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New School Year brings seismic shift to Special Educational Needs

Solicitor Sarah Dodds discusses a new era in special educational needs provision for the new academic year.

As a new academic year begins, so does a new era in special educational needs (SEN) provision. As of 1st September 2014 Part 3 of the Children and Families Act 2014 (‘the Act’) comes into play and the longstanding regime of SEN statements will begin to be phased out.  With 2.8% of students across all schools having a statement  and many others receiving assistance under the School Action and School Action Plus system the impact of the changes is likely to be far felt and the transition challenging to implement. Academies and Free Schools, as with maintained schools, need to be up to speed on the changes.

The new system is set up to cover children and young people up to the age of 25 years (referred to as ‘students’ throughout this article) and the government hope that it will promote a more holistic approach to service provision, with education and health and social care providers all working together to supply a more complete care and support package. Edward Timpson, Minister for Children and Families, said:

‘Too many families find themselves in a battle with a system that’s supposed to help them. Our reforms will fundamentally transform the system so that children and young people with SEN receive a joined up approach that meets their needs.’ 

The Act is designed to increase student and parent involvement in SEN provision, with the statute clearly stating that the ‘views, wishes and feelings of the child’  are to be placed front and centre. 

The current system of SEN statements and Learning Difficulty Assessments (LDAs) will be replaced with Education, Health and Care Plans (EHCs). The legal test for eligibility for an EHC is broadly the same as that for a statement. Therefore if a young person qualifies for a statement they should now qualify for an EHC. The current system of School Action and School Action Plus is also going, to be replaced by a scheme of graduated provision called ‘SEN support’. Transitional provisions have been put in place to facilitate the switch over and existing statements and LDAs will continue for the time being, with the guidance stating that all students requiring assistance should be operating under the new system by September 2017. 

The new EHCs will be requested via the relevant local authority and as part of the proposed education provider will be consulted. As with the old system, the emphasis very much remains on inclusion, with a student only being educated outside the mainstream if absolutely necessary.  Each local authority is obligated to put together a ‘local offer’ which sets out what services and products are available in their area to help support those with SEN. Although the government has not specified what needs to be provided and there are concerns that this could lead to a ‘postcode lottery’ situation.

Students and parents will have the option to have their own personal budget which they can use to directly purchase their own services and aids. The government have reiterated that this should not impact on a school’s notional SEN budget, but from a practical point of view if some students are purchasing services directly and schools are purchasing for others then there is a risk that there will be problems with resource sharing and invoicing. A pragmatic way of avoiding such problems might be to discuss requirements with the student and/or parents and to demonstrate that ordering items via the school (i.e. in bulk) is likely to work out more cost effective for them and enable a more cohesive service provision.

Training as always will be crucial to the successful implementation of the new rules. Classroom teachers are to be held accountable for the progress of students within their class with special educational needs and this should now (if it does not already) form part of their performance review. It is therefore imperative that teachers have the skills to properly identify and assist those with special educational needs and to differentiate and plan for them appropriately. This responsibility continues to be placed on the teacher even if the student has support staff with them within the school.

It seems inevitable that the new rules along with ever increasing budget restraints will trigger complaints and claims connected to SEN provision. However, there is hope that problems and disagreements can be dealt with at an early stage and in a constructive manner. The Act compels local authorities to facilitate ‘independent disagreement resolution arrangements’ to deal with EHC complaints. It is envisaged that an independent person will be able to look at the complaint at an early stage and stop them escalating. In addition, parents and students will be compelled to contact a mediation service about a dispute prior to bringing an EHC complaint to the First Tier Tribunal. If a complaint does get as far as the Tribunal then the Tribunal must have regard to the new Code of Practice which accompanies the Act, so if the Code proves to be user friendly and can be implemented consistently the risk of legal action should be minimised.

If you do have concerns about the new regime – we are here to help.  Whether you require advice on your legal obligations under the Act, or assistance with SEN complaint handling and/or connected Tribunal or Court claims then please do contact us on 01228 552222.

DfE First Release National Stats 2013

[ii] https://www.gov.uk/government/news/more-detail-on-special-educational-needs-reforms

[iii] Children and Families Act 2014, Part 3, section 19 (a)

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Published: Wednesday 3rd September 2014
Categorised: Education

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