Changes to funding special needs via statements – bands not specificity?

Question: My local authority (LA), at a training event for parents yesterday (SEND Local Offer & Funding Training) told us that they will cease to quantify provision in statements of special educational need (SEN) in terms of hours but will instead refer to a 'banding'. Apparently this isn't their decision but is being forced upon them by the DfE via the way schools are funded from 1 Apr 13 and the Children and Families Bill.
They will now include the following in all new statements made and amended statements from 1 April:

For statements with 12.5 hrs but no 'top-up' funding:

"Therefore, child’s needs will be met from the school's own resources and arrangements detailed in the Local Offer"

For statements that will attract 'top-up' funding:

"Therefore, child’s needs will be met from the school's own resources and arrangements detailed in the Local Offer. In addition, Children's Services will provide funding based on Band X pro rata for the balance of the financial year."

I understand that under the current legislation LAs are required to clearly quantify provision in Part 3. Does the way schools are funded guidance and/or the new legislation allow LAs to refer to bands in statements?
This a significant step backwards if this is the case!

IPSEA's answer: ISPEA are very clear that the changes to how SEN is funded do not change the law on SEN and therefore any move to remove specificity from a child’s statement is not legal unless based on good evidence that that particular child no longer needs it. We have gone back directly to the DfE on this to check that there has been no change of policy and have received this response:

“You will recall that in 2010, in the guidance “Improving the quality of statements of special educational needs – Good practice in writing statements”, we stated that,

“11. Funding

Resourcing levels or funding are not special educational provision per se, and are not a substitute for a detailed level of provision.

The LA has a statutory duty to secure special educational provision for children with statements (‘arrange that the special education provision specified in the statement is made’) and to outline how it ensures that the provision is made. The LA’s arrangements for funding statements should be subject to separate information, and the LA’s funding scheme should be clear about what levels and type of special provision is funded respectively by the school and by the LA. Such information is a statutory requirement (The Special Educational Needs (Provision of Information by Local Education Authorities) (England) Regulations 2001). If necessary, LAs should review and clarify with their schools the responsibilities of each for SEN provision, including what schools are routinely expected to fund. These arrangements should be reinforced through the ways in which provision is described in Part 3.

This position does not change as a result of the funding reforms. What we are saying is that the new funding system places even greater emphasis on LAs and schools being clear about the types of special educational provision each is responsible for providing.”

IPSEA would be very happy to follow up directly with any LA that has adopted this approach to specificity in statements. Please let us know.

LA caseworker as key worker on single plan

Question: I have just been offered a Local Authority case worker as a key worker for my son's Single Plan. Would IPSEA consider a caseworker to be impartial in the planning/writing of a Single Plan ?

IPSEA’s answer: As we have said already on key workers and direct payments, IPSEA does not believe that key workers who are not independent of LAs will able to give robust advice to families and young people. In our experience LA caseworkers are well aware of their LA’s policies and criteria for statementing and resourcing provision, but not their legal basis. The law requires, for instance, Part 3 of the statement to be written without regard to resources or placement, but we frequently meet statements written the other way around, driven by what’s available rather than what the child needs, and often with a band or matrix position the only thing specified. It’s easy to see why LA caseworkers behave like that, especially when LA budgets are reducing, but it means parents should try to get independent knowledgeable advice. It will be useful to do the same checks on the single plan as on a statement, especially on its specification of provision.

However, please remember that even if you ensure that everything your child needs is specified, anything in a ‘single plan’ is not currently legally binding on an LA, and where there is any possibility that this may endanger a child’s provision, parents can opt for a statement.

SEN reforms: will we lose case law?

Question: When the new special educational needs law comes in to place, will we lose all of the case law when appealing?

IPSEA’s answer: Case law, or common law, in England makes up much of the substantive law that governs our lives, and that includes the area of special educational needs (SEN). Acts of Parliament set up broad frameworks, and then judges tease out the detail of how the law applies to particular cases, sometimes filling in gaps left by an Act’s drafters. Case law interprets the statutes in Acts of Parliament, and tends to be very literal – that is, judges look carefully at the meaning of words, often giving them their plain or natural meaning, but sometimes considering them in terms of the general purpose of the Act or the purpose of the Government as stated by a minister during Parliamentary debates.

So individual words can be very important, and judges may assume a different approach is intended when words are changed, as we argued for instance when it looked as though the duty to ‘specify’ special educational provision in Part 3 of the statement of SEN would be replaced by the duty to ‘set out’ the provision.

