Now that a revised draft of the Code has (finally) been published, what should we all be looking for? IPSEA have identified a number of 'red lights' - issues which, if not addressed, would mean that the Code is unworkable and not fit for purpose. If any one of these 'red lights' are triggered then the whole process should be stopped until successfully resolved.
Red light 1: Legal duties must be made clear and must be correctly quotedThe draft Code contained many inconsistencies and errors in its interpretation of vital sections of the law. Examples include:
- The legal thresholds – tests – an LA needs to apply when making decisions must be correct. For example when considering whether a child or young person should have a Statutory Assessment of their needs carried out, or when an LA should issue an EHC Plan for a child or young person.
- The duty on an LA to provide support to families and young people in the SEN system was described inconsistently in many different sections – “advice and information” in some places then “advice, information and support” in others. This leaves questions as to whether an LA must provide support in, say, making appeals to the SEND Tribunal.
- The draft Code wrongly stated that you can make a claim of disability discrimination against an LA to the SEND Tribunal. You can’t. Such a claim has to be made to the county court.
What needs to happen:The draft Code needs careful legal checking so that those who will have to abide by it can help the Government to identify areas that are still unclear or wrong.
Parents and young people also need to be encouraged to give their view as to whether the new system that the Code outlines makes sense - can they are able to see how the pieces fit together to provide good, consistent support?
Red light 2: Mental capacityThe Children and Families Act 2014 transfers parental rights to young people at the age of 16 years old. Parents will no longer have an automatic right to be involved in decision-making about their child or be able to challenge decisions made by an LA through the SEND tribunal. However the age up to which parents are responsible for their child remains 18 years old.
The potential for conflict created between LAs, schools/ post 16 institutions, parents and young people between the age of 16 to 18 years old is very high. The Code needs to provide clear guidance on what should happen to avoid this for children and their families during these two years. The public draft of the Code skirted over the issue and advised LAs to resolve any conflict by prioritising the views of the young people. This guidance does not address the issue of parental responsibility.
The Code should also give clear guidance on the role of parents for young people over the age of 18 years old up to the age of 25 years old where they may not have mental capacity to make decisions for themselves.
Nothing was included in the public draft of the Code as to the test for establishing whether a young person has mental capacity or who should apply it and how.
Guidance in the Code should make very clear that parents should automatically be presumed to be the advocate for their child if it is established that they do not have mental capacity to make decisions for themselves. In any event, it should be made clear that parents should always be central to decision-making, be kept informed by LAs and their views given due regard. Only in exceptional circumstances should they not be involved in the process and their views not take precedence over professional views.
It needs to be clear that LAs need to be transparent in such decision making. How will they be held accountable? At the time of the first consultation on the Code, the draft regulations on mental capacity had not been issued. Consultation responses relating to mental capacity as an issue in the Code were very limited as many parents’ groups were just not aware it was a potential issue. This meant that mental capacity issues were not been adequately addressed. There still has not been any public consultation at all on the Mental Capacity Regulations or the new wording proposed for the Code. This is an important and complex legal area, which is therefore complex in practice. It affects our most vulnerable young people. It is therefore important that all those living, working with or advising in relation to these issues have the opportunity to contribute to these discussions and draft wording can only be considered fully when it is seen in the context of the whole draft Code.
What needs to happen:Mental Capacity is a burning issue for individual parents and should be of major concern to those groups representing the views of children and young people. This issue is so fundamental that it needs careful addressing.
Is the wording right now?
Red light 3: School accountabilityThe duties on schools to identify a child’s SEN and put into place support to meet those needs are still unclear. According to the Department for Education (DfE) statistics released in October 2013, 1.3 million children will have their needs met only from within schools’ or colleges’ resources - without having a formal Statutory Assessment of needs and an EHC plan issued for them.
The first draft of the Code laid out a single category to replace the existing two stages of school support – currently called school action and school action plus – to be called “SEN Support”. However it was confused and inadequate with regard to how "SEN Support" should be put into practice.
The Minister, Ed Timpson, recently used the phrase “Freedom within a framework” to describe the Government’s approach to issuing Guidance to schools. However the framework is not sufficiently clear in relation to what parents can expect from class teachers, SENcos, school based provision and LA intervention. The result is in fact “freedom to fail”. Schools and parents need to know:
- When does differentiation of the curriculum tip into SEN provision?
- What will the new cycle of planning (Assess, Plan, Do, Review) look like in practice for a child? Is it a formal cycle or an informal process of trial and error? How will it be documented, if at all?
- What interaction can parents expect by way of meetings, verbal or written information about the interventions that have been put in place to support their child, outcomes expected and progress being made? As drafted, this is limited to an initial “note” on a school record of a school and parent meeting to discuss a child being put on the SEN register.
- When should a school request and then an LA intervene with an EHC Plan needs assessment? What or who triggers it on the basis of what criteria? Where will they access this information?
What needs to happen:The Code needs to be transparent as to the support children and young people should expect to receive if they do not have an EHC Plan in place.
