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The Coalition Plan for Special Educational Needs

The Coalition Plan for Special Educational Needs. Cohesion or corrosion? Clive Rawlings Hardwicke 16 June 2012. What do we know?. SEN Green Paper SEN White Paper? Bill? Academies Act 2010 Education Act 2011 – new exclusions provisions in force September 2012 New Admissions Code

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The Coalition Plan for Special Educational Needs

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  1. The Coalition Plan forSpecial Educational Needs Cohesion or corrosion? Clive Rawlings Hardwicke 16 June 2012

  2. What do we know? SEN Green Paper SEN White Paper? Bill? Academies Act 2010 Education Act 2011 – new exclusions provisions in force September 2012 New Admissions Code Legal Aid Reforms from 2013 Austerity

  3. SEN Green Paper - SEN White Paper? Bill? Act? • Support and aspiration: • A new approach to special educational needs and disability issued by DfE May 2012 • Will lead to a Children’s and Families Bill • Will lead to a Brave New World for SEN from 2014 or sooner • And some interim steps including guidance

  4. The cohesion?Children and Families Bill 2013 • replacing SEN statements and Learning Difficulty Assessments (for 16- to 25- year-olds) with a single, simpler 0-25 assessment process and Education, Health and Care Plan from 2014 • providing statutory protections comparable to those currently associated with a statement of SEN to up to 25 in further education – instead of it being cut off at 16 • requiring local authorities to publish a local offer showing the  support available to disabled children and young people and those with SEN, and their families • giving parents or young people with Education, Health and Care Plans the right to a personal budget for their support • introducing mediation for disputes and trialling giving children the right to appeal if they are unhappy with their support.

  5. Support and aspiration Health Education Social Care Plan through to 25 years Single assessment process over 20 not 26 weeks Earlier targeted intervention More parental control/choice over SEN provision including school Personal HESC budgets from 2014 Health outcome plans More co-ordinated work between local authority and health authority

  6. More aspiration Improved training for educational psychologists and teachers with special schools leading it Performance tables on SEN outcomes More steps to prevent bullying of SEN children Expert focus on EBD Assist excluded children with SEN More short breaks for parents of disabled children

  7. ...and more 2012 Guidance for teachers for assessing and helping SEN and disabled children PRU’s to write rules about SEN to support parents and carers An integrated plan for transition into adulthood for SEN/disabled with employment and trainings support Support for young people with SEN/disability at risk of custody SEN and discrimination appeal rights for children More mediation less litigation but right to appeal to Tribunal remains

  8. The Pathfinders A single assessment process and the Education, Health and Care Plan has been set up. 20 groups, called Pathfinders which comprise of 31 local authorities and their health services. They are testing the changes. Are you part of the trial? They are due to report in 2013. VERY FEW FAMILIES ARE INVOLVED IN TRIALING EVEN YET

  9. The corrosion? • One level of special educational needs • ‘We will tell teachers how to find out if children have this level of SEN’ • New diluted Code of Practice • National Banded Framework • Direct payments for education and health not merely social care • The local offer!!! • Charities and community organisations to help pay and provide for SEN/disabled persons • THE BIG SOCIETY? • Academies and Free Schools going their own way • Ancillary legislation undermining the rights of the vulnerable and disadvantaged • The break up of local authority cohesive provision

  10. One level ofspecial educational needs • The current orthodoxy is • ‘Too many children being identified with SEN by schools’ • In other words there are too many children with Statements • Does this really mean the single assessment process and HESC Plan will be restricted to the most severe and complex type of pupil presently in special school? • Where does this leave the child whose specific language disorder is not picked up in the early years or who develops emotional and behavioural problems, or the able autistic child struggling with secondary transfer • Any new single category of SEN can only be effective if it ensures any child who has different learning needs from a typically developing peer gets the support they need as early as a potential issue is identified. • Extreme weather warning required here!!

  11. A Single Statutory Assessment • To be effective, the existing legal right that children have to receive the special educational provision specified in their Statement must be extended to cover any health and social care provision identified as needed by the assessment. • Children and young people need an enforceable legal right to this provision. • It is essential that therapies such as Occupational Therapy, Physiotherapy and Speech and Language therapy remain as part of the educational assessment of a child’s needs and remain part of a Local Authority’s statutory duty to arrange as special educational provision.

  12. Education, Health & Care Plan • Welcome .....but will it afford parents the same statutory protection as the Statement of SEN. • There must be statutory duties on local authorities to identify, assess and arrange provision for the same children that are currently statemented with a similar framework of rights; • The EHCP must have the support of health or social care legislation obliging the agencies to provide what is described otherwise it is a dilution of the present system

  13. EHCP – strengthen or dilute present rights? • There is a real danger the EHCP will be no different from the existing system where a child is entitled only to the educational support identified in a statement and not any non-educational help. • For example therapies that following battles in the courts are now accepted as being essential in the education of children with special educational needs/disabilities, such as speech and language therapy, may be regarded as provision for health services to make, so medical rather than educational provision. • Children would therefore not have an entitlement to them and parents on their child’s behalf would have no remedy if such services were stopped.

