. Edward Timpson said on the radio that parents and schools will be able to ask for assessment, so I suppose that will be in the regulations, but I agree there's no reason why it can't be in the Act itself.

What really concerns me is that there's nothing in the Bill which makes LAs specify and detail SEN provision in the new EHC plans. That would leave them free to be really woolly which is totally unhelpful to schools and makes them unenforceable. They may again plan to put this in regulations but it's so important that it definitely needs to be in the Act.

Thank you SNJ and SOSSEN!

I want to be clear too. I'm not an expert. I want to understand.

And when I do, I want to stand in my ds' independent school playground handing out templates, in dd's mainstream, and write to the governors, as well as get friends to help.

But I need to be able to give them a clear and correct message/account, and I have to say that right now I'm a bit confused, and not in a good way.

there's nothing in the Bill which makes LAs specify and detail SEN provision in the new EHC plans. That would leave them free to be really woolly which is totally unhelpful to schools and makes them unenforceable. They may again plan to put this in regulations but it's so important that it definitely needs to be in the Act.

Yyy absolutely!

Sorry, betraying ignorance, but can anyone confirm - at the moment, is it in the Act itself or only in the SENCOP?

I thought it was case law.

Just to clarify the "best endeavours" stuff.

Section 21 of the draft Bill says:

A local authority that maintains an EHC Plan for a child or young person MUST SECURE the special educational provision set out in the plan.

Section 39 says:

Special educational provision: functions of governing bodies and others

Using best endeavours to secure special educational provision

This section imposes duties on the appropriate authorities for the following schools and other institutions in England:
(a) mainstream schools;
(b) maintained nursery schools;
(c) 16 to 19 Academies;
(d) alternative provision Academies;
(e) institutions within the further education sector;
(f) pupil referral units.

If a registered pupil or a student at a school or other institution has special educational needs, the appropriate authority must, in exercising its functions in relation to the school or other institution, use its best endeavours to secure that the special educational provision called for by the pupilís or studentís special educational needs is made.
The "appropriate authority" for a school or other institution is:-
(a) in the case of a maintained school, maintained nursery school or institution within the further education sector, the governing body;
(b) in the case of an Academy, the proprietor; (c) in the case of a pupil referral unit, the management committee.

SOS SEN is quoting section 39, but as you can see it relates only to schools. For local authorities, it is section 21 which applies, and that is very clear that they have to provide the SEN provision in the EHC plan, which is the equivalent to a statement.

The stuff about specifying provision is in section 324(3) of the Education Act 1996, but there has also been a lot of case law confirming it and clarifying what is expected.

Yes (Starlight)--sorry for the delay in posting.

Veritate - I haven't read the paper yet but that is a pretty glaring error from SOS-SEN as it seems to just replicate the best endeavours duty in place on schools already.

Specification - duty arises from Act but further interpreted by case law and set out in SEN COP.

The therapy issue is valid I think - it would seem to be under health provision not SEN provision and therefore all the caselaw on this have to be re tested - as I understand it the previous caselaw refers to Education Act 1996 but this will be a new law which will replace the bits of the Ed Act therefore any caselaw based on Ed Act provisions may not be considered to hold against the new law that replaces it.

I agree SOSSEN seem to have got the appeal bit wrong.

Not read the best endeavours bit yet

Does anyone have the link to the report SOS!SEN refer to about DC with average cognitive abilities being refused assessment?

What would happen to DC with average or above cognitive ability who have an existing Statement? Would they be reassessed at or before Review with the potential of not meeting new criteria?

I heard that radio programme, and I thought at the time that Melinda Nettleton was wrong about that, because she specifically said that the local authority's duty would be only to use their best endeavours. As Veritate has pointed out, the local authority duty is that they must secure the provision, and it is just schools who are limited to using their best endeavours.

I checked it afterwards with a barrister who is an expert in education law and he confirmed that she was wrong about that. He said that it's an improvement because it means that potentially cases can be brought in the child's name against both schools and local authorities - local authorities because they have an absolute duty, and against schools if you can say they haven't used their best endeavours. He said that often just threatening court action gets the result you need.

Delalakis - it is not an improvement as there has always been a best endeavours 'duty' on schools, however, it is virtually unenforceable by law which is why statements with their binding and very clear legal duty are so important.

I have looked at section 21 and it does say exactly what Veritate says - a duty to secure the provision. The present duty is to 'arrange'. I'm not sure why there is a change in wording or whether that will make any difference. However, it is not a best endeavours duty.