The DfE answers your Top 10 questions on the changes in SEN and disability education: Part 2

So, today we have part two of the answers to the Top 10 questions submitted by you, through SNJ, to the Department of Education. Part one, if you missed it, was on Monday, find it here.

Part two has answers six to ten about Provision, Personal Budgets, Appeals, Post 16 and Alternative Provision. Once again, please leave your comments below the post, rather than just on social media because this is where your comments will be preserved for most people to see them. Social media is great, but it moves fast and your comments are soon lost.

So, over to Stuart Miller and his team at the DfE to finish answering your questions...

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6 - Provision

Question: It's clear that some parents are still having difficulty in accessing the right provision, even with an EHCP.  Please could you address ome of these points sent in about this by parents.

Local authorities have a statutory duty to secure sufficient schools for pupils in their area and, in doing so, must have particular regard to the need for special educational provision.  In addition to this, there is now a duty for local authorities, health and social care services to jointly commission education, health and care provision for 0-25 year old children and young people with SEN or disabilities, both with and without EHC plans.  In their local offers, local authorities must outline the full range of provision they make, both within the area and more widely.

"Why is there such a 'postcode lottery' for children with autism? In my county many have to be home schooled or are given inadequate or inappropriate provision, with devastating results? What can be done to stop this?" Parent

A number of questions submitted focused on provision for children with autism.  The number of children and young people identified as autistic has grown considerably over the past few years.  Local authorities have been responding by developing the skills and expertise of the workforce, including teachers; and expanding the range of specialist provision.  The needs of children with autism differ and it is right and necessary that differing approaches are available, from support in the classroom, to resourced provision in mainstream schools, to specialist special schools.

Parents of children who will receive an EHC plan have rights to ask for a particular institution to be named in the plan and the local authority must name it, unless it is unsuitable for the child’s age, aptitude, ability and special educational needs; or placing the child at the school would be incompatible with the efficient education of others or the efficient use of the authority’s resources.  If a parent disagrees with the school named on their child’s EHC plan, they can appeal to the Tribunal.  Parents of children who do not have an EHC plan can apply for a school place using local school admission arrangements and each school will have an admission authority to set its admission arrangements.

The School Admissions Code allows admission authorities to use social and medical need as an oversubscription criterion.  School admission processes must not discriminate against or disadvantage disabled children, or those with SEN.

The SEND accountability framework, published in March 2015, has been designed to monitor improved outcomes and experiences for children and young people and their families.  A combination of measures, data and analysis, will show how the SEND system is performing and which parts are working well or less well.

With regards to academic attainment, the Government is clear that all pupils should be given a fair opportunity to gain the qualifications that their abilities and efforts deserve. Our reforms to qualifications at age 16 are intended to raise standards and provide pupils with high-quality learning and qualifications that have real value when progressing into further/higher education or employment.

7 - Post 16

Question: FE colleges are new to statutory SEND provision and parents are finding provision in general can be lacking. How can you help FE colleges to bring their provision up to standard?

It is true that some FE colleges are still getting used to the high needs funding arrangements that were first introduced in 2013, along with their responsibilities under the Children and Families Act, from 2014.  It is taking time for people in colleges and local authorities to get used to operating under the new arrangements.  The Education Funding Agency (EFA) has improved the funding guidance – the latest version is here.  And the EFA can respond to individual queries if there are problems with colleges accessing appropriate funding from the local authority.

The Children and Families Act 2014 and the SEND Code of Practice applies a statutory framework for colleges in relation to identification and provision for young people with SEN.

To support the SEND reforms, we have put in place the following:

• The Association of Colleges (AOC) has published case studies and delivered regional training events for colleges and local authorities;
• A guide to the Code for the FE sector is online;
• Funding for over 150 initial teacher training bursaries to encourage high calibre new teachers to specialise in teaching young people with SEN;Grants made to over 320 FE professionals in 2014, worth almost £1m, to undertake specialist continuing professional development in SEN plus a ‘golden hello’ scheme to post-16 maths teachers to undertake professional development to support those with SEND;
• Offering grant funding of over £250k for 2015/16 to Achievement for All to support 40 FE settings to take undertake an in-depth review of their SEND provision, and to produce an online self-assessment tool which every provider in the country will be able to use to assess how they are meeting their new duties under the Code; and
• A Preparing for Adulthood team has led regional events for post-16 providers and local authorities to come together in teams to develop EHC planning and study programmes.

