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“ What You Need To Know” (Current/Future SEN/Disability Law)”

“ What You Need To Know” (Current/Future SEN/Disability Law)”. Presentation by Douglas Silas East Sussex Parent & Carers’ Council (ESPaCC) 13th February 2014. @ douglassilas. douglassilas. Douglas Silas. + DouglasSilas. www.SpecialEducationalNeeds.co.uk.

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“ What You Need To Know” (Current/Future SEN/Disability Law)”

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  1. “What You Need To Know”(Current/Future SEN/Disability Law)” Presentation by Douglas Silas East Sussex Parent & Carers’ Council (ESPaCC) 13th February 2014 @douglassilas douglassilas Douglas Silas +DouglasSilas www.SpecialEducationalNeeds.co.uk

  2. Solicitor who runs small/niche/nationally acclaimed firm specialising exclusively in SEN cases Advise/represent parents throughout ‘statementing’ process/appeals to & against SEND Tribunal Popular website at www.SpecialEducationalNeeds.co.uk Lawyer who tries to avoid litigation/disputes Always remember child/young person: Seems obvious but easy to forget Too much focus on policies/rights/funding/the law SEN provision should be based on practicalities not ideology WHO I AM 2 www.SpecialEducationalNeeds.co.uk

  3. 3 sessions (2 pre-lunch/1 post-lunch) Focused on Education/Health/Care Will look at system through SEN prism 3 aims overall: Look at current framework (history/criticism etc.) Look at proposed framework (from Sept. 2014?) Answer questions as best I can 4th session for Q & A (write questions over lunch) Only overview/Lots to get through (further reading) May already know things (apologies in advance ) PURPOSE OF DAY 3 www.SpecialEducationalNeeds.co.uk

  4. OVERVIEW 10:15: “Education, Health & Care – Part 1: The Past” 11:15: Break 11:30: “Education, Health & Care – Part 2: The Present” 12:30: Lunch (write questions for later) 13:15: “Education, Health & Care – Part 3: The Future” 14:00: Short Breaks etc. /Questions/Comments 15:00: Close 4 www.SpecialEducationalNeeds.co.uk

  5. EDUCATION, HEALTH & CARE PART 1: THE PAST www.SpecialEducationalNeeds.co.uk

  6. “When one teaches, two learn” (Robert Half) www.SpecialEducationalNeeds.co.uk

  7. Warnock Report 1978 Education Act 1983/1996 (consolidation) SENDA 2001 Other amending legislation/caselaw over years Statutory duties on: Parents Local Authorities (‘LEAs/LAs’) Schools Other education providers HISTORY 7 www.SpecialEducationalNeeds.co.uk

  8. Office of National Statistics: 20% of pupils have SEN/only 2-3% have statements 85-90% of pupils with SEN in m/s schools without statements 1993 – present: SEND Tribunal appeals for disputes 2001: right to ‘inclusion’/Revised SEN Code of Practice Most education litigation about SEN Most SEN litigation about assessments/statements STATISTICS 8 www.SpecialEucationalNeeds.co.uk

  9. Debate on statements always overshadowed SEN Emotions run high/mistrust: Between parents/LAs & schools Between schools/LAs Between LAs/parent orgs Why?: Parents say they have to fight LAs/schools for statement Schools say LAs are not supporting them (financially etc) LAs/schools say parents have unreasonable expectations Parent orgs. say LAs too bureaucratic/resource-led LAs say others don’t appreciate dilemma of limited resources/extensive statutory duties DEBATE 9 www.SpecialEducationalNeeds.co.uk

  10. OVERVIEW • Not all difficulties caused by potential SEN • SEN law is complex/different to parents/schools/LAs but essentially goal is same : • To sort out problems quickly/efficiently/painlessly/amicably • To get child with SEN appropriate provision/placement ASAP • Audit Commission (2002): • 69% SEN resources focused on 2-3% of pupils with statements • Postcode lottery? • Schools/LA policies are key factors but so are parental means • Parents often feel that SEP/preferred school only achieved through threat of/actual Tribunal appeal • Statement/Appeal process – drives parties apart not together? 10 www.SpecialEducationalNeeds.co.uk