The Code should also give clear guidance on how schools record an individual’s needs, the support put into place, expected outcomes and progress towards them.
There needs to be structure around how schools are accountable to parents and young people.
Does this draft of the Code describe a system that works for everyone that will have to put it into action and those who should benefit from it?
Red light 4: The requirement for specificationAlthough the first draft of the Code stated the legal requirement that provision written into an EHC Plan is ‘normally quantified’, it did not explain the full extent of the legal requirement for LAs to specify provision in an EHC Plan. This omission alone caused a breakdown in the previous Code’s progress through Parliament back in 2001.
Guidance must make clear that the duty on LAs to specify, means that provision is quantified and qualified. It must be clear to LAs, schools, parents and young people who needs to do what, when, how often and when it should be reviewed.
This is an existing requirement that parents have relied on in dealings with LAs and at Tribunal in order to change vague descriptions of provision into enforceable, specified provision.
Specification is essential if schools and colleges are to be able to determine the correct level of SEN funding that they should be receiving in order to put this provision into place. The need to quantify derives from a clear line of case law and must be included. The Government accepted that the requirement on LAs to specify should remain in the Act - they abandoned the original wording they proposed which sought to change this requirement to one of “setting-out” provision.
The Code needs to reflect this very clearly.
What needs to happen:
The wording of the Code needs to be made very clear. Does it clarify who needs to do what, when, how often and when it should be reviewed?
Red light 5: Right to an inclusive education in a mainstream school or collegeThe Code needs to contain a full description of the right of children with SEN/D to attend mainstream school. The legal test is that it is an absolute right unless it is incompatible with the wishes of their parents or the provision of efficient education for others.
The latter exception can only be relied on when there are no reasonable steps which could be taken by the LA to prevent this incompatibility.
These exceptions need to be explained clearly in the Code - just as they are in the current guidance (Inclusive Schooling). Assurances that this would be done were given to Lord Low among others pressing this issue as the C & F Act progressed through Parliament.
What needs to happen:The wording in the Code needs to reflect the wider duty on LAs to ensure mainstream school and college places are available to children and young people when they want it except in the most extreme of exceptions.
Current statutory guidance “Inclusive schooling” does this clearly and needs to be used in wording for the Code as it will be withdrawn when the new system is implemented.
Red light 6: EqualityThe new Code is no longer just for children and young people with SEN - it also now includes, in some sections, duties towards those with a disability. The vast majority of children and young people with SEN will also fall under the separate legal definition of being disabled.
However, there will always be a small group who will be identified as being disabled but with no SEN or have SEN but no disability. The interface between equality duties and SEN duties has changed within the new legal framework. Guidance is needed as to how these two parallel areas of law need to be put into practice.
A very current example would be how does the duty on schools to make reasonable adjustments for a disabled child by providing auxiliary aids and services – maybe computer equipment – work practically alongside the duty on an LA to make special educational provision for a child with SEN specified in an EHC Plan?
The first is a duty to provide what is reasonable for that child – potentially restrained by financial considerations – whilst the second is an absolute duty to provide what is specified in the EHC Plan.
The Code needs to make clear the similarities and important legal differences between special educational provision and reasonable adjustments. Failing to address this cross-over of legislation or glossing over these issues will lead to confusion between LAs and schools as to who must do what, when and how. The right support for children and young people will be “lost” during the debate.
These duties towards disabled children and young people were only added after the draft Code was put out for public consultation.
What needs to happen:The additional duties towards disabled children and young people need to drafted into the Code. All interested groups can then consider and comment on them.
So where does this leave the SEN reforms?Under the Children & Families Act 2014, the Secretary of State must issue a Code of Practice – it is the final leg of the three legged stool of the new SEN legal framework. Nothing can be implemented without it. Also under the Act he has a clear duty to consult on this Code. Once that has happened then both Houses of Parliament have to approve the Code.
If the Secretary of State has failed to consult on the Code (or the consultation has been inadequate) he risks being judicially challenged. If he consults and then fails to address the issues raised, he risks political challenge.
Either would be a disaster for the current implementation plan of September 2014 - which is already failing to give schools the one clear term promised to them to prepare for new duties. Failing to adequately publicly consult on a Code is far more dangerous for our children and young people with SEN and disabilities.
We are in danger of ending up with a rushed and inadequate Code. Suggestions have been made that the “whole thing” should just be put into place and then a new consultation be held in a year’s time. We would gain the evidence as to where the holes are and new case law could be developed which could then be reflected in a revised Code. Is that not what the £12.4 million given to Pathfinder LAs so far was supposed to have done – gather evidence? The final report on the Pathfinder pilots is not due until September 2014.
This option is just not acceptable. First, this Government cannot bind a potential new Government into such a commitment. Second, why would you even potentially let vulnerable children and young people knowingly fail for at least a year and bad practice be established in LAs, schools and other professionals. Parents would much rather get this right for their children and young people than rush to meet the September 2014 deadline.