Changes to SEN legislation: Jane McConnell answers your questions
Following the changes to Special Educational Needs provision under the new Children and Families Act, we invited parents to put their questions and concerns about the new legislation to Jane McConnell, the Chief Executive of Independent Parental Special Education Advice (IPSEA).
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.
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 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'.
Q. 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.
A. Jane McConnell: 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, ie 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 six weeks.
This is a completely unnecessary aggravation for you which could've 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.
Q. WhoKnowsWhereTheTimeGoes: My DS's statutory assessment is currently underway (started end of August) 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 son's SENs, if I go with an EHC plan can I appeal with respect to these services?
A. Jane: If you are in the process of statutory assessment then your LA should give you a choice as to whether you want a statement issued at the end of it or whether you would like them to complete an EHC needs assessment and issue an EHC plan. See the IPSEA website for a briefing on what the EHC needs assessment consist of and call us if you want to discuss the options. You are right that if you have a statement for your child then it will need to be converted to an EHC plan by April 2018. This process will involve another assessment which you may see as useful.
s. 21(5) of the Children & Families Act 2014 is very clear that if any health or social care provision is needed at all for the purposes of education or training then it is special education provision and therefore needs to be written into part F of the new EHC plans. This includes all therapies such as SLAT, OT, Physio. It may well still be delivered by therapy teams from health but ultimately the LA have legal responsibility to ensure it happens. The question that needs to be asked is 'can this child access their education or training without this therapy being put into place? And does this therapy have an education or training purpose?'.
If therapies are not put in section F of the EHC plan as special educational provision then you can appeal this decision to the SEND Tribunal.
Q. 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?
A. Jane: 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 (it's 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.
Q. headlesslambrini: I'd like to know what happens to those young people who currently have a statement and who don't 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?
A. Jane: Aghhh transition. A very hot topic and so much misinformation out there at the moment; some of it from organisations that should know better.
The DfE have been very clear with LAs that all children with a statement should transfer to an EHC plan unless something has happened for them individually which means that there needs and changed so as they no longer need the support under the statement (and therefore their statement would have been ceased any way).
The legal test for issuing an EHC plan is no higher than for issuing a statement. If your LA decide not to transition your child's statement to an EHC plan that would be highly questionable and ultimately appealable. You would need to seek legal support immediately as it may indicate that your LA are acting highly illegally. Call us at IPSEA.
New LDAs can no longer be issued. It does not matter if previous information has been gathered. That information should now go towards the EHC needs assessment that must be carried out as part of the process of transitioning from a statement to an EHC plan.
The message that if you have a statement or LDA that you should be transferred to an EHC plan is been made very loud and clear to LAs. Unfortunately IPSEA are hearing from too many parents where this is not the message that they have been given. Let's get the right message out there please!
Q. Tambaboy: 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 am very confused.
A. Jane: From the few sentences that you have written the LA is obviously failing in their duty to communicate clearly with you! However, the transition arrangements are not straightforward and were not finalised until 28 August 2014 so it is not surprising that LAs are struggling to explain as most do not understand themselves fully yet.
So let's try to unpick. No assessment process started before the 1 September 2014 can legally be an EHC needs assessment. An EHC needs assessment must be carried out before any EHC plan is issued. This is the same for new people into the system and those transitioning from a statement to an EHC plan or an LDA to an EHC plan.
However, the exception to this is where a statutory assessment was in progress as of the 1 September 2014. In this case your LA can decide that they want to issue an EHC plan instead - which your LA seem to have done. But they can only do this if you as parents agree to this. Otherwise they have to issue a statement. LAs – but Pathfinders in particular - were told to prepare assessments to be compliant with the new legislation and it seems yours has been doing that but they have forgot to inform you of your choice in the matter.
The time limit they are adhering to is in fact correct as you seem to be in this unique group where the exception applies. You need to particularly look at the transition guidance which can be found here - especially paragraphs 3.9/3.10.
Q. Ixashe: 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 two weeks' notice of a meeting to discuss transfer, and that this meeting can be to discuss the draft EHC plan.
My local authority is 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?
A. Jane: Transition from a statement to an EHC plan is one hot, hot topic and I suspect it will continue to be for a few months - even years to come! What you have been told is clearly not right. You can't have a meeting to discuss a draft EHC plan until the EHC assessment process has been carried out. Parents must be included in that process.
Simply put, the process should run like this:
- Child/YP statement or LDA comes up for transition. Each LA must of issued a transition plan detailing how they will move those already in the system. This should've been published on their website from 1 Sept 2014.
- LA writes to parent/YP giving at least two weeks' notice – ideally more – of the date on which the transition process will begin. 3. From that date the LA will have to start the EHC needs assessment process – see IPSEA briefing on the EHC needs assessment.
They will have 14 weeks to:
a) complete the assessment process i.e. gather new reports from professionals (unless parents agree that exiting reports are 'sufficient')
b) Draft an EHC plan
c) Consult with parents
d) Consult with schools/ colleges
e) Finalise the EHC plan
f) During that 14 weeks process the LA needs to hold a meeting with parents and professional. It is up to the LA to decide when in the time line this happens – some are starting off with a meeting whilst some seem to be holding it to discuss draft plans.
I would suggest you download the briefing on transition on the IPSEA website. It attempts to translate confusing messages re the transition process into something understandable. Contact us with a copy of your LA's transition plan and we can support you to question it. You should also contact your Parent Carer Forum who should already be onto the fact that it is not right and be challenging the LA.
Q. fairgame: 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 wasn't 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?