  11. Parents can appeal to SEND Tribunal if LA: Refuses to carry out re/assessment Refuses to issue a statement after assessment Makes/amends statement but dispute Parts 2/3/4 (school/type of school/other placement) Refuses to change name of school (if M/T) Refuses to change statement after AR Decides to cease to maintain statement WHAT IS A TRIBUNAL APPEAL? 11 www.SpecialEducationalNeeds.co.uk

  12. Last SEND Tribunal report (2009/10): Registers around 3,500 SEN appeals/year <2,000 appeals needed resolution <1,000 appeals needed decision (after full hearing) Rest conceded/about 50 – 60 struck out Types of case: 40% against refusals to assess/2% to re-assess 25 – 30% against part 2, 3 & 4 12%:parts 2 and 3 only/10 – 11%: part 4 only 2 - 3% against decisions to cease to maintain statement <1% against refusals to change named school WHAT IS A TRIBUNAL APPEAL? 12 www.SpecialEducationalNeeds.co.uk

  13. A BIT ABOUT POST-16 • Learning & Skills Council replaced by Skills Funding Agency (from April 2010) • Unless YP still in school Learning Disability Assessments (LDA) used instead of statements • Dept. of Ed. delegates oversight of Post-16 to: • Young People’s Learning Agency (agency of DoE) • Skills Funding Agency (agency of D for Bus/Innov/Skills) • LAs (have general duty to secure suitable ed./training): • Must fund statements in schools up to 19 • Must arrange LDA if Post-16 student intends to leave school but continue education elsewhere • (Since 2010) also responsible for commissioning high-value placements • Complex arrangements/different statutory frameworks 13 www.SpecialEducationalNeeds.co.uk

  14. Year 9 AR reviews young person’s statement AND: Drafts/reviews Transition Plan (with Careers Service) Considers cont. ed./vocational training (inc. work exp.) Year 10/11 AR reviews update ‘Transition Plan’ See how different agencies will work together to meet agreed aims (e.g. Ed./Health/Social Services/Careers) Difficulties: LAs suggest unsuitable college placements LAs issue decisions to cease to maintain statements LAs do not agree to fund ind. school/college LAs do not agree to pay for 3rd year of courses No provision Post-16/19? (if no stat./not in school) LDAs not as specific/enforceable as statements A BIT ABOUT POST-16 14 www.SpecialEducationalNeeds.co.uk

  15. 2006 Ed/Skills Committee: SEN system ‘not fit for purpose’ 2007-2010: 4 Inquiries conducted on SEN/Disability (Dec) 2009: Lamb Inquiry – improv.par. confidence (May) 2010 – Coalition Government elected (Sept.) 2010 – SEN Green Paper – ‘Call for Views’ (Sept.) 2010 - Ofsted report: ‘A Statement is Not Enough’ (Oct) 2010 ‘Comprehensive Spending Review’: Cut of around 35% for Govt. departments 7.1% cut in LA revenue which will have ‘knock on’ effect on services to schools NEED FOR CHANGE 15 www.SpecialEducationalNeeds.co.uk

  16. CRITICISMS • (Dec.) 2010: Govt. publishes results of ‘Call for Views’ • (March) 2011: Govt. publishes SEN Green Paper • Promises ‘Biggest reforms to SEN in 30 years’ to avoid: • Parents having to ‘battle’ to get support for child • Statements not joining up Education/Health/Care • Children having multiple assessments • Too much paperwork/bureaucracy/delay • Confusing/adversarial process • Perceived conflict of interest of LA (assess/provision) • Over-identification of SEN/low expectations 16 www.SpecialEducationalNeeds.co.uk

  17. Govt. proposes to: Include parents in assessment process Introduce right to give control of funding for support Replace statements with single EHC assessment/plan Make assessment/plans run from birth to 25 years old Replace existing SA/SA+ system with one simpler school-based category (help teachers raise attainment) Greater independence from LAs through voluntary orgs. Give parents greater choice of school Give parents/others power to set up special ‘Free’ schools INITIAL PROPOSALS 17 www.SpecialEducationalNeeds.co.uk