We are concerned that some areas are to be changed radically and therefore we may lose the case law which interprets the current legislation. An example is the definition of health provision in the proposed legislation, where we foresee a danger that we could lose the current case law which says that therapies can be educational provision (therefore enforceable) or health (therefore not enforceable) depending on the facts of the individual case. The draft legislation introduces such a broad definition of health provision that it could be seen by judges to move anything provided by the NHS into the health section of the Plan, and a local authority (LA) would not therefore have responsibility to ensure it was delivered.

Where there are requirements that have been omitted, such as the duty on LAs to respond within a time limit to a parent’s request for statutory assessment, then all case law interpreting the omitted law will cease to be relevant.

So the answer is that it depends on how much the legislation departs from current law. We are hoping that the Government, in keeping its promise to ensure that parents’ and children’s legal protections are maintained, will ensure that no rights based on case law are lost, given the extensive list parents and their advisers draw on when negotiating with LAs or appealing decisions.

Can special academies admit children without EHC Plans?

Question:  I recently heard Jane McConnell speak at a conference about the proposed SEN reforms and I was really concerned about the point she made re special academies being able to admit pupils permanently without their having been assessed or having an Eduation Health and Care (EHC) plan in place. Can you explain it further?

IPSEA’s answer: Yes, this is a subject that Jane spoke about at the Westminster Forum recently and it is of real concern to us at IPSEA. 

The current law is very clear: section 316(2) says “If no statement is maintained under section 324 for [a] child, he must be educated in a mainstream school”. There are a few exceptions: children without statements can be admitted to special schools for assessment, for instance, but the exceptions are temporary and admission must be with the agreement of all concerned, including parents. In the draft legislation, provision 14(9) allows the permanent admission of children and young people with SEN but no EHC plan to a special school or special post-16 institution that is an academy if allowed for in their funding agreement, i.e. the contract between the Secretary of State and the "governors" of an academy which sets them up and defines how they should be run. Legally the term "academy" includes free schools, studio schools and university technical colleges.

At this moment, as far as we are aware, the funding agreements of the few special academies that exist reflect the legal position on admission into maintained special schools, i.e. that they cannot admit a child permanently until the child has gone through the statutory assessment process to clearly define their special educational needs and also identify the additional special educational provision that they will need to be put in place to ensure that they are adequately supported in order to access an appropriate education. If special academies were able to opt out of this process we have the following concerns:

1. It would mark a real difference between the admission process to maintained special schools and special academies. Both are paid for by taxpayers’ money to take the same role within our education system but admission would be on very different terms. It would create a two-tier system within special schools. Special academies would not be under the same level of rigour to ensure a child's needs were meet and then reviewed. Nor do academies have to deliver the national curriculum or have qualified teachers.
2. If they have not been through a statutory assessment process no one can fully know and understand the extent of the child or young person’s needs and therefore would not be sure that the right special educational provision would be made for them in that school/institution. It would be easy to assume a child or young person had a certain learning condition or profile without professionals having fully explored the extent of their difficulties. Historically, many hearing-impaired children were assumed to have learning difficulties because they were not assessed properly. Many children were placed inappropriately in special schools, and in the wrong sort of special school, because of inadequate knowledge of their needs.
3. Children and young people could be "manoeuvred" into a special academy place without realising that they could be entitled to have their needs fully assessed and a Plan issued. Common examples would include where a child or young person is under threat of permanent exclusion: "Would it not be better to move your child to our special academy – you would not want a permanent exclusion to go on their record?"; where a parent is told "your child's needs are not great enough to warrant the Local Authority (LA) assessing them or putting a EHC plan into place". If the child has no EHC Plan, the parent has no qualified right to any maintained or non-maintained special school of their choosing, so cannot use it to obtain an alternative mainstream or special school.
   We are concerned that this would disproportionately effect children and young people from ethnic backgrounds where English is not their first language, where parents themselves are vulnerable and may also have a learning difficulty or those families living in poverty where access to information and advice is hard to establish.  
4. Special academies could become a dumping ground for children failing within the education system as by placing them in the special academy they would no longer be part of the accountability and success recognition process for a mainstream school, i.e. five GCSEs at grade C or above. We could see a situation where a academy chain has a group of mainstream academies within an area and could set a special academy up in which "difficult" children could be placed. We are not saying this would be the norm but we want to ensure that all children and young people with SEN who need it have their needs assessed and properly met.   
5. Without a child or young person having gone through  statutory assessment of their needs and obtaining an EHC plan, the special academy will not be able to access the higher level of funding from a LA to make provision to meet those needs. There will be a maximum of £10,000 which will be paid to the special academy from the Educational Funding Agency with which to make the provision for the child. This will act as an illegal "cap" on provision and will be resource-driven rather than needs-lead as required by law. There will be no incentive for a LA to assess the child and issue a EHC plan as this would mean that they would be responsible for paying a top-up to the special academy to make additional provision for the child.

