Friday, 2 May 2014

The revised draft Code of Practice: basis of IPSEA's submission to the DfE

So that parents and others can see what we will be submitting to the DfE, we are publishing this in advance of Tuesday's submission deadline.


Thresholds: misleading guidance

Initial identification of SEN

6.12 “Making higher quality teaching normally available to the whole class is likely to mean that fewer pupils will require such support. Such improvements in whole-class provision tend to be more cost effective and sustainable.”

May be read to imply that if schools retain their existing numbers of pupils with SEN, their teachers and their leadership are poor. This is a perverse incentive to remove the label and support from needy pupils.

6.34 “High quality teaching, differentiated for individual pupils, is the first step in responding to pupils who have or may have SEN. Additional intervention and support cannot compensate for a lack of good quality teaching.” As above, but it is against the precautionary principle to make this always the first step (see next point). The precautionary principle would require immediate response to a newly encountered difficulty by immediately adopting appropriate strategies/resources, sometimes this will entail more than high quality teaching. This paragraph provides a perverse incentive to delay/avoid identification of SEN. It also conflicts with the anticipatory duty placed on schools by the Equality Act 2010.

The first sentence of 6.18, "Persistent disruptive or withdrawn behaviours do not necessarily mean that a child or young person has SEN", damages the impact of the rest of the paragraph, as it seems to require that problem behaviour is both persistent and disruptive before assessment for SEN. Any abrupt change in behaviour, including silence and withdrawal, may be a reason to immediately screen for SEN. This paragraph needs to allow for such situations.
Similarly 6.19: “Where there are persistent long lasting difficulties schools should consider whether the child will benefit from being assessed for SEN.” That difficulties must be “persistent [and] long lasting” is not the trigger in law even for statutory assessment, let alone initial identification of SEN. We see this as part of an unhelpful pattern of emphasising delay before basic identification of SEN, let alone moving to involving external specialists or statutory assessment. There is no advice in these two paragraphs on how schools or individual teachers should react to sudden changes in behaviour that may call for all three types of screening, SEN, health and social services. Compare and contrast the precautionary principle at 5.17: “where there are concerns, there should be an assessment to determine whether there are any causal factors such as an underlying learning or communication difficulty.” There are many potential causes of changes in behaviour which need prompt response to prevent difficulties becoming persistent and long-lasting (as well as bullying and bereavement which are mentioned), e.g. onset of hearing or sight impairment, brain damage, epilepsy, diabetes, domestic violence, family breakup, eviction, etc. A better approach would be to advise comprehensive screening at the point of concern.

Trigger for external help

The early years chapter is contradictory. 5.33 stresses the paramount importance of no delay in making SEP, but 5.43 requires “little or no progress over a sustained period” in spite of the setting’s “purposeful action“, before it can even consider involving specialists. This is especially counter-productive advice where very young children are concerned. A better approach would be proactive, for example, “Early years providers should seek external advice when …”

Statutory assessment for EHC Plan

5.44 requires the setting to have “taken relevant and purposeful action to identify, assess and meet the special educational needs of the child” and the child to then fail to make good progress before it can consider requesting an EHC assessment. Again, this conflicts with the precautionary principle and ability to take prompt action, see also settings’ duty to anticipate and act proactively under the Equality Act. A better, simpler approach would be, for example, “Early years providers should request a statutory assessment when …”

9.139 “A local authority should conduct EHC needs assessments for children under compulsory school age when it considers that the special educational provision required to meet the child’s needs cannot reasonably be provided from within the resources normally available to their early education provider or school ..."
Please delete “reasonably” and “normally”. These are likely to confuse and do not stem from the law.

“… or when it seems likely that the child will need an EHC plan in school.”
Where this condition applies, the LA must conduct an EHC needs assessment, s36(8).

9.144 …” Where a child’s educational needs appear to be sufficiently severe or complex as to require attention for much of the child’s school life, or the evidence points to the need for specialist early intervention, then the local authority is likely to conclude that an EHC plan is necessary.”
This is wrong (and is wrong in the current Code). Severity and longevity of need are not what is in play in law, just the nature and amount of SEP required and whether it is necessary for the LA to secure it.

