Special educational needs reforms
This month sees the introduction to Parliament of the new Children and Families Bill, which proposes radical changes to the Special Educational Needs (SEN) provisions.
The Bill follows on from the SEN Green Paper, Support and aspiration: a new approach to special educational needs and disability, published and consulted in March 2011. The draft provisions relating to SEN were published in September 2012 (Draft legislation on reform of provisions for children and young people with Special Educational Needs [CM 8438]) and a revised Code of Practice is due to be published later this year. Full implementation of the legislation is expected to take place in late 2014.
The proposed legislation’s main impact on schools will be a move away from the current Statements of SEN and Learning Difficulty Assessments (for 16 to 25 year olds). These will be replaced by a single, simpler assessment process for children with SEN or disabilities, backed up by new Education, Health and Care (EHC) Plans. The EHC plans are intended to ensure more streamlined and integrated support for children, young people and families.
The EHC assessment process will cover young people from birth up to 25 years old, and there will be new statutory protections for young people aged 16 to 25 in further education, comparable to those currently associated with Statements of SEN (which are cut off at 16). This will entail a stronger focus on preparing young people for adulthood.
Further education colleges were not previously subject to SEN duties. Under the new legislation they will, for the first time, have the same duties as maintained schools to safeguard the education of children and young people with SEN. In addition, the provisions will apply directly to all academies rather than through the Academy Trusts’ individual Funding Agreements as is currently the case. Placing these requirements on the face of the legislation will give greater clarity to academies, as well as ensuring that young people and their parents are on the same footing whether they attend (or wish to attend) a maintained school, academy, or further education or sixth form college.
Furthermore, parents and children with EHC Plans will be entitled to request a personal budget for their support, giving them greater choice and control. In some circumstances, this may include a direct payment from the Local Authority.
In the event of a dispute, before parents can pursue an appeal to the First Tier Tribunal, they will be obliged to engage in independent mediation. There will also be a requirement for the introduction of arrangements to resolve disagreements at an early stage between the Local Authority or school and parents and young people. There are also plans for a pilot scheme whereby children themselves are given the right to make appeals to the First Tier Tribunal if they are not satisfied with their support. However, there are as yet no details regarding how such cases are expected to be managed and, perhaps crucially, funded.
These legislative changes constitute the biggest overhaul of the SEN regime in 30 years, and will hopefully ensure greater clarity for schools and their pupils in this often fraught area.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.