Parliament’s Education Select Committee has to date not questioned anyone about this, including the Minister. The question that needs to be asked is, "What this will do to promote the successful inclusion of children with SEN/disabilities in mainstream schools?" This could lead to an erosion of the assumption that mainstream schools should be able to make provision for all children without a statement/Plan, and most of those with statements/Plans. It may well erode disabled children's right to a mainstream education through the back door.

When will the new SEN law apply?

Question: Please let me know when the changes in SEN law start to apply.  I was planning to request an assessment for my daughter in May this year, however I delayed it on the suggestion of the local pre-school liaison group. They have now recommended that I take the decision to request assessment after a multidisciplinary team reviews my daughter’s progress at the nursery. If I  request assessment by mid December 2012  or early Jan 2013 would it be considered under the current legislation i.e. the changes would not apply?

IPSEA’s answer: As things currently stand the proposed changes will not be implemented as law until 1 September 2014 at the earliest.

The time table is:

• December 2012: Education Select Committee complete its pre-legislative scrutiny of the draft legislation and report their findings
• Early 2013: Children & Families Bill issued including changes to SEN law - start of Parliamentary process
• During 2013: Consultations on and finalisation of revised SEN Regulations and revised SEN Code of Practice
• Spring 2014: Children and Families Bill receives Royal Assent and becomes an Act of Parliament
• September 2014: Children and Families Act enacted and starts to take effect

The transfer arrangements for children in the current system moving into the new system have not yet been confirmed - but if you have not already requested a Statutory Assessment of your child's needs by that date, then providing the new legislation has Royal Assent and is enacted from the 1 September 2014, you will be starting assessment in the new system.

IPSEA would not recommend that any parent waits for the new system to come into force before they request an assessment of their child's needs. If you have evidence that they need more and/or different support than that provided by the pre-school/school they currently or will soon attend, go ahead and ask now.

Why not just amend existing legislation?

Question: Do we actually need a new SEN Bill? If the draft legislation does not give us a combined assessment across education, health and social care – and just give us another education only system – why doesn’t the Government just amend existing legislation to include the things that are an improvement? Surely it would be easier than re-writing the current system and losing or confusing bits unintentionally!

IPSEA’s answer: This is an option we have been considering here at IPSEA – a lot. 

As currently drafted the SEN draft provisions are not fit for the purpose of putting into practices the ideas and aspirations of the original SEN Green Paper, including the combined assessment and single plan. We hope the actual Bill (to be published early next year) is a major improvement on the draft provisions. Even if all the existing rights of parents on behalf of children have all been restored, the question remains of whether the potentail benefits are worth a whole new bill and a complete overhaul of the system or if amending the current legislation would be the most sensible idea. 

The problem is that, once a Bill is published, the only options opponents have are either to attempt to have amendments made through lobbying members of both Houses of Parliament or to "kill" the Bill – and lose any improvements it did contain. There is no option at this point to bring up a third way such as amending current legislation. 

This is why the report from the Education Select Committee as part of the pre-legislative scrutiny process is so important. Once this is issued then serious consideration needs to be given to the direction things need to take.

At the moment the benefits of the proposals are the extension of the system to age 25 years for those who need a Plan, the bringing of academies into the legislative framework, the piloting of a child's right of appeal to the SEND Tribunal and the bringing of non-maintained schools under the same legal test for admissions for those with a Plan as maintained schools.

What we clearly do not yet have is a proposed system which:

1. Ensures that existing rights are protected including not adding new barriers to existing rights, such as compulsory mediation, and allowing special academies to admit children without a Plan, whose needs have not been assessed and for whom the LA has no legal duty to arrange/secure provision. 
2. Duties on health and social care to make this a combined assessment across all areas which identifies provision needed to meet a child's needs and to give a legally enforceable right to that provision. It is still an education-only plan as currently proposed.
3. Clearly defined support for those children who have SEN but do not require a EHC plan – potentially through the Local Offer – but which again is enforceable if not delivered.

If the SEN part of the Children and Families Bill addresses these issues satisfactorily and real improvements are made to the current system then a new system – with all the upheaval, cost and uncertainty that will result – will be worth it. We wait in anticipation.