  14. A “Local Offer” • What does this mean? • The level of support detailed in a Local Authority or school’s core offer should reflect a child’s legal entitlement. • If the provision ’offered’ falls short of a child’s legal entitlement, then parents should be clear on the action they can take to protect their children. • This is particularly important for those children and young people who are not supported with a statement of SEN but are on school action or school action plus under the current system.

  15. Real intentions? • The Government ‘ ... envisage that the local offer will support The First-tier Tribunal (for Special Educational Needs and Disability) and others considering redress when making their decisions since they will be able to see what provision can reasonably be expected in local schools and colleges and from local health and social care services to support children and young people with SEN and their families in each local area.’ • Under the current legal framework the Tribunal must have regard only to the child’s needs and whether the special educational provision determined by the LA is adequate in kind and amount to meet those needs. • Is there a fundamental legal change on the way? Is the Tribunal test now to be that provision is adequate on the grounds that it is ‘what can reasonably expect in local schools and colleges.’ • Is this to be a significant of the law on SEN so that children’s right to the provision required to meet their individual needs is removed and replace with a right to what can be ‘reasonable expected.’

  16. Accountability • Where is the accountability in the system? • Who ensures that schools do what they are supposed to? • Who ensures that LAs and/or Academies do what they are supposed to? • It cannot be left to good will and chance. • Evidence tells us that this approach does not work.

  17. Where is the evidence? • As of May 2012, Pathfinders have only just started recruiting families to trial single assessment and planning processes. • ‘an interim evaluation of the pathfinders will be published by October 2012, with a final evaluation report following in 2013.’ • A draft Bill this Summer? • There will be no lessons learned by the time of the draft Bill so how will ‘the lessons learned from the pathfinders will help us to decide how best to change the law and will be reflected in the legislation we aim to introduce to Parliament in the current session... • It appears 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.

  18. SEN and The National Context • The rush for maintained schools including special school to become independent schools (Academies) • Admissions and exclusions guidance inconsistent with promoting equality for disabled and SEN pupils • Legal Aid reform restricting access to justice for vulnerable, poor and disabled groups

  19. Academies • As of 1 May 2012 • there are 1807 academies open in England • The number has grown dramatically under the coalition government, from 203 in May 2010. • Nearly half of all secondary schools and a growing number of primary and special schools have become academies. • A Freedom of Information request gained access to the actual number of exclusions for each academy. • It shows some disturbing figures. While the local authority rate for permanent exclusions is .14% and all academies are double this at .3% some academies exclude far higher numbers • 8 academies exclude more than 1% of their pupils

  20. Academies – restricted rights for SEN pupils? The First-tier Tribunal has recently struck out parents appeals seeking a place at an Academy. Why? The obligations towards children with SEN in Academies are contained in the Funding Agreement and are not the same as the direct legal obligations imposed by the SEN legal framework i.e. Education Act 1996 Part 4, SEN Regulations 2001 and SEN Code of Practice (Statutory Guidance) on Maintained schools. Each contract can only be enforced on its own wording. Parents and LAs are not parties to the FA contract and therefore do not have a direct right to challenge either party if they fail to follow any provision of the contract, such as the duty to have regard to the SEN Code of Practice

  21. Admissions and exclusions • Selective schools expansion may now be possible restricting choice for pupils with SEN: New Admissions Code effective September 2012 for following year admissions • Independent review panels dealing with exclusions will no longer have the power to reinstate pupils from September 2012 under new legislation and guidance: Education Act 2011 • Pupils with SEN with statements are around 8 times more likely to be permanently excluded than those pupils with no SEN.

  22. Legal Aid Reforms • All education dispute cases apart from special educational needs are to be removed from the scope of legal aid assistance • SEN cases will remain with advice and assistance as at present but not to include paid representation at FT Tribunal or UT • Public law cases involving judicial review remain in scope • See the Legal Aid, Sentencing and Punishment of Offenders Bill 2011

  23. And Finally • Austerity and local authority funding.... • What is happening? • LA staffing levels being reduced significantly • LA support services including specialist teachers, EPS closing down and becoming costs centres or private companies • Special schools converting to Academies • LA’s becoming commissioners of service and less so providers • GP’s commissioning health services such as speech therapy?

  24. Be careful what you wish for? Maintaining equity and equality in the provision of a finite resource for pupils with SEN is no longer in the hands of local authorities the free market (Academies/Free Schools etc/Sponsors) have the upper hand with the Secretary of State centralising control over how much the state will distribute and to who

  25. Be positive by all means, but primarily: be aware be vigilant be organised lobby hard and prepare for a very different playing field in the coming years.

  26. End clive.rawlings@hardwicke.co.uk

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