  18. INITIAL PROPOSALS 15 May 2012 - Govt. issues response to SEN Green Paper 3 Sept. 2012 – Govt. issues ‘draft provisions’ of C&F Bill: Will replace Part 4 of EA1996 (and s.139A of LDA 2000) Definition of SEN/SEP will remain same Statements to be replaced by EHC assessments/plans EHC plans to extend rights into FE (not apprenticeships) LAs/CCGs must ‘jointly commission’ services for SEN LAs must have info. on services available (‘Local Offer’) No duties on Health/Care to deliver contents of EHC plan EHC plan ceases if not in education/training All provisions will apply to Academies Parents must attend compulsory mediation before Appeal 18 www.SpecialEducationalNeeds.co.uk

  19. WHAT HAPPENS NEXT? (Sept. 2012) Ed/Select Committee announces scrutiny (Dec. 2012) Ed/Select Committee report (on time) says: Welcomes proposals/advises no delay in implementing Lack of detail means proper evaluation impossible Current protection for statements must be maintained Health law needs change for successful joined up services Should engage with Post-16 providers immediately New CoP must be laid before Parliament (not planned) Only ‘consideration’ of mediation should be compulsory Must include disabled children without SEN/apprentices Must include Independent special schools/colleges 19 www.SpecialEducationalNeeds.co.uk

  20. POTENTIAL PROBLEMS? Govt. says will draw lessons from ‘Pathfinders’ pilot projects (20 Pathfinders over 31 LAs/Health Authorities) Committee notes Pathfinders still at early stage so need to be extended (some only set up in Sept. 2012) Legal process for change already started Still waiting for Pathfinders results (will report Sept. 2014) Bill due Royal Assent in early 2014/implemented Sept. 2014 Pathfinders reporting back only after new law implemented? Potential problem? 20 www.SpecialEducationalNeeds.co.uk

  21. February 2013: Govt. issues C&F Bill (England): Duty still on LA but now must also keep health/care under review Must issue CoP as statutory guidance (& consult on) Health/Care is SEP if now mainly for education/training If Health feels child has SEN must inform parents/LA asap Joint commissioning must secure proper provision LA must ensure SEP integrated with Health/Care provision (if it promotes well-being/improves quality of SEP) LA duty to cooperate with local partners in area LA must make ‘Local Offer’ (i.e. appropriate provision available in area) NEW PROPOSALS 21 www.SpecialEducationalNeeds.co.uk

  22. Child without EHC plan must still be educated in m/t school (if there is no cost to LA) LA must name preferred m/t school in EHC plan unless: Incompatible with wishes of parent/young person and Incompatible with provision of efficient education LA must name preferred school in EHC plan unless: School unsuitable for age/ability/aptitude/SEN of child or Incompatible with efficient education of others/resources LA must use ‘best endeavours’ to make SEP EHC plan maintained until end of academic year when 25 LA must prepare ‘personal budget’ if parental re quest Parents can still appeal but only if mediation adviser issues certificate (whether they have participated or not) WHAT ABOUT SCHOOLS? 22 www.SpecialEducationalNeeds.co.uk

  23. Good: Parents/schools (now also YP) can request assessment LAs retain duty to ‘specify’ (not ‘set out’ as suggested) EHC plan remain until appeal of decision to cease CoP now scrutinised by Parliament before becoming law No need for compulsory mediation before appeal But 6 criticisms: Special Academies can admit without assessment/plan Loss of time limits & form/content of EHC plan No minimum level of evidence during assessment Personal budgets (PBs)/direct payments – not yet clear when duty fulfilled/no right of appeal No single EHC assessment/plan covering needs/prov. (still only LA education duty) ‘Local Offer’ still not legally enforceable (no details yet) IPSEA’S RESPONSE 23 www.SpecialEducationalNeeds.co.uk

