SEND reforms – some legal myths and realities

Tania's note: Today, we are delighted to feature a guest post from Steve Broach.  For those who don't already know him (and that is probably very few, if any, of you), Steve is a barrister at Monckton Chambers specialising in cases involving disabled children and young people and children and young people with SEN. He is one of the co-authors of Disabled Children: A Legal Handbook (Legal Action Group – available to download free of charge on the Council for Disabled Children website). Prior to coming to the bar Steve worked for eight years in the voluntary sector, including the National Autistic Society, Ambitious about Autism and most recently the Every Disabled Child Matters campaign.

SEND reforms: legal myths and realities

I’m delighted to be asked to write this guest post for Special Needs Jungle, which in my view is one of the best sources of information for parents about SEN and disability issues. I passionately believe that parents need and deserve the highest quality information about how the SEN system is supposed to work for them and their children – like that provided on this site.

A major part of this has to be making the law accessible. Although the legislation, regulations and guidance are complex there is no reason why they can’t be understood if the ‘experts’ make an effort to communicate about them effectively. I don’t think parents should be patronised – proper and detailed information about the law should be provided, not just simple guides (although these obviously have their place).

Sadly, there is so much misinformation around about SEN and disability issues generally and these reforms in particular, not least because of the rapid pace at which they have been introduced. To help counter this, I have written on my own blog about what I think some of the best aspects of the reforms ought to be. However it seemed to Tania and I that it might be helpful also to take some of the myths that are circulating about the reforms head-on here:

Myth 1 – the reforms will end conflict between parents and Local Authorities

As much as we would all like it to be true, there is simply no legal basis for assuming that the new system will be conflict-free – or even that given the ongoing programme of austerity in public finances, there will be a significant reduction in conflict between parents and Local Authorities. The new system represents evolution rather than revolution. There is no split between assessment and funding, so Local Authorities still have a limited budget which they have to stretch to meet ever-higher levels of need. However in my view some of the reforms, particularly joining up education, health and social care into a single EHC Plan and extending the force of this document up to 25, should certainly help parents and young people enforce their rights.

Myth 2 – the threshold for EHC Plans is higher than that for statements

Nonsense. To their credit, the Department for Education have been constantly reinforcing that the threshold for an EHC Plan to be made is the same as was previously the case for statements. It is therefore extremely disappointing that there are at least some Local Authorities who are looking to use the new system to reduce the number of Plans made, by contrast to the number of statements made previously. Any practice like this needs to be urgently challenged by way of a judicial review application – I have written about how judicial review works because it is going to be so important as the way to challenge unlawful policies adopted under the new system.

Myth 3 – any family who wants one is going to get an SEN direct payment

Sadly this is very far from the case. In most cases families will be able to see the amount of money that is spend on SEN provision by way of a ‘personal budget’ (although the Minister has amended the regulations to mean that personal budgets don’t have to be calculated where this is too difficult because the money is tied up in group services). However a personal budget can be held by the Local Authority or by a ‘third party’, eg a voluntary group commissioned to provide the service. The only time that cash moves from the Local Authority to the family is when a ‘direct payment’ for the amount of money identified as the personal budget is made – and as I’ve blogged the legal duty to make a direct payment contains two massive loopholes. I therefore expect SEN direct payments to be a rare feature in this new landscape – please let me know if it turns out I’m wrong.

Myth 4 – statements have now ended and everyone should be transferred to the new system immediately

Thankfully this isn’t true otherwise there would be total chaos. Instead there is a complex programme of transition between the new and the old systems running until 2018. There is detailed statutory guidance on the transition process which is essential reading for anyone concerned about this. Importantly, all existing statements and Learning Difficulty Assessments retain their full legal force until transition to the new system is completed. Some matters in relation to transition are left up to the judgment of each Local Authority and these have to be specified in a local transition plan.

Myth 5 – EHC Plans are just statements with a fancy name

This isn’t true in law – and I hope it won’t be true in reality either. There are two key legal distinctions in relation to EHC Plans, both of which I’ve blogged about (see bullet points 2 and 3).  Firstly, there is a genuinely new and radical duty to provide the health services specified in the Plan – the first time that disabled children have had a clearly enforceable right to health care, which is something worth shouting about. Secondly, although the ECH Plans do not come with new rights in relation to social care, there is a welcome focus on the key social care duty (section 2 of the Chronically Sick and Disabled Persons Act 1970) and services to which children have a right under that duty must be clearly specified in the Plan.

I hope this mythbusting blog is some help to parents and families – and perhaps to professionals as well, who often do not get the best information about what the law requires. If you are aware of other myths about the new system please let me know here, via a comment on my blog  or on Twitter

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Steve Broach

Steve is a Barrister in public law and SEND parent hero. He has particular interest and expertise in health, education and social care, with a focus on disability and children’s rights cases. Steve has successfully challenged a number of funding cuts to public services in recent cases including West Berkshire (short breaks for disabled children), and Bristol (special educational needs provision). His background is in policy and campaigning work with and for disabled children and adults and their families. Many of his cases involve the intersection between law, policy and politics.
Steve is co-author of Disabled Children: A Legal Handbook (Legal Action Group, Second Edition, 2016) and Children in Need: Local Authority Support for Children and Families (Legal Action Group, Second Edition, 2013).

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Latest posts by Steve Broach (see all)

• Failure to specify and quantify SEND reports – what options do families have? - August 5, 2021
• Changes to children’s social care – implications for disabled children’s short breaks - May 5, 2020
• Why the Coronavirus lockdown adjustment for people with disabilities and mental health conditions was the right thing to do - April 16, 2020