Is IPSEA now reassured by the Minister's letter about the draft SEN legislation?

Question: Is IPSEA now reassured by the Minister's letter about the draft SEN legislation?

IPSEA’S answer:  We were really pleased that the Minister for special educational needs (SEN), Edward Timpson, has responded publicly to some of the issues raised by the SEN lobby around the draft provisions. His letter is here.

He repeated the reassurance that the protections in the current system would be carried forward into the SEN Bill, and that is really welcome. We hope to work very closely with the DfE to ensure that this happens and will again closely scrutinise the SEN Bill when it is published. This will include making sure that all the rights of parents and children that are currently included in the Education Act 1996 remain on the face of the new Bill and not pushed into Regulations (which do not receive the same Parliamentary scrutiny as the Bill) or a Code of Practice (currently the Government intends no Parliamentary scrutiny for this at all).

In relation to the specific points addressed by the Minister:

1. Right to request statutory assessment and duty of LA to respond within 6 weeks

It is good news that the Minister has confirmed he will amend clauses to clarify the right of parents to request assessment, but we seek further assurance that the LA’s duty to respond is included. Again we would hope to work closely with the DfE to get this right in the SEN Bill. We have already started to explore what these amendments could be. They will also need to include a specific duty on LAs to identify those children or young people who potentially need the level of support provided by an EHC plan and a duty on a LA to respond to a request from parents and school that they should be assessed to see if that is the case.

2. No timescales

We are clear that the SEN Bill must contain the time limits the current Act contains and require other time scales be detailed in the Regulations. Currently the Education Act 1996 requires Regulations to include time scales, e.g. for serving notices to do with assessment; decision to assess following a request by a parent or school; and completion of stages for  assessment and preparing and finalising the statement. Again we hope to work closely with the DfE on this.

3. There is no duty to make the provision in an EHC plan

The Minister is right that draft provision 21(1) contains an express duty on a LA to secure the special educational provision in a EHC plan. What he has not mentioned is that there is no duty on health or social care to make the provisions specified in the EHC plan. As currently, only the LA will have a duty to ensure that provision is made – and if the provision is not educational then they will not have to secure it. It is the failure of this provision to extend across all three areas that make the EHC plan remain an education only plan.  

4. Specify v set out

We applaud the Minister for asking officials to ensure this remains as specify.

5. Mediation

As currently drafted, parents must go through compulsory mediation before they can even register an appeal at the SEND Tribunal. The Minister states that he means this requirement not to delay appeals, but it must delay those parents who are prepared and ready to appeal once they receive the decision letter from their LA, who can currently appeal almost immediately. Mediation will probably not take place for two or three weeks at the earliest, and therefore the assertion that it will not cause delay is plainly wrong. In addition, the two-month time limit is a maximum, intended to allow parents to get advice and prepare their arguments and evidence. The addition of the need to arrange and attend mediation is a distraction from that necessary work. The requirement will both delay and interfere with parents’ right to start a judicial challenge to an LA’s decision. IPSEA strongly recommend that this provision is dropped, or at the very least amended to require compulsory consideration of mediation after a parent has successfully registered an appeal at the SEND Tribunal. This is something already being piloted by the SEND Tribunal and would not delay access to the appeal process. We have still not seen any evidence that compulsory mediation is effective – and are aware of it being trialled and dropped because of the administrative chaos it caused in another Tribunal’s work.

Those five issues are the ones the Minister addressed. We are glad that the Minister is giving parents and professionals a "very clear" message that he is happy to go back to consider drafting. If offered the opportunity, IPSEA are very willing to work closely with him and the DfE to ensure that this happens. It is essential that he talks to those who actually know and work daily with the law in this area to get it right as early as possible.

The extension of Pathfinders is also to be welcomed and is essential as the scant evidence we have available so far shows that pilots are nowhere as far along as had been predicted. At this moment very little detail about what aspects of the new proposals the Pathfinders are testing, how or with who. This is very concerning. It is time for clarity and transparency about what the Pathfinder pilots are doing.

The Minister's letter reflects steps in the right direction, but our key messages include other omissions of current rights and protections:

• as well as time limits, the Bill must contain requirements for professional advice and content of notifications;
• the right to mainstream where special academies are concerned must be restored;
• protections over the decision to cease to maintain a Plan must be restored;
• the Code of Practice must be consulted upon and subjected to Parliamentary scrutiny before it is approved.

We hope to move forward on these issues as well, but the answer to your question is, as you can see, that we are somewhat reassured but not totally!