A. Jane: Brace yourself for a longish answer.
Direct payments for special education provision have only come into effect since 1 Sept 2014. Unless you live in a Pathfinder LA, I suspect what you have had DPs for in the past have been for social care support – respite or support at clubs/ social activities. In order to access this you would normally expect to have had a core social assessment of your child's needs completed but I am aware of LAs that also require a CAF and a TAC to have happened as well.
If you want DPs in lieu of special education provision under the new system you can only have them if your child or young person has had an EHC needs assessment and is having an EHC plan drafted or has one in place. DPs are not available for education otherwise (although they maybe for health or social care).
First you need to ask the LA to identify a personal budget for your child or YP. This will be a notional amount of money – not an amount of cash that you will receive - that they estimate covers the cost of making the provision specified in the EHC plan. You can then also ask that some of that notional amount is actually paid to you directly as cash as a direct payment so you can arrange any particular parts of the provision yourself. Suggestions have included the arranging of speech and language therapy, physiotherapy, specialist equipment.
1. Will agree to a DP and then
2. The amount of money they will offer to pay you to do this. If you don't agree with either of these decisions you will only be able to ask the LA to review its decisions – you are not able to appeal to an independent body. You need to also be aware that if this special educational provision would usually be delivered in school or college then the head teacher has an absolute right to say no - which cannot be challenged.
Evidence for the success of direct payments being used to provide special educational provision is very weak at the moment...
Q. sickofsocalledexperts: Do you think the Personal Budgets are a damp squib, or will we parents be able to use them for our choice of interventions (e.g. ABA in my case)?
A. Jane: Excellent question. Put bluntly in my view – yes they are definitely a bit damp and fishy at the moment! The evidence of them working is not strong - from Pathfinders it has been very, very weak. They seem to have been mainly tested by making payments in lieu of transport arrangements which is something LAs have been able to do for a while. If you read the legislation that underpins them there are a lot of 'get outs' for LAs and schools/colleges who do not want them interfering with economies of scales.
But… saying that, for home-schooling and ABA programmes, they could be perfect. The first hurdle is getting your LA to agree to them. If they are happy to do so and you can work together it could be a blissful solution for both of you. You cannot however force an LA into agreeing to them – it is not decision you can appeal to the SEND Tribunal or any other independent body. So you still have that hurdle to get over.
Q. CheshireEditor: What about those who seem to always bubble under the 'statement' level? My son in Year 8 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 sees 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. Jane: Your question strikes at the heart of so many issues that we get presented with at IPSEA. Now you are not going to like this... For those children with SEN but at a level which does not need them to have the additional assessment and support of a statement/EHC plan things have not, in my opinion, got any better under this new legislation. This is the vast majority of children (1.3 million according to latest DfE stats) and they have not gained any further protections. Some may say they have lost some of the clearer guidelines under the old system for reporting to parents re support being put into place and progress made as a result.
The SEND Code of Practice in chapter six outlines the duties on schools to support these children – emphasizing that teachers are teachers of all children and trying very hard to establish that the responsibility for their learning is not just the SENCO's but in reality some schools see SEN as central to what they do whereas others just do not.
Bottom line is it's still dependent on the individual school and their attitude and ability to understand and want to meet the needs of our children. There are many, many excellent schools out there but they can be tainted by those who really do not understand - or want to understand.
Q. Myfavouritebookis: 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 three years lower than his actual age.
A. Jane: What you have been told really worries me. The first question you need to ask the school is why has he come off of the SEN register? Is it because his needs have reduced to the extent that he no longer needs support – if so that is something that you should monitor carefully with the school and should have been discussed with you beforehand as good practice.
What I am a little afraid of is that the school have been told by the LA that children with dyslexia or children in general that have been previously supported through 'school action' under the old legislation are now to be moved off of the SEN register. We have heard a number of reports at IPSEA over the past weeks that schools are being told that the new legislation means that the thresholds for having SEN are higher or different from previously and that children should be moved off of SEN support. This is just not true. The definition of SEN under the new law is at least the same – potentially it encompasses more children. If this is the case the LA need challenging quickly.
Find out which of these motivations it is underlying the decision and then come back for more support from IPSEA or your local IASS (Information Advice and Support Service – formally known as Parent Partnership).
Extra time for exams is a completely separate but obviously related issue. Schools can request individual exam boards to allow extra time for pupils and are required to give evidence to back up what they are saying. It would be interesting to know what they intend to do for future exams? Why would they be applying for extra time if they felt he no longer had SEN?
Q. noblejennings: 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?
A. Jane: Goodness I have had to skip to this because it makes my blood boil that you would have been told this. See the previous post. Bottom line is that if your daughter had SEN on the 31 August 2014 she still has it on the 1 September 2014 when the new legislation was introduced. The legal definition of having SEN has not changed and is at least the same as it was then - potentially wider.
Your daughter's support needs to be restored ASAP. Please ask the SENCO to write to you and detail exactly why this decision has been made and then contact us or your local IASS so that it can be challenged. Again I am really fearful that some LAs are using the change in legislation as an excuse to try to 'bump' kids off of the SEN role. If her needs have not changed she is entitled to the support she has always had!
Q. Ixashe: What happens with a child's health needs that need meeting in school but don'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 affect his ability to learn he can't attend school without having trained people available, so does this count as a special educational need and how does this fit into the new EHC plan?
A. Jane: 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.
Q. StarlightMcKenzie: 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 to 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?
A. Jane: 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 an 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!
Q. 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 don't really understand the differences.
A. Jane: 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 have 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.
Q. Schoolissuenamechange: 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 SENCO that said he was entitled to make progress with good teaching, without medication... we would like to know. Where the equivalent clause is in this SENCO?
A. Jane: 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.
Q. OneInEight: I am particularly intrigued as to how the healthcare element of the plan is going to be implemented and enforced as presumably it comes from a totally different budget?
A. Jane: 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.
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