  24. www.SpecialEducationalNeeds.co.uk

  25. BREAK www.SpecialEducationalNeeds.co.uk

  26. “What You Need To Know”(Current/Future SEN/Disability Law)” Presentation by Douglas Silas East Sussex Parent & Carers’ Council (ESPaCC) 13th February 2014 @douglassilas douglassilas Douglas Silas +DouglasSilas www.SpecialEducationalNeeds.co.uk

  27. EDUCATION, HEALTH & CARE PART 2: THE PRESENT www.SpecialEducationalNeeds.co.uk

  28. “Common sense is instinct and enough of it is genius” (Josh Billings) www.SpecialEducationalNeeds.co.uk

  29. Indicative CoP issued March 2013 Draft CoP consulted on Oct-Dec 2013 (9 not 12 weeks) Draft CoP runs to 174 pages (much > than current CoP) Meant to be more accessible to YP/families (as now more involved in decision-making) Initially pleased as: Protections for children with SEN without EHC Plan Time limits for LA decisions Still ARs of EHC Plans (and consultation with parents) Now more of a standard format for all EHC Plans Provision more legally enforceable WHAT WE HAVE BEEN TOLD 29 www.SpecialEducationalNeeds.co.uk

  30. Lots of omissions from current CoP/confusing wording Will replace other statutory guidance for LAs (i.e. Inclusive Schooling Guidance/LDA Guidance) Will do away with SA/SA+ (most SEN children now unregulated) Will do away with IEPs (i.e. a standard way to outline provision/progress/outcomes) ‘Local Offer’ will still be legally unenforceable Will do away with standardisation of EHC Plans (i.e. each LA can design its own) Will still allow children to be placed in Special schools indefinitely without assessment/EHC plan (as long as LA reviews placement termly) BUT LOOK CLOSER… 30 www.SpecialEducationalNeeds.co.uk

  31. IPSEA did excellent analysis comparing Draft CoP with current CoP (available on their website) I also summarised 10 things in Draft CoP (see my ‘SEN Update’ in Jan. 2014 on: www.SpecialEducationalNeeds.co.uk Strongly advise you to sign up to future updates/read last update in full However, going to attempt to outline what I said here… ANALYSIS 31 www.SpecialEducationalNeeds.co.uk

  32. 1) “TO WHO WILL THE DRAFT SEN CODE OF PRACTICE APPLY?” Local Authorities; Early Year Providers, Schools, Academies, Free Schools; Sixth Form Colleges, Further Education Colleges; Pupil Referral Units (‘PRUs’); Independent Special Schools/Specialist Providers; Clinical Commissioning Groups/NHS Trusts; Local Health Boards, NHS England Other Education/Health Service providers Emphasis on holistic approach (duty to ensure co-ordinated) SUMMARY OF COP 32 www.SpecialEducationalNeeds.co.uk

  33. 2) “WHAT ARE THE KEY CHANGES MADE BY THE DRAFT CODE?” 7 key issues: Definition of Types of SEN; A Single School Based Category of Support; A Co-ordinated Statutory Assessment Process; Education Health and Social Care (‘EHC’) Plans; Maintaining EHC Plans; Personal Budgets; Dispute Resolution. SUMMARY OF COP 33 www.SpecialEducationalNeeds.co.uk

  34. Main changes: EHC plans will (i.e. can) cover children from birth-25 (but no presumption it will continue until 25 as only maintained until outcomes achieved)  EHC plans will replace Statements from Sept 2014 (i.e. no further Statements issued - within 3 years all existing Statements will change to EHC Plans); Clear focus on including children/YP’s views in assessing/provision (only positive); Joint commissioning of services across Education/Health/Social Care providers (i.e. co-ordinated assessment/plans; SA/SA+ substituted by ‘Additional SEN Support’ SUMMARY OF COP 34 www.SpecialEducationalNeeds.co.uk

