Understanding the new legal landscape

Promoting Outcomes for SEN
and Disability Students
– Understanding the new legal landscape
Promoting Outcomes for SEN and Disability Students
– Understanding the new legal landscape
Mark Blois
Partner, Browne Jacobson LLP
Promoting outcomes for SEN and
Disability students – understanding the
new legal landscape
North of England Education Conference
Mark Blois, Partner, Browne Jacobson LLP
15 January 2014
Setting the scene
• Current SEN system out of date and not fit for purpose
• Desire for a single, more efficient multi-agency
• Biggest reforms in 30 years
• One element of personalisation of public services
• March 2011 - Green Paper
• Children & Families Bill – most recently at Report Stage
in House of Lords (17 December 2013)
• March 2013 - Indicative Draft Code of Practice – just an
outline of thinking – 86 pages
• 4th October 2013 - Draft Code – weightier and more
detailed – 173 pages
• Consultation closed 9 December 2013
1. Assessments and Education Health and Care Plans
2. Personal Budgets
3. New SEN Code of Practice
• “An “EHC needs assessment” is an assessment of the
educational, health care and social care needs of a
child or young person” (S36(2))
• Statutory assessments of education, health and care
needs will take place for those few children and young
people with complex SEN
• Most (but not all) will then have an Education, Health &
Care Plan (EHC)
• After September 2014, no further Statements will be
issued. Within three years, existing Statements will be
changed to EHC Plans.
What about disabilities?
• Only trigger is still education rather than health and care: LA
“must secure an EHC needs assessment… if…[it]… is of the opinion
that… the child has or may have” SEN and it may be necessary for
SEP to be made (S36(8))
• Late amends (12 December 2013) have brought those with
disabilities (as defined by Equality Act 2010) into remit of Bill in
relation to:
(i) joint commissioning arrangements
(ii) local offer
• No such amends to clauses 36-50 regarding Education Health Care
Conducting a Co-ordinated Assessment
• Children, parents & YP should experience a
straightforward and joined-up process which leads to
timely, well-informed decisions
– Children, YP & families should be at the centre of the
– Assessment should be as streamlined as possible
– “tell us once” approach to information sharing
– Information shared across agencies
– Multiple appointments co-ordinated
• Timescales – maximum of 20 weeks (previously 26
Preparing an EHC Plan (1)
• Principles to apply
– Decisions should be transparent and involve child, YP and
– Plans should be clear, concise, readable and accessible to
parents, children YP and providers/practitioners
– Plans should be person-centered, evidence-based and
focussed on outcomes
– Outcomes should be short-term and aspirational for the
Preparing an EHC Plan (2)
– Outcomes need to be specific, measurable, achievable
and time bound
– Plans should be specific about interventions that will
make a difference
– Plans must relate to the teaching and learning context in
which the child may be educated
– Resources should be quantified (level of support and who
provides it)
– EHC plans should be generic and applicable in any local
EHC Plans – content (1)
• Standard contents are as follows (section 37(2))
– views ,interests & aspirations of the child, YP and their
– the Child or YPs SEN
– the outcomes sought for him/her
– the Special Educational Provision required by him/her
– any Health & Social Care provision required
– any additional provision e.g. support to find employment,
housing or participation in society
– the name of the school, nursery, post-16 establishment or
other institution to be attended by the child or YP
EHC Plans content (2)
• Choice of school, college other provider
– Maintained school (mainstream or special), Academy or
Free School
– Special Academy or Special Free School
– Non-maintained Special School
– FE or Sixth Form College
– Independent School or Independent Specialist College
(approved by Sec of State)
• NMSS and S41 registered independent institutions can
now be proposed by parents and named
Maintaining EHC Plans
• LAs must arrange the special educational provision specified in the
• Headteacher of a provider named in an EHC Plan should ensure
that those teaching or working with the child or young person are
aware of their needs and have arrangements in place to meet
• CCGs must provide the health support identified by clinicians and
included in the Plan
“Local governance arrangements must be established which ensure clear ownership
and accountability across SEN commissioning. They must be robust enough to ensure
that all parents are clear about who is responsible for delivering what, who the
decision makers are in education, health and social care and how partners will hold
each other to account in the event of a dispute”
Transition to Adulthood
Once a young person is aged 18 or over the LA should continue
to maintain their EHC Plan where all these conditions apply:
• Young person wants to remain in education or training so they can
“complete or consolidate” their learning
• Special educational provision is still needed
• Outcomes in their EHC Plans have not yet been achieved
• Remaining in education or training would enable the young person
to progress and achieve these outcomes
• NB Raises question of where bar will be set in terms of outcomes
When can a personal budget be requested?
• Once the LA has completed assessment and confirmed
that it will prepare an EHC Plan
• When they already have an EHC Plan
• During statutory review of existing EHC Plan
Sources of Funding
• EHC Plans will include SEN provision plus “any health or
social care provision reasonably required by the
learning difficulties and disabilities which result in the
child having SEN”
• Personal budget can include funding from:
– education (SEN)
– health
– social care
• Education funding methodology is based on three
element SEN funding reform introduced April 2013
Education Funding of Personal Budgets
• Age Weighted Pupil Unit and Additional Support Funding
“would not normally lend itself to inclusion in a
personal budget”.
• Education element of funding for a personal budget
should be drawn from LA’s High Needs Block.
Personal budgets v Local Offers (1)
• Each LA must publish a highly detailed set of categories
of information regarding:
– SEP in educational institutions
– provision to assist in preparing for adulthood and
independent living
– healthcare and social care for students with SEN
– transport to SEN institutions
Personal budgets v Local Offers (2)
• Main impact for schools likely to be the prescription
through the Local Offer of what schools are expected
to deliver as their “standard offer” through SEN funding
rather than top up
• Will LAs be tactical in defining the Local Offer to
protect high needs budget?
