Children and Families Act: the Concerns

Last week, I was fortunate enough to be a speaker at the Towards a Postive Future conference in London.  One of the other guest speakers was Elaine Maxwell.  Elaine works at Maxwell Gillott Solicitors, who recently asked "Should the implementation of the Children and Families Bill be delayed?".  Today, I am sharing with you some of the concerns raised by Elaine when she spoke to parents and practitioners at the conference, together with some comments made by those attending the day.   Any errors in possible interpretation are mine, not Elaine's, but if there are any, it will just show the issues we face with individual interpretation of this new Act.

Code of PracticeAs you will know from our post last week, the new Code of Practice was published recently - all 277 pages of it.  The current Code of Practice is 142 pages.  This should make us feel more protected however, one parent who had read through the new Code of Practice claimed it was "twice the size but half the content".  Have you had time to read any of it yet?  We would love to hear what you think?  We will be writing more summaries later this week to help parents who don't have the time (or the inclination, and let's be honest you have to be in a strange frame of mind to be inclined to read these lengthy tomes, and more possibly, you will only refer to it when you need to).


The Health and Care Elements of an Education, Health and Care Plan are not appealable.

Well, not via the same one route we were all initially promised.  There are, of course, ways to complain if you are not satisfied with the social care and health provision or if the provision is being made available but the Children and Families Act does not allow for one route for one document, so we do have to ask "where's the benefit?"  Having everything in one document may be a good idea but if challenging the content of that document still means going through three different routes, why bother?

Children with a disability and no SEN cannot get an Education Health and Care Plan

We all knew this was coming and a small paragraph was inserted into the Code of Practice along with some guidance on how schools need to provide for those with a medical condition.  However, it is not the same.  Guidance is guidance, it's a best practice recommendation.  Children with a disability need access to the same protection that the EHC Plan will offer to their peers with SEN.

Care (and possibly Health) elements are not directly enforceable

When we were offered the idea of an Education, Health and Care Plan to replace a Statement, it was sold to us as a way of having to tell our story once, having everything joined up and life would be made easier for families.  However, the Local Authority cannot enforce the social or health provision with an Education, Health and Care Plan so once again, if you are not getting what you should be getting, the battle will be the same.  An Education, Health and Care Plan will not give you more rights.

Special Academies can admit children without an Education Health and Care Plan

This is a big issue.  On paper it sounds idea, especially for those parents who have battled and battled to get a Statement in order to get their child into the right school.  However, by following this route, there are a few issues to consider.   Your child will not need an assessment of needs, therefore their needs won't be known and recorded.   If your child is not doing well in the academy, due to the academy failing to make appropriate provision, you have no legal document with which to challenge the school.  Also, in some academy groups, there is talk among parents of children being encouraged to move to one of their "fellow academies" to meet their need - or more accurately, moved to one place so the general records of attendance, achievement, etc don't look bad.  Call me sceptical or call me experienced - take your pick.

Post 16 rights - solely with the child

Wow.  Really?  So let's talk about person centred planning throughout the Code of Practice but let's not practice it?  One of the most useful tools when using person centred thinking is "what is important to and what is important for" the child or young person.

No one thinks our children shouldn't have a say in what the plans for them are, they absolutely should - that is the "important to" part of person centred practice.  However, let's now discuss what is important for the child or young person.  They have to not just have the ability to understand the information they are receiving, they also have to understand the consequences of any decisions.

Many 16 year olds will not appreciate the relevance of opportunities, let's be honest I know I didn't.  I had views on what I wanted to do, what was important to me, but my parents had to sign a passport renewal form and refused, because they actually did understand what was important for me.  At 16, I was not happy at their decision, but can assure you that I now do.

Some of our 16 year olds will have the capacity but many won't.  So please, start talking to your child now and ensure that when they are 16 and their options are laid out for them, that they reply "this is great, I would like to go home and discuss these with my parents and include them in any decision".

Compulsory Mediation advice

One of the issues around having to consider Mediation; it is not compulsory to take mediation (an oxymoron if ever there was one); is the time it will take.  As parents who have had to go to Tribunal know, there are time limits involved when you go down this route.  Having to add the stage of "considering mediation" will reduce the time to your chance to appeal.

pbPersonal Budgets

Personal Budgets  - possibly the most vague part of the whole Act and Code of Practice.  It started with "should a need be assessed, you have the right to ask for and receive a personal budget" to "well, yes, but only if it's a good use of resources" and to be honest, there has been no real clarification on what personal Budgets/direct payments will be available for.  There has been a lot of talk but as we all know, talk is cheap.

There needs to be a real clarity for all Local Authorities with regard to personal budgets.  If you live in one county but then move, and take your EHC Plan with you, the new county should, in theory, continue with the provision but what if your new county council doesn't provide a personal budget for the same aspects as your last county?  What if the provision they offer is not as good as the one you were using your personal budget for?  Yes, they may honour it in the short term but come the annual review, then guess what?

Personal Budgets can be great, when used appropriately.  Yes, they bring the issues of employment law, employer liability insurance, pay roll, etc but once you get your head around that (and get the costs funded as part of the Personal Budget), then the benefits can be huge.  Having a personal budget can be where person centred thinking really comes into its own.  Sadly, with the Act as it is, many families may end up getting shoved back into a box, instead of allowing true personalisation of provision.

Local Offer

As the Local Offer only provides a framework for Local Authorities to comply with, and not a minimum standard, as the song goes "there may be trouble ahead".  The Select Committee also asked for a minimum standard to be introduced as they appreciated how important this would be but the Government said "no - a framework will suffice"  The theory behind this is that if a parent can see another Local Authority providing something they want their Local Authority to offer, they can take this to them and ask them to do the same.

Let's go back to the 80's here.  When I was a teenager, growing up in Merseyside, I really really really wanted a Sergio Tacchini tracksuit top (or a Tachhini tracky top as we called it) to go with my Farah trousers.  My parents weren't offering this but all my friends' parents were.  So using the same logic that the Government think we can use with the Local Offer, I went to them and said "please can I have one, all my friends have one" (your line will be "please can I have this service, every other LA provides it", in case you were wondering) and guess what?  My parents said "no" and there was absolutely nothing I could about it, except sulk and tell them how unfair they were being.

So minimum standards were needed, the Government really let us down with a framework.

Late issue of Code of Practice and Regulations

Most schools have 4-5 weeks left of the summer term (some much less) and then the 6-8 week summer holidays arrive.  So, given that the Code of Practice was only published recently, how many schools and staff do you think will be up to date in September with all the new legislation when it all comes into force?  I'm betting not all of them, in fact a large percentage of them.  This is not a criticism of the schools or staff, it is an observation that in the real world, these people have their hands full already trying to run the school and educate our children, when do they get the chance to ensure they know all they need to know about the forthcoming changes.

So what should you do now?

You need to ensure that you are as up to date with the changes as you possibly can be.  Ask questions on our posts, on our Facebook page or on Twitter.  Subscribe to our posts as we working on resources for families with the Department for Education - resources in parent friendly speak; subscribe and make sure you are kept up to date on what is happening.  Also, don't forget - ask your school how ready they are.

Debs Aspland
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