Children and Families Bill

Memorandum submitted by The  Richmond Parent Carers Action Group  (RPCAG) (CF 103)

Introduction to RPCAG

The  Richmond Parent Carers Action Group  (RPCAG) is an independent forum, set up in the borough of Richmond-upon-Thames by parents of children with additional needs, in order to help influence the development of services provided by the Local Authority for their children.

This submission focuses on Part 3 of the Children & Families Bill and captures the opinions, views and concerns of members of the RPCAG.


1. RPCAG considers that the Bill does not promote a culture of collaboration between parents and the authorities in question and that the process it defines is still one which is done to the child and its family rather than one which involves the child and family. More collaborative language could assist in addressing this problem.

2. RPCAG calls for the establishment, by statute, of a defined person to manage the process of assessing and creating an EHC plan and managing annual reviews and reassessments . Without such a person, it is not conceivable that the immensely complex new framework can function properly. In addition, the law should state that this person must work in the best interests of the child

3. RPCAG calls for measures to be included in the Bill to ensure proper collaboration and data-sharing between the separate Education, Health and C are p illars.

4. RPCAG calls for the position of children with special educational needs who are not eligible for an EHC Plan to be strengthened . In particular, schools should be required to provide the parents of such a child with a written report defining the provision made for that child. Furthermore, t he money provided to schools for such children should be ring-fenced, by law, to ensure that it is spent on meeting the needs of those children .

5. RPCAG calls for minimum national standards to be defined in relation to the form and content of EHC Plans, to ensure that EHC Plans are recognised by local authorities other than the issuing local authority, avoiding the need for reassessment if a child moves from one local authority area to another.

6. RPCAG calls for time limits to be included in all stages of the process, including the assessment stage, the stage relating to the creation of an EHC Plan and reassessment following annual review, to mirror the time limits in the current law. These time limits are crucial to ensure an efficient and predictable process .

7. RPCAG calls for central government to fund the transition of Statements into EHC Plans, to ensure that this happens in a timely and orderly fashion.


RPCAG requests that the Bill be enhanced to take account of the following:

1. Centring the Process on the Child

As a general comment, RPCAG does not consider that the language of the Bill promotes a child-centred approach and continues the tradition of something which is done to a child rather than a consultative and collaborative process. Examples of such language are contained in Sections 38(1) and 44(6) which specify that the local authority must "consult with the child’s parent or the young person about the content of the plan", rather than, for example, "working" with parents/carers and their child, to demonstrate that all input or submissions would have similar weight in the development and finalising of the plan.

2. Procedural Efficiency

Currently, the process of obtaining a Statement of Special Educational Needs and reviewing Statements, annually or otherwise, can be inefficient for those involved and complex, confusing and time-consuming for parents. In particular, the following aspects can render the process ineffective:

· When parents deal with education, health and care professionals, the process can be repetitive, in that the same information has to be provided multiple times to different people

· Some persons invited to appear at Statement meetings and reviews do not do so and/or they do not provide reports in a timely manner beforehand

· Currently, nobody has the authority to ensure that key education, health and care personnel appear at important meetings, such as annual review meetings

· Occasionally, some of those present at annual review meetings have not read the current Statement beforehand

· Some annual reviews do not make a clear recommendation for changes to the current Statement, rendering the purpose and outcome of the meeting unclear and necessitating significant additional work after the meeting

RPCAG considers that the new legislation represents an opportunity to address these issues and improve the process for all concerned. A more efficient and tightly-run process could save money and resources, by removing repetition and inefficiency from the system. The RPCAG considers the following aspects to be essential to the proper functioning of the new system:

2.1 The existence of a person to manage the process

The process for assessing whether a person should have an EHC Plan and the creation and maintenance of an EHC Plan is a very complex one, which requires personnel from at least three separate agencies to work together. The complexity arises not just because the three pillars have three quite distinct management structures, but also because they all employ different methodologies and terminologies to categorise children. The education pillar proposes "Universal+", "Targeted" and "Specialist" categories, for children with rising levels of special needs. The health pillar employs the same terminology, but the children covered by each category are different and, in addition, for a small number falls into an additional "continuing care" category. The social care pillar also has two categories of "child in need" and "child in need with family at breaking point". Needless to say, the definitions of these social care categories are different from categories used for the education and health pillars.

In the light of this complexity, it is not conceivable that the process of assessing, obtaining and reviewing an EHC Plan could work properly in the absence of a person who interfaces with all three management structures and who has some understanding of the above-outlined categories. The existence of such a person is essential to own and manage the process.