• No national standards creates environment for local
Personal budgets v Local Offers (3)
• Funding available for education element of a personal
budget will vary depending on local decisions about:
– how services are commissioned
– what schools will normally provide as part of the Local
– how schools are funded to deliver that provision
Health services within personal budgets
“Joint commissioning arrangements must set out local
arrangements for agreeing personal budgets and LAs
will need to work with their local health commissioner
where the parent requests a personal budget that
includes health provision”
• COP encourages the development of a single integrated
fund from which a single personal budget covering
education, health and social care can be made
Mechanism for control of personal budgets
• Direct payments (individuals receive cash themselves to
• Organised arrangement (LA retains funds)
• Third party arrangements / nominees
• Combination of the above
Direct Payments
• Must be set at level that will deliver the provision
specified in an EHC Plan
• Education element has additional regulations over and
above social care, including:
– LA must consider whether adverse impact on other service
users and efficient use of resources
– seek agreement from education providers where a service
funded by a direct payment is delivered on their premises
• Direct payments for NHS care are more limited eg
exclude GP and emergency services
What are the main challenges ahead?
• Working with a wider group of schools and colleges. The schools
and colleges who have tested the approach have tended to be
those that are more receptive to SEN personal budgets.
• Many have found that moving towards personal budgets is a
major culture change not only for the families, but also for the
local authority and providers.
• Investment in workforce development across multiple
• A significant amount of work is needed to develop the market.
• Building a robust resource allocation system.
• Research by SEND Consortium found majority of
families unaware about personal budgets.
• DFE/DOH to fund pilot project in 10 LA’s
• SEN Direct to be launched March 2015
• Aims to test brokerage services to help parents/carers
use their allocated personal budgets.
New SEN Code of Practice
Following sector education organisers have statutory duty to have regard to CoP:
Early Year Providers
Schools, Academies, Free Schools
Sixth Form Colleges
Further Education Colleges
Independent Special Schools/Specialist Providers
• Clinical Commissioning Groups
• NHS Trusts and NHS Foundation Trusts
• Local Health Boards
• NHS England
Types of SEN
Four new broad categories:
• Communication & interaction
• Cognition & learning
• Social, mental or emotional health
• Sensory and/or physical
Important changes
• Moderate Learning Difficulties removed from the
• Reference to “behaviour” also removed, putting
greater empathy on underlying needs
“Behavioural difficulties do not necessarily mean that
a child or young person has a SEN and should not
automatically lead to a pupil being registered as
having SEN”.
School based category of support (1)
• Single category - School Action and School Action Plus are no more
• The majority of children & young people with SEN will have their
needs met through mainstream education providers and will not
need a EHC Plan
• A whole chapter providing information on how mainstream
providers and specialists can ensure that they improve attainment
for children and secure good outcomes (without Plan)
• CoP requires that schools must use their “best endeavours” to
secure the special educational provision called for by a child or
young person (NB this is the same as the current Code of Practice)
School based category of support (2)
What does this mean in practice in terms of support?
IEPs are not mentioned – instead:
• Early identification of SEN, which should be built into overall
approach to monitoring progress and development of all pupils
• Followed by appropriate evidence-based interventions
• Interventions should be part of a graduated approach: Assess, Plan,
Do, Review
• Guided by a clear set of expected outcomes
• Regular review of progress towards outcomes, including meeting
with parents at least termly
School based category of support (3)
High quality class room teaching
• Embedded in the CoP is a key message that every teacher is a teacher of
every pupil and therefore have responsibility for identifying and
supporting pupils with SEN – SENCOs only have a supporting role
• Majority of SEN pupils can make progress through high quality teaching
• Schools should “regularly and carefully” review the quality of teaching
including teachers’ knowledge of the SEN most frequently encountered
• Quality of teaching for pupils with SEN and pupils progress should be a
“core part” of a school’s performance management arrangements
• Wide implications for schools who will have to offer high quality CPD to
ensure whole workforce has the knowledge, skills and expertise
• PRP implications?
School based category of support (4)
Support from specialists
• Where pupils make inadequate progress despite high quality
targeted teaching then schools should consider involving
specialists, including outside agencies
• SENCO, class teacher and appropriate specialists should consider a
range of well-founded and effective teaching approaches,
strategies and interventions to support pupil’s progress towards
agreed outcomes
Dispute resolution (1)
• LAs must make available Disagreement Resolution Services – to be
used for disputes around performance of education, health and
care duties and/or the special educational provision made
• Appeals to First Tier Tribunal about EHC assessments and EHC Plan,
A decision by an LA not to carry out an EHC assessment or reassessment
A decision by an LA that not necessary to issue a Plan
The description of the SEN, SEN provision or provider named in the Plan
Any amendment to the above elements
A decision by an LA not to amend a Plan after a review or reassessment
A decision by an LA to cease to maintain a Plan
Dispute resolution (2)
“Health or social care provision made wholly or mainly for the
purposes of education or training must be treated as special
educational provision.”
• Follows that will be a right to appeal to First Tier
Tribunal about such provision
• Mediation – can only appeal to FFT after they have
contacted an independent mediation advisor and
explored whether mediation is an appropriate way to
resolve the dispute
Mark Blois | 0115 976 6087 | [email protected]
www.education-advisors.com |
Promoting Outcomes for SEN
and Disability Students
– Understanding the new legal landscape

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