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Learn more about the new SEN system

by Access Legal

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The new SEN regime has been in force since October 2014 together with a new SEND code of practice. The key provisions in Part 3 of the Children and Families Act 2014 commenced on 1 September 2014. The SEND Code has now been published and the Department of Health has also set out the proposed transitional arrangements and well as implementation guidance.

The stated aim of the reforms is to provide a ‘joined up’ approach to SEND across education, health and care services from birth to age 25. Here’s a guide to the essentials of the new regime.

What is the Children and Families Act 2014?

In February 2013, the Government published the Children and Families Bill. This Bill included changes to the law for children and young people with special educational needs and disabilities (SEND) in England. The Bill passed through Parliament and became the Children and Families Act (2014) on the 13 March, 2014.

What is the Special Educational Needs and Disability Code of Practice?

The Code (updated in January 2015) details the legal requirements in SEND provision which schools and local authorities must follow from 1 September 2014. The transfer to the new system should be completed by 1 April 2018. The key changes include:

What is an Education, Health and Care Plan?

The Education, Health and Care  (EHC) Plan replaces the previous Statement of Special Educational Needs and 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.

An EHC plan 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.

What should an EHCP contain?

It is important that the wording in an EHCP is as precise as possible. Vague wording can sometimes be used by Local Authorities to ‘water down’ their legal responsibilities. The EHCP agreed should specify the child’s individual Special Educational Needs and the outcomes sought.

The agreed plan should also detail the special educational provision required by the child as well as any health care and social care provision reasonably required as a consequence of the youngster’s identified individual learning difficulties and disabilities.

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 sections that reflect the views, interests and aspirations of the child and parents, a precise description of that child’s unique and individual Special Educational Needs (as well as any health or social care issues that relate to their SEN) and the provision and support to be put in place.

An EHCP must be reviewed every 12 months, starting on the date the Plan was made and reviewed again on each subsequent 12 month anniversary. Once the final EHCP has been issued, the Local Authority 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, including any named school or institution, is delivered.

What is the Local Offer?

A Local Offer will provide information on the provision the local authority expects to be available across education, health and social care for children and young people in their area who have SEN or are disabled, including those who do not have Education, Health and Care (EHC) plans. Besides offering a web-based information service, the local authority must also publish its arrangements for enabling people to have access to the local offer if they are without the internet. Local authorities must consult locally on what provision the Local Offer should contain.

What is a Personal Budget?

A Personal Budget is an amount of money identified by the local authority to deliver the provision set out in an EHC Plan.   Young people and parents of children who have EHC plans have the right to request a Personal Budget, which may contain elements of education, social care and health funding. The funds can be held directly by the parent or young person, or by the local authority, school, college or other organisation or individual and used to commission the support specified in the EHC Plan.

A personal SEN budget is a sum of money made available by a local authority because it is clear that without this additional top-up funding it will not be possible to meet the child’s learning support needs. Only pupils or students with more ‘complex’ learning support needs who are on an Education, Health and Care Plan are likely to qualify for a personal SEN budget.

What is mediation?

This is a statutory service commissioned by local authorities which is designed to help settle disagreements about Education, Health and Care needs assessments and plans and which parents and young people can use before deciding whether to appeal to the First-Tier Tribunal. You don’t have to use mediation but you must try it first if you’re appealing a decision about an EHC plan. You must send your appeal within two months of the date on your decision letter or a month from the date of the mediation certificate - whichever is later.

What is the First-Tier Tribunal?

You can appeal to the First-tier Tribunal (Special Educational Needs and Disability) if you disagree with your local authority’s decisions about your child’s special educational needs. An appeal should be made within two months of getting the letter about the decision.  Appealing to the Tribunal should be your first resort if the local authority refuses to assess your child’s educational, health and care (EHC) needs, create an EHC plan or change what’s in your child’s EHC plan. You can also appeal to the tribunal if a local authority has discriminated against your child or someone else because of your child’s disability.

Before you appeal, you should try to discuss the problem with your local authority through the local special educational needs mediation service. You must try mediation first if you’re appealing a decision about an EHC plan, in which case the appeal must be made within two months of the date on the decision letter or one month from the date of the mediation certificate - whichever is later.

If you win your appeal, the local authority must act on the tribunal’s decision within a set amount of time. Some actions are required to take immediate effect and others, such as making an EHC plan, must be completed within five weeks. If you lose your appeal you may be able to get the decision set aside if you think there’s been a mistake in the process or you can ask the tribunal to review their decision if your circumstances have changed since the initial decision was made.

SEN provision for Looked-After and Adopted Children

Arguably no youngster is more vulnerable than Looked-After and Adopted Children (LAAC).  Getting access to the right Special Educational Needs (SEN) support for families who are foster carers, adoptive parents, special guardians or kinship carers looking after children and young people with Special Educational Needs or Disabilities remains difficult and often complex and confusing. Getting help is crucial for these children as there close relationship between Looked-After and Adopted Children and SEN requirements.  Department for Education figures suggest that around 70% of LAACs have some form of Special Educational Need.

The Local Authority is legally obliged to meet the care needs of a LAAC with a Personal Education Plan and a Health Plan which addresses the child’s educational and health needs. It should also include planning for the child’s social development. Every Local Authority maintained school is also required to appoint a member of staff to monitor the progress of LAACs.

Under the SEN Code of Practice, those same Local Authorities are also required to complete needs assessments of LAACs as quickly as possible to ensure there is no breakdown in their care placement. Our specialist team can assist adoptive parents or carers obtain the right support for vulnerable children who may suffer a range of difficulties and can help you navigate the often complex interface between education, health and social services.

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