Decision to issue a Plan

There is a serious legal error in the Code’s guidance on what the LA should take into account in making this decision, at 9.53:
“the local authority should take into account:
  • whether the special educational provision required to meet the child or young person’s needs can reasonably be provided from within the resources normally available to mainstream early years providers, schools and post-16 institutions…”
The problem here is that the decision must be made on the facts of the individual child or young person’s case, not on blanket provision or policies. The only relevant facts are what is actually available for the child or young person in the setting they are in or the intended setting (if mainstream: the child/young person must have a Plan to be placed in special schools/colleges). We believe that a confusion has arisen between the definition of special educational provision (“provision that is additional to, or different from, that made generally for others of the same age in [mainstream]”, s21, which of course is provision for children/young people with SEN whether or not they have Plans), and the decision on whether a Plan is necessary. That necessity must be judged on the child/young person’s facts, not a national funding formula or local policy of resourcing.

Trigger for cease to maintain

9.148 “There is no entitlement to continued support or an expectation that those with an EHC plan at age 18 must be allowed to remain in education or training from age 19 to 25. However, a local authority should continue to maintain an EHC plan for a 19-25 year old where all of the following conditions apply”. 

The test in law for maintaining a Plan is its necessity as determined by LA. Paragraph 9.148’s opening sentence appears to conflict with the intentions of the policy initiative and the legislation on extending rights and entitlement to the age of 25. It renders doubtful the security of Plans and therefore education and training for over 18s. We regard it as a most serious problem and ask that it is amended.


Exclusions and other emergencies

What is open to LAs and providers in an emergency is referred to obliquely in Chapter 1 on principles at 1.29 (not where we would expect to find detailed guidance) but does not appear elsewhere. The ability to place a child or young person in a special school for assessment or as an emergency placement is vital for e.g. avoiding permanent exclusion or their being withdrawn from school. It is essential that guidance on what settings do in such situations appears in the relevant chapters on early years, schools and FE: exclusions are of course a major problem for children/young people with SEN/disabilities. This guidance should include moving to immediate statutory assessment and making provision immediately available, and should link to exclusions guidance.

LAs’ s22 duty to identify

How to carry out this with regard to children and young people with SEN is still not explained, and only referred to at 1.14–18. Health bodies and early years settings are obliged and advised to inform the LA of their identification of a child with SEN, but there is no such advice that schools and FE do so. 10.30 states “Local authorities do not have a duty under section 22 of the Children and Families Act 2014 to assess every home educated child to see whether or not they have SEN”, so how do LAs identify such children?
However, what the LA then does with such information is also unclear in the Code. Given an onerous legal duty arises from this awareness at s36(3), that must be clear. There must be guidance that an LA goes from identification under s22, therefore becoming responsible for the child/young person under s24, to making the decision as to whether a Plan may be necessary under s36(3). The LA must consult the parent or young person in making the decision and must inform them of appeal rights if they refuse to assess for a Plan.

Local Offer: seems to omit arrangements for identifying children/young people with disabilities but no SEN, 4.30, 4.32.

Catering for young people over compulsory school age with the greatest needs

There is little about how the education system will cater for young people who need to learn self-help and independence skills over compulsory school age. These do get a mention, but the focus is very weighted towards attaining academic qualifications which will not be appropriate for all.
This, coupled with documents relating to the funding of FE (e.g. in which courses are all aimed at qualifications or employment) raises fears that the commitment to young people over compulsory school age will not cater for those with the greatest needs.
Chapter 8 similarly is very qualification focused although para 8.32 of the draft does also allow for “independent living, being healthy adults and participating in society”. So there are mixed messages.

The work/qualifications ethos continues into Chapter 9:
9.63 – “the EHC plan should continue to be maintained where the young person wants to remain in education and clear evidence shows that special educational provision is needed to enable them to achieve the education and training outcomes required for a course or programme that moves them closer to employment. For example, by accessing a supported internship or apprenticeship.”

Other omissions

Chapters on joint commissioning and local offer should also advise on how all bodies involved perform their Public Sector Equality Duty within these new functions, with the requirement for progressive development by all partners prominent in them. In the local offer chapter it appears only with reference to early years at 4.37. It should be a purpose in 4.2.
The Local Offer is not clearly required to explain to parents/young people levels of provision in schools, and their relationship to national funding:
  • normal = AWPU (= “core offer”?)
  • SEN funding received by schools for all SEN pupils without Plans
  • Funding for Plans + high needs block
The information the Local Offer is required to give on these levels is less clear than the current requirements in the SEN information regulations.
The legislation list at the start of Chapter 5 might usefully refer to Section 63 which holds out the possibility of top-up funding for SEN in private nurseries/EY settings which may otherwise not be able to cater for SEN/D.