Study programmes were introduced in September 2013, following the Wolf review of vocational qualifications. A range of guidance on study programmes is now available, for example here.  It will take some time for study programmes to be fully embedded as part of the FE system but good progress is being made and we will continue to support this area of development.

I read with interest the experience described by a young person (below) who wrote to Special Needs Jungle.  It is precisely because of these issues – the fact that courses are not yet in place, in every area, which meet the individual aspirations of young people – that we have made the changes to post-16, and why we will continue to work with providers to widen the offer in colleges.

I go special school and I can't do what I want to, there is no choice. I can do gardening, cooking, caring for small animals and I don't want to do that! I want do film-making! Why in special school do I not have the same choices as others who are 16?

There is nothing to do where I live. I can't go out and do fun things as  there is nothing. I looked on the Local Offer site and it didn't have anything for me. I emailed the top man at the council and he couldn't find anything for me. I want to do learning using my voice output aid but there is no speech therapy at school and the hydrotherapy pool hasn't worked in years. I keep asking in my reviews for film-making, but there isn't anything. How can it be person-centred so I can get when I want if there is nothing available? Young person with Learning Difficulties

In September 2015, Ofsted introduced a new inspection framework through which inspectors review colleges’ high needs provision separately within individual inspections.  Inspectors must also assess the extent to which providers comply with relevant legal duties as set out in the Equality Act 2010.

In addition, it is important that children and young people are able to participate effectively in decisions about support available to them in their local area.  Local authorities should work with children, young people and parents to establish the aims of their participation, mark progress and build trust.  They should make use of existing organisations and forums which represent the views of parents – and those which represent the views of children and young people directly – and where these do not exist, local authorities should consider establishing them.

8 - Appeals

 Question: A good number of EHCP applications are already ending up at the SEND Tribunal.  Could you please help the parents below with an answer that touches on the points they make?

A variety of questions were raised in relation to appeals to the First Tier Tribunal.  Before addressing these, it is important to emphasise that the Tribunal should only be used as a last resort; and we expect local authorities and families to engage in positive problem-solving where differences arise.

From the point that the Transfer Review of a statement commences, parents and young people have appeal rights under the new system.  Where, as a result of a Transfer Review, the local authority decides not to replace a statement of SEN with an EHC plan, parents can appeal against this decision.  The appeal will be made under the current SEND Code of Practice, which means that parents must contact a mediation adviser and obtain a mediation certificate prior to registering an appeal (see the Transitional Guidance).  The local authority must maintain the statement until the appeal is concluded.

It should usually take 20 weeks to carry out an assessment and issue an EHC plan, although the Code describes a few circumstances where it is reasonable for this to take a little longer.  Where a local authority takes an excessive amount of time to do this, parents can make a complaint using the authority’s own complaints procedure and, if necessary, make a further complaint to the Local Government Ombudsman.

With regard to the availability of special schools, the Children and Families Act 2014 requires local authorities to publish a ‘local offer’ of services and provision in their area (including schools and special schools) and to keep it under regular review to ensure there is sufficient provision to meet the needs of children and young people with SEND; and their families.  While it is not always practical in terms of distance, if there is no suitable school locally, parents are able to express a preference for a school in another local authority area and the home local authority must consult with that school.

"Why have LA's been given responsibility for preparing and submitting the bundles in SEN Tribunal appeals without parents/young people first having the chance to check all their documents are included/are properly legible?" Parent

Following the implementation of the Children and Families Act 2014, local authorities are now required to prepare the ‘Tribunal bundle’.  The Tribunal sets a date by when this must be done and allows sufficient time for all parties and the panel to read through and familiarise themselves with the contents of the bundle, and prepare for the hearing.  Failure to submit in time is likely to lead to the local authority being barred from attendance.  Where a parent has concerns about the contents of the bundle, they should draw this to the attention of the Tribunal.

