Melinda Nettleton Suffolk Parent Carer Network 8 June 2017

1. Brave New World Melinda NettletonSuffolk Parent Carer Network 8 June 2017

2. THE MATERIAL CONTAINED IN THIS PRESENTATION IS FOR PERSONAL USE ONLY AND IS NOT TO BE REPRODUCED, DISTRIBUTED OR RELIED UPON T 01284 723952 www.senlegal.co.uk

3. INDEX T 01284 723952 www.senlegal.co.uk • Statutory Assessment • The EHC Plan – When you get it • The Bookies Odds 4. Who do you hold to account when the EHC Plan is not implemented?

4. 1. Statutory Assessment T 01284 723952 www.senlegal.co.uk “is it always this difficult?”

5. 1. Statutory Assessment T 01284 723952 www.senlegal.co.uk Figures obtained under the FOI by Ann McGauran 7 Feb 2016, article for School’s Week

6. 1. Statutory Assessment T 01284 723952 www.senlegal.co.uk Figures obtained under the FOI by Ann McGauran 7 Feb 2016, article for School’s Week

7. Possible Explanations 1. Statutory Assessment T 01284 723952 www.senlegal.co.uk • Unlikely to be a literacy issue? • Don’t officers read the legislation • Do officers seriously think local policy overrides legislation • Is it a budget issue – Try it on and see if the parent will go away?

8. 1. Statutory Assessment T 01284 723952 www.senlegal.co.uk Two classes of children those with a EHCP and those without. “Two classes of children”

9. 1. Statutory Assessment T 01284 723952 www.senlegal.co.uk There is no “if we can afford it” clause anywhere in the Code of Practice, Legislation or Case Law.

10. 1. Statutory Assessment T 01284 723952 www.senlegal.co.uk The legal test has not changed old Section 323 of the Education Act is exactly the same as Section 36 (8) of the Children and Families Act 2014

11. 1. Statutory Assessment T 01284 723952 www.senlegal.co.uk Legal Test: (a) the child or young person has or MAY have special educational needs (b) it MAY be necessary for specialeducational provision to be made for the child or young person. Section 36 (8) of the Children and Families Act 2014

12. 1. Statutory Assessment T 01284 723952 www.senlegal.co.uk Necessary – Definition • The word necessary falls somewhere between really useful and essential. Buckinghamshire County Council v HW (SEN) 2013 UKUT 0470 (AAC) • What is necessary is a matter to be deduced rather than defined. Its determination will vary according to the circumstances of the particular case and may well involve a considerable degree of judgement. Hertfordshire County Council v (1) MC & (2) KC SEN 2016 UKUT 385 (AAC)

13. 1. Statutory Assessment T 01284 723952 www.senlegal.co.uk Special Educational Provision – Redefinition “Healthcare provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of healthcare provision or social care provision)” Section 21(5) of the Children and Families Act 2014 Educational provision = provision which educates or trains

14. 1. Statutory Assessment T 01284 723952 www.senlegal.co.uk Para 6.23 Code of Practice “It should not be assumed that attainment in line with chronological age means that there is no learning difficulty or disability. Some learning difficulties occur across a range of cognitive ability and left unaddressed may lead to frustration, which may manifest itself as disaffection, emotional or behavioural difficulties”. Hertfordshire County Council v (1) MC & (2) KC SEN 2016 UKUT 385 (AAC) on this issue.

15. 1. Statutory Assessment T 01284 723952 www.senlegal.co.uk Request for Statutory Assessment – Section 36 of the Children and Families Act 2014 can be made by: • The child's parent • The young person • School • FE College Section 36 does not require any particular form or forms

16. 1. Statutory Assessment T 01284 723952 www.senlegal.co.uk Timescale: • Request for an EHC Plan – LA 6 weeks to make a decision (if answer is no – Appeal to the SEND Tribunal) • Draft Plan 18 weeks • Parent has 15 days for comment • Finalisation 20 weeks from request

17. 1. Statutory Assessment T 01284 723952 www.senlegal.co.uk List of assessment which should be undertaken for a new EHCP in Regulation 6 of The Special Educational Needs & Disability Regulations 2014 No1330. On Transfer from a Statement to an EHCP Regulation 18 of the Children & Families Transitional & Savings Provision) (No2 Order) 2014 No 2270 applies the list in Regulation 6.