Legal errors

Schools’ duties: special schools

Chapter 6 is entitled “Schools” but states it covers only mainstream schools. However, it seems to omit mainstream schools’ duties to pupils with EHC Plans (no reference to annual reviews for instance).
Chapter 6 lists duties within its legislation list that are also owed by special schools:
  • to children with no plan (s34)
  • on informing parents, SEN information report, duty to pupils with medical conditions (s68, s69, s100)
  • and the duty to identify and respond to need via a graduated approach, with meetings with parents etc.
There is no guidance elsewhere on special schools’ duties to their pupils, or to the parents of those pupils.
Either this chapter should include special schools and be clear on the duties to pupils with EHC plans in both types of school, or the Code should include new material on these two aspects elsewhere.
1.30 (on children/young people without EHC Plans being admitted to special academies) does not explain the basis of their funding/support for SEN once there, nor does anything elsewhere in the Code do this. Are these pupils funded as mainstream pupils? In which case what is the advantage of such a placement to the pupil or the academy? Are there still duties to “assess, plan. do, review” for these pupils, and a duty to request assessment where needed?

Early years settings’ duties confused

5.11 – “All early years providers are required to have arrangements to identify and support children …”
This sentence follows para 3.67 of the EYFS, about SEN. But EYFS para.3.67 version does not include the words “identify and”. So it is not correct to suggest that there is a general requirement in the EYFS that settings have “arrangements to identify”, outside of the age two check and the EYFSP.
In the new version of the EYFS for September 2014, paragraph 3.67 (formerly called Equal Opportunities) no longer refers to equality of opportunity or requires providers to have a policy about equal opportunities. It refers instead to the Code – which is now referring back to the EYFS. This seems to be a drafting error.

NB the DfE’s response to the Consultation on the Primary Accountability Strategy has indicated that the EYFSP is to become non-statutory from 2016.

5.14 – When the health body gives parents the opportunity to discuss the opinion of the health body, it seems that this discussion will include educational advice and intervention and we are not sure how this or the specialist educational provision described in para 5.15 will be organised by the health body.
5.21 –“practitioners should develop a targeted plan to support the child, involving other professionals…”
This is not in the EYFS. The difficulty of this will be that EY settings do not have a delegated budget for SEN and the Free Entitlement funding is famously inadequate for core provision so additional needs are problematic for EY settings.

5.24 – is confusing in its reference to the EYFSP. It says it is “usually completed … in the final term …”.The correct position is that its completion, and the timing of this, are currently statutory. So it must be completed at present. It is proposed that it will cease to be statutory in 2016.
5.27 – refers to use of an early help assessment. We hear rumours that the CAF, which is currently used for early help assessments, may be withdrawn. If so, there may be a danger of the Code here becoming out of date quickly. Subject to that, it might be helpful to footnote a reference to Working Together, where early help assessments are explained.
5.28 – explains that where a child requires SEP, the setting should make that provision. Again we anticipate that this will be beyond the resources of many EY settings, .
5.30 – the need to plan for the four areas of need, and have specialist equipment or software, may likewise be problematic without a SEN budget.
5.54 – We note the comments concerning funding. It is not clear whether settings are expected to apply on an ad hoc basis for SEN top-up funding in relation to individual children or what is envisaged here.

Schools’ duties exaggerated or confused:

6.2 “Every school is required to meet the SEN of the children or young people that they support.”
Schools have only a “best endeavours” requirement. The absolute obligation to meet needs is that of an LA once a child/ young person has a Plan.

6.6’s reference to Local Offer requirements does not make clear that LAs are responsible in law for identifying pupils with SEN, not schools. Query does assessment here mean statutory assessment?