The Tribunal’s own guidance on preparing bundles of evidence states that documents should be complete and legible, unless the state of the original prevents this.  If a copy cannot be legibly photocopied, it is the local authority’s responsibility to attempt to obtain a better copy. Also, a copy of the bundle must be sent to the parents/young person in advance of the hearing, by the deadline specified by the Tribunal.  If it is found that any documents are missing, an application can be made to the Tribunal for additional documents to be included.

 9 - Personal Budgets

Question: The vast majority of parents have been unsuccessful with getting a Personal Budget for their child in an EHCP.  Again this may be a training issue.  What advice can you give to parents about getting a useful personal budget as part of their child's EHCP?

As set out in the Code, local authorities must provide information on personal budgets as part of the local offer.  This should include a policy on personal budgets that sets out a description of the services across education, health and social care that currently lend themselves to the use of personal budgets, how that funding will be made available, and clear and simple statements of eligibility criteria and the decision-making processes.

"Why aren't parents being told of personal budgets and what the options and choices they have with them? ( that's across education and health) after 2 reviews under an EHCP no one has mentioned a personal budget." Parent

We realise that this is new territory for local authorities and a complex area; and that some parents and young people are experiencing difficulties in accessing a personal budget.  To address this, we have been working with voluntary and community sector partners to improve awareness and understanding of personal budgets among local authorities, parents and young people.  For example, ‘In Control’ ran a series of training events with local authorities earlier this year.

We also recently ran an information session hosted by the ‘Making It Personal 3’ project, for our EPIC young people group, to gain a better understanding of the issues young people are grappling with in obtaining a personal budget.  In addition, our SEND advisers are on hand to discuss any issues arising when they’re out and about speaking to local authorities.

In relation to accessing a personal health budget, decisions on this remain the responsibility of Clinical Commissioning Groups (CCGs) or local NHS services.  If they decline a request, they must set out the reasons why and provide the opportunity for a formal review of the decision.

10 - Alternative Provision

Questions: The reforms do not seem to have had much impact for families whose children are out of school, home schooled or refusing school.  With the questions below in mind, what help and advice can you offer parents about this?

Local authorities can provide support to parents of children with statements or EHC plans who are being home educated to help them meet their child’s SEN.  The SEND Code of Practice advises authorities of this, explaining that they should consider using their power to make special educational provision other than in school, including in the home environment, when they are considering the suitability of provision being made by parents at home for children with SEN.  Where an authority draws up an EHC plan which ‘names’ home education as the right provision for the child, then they must make any (additional) special educational provision set out in the EHC plan.

"Why isn't there more help for children with ASD? My son has Asperger's and is currently refusing to go to school...not because he doesn't want to, but because he can't cope in the school environment. He has high functioning autism and there isn't any help or support for the thousands of children and parents of these children who are missing out on their education. I am a single mother who has to work full-time to survive and I do not have any spare money for tutors or online schooling at home. I work very hard and have done all my life and the current government system is failing our children" Parent

Where a child has a statement or EHC plan which names a school and the parents have chosen to take the child out of the school and home educate, then the local authority has to assure itself that the provision the parents are making is suitable to the child’s SEN and they must review the statement or EHC plan every year.

However, they have no duty to arrange the provision set out on the statement or EHC plan if the parent is making suitable provision.  A local authority can only be compelled to provide educational provision at home for a child if it is inappropriate for the provision to be delivered in school.

Where parents are considering whether to provide education at home, it is important that they discuss, in advance, with their local authority, their proposed arrangements and what support the local authority may provide – so that they can make an informed choice.

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Thanks so much to Stuart Miller and his team at the Department for Education for giving us the opportunity to put your questions directly to them. Please leave your comments below so they, and everyone, can see them.

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Tania Tirraoro

Founder, Co-Director at Special Needs Jungle

Founder of Special Needs Jungle. (She/Her) Parent of two young adults with autism. New grandma. Tania, who is autistic, is a leading SEND advisor, working with the Special Education Consortium, Ofsted, and Whole School SEND. She is also an Advisory Board member of the Royal Holloway, University of London Centre of Gene and Cell Therapy and an Editorial Board member of Springer Nature Gene Therapy journal.
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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