Home straight: SEND reforms target pre-summer legal finish line

Three days ahead of the deadline for pre-summer parliamentary approval, the Department for Education yesterday laid before Parliament its final draft of the new Code of Practice along with publishing a raft of other vital documents for the new SEND reform system.

I've been having trouble sleeping so Tania thoughtfully suggested that reading as much of them all as possible for an "overview" post today would solve my insomnia and help everyone reading this too. Please do share this post as widely as possible so as many parents as possible can read about the reforms.

The Code must be approved by BOTH Houses of Parliament before it can come into force on 1 September 2014. This is when the new system, covering children and young people with special educational needs and disabilities from birth to age 25 in England is due to commence.

The code provides statutory guidance on duties, policies and procedures relating to part 3 of the Children and Families Act 2014 and all of the regulations that go along with it.

To be clear: Until then, the current SEN system remains in force until 1 September 2014.

So, this is what has now been published:

• A final 271 page draft of the SEN and Disability Code of Practice,
• Draft guidance on transition to the new SEN system,
• Implementing the 0-25 special needs system,
• Examples of Education, Health and Care Plans and
• the Code of Practice Government consultation response.
• The Special Educational Needs and Disability Regulations 2014 that set out the detailed requirements on local authorities, schools, colleges and others towards children and young people with SEND

Code of Practice:

Now, I don't think Tania was asking me to read all 271 pages before today. Of course, she knows I could've, no problem...ahem... So this post is just an overview of the documents that everyone interested in SEND and our own SNJ team, will be poring over in the next couple of weeks.

We will be reporting on the changes in the Code of Practice in detail then but you can find the whole 271 pages on the Government website before that, if you feel that way inclined.

Implementation (guide for LAs and Health partners):

These are the time scales that local authorities and health partners must adhere to.

• April 2014 – September 2015: local authorities involve partners and parents in planning for implementation and delivery of the reformed system.
• From September 2014: local offers published following consultation; joint commissioning duty commences; new assessment and planning starts (for new entrants); personal budgets offered as part of Education, Health and Care (EHC) plans; mediation arrangements in place; local authorities should publish plans for EHC plan transfers.
• September 2014 – September 2016: young people with Learning Difficulty Assessments (LDAs) transfer to the new system.
• September 2014 – April 2018: children and young people with statements of SEN transfer to the new system.
• April 2015: New duties for young offenders with special educational needs commence.

Education, Health and Care Plans:

Following consultation, the new regulations and SEND Code of Practice will not require local authorities to use a single national template for EHC plans - this is a real disappointment for many families. However, dependent on parliamentary approval, EHC plans must include the following sections, which must be separately labelled from each other:

• A: The views, interests and aspirations of the child and their parents or young person.
• B: The child or young person’s special educational needs.
• C: The child or young person’s health needs which are related to their special educational needs.
• D: The child or young person’s social care needs which are related to their special educational needs.
• E: The outcomes sought for the child or the young person, including outcomes for adult life. The EHC plan should also identify the arrangements for setting shorter term targets by the early years provider, school, college or other education or training provider.
• F: The special educational provision required by the child or the young person.
• G: Any health provision reasonably required by the learning difficulties and disabilities which result in the child or young person having SEN, and where an Individual Health Care Plan is made for them, that plan.
• H1: Any social care provision which must be made for a child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970
• H2: Any other social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having SEN. This will include any adult social care provision being provided to meet a young person’s eligible needs (through a statutory care and support plan) under the Care Act 2014.
• I: The name and type of the school, maintained nursery school, post-16 institution or other institution, or the type of school or other institution to be attended by the child or young person where no such institution is named. 29
• J: Where there is a personal budget, the details of how the personal budget will support particular outcomes, the provision it will be used for including any flexibility in its usage and the details of any agreement for a direct payment for education, health and social care as set out in respective regulations.
• K: The advice and information gathered during the EHC needs assessment (in appendices). There should be a list of this advice and information.

Personal Budgets:

As part of their local offer, local authorities should set out a local policy for personal budgets which describes the services across education, health and social care that currently lend themselves to the use of personal budgets.  Or in English speak, the LA must state clearly which services families can be given a personal budget for.  This will be a really interesting section of the Local Offer - especially when looking at what other Local Authorities are offering.

Local Offer:

From 1st September 2014 local authorities will be required to publish their local offer. Note, this is a duty on local authorities, there is no duty on schools, although of course schools will want to set out their stall for families to see what they provide (won't they?)

If you haven't seen your Local Offer or consultation, Bringing Us Together have produced a list of all the Local Offers and consultations available on line at the moment.

The Transfer Process:

Transition period:
It was initially suggested that all transfers to Education Health and Care Plans should be completed by September 2017 but this has been extended to April 2018.