LA duties

1.1 does not paraphrase the law correctly. Section 19 contains no reference to SEN or disability and refers to singular children and young people and their parents, so the duty is owed to the individual, not the mass.
3.19: the diagram says an EHC Plan must include “any education, health or care provision reasonably required to meet a child/young person’s needs related to a disability or SEN”. There is no “reasonably” in law qualifying any required education provision, and part of social care provision, see Plan obligations in s37(2)(c) and (e).
What Plans must do is overstated: “EHC plans must specify how services will be delivered as part of a whole package and explain how together the services will deliver improved outcomes across education, health and social care for the child or young person.” This is not a duty that appears in the C&F Act or in draft Regulations. It is in any case a complex requirement which will be difficult to enforce. However, we support initiatives to encourage joining up.
9. 62 “EHC plans must be focused on education and training, health and care outcomes that will enable children and young people to progress in their learning and, as they get older, to be well prepared for adulthood.” Plans must by s37(2)(b) of the C&F Act contain a section on outcomes, but we cannot find any legal requirement that Plans must be focused on these outcomes, nor that they are restricted to “education and training, health and care outcomes”. The paragraph goes on to say that “plans can also include wider outcomes such as positive social relationships and emotional resilience and stability”, which is welcome, but we do not see the need for the mandatory restriction in the previous sentence to “education and training, health and care”. If Plans are to cater for the full range of likely outcomes for the full range of SEN and disability, then they must not privilege normative outcomes. Ambition is one thing, allowing for difference is another.
9.67 “In all cases, EHC plans must set out clearly the special educational provision that will enable the outcomes to be achieved.” This sentence is correct in law up until the relative clause. There is no requirement in the statute that the special educational provision must match outcomes. If long established case law on statements continues to apply here, provision must match needs, not outcomes.

Format of Plans: “as a statutory minimum, EHC plans must include the following sections, which must be separately labelled from each other using the letters below” (para. 9.60): These sections are not a “statutory” requirement. That requirement may be in the unseen Regulations. However, as we said above, we are supportive of this section of the Code.
9.75 "The local authority must send the draft EHC plan (including the appendices containing the advice and information gathered during the EHC needs assessment) to the child’s parents or young person and give them at least 15 calendar days to give views and make representations on the content."
Delete “at least”. Law is maximum not minimum 15 days.

9.211 “Transport costs may be provided as part of a Personal Budget where one is agreed and included in the EHC plan as part of the special educational provision.”
Transport is not SEP, cannot go into that section in Plan or be part of a special educational provision personal budget.


Confusion may arise from 1.27 which advises mainstream schools that they may not refuse admission of children and young people without Plans because schools do not feel able to meet needs, versus the same schools’ ‘offer’ of what support they can provide. 1.27 does not explain the case of children and young people with Plans: the operation of parent/young person’s right to mainstream regardless of need, with the expectation that LAs will supply any extra help via the Plan (case law). This section needs to link also to para 9.77 and possibly both should be located in the Schools chapter so that they can be clear about their duties to admit children with SEN, with and without plans.

Disclosure of EHC Plans

9.205: fifth bullet point: “disclosure to Ofsted inspection teams as part of their inspections of schools and local authorities”: does not mention Ofsted inspections of EY and FE providers, can these settings share Plans with Ofsted?

Confusion arising from terminology and jargon

“Assess” and “plan” in chapters on support for chidren and young people without EHC Plans. At e.g. 6.41, the school’s assessment should be distinguished from EHC assessment at 6.58.
If the “assess, plan, do, review” cycle applies to chidren and young people with EHC Plans, how often does the cycle happen within the 12 months max between Annual Reviews? As a minimum? Also surely for accountability of potentially large sums of public money notionally expended on resources owed by the LA to the individual child, better advice on record keeping is needed. Use of provision maps for such individuals is not appropriate.

Use of jargon

  • “Eligible child” not explained at 4.49.
  • “Core offer” at 6.37.
  • 6.64 “Meetings should, wherever possible, be aligned with the normal cycle of discussions with parents of all pupils”. What does “aligned with” mean?

Material in the wrong place

Detail on schools’ inclusion duties, especially admissions, in chapter on principles, 1.27, rather than in ‘Schools’.
Training duties on schools are in 4.32 and need repetition in the providers’ chapters.
9.139–145 Assessment judgements for children under 5 are not in the assessment section of Chapter 9, but follows the section on finalising and maintaining Plans. Should be earlier in Chapter 9 or in the early years chapter or both.
Chapter 9 is far too long, and could usefully be broken up into statutory assessment, drafting and finalising Plans, and maintenance of Plans.

Switch of rights at 16+

1.8 “LAs should normally engage directly with the young person rather than their parent … Most young people will continue to want, or need, the parents … to remain involved in discussions and decisions”
This is confused but very important: who do LAs engage with/write to? How do they determine this?

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