  35. 3) “HOW WILL SEN NOW BE CLASSIFIED?” SEN now classified into 4 categories (Chapter 6.3): a.      Communication and Interaction difficulties b.      Cognition and Learning c.      Social, Mental and Emotional Health d.      Sensory and/or Physical MLD/behavioural difficulties now removed (states explicitly that behavioural difficulties do not necessarily mean SEN) Shift of focus - should not be automatically registered if behavioural (so <children will be registered as having SEN) Now clear distinction between medical needs/disability and SEN (again so <children will be registered as having SEN) SUMMARY OF COP 35 www.SpecialEducationalNeeds.co.uk

  36. 4) “HOW WILL CHILDREN WITH SEN NOW BE SUPPORTED?” Currently two school-based levels of support – (SA/SA+) but now replaced by single category of school support Presumption of ‘inclusion’ – Draft CoP explicitly states that vast majority of children with SEN will have needs met in m/s without additional support/intervention Lot of detail about how should go about providing support for children without a plan (whole chapter on how m/s providers/specialists can improve attainment/secure good outcomes  Still only ‘best endeavours’ duty on schools to secure SEP (but now more detail as to what ‘best endeavours’ are) SUMMARY OF COP 36 www.SpecialEducationalNeeds.co.uk

  37. 5) “WHAT WILL THIS MEAN IN PRACTICE?” ‘Early identification of SEN’ built into overall approach to (i.e. monitor progress/development of all pupils); SEN not sufficient explanation for low achievement/teaching? ‘Evidence-based interventions’/‘Graduated approach’ then: ‘Assess’: teacher/SENCO/others? have regular reviews; ‘Plan’: agreement in consultation with parent as to support provided (guided by clear set of expected outcomes); ‘Do’: teacher retains responsibility (incl. for those with 1:1/small group teaching); ‘Review’: everyone regularly reviews effectiveness of support/impact on progress towards outcomes (incl. termly meetings) SUMMARY OF COP 37 www.SpecialEducationalNeeds.co.uk

  38. 6)“WILL THIS AFFECT TEACHING?” Clear responsibility now of every teacher for every student (teacher of every pupil - whether or not they have SEN) Also responsibility for identifying/supporting pupils with SEN Different approach to current CoP (sees SEN as specialism) Says most SEN pupils can progress if high quality teaching Schools should ‘regularly/carefully’ review quality of teaching (incl. teachers’ knowledge of SEN frequently encountered) SEN/progress now core part of school’s performance Wide implications – need high quality CPD to ensure all staff have knowledge/skills/expertise needed SUMMARY OF COP 38 www.SpecialEducationalNeeds.co.uk

  39. Only best practice recommendation But will have to be taken seriously Recognises there will be situations where children with SEN make inadequate progress despite higher quality teaching Says schools should always consider involving specialists/outside agencies – EPs/CAMHS/therapists/ behaviour support services/ specialist teachers/others ‘Joint commissioning arrangements’ focus But how available is external support in reality? (ever tried getting an appointment with CAMHS?) SUMMARY OF COP 39 www.SpecialEducationalNeeds.co.uk

  40. 7) “HAS THE STATUTORY ASSESSMENT PROCESS CHANGED?” Theoretically yes – as now greater emphasis on coordination of assessment process across Education/Health/Care; But LA still must seek advice from/consult some of same people: Parents and Young Person; School/Education provider (if child is not in school); Medical Professionals; Educational Psychologist; Social Care; VI or HI teacher (if applicable)/other relevant people/orgs. SUMMARY OF COP 40 www.SpecialEducationalNeeds.co.uk

  41. Test for assessment still if LA considers SEP required ‘cannot reasonably be provided from within the resources normally available’ to m/s providers EHC assessment can still be requested by parents/schools… But now assessment can also be requested by YP over 16/Post-16 institutions/guardians/health professionals/youth offending teams etc. Also now greater emphasis on incl. parents/YP & providing them with full information throughout process Very different approach to current assessment process More streamlined process is admirable but work in practice? SUMMARY OF COP 41 www.SpecialEducationalNeeds.co.uk