Transferring those with statements to Education, Health and Care Plans:

• A transfer review must take place
• The transfer review will allow for outcomes to be developed for inclusion in the plan
• Until the transfer review takes place, the LA will have a statutory duty to maintain the Statement and arrange the provision within the statement
• The local authority must notify the parent or young person and the head teacher of the school attended by the child or young person at least two weeks before it starts that the transfer review will take place.
• A local authority cannot commence a transfer review if there is appeal in progress under the Education Act 1996 against any of the matters in relation to a statement
• To conduct a transfer review, the local authority must undertake an EHC needs assessment, having regard to the SEND Code of Practice.
• From the point that the transfer review commences, parents and young people will have appeal rights under the new SEN and disability system and appeal rights relating to statements will no longer be available to parents.
• Where a local authority decides not to secure an EHC plan for a child or young person transferring from a statement, the local authority must notify the child’s parents or the young person within 10 weeks of the start of the transfer review
• Under these circumstances, the statement will not be ceased until the end of the period that a parent/young person can register an appeal with the Tribunal, or if an appeal is registered:
  - until the Tribunal upholds the local authorities decision, or
  - until an EHC plan is secured following an order by the Tribunal.

Transferring those who receive support as a result of LDAs to EHC plan

• Any request for an assessment, under the Children and Families Act 2014, from a young person in further education or training who has had an LDA must be treated by the Local Authority as a request from a new entrant into the system.
• Where necessary, a full assessment must be carried out and an EHC plan drawn-up
• Local authorities will have six weeks following a request from a young person within which to consider whether it is necessary to carry out an assessment.
• Where a young person is aged over 18, the local authority must consider whether the young person requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete their education or training.
• Where a local authority decides not to conduct an EHC needs assessment or not to secure an EHC plan, a young person has the right to appeal that decision.
• Where an EHC plan is not secured, the provision being made as a result of the young person’s LDA should continue as planned.

Transferring those in Pathfinder areas who have a Non-statutory EHC plans issued before 1 September 2014

• Although Pathfinder local authorities should treat non-statutory EHC plans issued before 1 September 2014 as if they were a statutory document, these non-statutory EHC plans do not have the same duties and rights associated with them as an EHC plan issued on or after 1 September 2014.
• While some of these non-statutory EHC plans may be suitable to be transferred to statutory EHC plans without significant changes, others may require additional assessment information and/or restructuring to comply with the 2014 Act and Regulations.
• Some children and young people who have been issued with non-statutory EHC plans before 1 September 2014 also have statements. Local authorities should transfer these children and young people to statutory EHC plans in 2014/15
• In these cases parents will continue to have the same rights as other parents of children and young people with statements, and local authorities will have the same duties to arrange the special educational provision set out in those statements until they are transferred to the new system.
• Parents of children and young people who have been issued with a non-statutory EHC plan before 1 September 2014 and do not have a statement can request an EHC needs assessment from 1 September 2014
• To provide assurance to families in this situation and to enable local authorities to manage demand for EHC needs assessments in 2014/15, it is recommended that local authorities:
  - contact the parents of children and young people with non-statutory EHC plans issued before 1 September 2014 to inform that they will be transferred to the new system by their next annual review⁵, and that the provision set out in their non-statutory EHC plans will continue to be made until they are transferred to the new system;
  - make clear that, where existing information contained in the non-statutory EHC plan remains recent and relevant (as agreed by parents, young people and relevant professionals), the transfer to a statutory EHC plans should happen quickly.

Time scales for Transition

• Where possible local authorities should transfer children to the new SEN and disability system at points in their education at which a significant review of the statement would have otherwise taken place.
• Local authorities should transfer the following groups of children and young people each year:
  - all children with statements in year 6,  - however, in order not to overwhelm the new system, in 2014/15 local authorities will be able to consider whether to transfer children in year 6 to EHC Plans, but must take into account the wishes of families. Later transition may make for a more stable situation for children whose secondary provision has already been agreed.
  - all children and young people in year 11, not just those who are moving into further education, and
  - those moving between one local authority and another
• In 2014/15, local authorities should also transfer the following groups:
  - children with statements in year 9 in 2014/15;
  - children and young people with a statement leaving custody between 1 September 2014 and 1 April 2015; and
  - children and young people issued with non-statutory EHC plans before 1 September 2014.
• Between 1 September 2015 and 1 April 2018, local authorities must also transfer children and young people with statements to the new arrangements:
  - in year 9 and
  - prior to them transferring from primary to secondary school and middle to secondary school.

In order to clarify how transition will work in your area, local authorities should publish a local transition plan. The transition plan should include:

• the groups that were consulted in developing the plan;
• the number of children and young people with statements and the number of young people receiving support as a result of an LDA that the local authority expects to transfer to the new system in each year of the transition period;
• the order in which children and young people with statements of SEN in the area will be transferred to the new system
• how and when parents of children with SEN and young people with SEN, and their educational institution, will be made aware of the arrangements for a child or young person’s transfer;
• details of the transfer review process;
• the arrangements for the transfer of young people who receive support as a result of a LDA;
• sources of independent SEN information and advice;
• who parents and young people can contact if they have queries about transition to the new system or if they have not been transferred to the new system in accordance with the local transition plan.

Local authorities should publish the first version of this plan by 1 September 2014.

So there you go, a not too brief summary of the transition process proposed.  This will hopefully help you to understand when the changes will start to have an effect on your own child's statement.

We will be writing more about the draft Code of Practice and other parts of today's publication soon again, but we know that the transition proposals are of real interest to families.

Is it clear from the guidance when your own child will move to an Education Health and Care Plan? What other questions do you have that you would like us to research for you?

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Debs Aspland

Exec Director at Bringing Us Together

Mum of 3, wife of 1, Exec Director of Bringing Us Together, Owner of Inspiring Circles, Writer of Chaos in Kent, Development - South at Community Circles

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