I'm told, unofficially, that the Children & Families Bill is to receive Royal Assent - ie, approved by the Queen, on Thursday 13th March 2014.
Its effects will be enormous and felt for years to come, although the part with which we are concerned, Special Educational Needs reform, will see most action behind the scenes as education, health and social care providers run around, hopefully in an orderly fashion, learning, devising and implementing.
Nothing will change for the time being until the Code of Practice passes through both Houses of Parliament by "Affirmative Resolution" after a debate and a vote in each House. If it's rejected by either, it's likely that the Bill's implementation will be delayed while the Code's issues are ironed out.
Even if the Code is passed without a hitch, this does not mean that Statements of Special Educational Needs will cease to be official, legal documents; they will remain in force as long as your child has one. The change over to the new integrated Education, Health and Care Plan will be - and needs to be- gradual as it's an enormous change. Even the Pathfinder local authorities who have been testing the reforms are going to find it a difficult process, let alone those to whom this is all completely new.
Yesterday, I attended a SEND Implementation conference hosted by Optimus Education who kindly gave me complimentary tickets to attend. As Debs and I have written about the reforms as well as been involved for a large part of their development in the Surrey & Kent Pathfinders respectively, it was really interesting to see this large audience of SENCos, Head Teachers, and Learning Support & Inclusion staff finding out more about the reforms - many for the first time.
There were some inspiring speakers, including Gareth Morewood, Specialist Leader of Education for Priestnall School in Stockport near Manchester. Gareth explained how improving the parent/carer voice and contribution makes a "massive difference" because "uncertainty breeds issues", a key lesson for many teachers because without this involvement, the reforms will miss a vital marker for success.
The main speaker was Deputy Director of SEND at the Department for Education, Stephen Kingdom. Stephen has been integral to the development of the reforms within the DfE and if you have a question, he will know the answer.
He had jokingly asked me beforehand not to ask any difficult questions but, dear reader, that is my job on your behalf and in any case, as I said, I was sure he wouldn't be stumped - although I might have come close this time!
I had two burning questions:
1. What happens if the Code of Practice is rejected by one of the Houses of Parliament?
2. The Code of Practice is full of "must", "should" and "Best Endeavours" alongside each of its clauses to be met by local authorities and education, health and care providers. What exactly does the phrase "Best Endeavours" as written in the new Code of Practice actually mean?
I recorded Stephen's answers and, with his and Optimus Education's permission, here they are in his own words via MixCloud:
Stephen Kingdon, Deputy Director of SEND, Department of Education by Tania Tirraoro on Mixcloud
Hearing Impaired or no sound?: Download PDF of Transcribed Text of Stephen Kingdom
What do you think? Are you satisfied that this phrase is sufficient or do you think anything less than a "must" isn't enough?
*SNJ will be offering training in person and online about EHCPs and the CoP in the coming months. If you're interested in having us or our resources, please make an initial inquiry, which does not commit you to anything more than expressing an interest.
Tania is an experienced broadcast and print journalist & author. She also runs a PR, web & social media consultancy, SocialOro Media.
Tania is a rare disease & chronic pain patient advocate with Ehlers Danlos syndrome.
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“Under English law, when placing obligations on a party, legal documents will often make references to either best endeavours or reasonable endeavours. Both terms imply a level of expectation on the committing party. However, the standard expected from the contracting party is generally much higher where the document refers to best endeavours and this is an example where the legal interpretation of terms which appear very similar and/or innocuous can have a huge impact, not least financially, on the unwary.
There is no exact legal definition for each term and the differences are inferred into English Law by way of case law (it should be noted that neither term provides an absolute obligation on either party because if that is the intention of the parties then a stronger term would have been used).” From http://www.gannons.co.uk/blog/best-endeavours-or-reasonable-endeavours-does-it-matter/
I hadn’t realised that “best endeavours” is actually a legal term until today. I am still wary of it,, though, having looked it up, because although it is better than “should” it is not as strong as “must” and also since its use previously has been mainly within the realm of contract law this is a new use of the term in any case. Given the choice, I think most people would prefer the clarity of “must”, because even within contract law there seems not to be a real clarity about the term as to what it actually entails in terms of level of obligation. In terms of SEN provision, it remains very much to be tested in either Tribunal or at JR level (more likely in JR I would think, depending on usage), and unless attitudes change at LA level, and I mean massively, then tested in the courts it will be!
Still, it’s better than nothing.
I find this term (even if it is a legal term) to be rather loose and woolly. There seems to be favorite phrase usage going on in the Code of Practice.This does not give parent and carers huge confidence in their powers to challenge a school if they do not feel their child or young person is not having their individual needs met in the setting. I do not want to see an increase in Tribunal cases as a result of this as it involves much personal stress and too much money. This money should be used to ensure the child or young person is supported to learn and achieve in the right setting for the individual.
Best Endeavours reminds me of the vagaries of Safety Law, read “so far as is reasonably practicable” whereby the two key words have been argued through Case Law. Specifically separating out these words what is “reasonable” and what is “practicable”. Usually ending with “if it costs a little to save a life or prevent serious injury” its “reasonably practicable and should be done. However, at the other end of the scale is “if it cost a lot, and the overall risk is foreseeably low” then its reasonable not to spend the money on implementing extreme safety measures, you do what you can in the economic circumstances. I worry for three of my grandchildren here, as you can see how much time and prevaricating these chosen word will lead to.
In an education setting, “best endeavours” will be interpreted in a very different way.
When businesses and lawyers start playing with large amounts of money, “doing the best you can” means just that. They call in teams of besuited professionals to exhaust every possibility, and failure to exercise “due diligence” will bring careers to a catastrophic end.
Schools, however, have limited resources – and if anyone thinks that a requirement to make “best endeavours” will prompt them to divert those resources from league table results and Ofsted targets to Code of Practice compliance, then they do not understand how schools work.
What will happen is that understaffed and underfunded SEN departments will be required to “do the best they can,” and head teachers will testify, with a clear conscience, that they made their “best endeavours” but just couldn’t achieve it.
And the local authorities will dutifully play their part.