  42. Main change is whole assessment/planning process must now take <20 weeks (instead of 26 weeks): 6 weeks for assessment/6 weeks for other info to be given Parents/YP have 15 days to respond to draft EHC plan LA now has total of 16 weeks to notify parent/YP of decision not to issue EHC plan Therefore LA seems to have only 4 weeks to finalise draft EHC plan unless earlier stages completed more quickly Incentive for LA to now speed up at assessment stage – but is difficult if trying to bring together health/care information? Logistical changes may also be needed to ensure shorter timescales are met by LA  SUMMARY OF COP 42 www.SpecialEducationalNeeds.co.uk

  43. 8) “WHAT SHOULD BE INCLUDED IN AN EHC PLAN?” Remember, that currently layout of EHC plan will differ locally (no prescription of how they - look left to each LA) They must be clear/understandable/accessible and… …written so LA professionals can understand them (but nothing specifically said about parents/YP) Must now be evidence-based/focused on outcomes SEND Tribunal have asked for a standard format as they do not want 132 different formats to contend with! Draft CoP specifies what will be covered in each EHC plan… SUMMARY OF COP 43 www.SpecialEducationalNeeds.co.uk

  44. 1.      Views/interests/aspirations of child/YP/parents; 2.      Description of SEN; 3.      Outcomes sought (incl. for adult life if appropriate); 4.      SEP required (detailed/specific/normally quantified); 5.      Any health/social care provision reasonably required (but has to be tied into education); 6.      Name/type of school/maintained nursery/Post-16 institution/other institution or type of school;  7.     If Personal Budget – details/outcomes intended; 8.     Advice gathered during assessment (in appendices); 9.     Other Health/Care provision unrelated to SEN (but not directly enforceable); SUMMARY OF COP 44 www.SpecialEducationalNeeds.co.uk

  45. Formal reviews of EHC Plan still take place annually  Broadly similar to current system but now ‘holistic’ approach Greater emphasis on children/YP/parents involvement Now strong presumption that majority of SEN children will not need EHC plan Emphasis on high expectations for all children/YP with SEN Remember no presumption that EHC plan will continue until 25 - only if outcomes still to be achieved Maybe reluctance by some LAs to put high achieving outcomes in EHC plans (as will then have to fund support in it until 25)? But driving principle of high aspirations? SUMMARY OF COP 45 www.SpecialEducationalNeeds.co.uk

  46. 9) “WHAT IS A ‘LOCAL OFFER’?” LA has duty to publish information about provisions expected to be available for children/YP with SEN in their area – incl. info on how to seek EHC assessment/plan & transport/training etc. Hoped to be way to improve quality of strategic SEN planning in LAs ‘Local Offer’ has two key purposes: To provide clear/comprehensive/accessible info about support/opportunities available locally To make provision more responsive to local needs/aspirations by directly involving children/YP with SEN & parents/carers/service providers in development/review SUMMARY OF COP 46 www.SpecialEducationalNeeds.co.uk

  47. 10) “WHAT ARE PERSONAL BUDGETS?” Monies identified by LA to deliver all/part of prov in EHC plan YP/parents have right to request preparation of PB LA has duty to prepare even before EHC plan issued (but only where LA has agreed to prepare one) Provision for formal review if disagreement Doubtful that parents given lump sum of money to pay for support (which originally many believed would happen) Range of delivery (?) including: direct payments/joint commissioning arrangements (i.e. for ‘economies of scale’)/3rd party arrangements/nominees (i.e. 3rd parties who manage funds)/or even a combination SUMMARY OF COP 47 www.SpecialEducationalNeeds.co.uk

  48. Must include provisions LA expects to be used by children/YP they have responsibility for (even if operates outside of LA control - i.e. in neighbouring authority) Not meant to be just a directory of services – should be: Collaborative – i.e. involve key participants meaningfully Accessible – i.e. easy to understand/factual/clearly structured/jargon-free Comprehensive – i.e. set out entitlements about provision/support/eligibility criteria/accountability Transparent – i.e. clear about how decisions are made/ who is accountable & responsible for them SUMMARY OF COP 48 www.SpecialEducationalNeeds.co.uk

  49. www.SpecialEducationalNeeds.co.uk

  50. BREAK www.SpecialEducationalNeeds.co.uk

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