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The new SEN rules came into effect on 1 September 2014. The changes came from the Children and Families Act 2014 which updated the law for children and young people with special educational needs and disabilities (SEND) in England.
The Special Educational Needs and Disability Code of Practice (the Code) was approved in July 2014 and details the legal requirements in SEND provision which schools and local authorities have been legally obliged to follow as from 1 September 2014. The SEN landscape is still a mixed one (Statements are still used in Northern Ireland for example). Transfer to the new system in England will be completed by 1 April 2018, but it is anticipated that the rest of the United Kingdom will eventually adopt the new regime.
Here’s a guide to some of the main aspects of the new law, an explanation of timelines and processes and how the new system should work.
Since 1 September 2014 changes are taking place for children with statements of special educational needs (Statements) towards replacement with an Education, Health and Care Plan (EHCP). The process is referred to as ‘transition’.
The Education, Health and Care (EHC) Plan aims to ensure services for each individual work closer together to provide coordinated support across all areas of a child or young person's life. It details the education, health and social care support that is to be provided to a child or young person who has SEN or a disability. It is drawn up by the local authority after an EHC Needs Assessment of the child or young person has determined that an EHC plan is necessary and after consultation with relevant partner agencies. Parents of children and young people who have an EHC Plan have a right to ask for a particular school or college to be named in the Plan and for a personal budget for their support.
If your child has ‘complex needs’ and has been issued with a Special Educational Needs Statement this is likely to remain until your child’s next transitional point, e.g. moving from KS1 to KS2 or primary to secondary school. It will then be replaced with an Education Health and Care Plan.
If your child’s needs are not categorised as ‘complex’ you may not be eligible for an Education, Health and Care Plan. Before the new regime came into force, schools supported children with ‘mild to moderate’ learning difficulties through the School Action and School Action Plus system.
From September 2014, that system changed to a single stage called ‘additional SEN provision’ but head teachers still need to ensure teachers deliver a similar ‘graduated approach’ using an appropriate and effective system and monitoring programme suited to the individual child’s needs which will be reviewed at the end of every term.
Completing the ‘transition’ process from Statement to EHCP is a duty on the Local Authority (LA) where the child or young person lives. The responsible Local Authority must have completed this process for children with Statements by 1 April 2018.
Transition requires, as a matter of law, an EHC Needs Assessment to take place before the LA either finalises the EHCP or makes a decision not to issue a Plan. The legal test for an EHCP is at least the same, if not wider, than the test for a Statement, so decisions not to issue a Plan should only be happening in a minority of cases where the child or young person’s needs have changed. When appropriate, there are no exceptions to the requirement to carry out an EHC Needs Assessment although in certain cases the responsible Local Authority can use existing evidence to fulfill their duty to gather advice and information.
The Local Authority does not have to seek new advice from the mandatory contributors where such advice already exists – specifically, where it has previously been provided for any purpose. This exception will only apply if the person providing that advice, the Local Authority and the child’s parent or the young person, are satisfied that the existing advice is sufficient for the purposes of an EHC Needs Assessment. In making that decision (as to whether the existing advice is sufficient) it is worth considering whether it is up to date and that it reflects the child/ young person accurately.
Local Authorities have a legal duty to assess a child or young person’s education, health and care needs where they may have special educational needs and they may need special educational provision to be made for them at a level or of a kind which requires an assessment of a child or young person’s education, health and care needs. Under the ‘old’ legal system of Statements, this was known as a ‘statutory assessment’.
The EHC Needs Assessment is not just an educational assessment and consideration must also be given to whether a social care assessment or additional health assessments are needed. The responsible Local Authority must seek information and advice on a child or young person’s needs, the provision to meet those needs and outcomes expected to be achieved taking into account the views and evidence from a number of interested parties.
Once an LA agrees to carry out an EHC Needs Assessment they must seek advice from a number of professionals. Based on the evidence they have gathered it will then decide whether to issue an EHCP for that child or young person. You can’t secure an EHCP for a child/ young person without an EHC Needs Assessment. Typically, it would be appropriate to consider requesting an EHC Needs Assessment when:
A request can be made at any time. It needs to be made in writing and sent to the Local Authority. For children under 16 the parents or the education setting can make the request. This includes children from 0 to 5.
For young people (over 16 and up to 25) they can make the request themselves if they understand what they are doing sufficiently well, otherwise the parent can make the request on a young person’s behalf.
If a written request is made to the LA to carry out an EHC Needs Assessment then the LA must respond to the request in writing within six weeks stating whether or not it will carry out the assessment. If the LA refuses, the parent/young person has the right to appeal to the Special Educational Needs and Disability Tribunal.
Note that you can only ask for an EHC Needs Assessment if the child or young person has or may have special educational needs. There is no obligation on the Local Authority to conduct such an assessment where the child/ young person may have health and/or care needs only, no matter how severe those needs may be.
An EHC Needs Assessment is more than simply a consideration of educational needs and involves assessing the health care and social care needs of the child or young person. Therefore, as a minimum, a Local Authority must seek views and advice on a child or young person’s needs, the provision to meet those needs and outcomes expected to be achieved from:
Where the child or young person is in or beyond year 9, advice in relation to provision to assist the child or young person in preparation for adulthood and independent living and advice from any person the child’s parent or young person reasonably requests that the local authority seek advice from must also be sought.
An EHCP (or a Statement of Special Educational Needs where that still applies) is a powerful tool, but it is only really effective if it specifies and quantifies exactly what support your child needs. It is important therefore that the wording in an EHCP is as precise as possible. Vague wording can sometimes be used by Local Authorities as a means of avoiding their (costly) legal responsibilities.
The EHC plan needs to specify:
An EHCP does not have a fixed format. Each Local Authority can develop their own ‘style’, but no matter how it is presented, the ECHP document must include the following sections:
NB: For child in year 9 or beyond, the EHCP should include provision to assist the child/young person in preparation for adulthood/independent living.
If the Plan specifies health care provision, the responsible commissioning body must arrange the specified health care provision for the child or young person. Similarly, if the Plan specifies social care provision, there is a duty on commissioning bodies to arrange the social care provision specified in the plan for the child.
Specifically, Section H1 of the EHC Plan must specify all services assessed as being needed for a disabled child under section 2 of the Chronically Sick and Disabled Persons Act 1970. These services include:
An EHCP should be reviewed 12 months starting on the date the Plan was made and each subsequent 12 month anniversary. Once the final EHCP has been issued, the LA will then have the legal duty to secure the educational provision specified in the EHCP and will be responsible for ensuring that the provision detailed in the EHCP is delivered.
Access Legal’s Education Law team are amongst the country's leading experts in this area of law. We have years of experience working with parents and will provide initial advice and explain the options available to you entirely without any obligation.
Our goal is to ensure your child receives the best education for their needs, not to put families under even more pressure than they already are. It’s why we do this work. Call our free helpline on 03700 868 686 for more advice. The helpline is available Monday to Friday 8 am to 6 pm and Saturday 10 am to 4 pm.