Special Educational Needs – the new regime

Special Educational Needs – the new regime

There are many children and young people in the education system who have special educational needs. Obtaining funding or an assessment can at times feel like a tug-o-war struggle. We describe the new special educational needs regime in this article.

In the period since March 2011 the system for dealing with special educational needs (SEN) has been subject to scrutiny, consultation and reform. This has culminated in Part 3 of the Children and Families Act 2014 (the 2014 Act).

Part 3 of the new Act is due to come into force in September 2014 alongside a new Code of Practice. There will also be new regulations on assessments and plans, and appeals. The 2014 Act replaces Part 4 of the Education Act 1996 (although many of the provisions have exactly the same wording.) and creates some new concepts. How does this affect parents, children and young people? This is a summary of some of the headline points.

For those cases where a child or young person already has a statement of special educational needs (SSEN) as at 31 August 2014 there is no immediate effect. The SSEN will continue under the old legal framework and in due course there will be transitional arrangements to convert over to the new system within 3 years.

The basic definition of special educational needs has remained the same. Section 20 2014 Act. “A child has “special educational needs “ if he has a learning difficulty which calls for special education provision to be made for him.

(2) A child has a learning difficulty  …..if-

(a) he has a significantly greater difficulty in learning than the majority of children of his age,

(b) he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local authority, or

(c) he is under the age of five and is, or would be if special educational provision were not made for him, likely to fall within paragraph (a) or (b) when of or over that age.

What has changed is that the definition of provision has been expanded in Section 21 to include not just special educational provision but health and social care provision.

Section 37 replaces SSENs with education, health and care (EHC) plans.

The age range covered for SEN now goes from 0-25 years. (“A young person” is a person over compulsory school age but under 25.) The aspiration behind this change is to try and aid a successful transition to adult life by keeping provision in place for much longer, rather than terminating it because a child or young person reached an age milestone.

The different types of educational establishment covered are: a maintained school, a maintained  nursery school, an Academy, an institution within the further education section in England, a non-maintained special school, and an institution approved by the Secretary of State under section 41.

A statutory assessment of a child or young person’s needs has expanded in the new regime.(Section 36.) It is no longer just the belief that there are special educational needs but includes educational, health and social care needs.

Special Educational NeedsWhat a parent wants to know is whether there will be any material difference between the contents of SSENs and EHC plans.  The answer appears to be “no”. Sections 37- 45 of the 2014 Act attract the adage “same, same but different”. All the same key elements have been adopted from the 1996 Act but have been put in the same part of the 2014 Act and given new section numbers. In an SSEN the educational part (needs, objectives and provision, and placement) have been set out in Parts 2,3 and 4, health and social care in Parts 5 and 6.  Turn to Section 37 in the 2014 Act and exactly the same things have to be specified in an EHC plan.

Disagreement between parents and the local authority about whether a child should attend a particular school (Part 4 SSEN) have been one of the greatest causes of appeals to the First Tier Tribunal. Nothing has changed in this respect. The legal criteria that allows the local authority to refuse parents’ request for their child to attend a specific school or institution are exactly the same, and are set out in section 39 (4) of the 2014 Act. So refusal can take place if:

(a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or

(b) the attendance of the child of young person at the requested school or other institution would be incompatible with-

(i) the provision of efficient education for others, or

(ii) the efficient use of resources.

Note: If parents or the young person wish placement to be in a maintained nursery school or mainstream school or post 16 mainstream provision this right is preserved in section 33 of the 2014 Act.  This preference must be complied with unless the placement would be incompatible with the wishes of the child’s parent or young person, or incompatible with the provision of efficient education for others.

These criteria have been considered in several key legal cases over the years and those decisions will remain valid. So many parents going to appeal will find that the costs of the placement the local authority is proposing and the costs of their preferred placement are subject to detailed comparisons by the First Tier Tribunal SENDT panel.
When there is an EHC plan for a child or young person the local authority must secure the specified special educational needs provision. (This is the same as the old regime.) If the plan specifies health care provision this falls within the remit of the “responsible commissioning body” to arrange. (This is defined as the body (or each separate body) that is under a duty to arrange the healthcare provision of the kind specified in the plan.) This positive duty is new in the 2014 Act and seems like a big step forward. However, it is rather toothless. If the parents or a young person disagrees with the proposal for health care provision (or lack of it) when the draft EHC plan is issued there is no right of appeal to the First Tier Tribunal.

Similarly, if the health care provision in the EHC plan is not being provided there is no right of appeal.  At present mediation is the sole way forward. (Section 53.) If that does not lead to a resolution on what the level or type of healthcare provision there should be, the case will run into the buffers. There is no legal remedy to pursue. If health care provision is in the EHC plan and not provided, it looks as if parents or the young person would have to resort to judicial review proceedings.

The issues parents or a young person can take to appeal before the First Tier Tribunal remain the same: a decision not to make an EHC assessment, refusal to make an EHC plan, the contents of the EHC plan (either description of special educational needs, provision for special educational needs, or both) and placement. A change is brought in by Section 55 of the 2014 Act. It requires parents or the young person to get a mediation certificate before they can start an appeal. (The exception is if the issue relates solely to placement.) When a local authority issues a decision of refusal to assess, refusal to issue an EHC plan, issues an EHC plan or amends it must tell parents or the young person about the right to meditation, and the need to get a medication certificate before bringing an appeal. However, the onus then seems to pass to the parents or young person to deal with the next steps. They will have to get a certificate from the independent mediation adviser (one assumes the local authority will have given details of this person or organisation). There are two types of certificate: information about mediation has been given and the parent or young person does not wish to pursue mediation; or the parent or young person has informed the mediation adviser that he wishes to pursue mediation and has participated in mediation. The best advice to those who feel that they may want to appeal is to address this mediation issue as soon as possible so that the appeal (if needed) does not get badly delayed. If mediation is wanted the local authority is required to set it up.

There are high hopes for personal budgets and direct payments (Section 49 of the 2014 Act.)  The theory is that in certain circumstances a person budget is provided for the child or young person with a view to it being allocated to the parent or young person to be involved with organising the provision directly themselves. There is no automatic right to have a personal budget.  The nuts and bolts are set out in The Special Educational Needs (Personal Budgets) Regulations 2014 which came into force on 1 September 2014. There is also guidance in the DfE’s Implementing a new 0-25 special needs system: Las and partners: Further Government advice for local authorities and health partners (2014).

Education-Law-Barristers-London-Cardiff-Telford-ManchesterFor legal advice on special educational needs law, contact Education Law Barristers on: 0845 652 0451