18. 2. The EHC Plan – When You Get It T 01284 723952 www.senlegal.co.uk Often an empty document

19. 2. The EHC Plan – When You Get It T 01284 723952 www.senlegal.co.uk The EHC Plan is a complex twelve section document (as section H is in 2 parts). Section A – parent’s/child’s views Section B – Child or young person’s SEN Section C – Health needs related to their SEN Section D – Social Care needs related to their SEN Section E – SEN Outcomes Section F – SEN provision Section G – Health Provision Section H1 – Social Care provisions resulting from Section 2 of the Chronically sick & Disabled Persons Act 1970 Section H2 – Social Care Provision reasonably required Section I – Educational Placement Section J – Personal Budget Section K – Appendices and Advice/Information • Educational sections B, F & I (Parts 2,3 & 4) • Right of Appeal to the SEND Tribunal • B, F and I are legally enforceable

20. 2. The EHC Plan – When You Get It T 01284 723952 www.senlegal.co.uk • B,F & I have to be separately labelled. If it is not clear what is educational provision – legally enforceability is compromised • Remember all sections must bespecific, detailed and quantified. • Lack of specificity – compromises legal enforceability • HoweverSection 21 (5) Children & Families Act 2014 extends the definition of educational provision: ‘Health care provision or social care provision which educatesortrainsa child or young person is to be treated as special educational provision (instead of health care provision or social care provision)’. • This means waking day curriculums, behavioural management therapies, life skillse.g. Travel training SHOULD be included in Section Fand DOES NOT require part funding from health or social care. East Sussex County Council v TW 2016 UKUT 0528

21. 2. The EHC Plan – When You Get It T 01284 723952 www.senlegal.co.uk “How Specific is specific?” All previous Case Law on this issue applies. Should be so clear that there is no room for doubt (Clarke v Somerset County Council 1998 ELR 129. Like a recipe ingredient list

22. 3. The Bookies Odds T 01284 723952 www.senlegal.co.uk

23. 3. The Bookies Odds T 01284 723952 www.senlegal.co.uk • 2014 • Number of appeals 4,063 • Appeals conceded or withdrawn 2920 • 797 cases heard at Tribunal - LA’s won 137 of the appeals decided (17% success rate) • -Same period SEN Legal success rate 93% • 2015 • Number of appeals 3,417 • Appeals conceded or withdrawn 2530 • 788 cases heard at Tribunal - LA’s won 107 of the appeals decided (13% success rate) • -Same period SEN Legal success rate 94% • 2016 • Number of appeals 3,712 • Appeals conceded or withdrawn 2,271 • 883 cases heard at Tribunal - LA’s won 92 of the appeals decided (10% LA success rate) • Same period SEN Legal success rate 97%

24. 4. Who do you hold to account when the EHC Plan is not Implemented? T 01284 723952 www.senlegal.co.uk

25. 4. Who do you hold to account when the EHC Plan is not Implemented? T 01284 723952 www.senlegal.co.uk • Legal responsibility for securing provision is the Local Authority’s. It cannot be of-loaded. It is not the responsibility of the school (Academy) or the NHS. If necessary the Local Authority must buy it in from private practice. • There is no ”best endeavours defence in the legislation” R v North Tyneside Borough Council 2010 EWCA Civ 135, 2010 ELR 312 (Sedley LJ Para 17 Court of Appeal). • Enforcement is by either: • Judicial Review – starting with a Pre-Action Protocol letter • Complain to the Local Government Ombudsman • Disability Discrimination Proceedings under the Equality Act 2010.

26. Special Needs and Legal Entitlement by J Friel and M Nettleton T 01284 723952 www.senlegal.co.uk http://www.amazon.co.uk/Special-Needs-Legal-Entitlement-Practical/dp/1849055955