To some degree, this fact appears to be recognised: the draft of the SEN Code of Practice refers to the existence of a person who is "responsible for co-ordinating the information and the process" (see the paragraph following 6.5g) and Pathfinders are creating management roles as well, but these do not amount to an obligation for someone to manage the process. Specifically, the role is referred to in the Code of Practice only, not in the law, and the status of the person in question is ambiguously defined in the draft Code of Practice. Confusingly, the current draft of the SEN Code of Practice says that this person should be "impartial", but also "act in…best interests" of parents, which could give rise to varying expectations as to how this person will act.

RPCAG considers it to be essential that a manager role be created to ensure that the process works properly in every case. While the creation of such a role would need to be resourced, it should also reduce costs by removing repetition and inefficiency from the system.

RPCAG suggests that the law be amended and regulations be created to:

(i) Define the role of a manager to manage the EHCP process

(ii) State that the manager should work with parents/carers to act in the best interests of the child

(iii) Provide the manager with powers to ensure that representatives from education, health and social care make written submissions in a timely manner prior to assessments, the preparation of an EHC Plan and annual reviews and that they appear in person at meetings deemed by the manager to be essential.

2.2 Co-operation between different bodies

RPCAG considers that effective communication, co-operation and collaboration between education, health and social care and other agencies are essential for the system foreseen by the new law to work properly. Practically speaking, however, RPCAG considers that the law as currently defined is insufficient to drive a change in culture towards such a collaborative process.

Sections 28 and 31 of the draft law require co-operation between education health and care, but no framework is defined to ensure that this occurs, no time limits apply and the sanctions for not doing so are trivial (the most that can happen is that a written justification can be demanded for non-compliance). Furthermore, the sections of the law relating to the assessment and creation of an EHC Plan and annual review (Sections 36, 38 and 44) do not require that the local authority always to consult education, health and social care representatives, nor that representatives from each pillar should be required to input or be present at important meetings. We assume that this is an over-sight, since it is essential to have representatives from education, health and social care involved at every stage for the process.

RPCAG therefore suggests that:

(i) Regulations be created defining time limits, as foreseen by Section 31(4) and that these time limits be as short as practicable

(ii) Sections 36(4), 38(1) and 44(6) be amended to require that a representative from one each of education, health and care be consulted

As discussed above, the manager should have the power to require education, health and social care representatives to input and attend meetings that the manager considers to be essential.

2.3 Data-sharing

RPCAG considers it essential that data-sharing between different agencies and even between personnel within a single agency needs to be improved, to drive out costs and inefficiencies for the agencies involved and to make the process less burdensome for parents. This is one of the most important practical challenges to effective implementation, yet the new law does provide any assistance with it.

During discussions within Richmond Borough, it was clear that agencies may share data about a child, if parents provide appropriate consents, but that this on its own would be insufficient to facilitate the smooth flow of data from agency-to-agency. A further problem is the multiplicity of different databases involved and cultures which militate against data-sharing. In particular, it appears to be extremely difficult to gain access to the NHS’s "RIO" database, even for persons outside the NHS who have valid reasons to do so and data sharing within the NHS itself also appears to be sub-optimal. This problem needs to be tackled for the new framework to work effectively.

RPCAG therefore suggests that:

(a) Section 31 be amended by addition of a new sub-section which requires agencies to share data with one another, subject to parental consent.

(b) Regulations be created requiring agencies to work together to create an appropriate IT infrastructure to store assessments and EHC Plans and to develop inter-agency information-sharing protocols.

RPCAG notes that it is intended to include guidance on data-sharing within the draft SEN Code of Practice and requests that the above aspects be taken into account in drafting that guidance as well, but submits that inclusion in the draft Code on its own would not create a strong enough duty to drive a culture change, especially within the NHS.

3. Children who have special educational needs but who do not have an EHC Plan

RPCAG is concerned about the fate of children who have special educational needs but who, in future, will not have an EHC Plan. This is because the funding provided to schools to cater for the needs of such children is not ring-fenced (unless a governing body decides itself to ring-fence it). Although well-run schools will doubtless use this money appropriately, it is possible that, in a minority of schools, the money could be spent on other things, if appropriate safeguards are not put in place to prevent that from happening and to require schools to provide some measure of accounting for how this money is spent.

Section 22 of the Bill requires that all children with special educational needs be identified, but not that their needs be assessed. If their needs are not assessed, however, then it will not be possible to know if those needs are being met, nor whether money provided to schools to meet those needs is being spent appropriately. Some form of needs assessment is therefore essential.

RPCAG strongly supports the IPSEA proposal1 to mitigate this problem and additionally requests that the law specify that a written report specifying the provision be made available to parents. In addition, RPCAG requests that funding for children with special educational needs, but no EHC Plan be ring-fenced to ensure that each such child’s allocation is spent on them.

4. Form and content of EHC Plans

RPCAG believes that minimum conditions for the form and content of EHC Plans should be specified by the statute, in order that the EHC Plan be recognised by all other local authorities, thereby avoiding the need for reassessment. This will save resources and reduce the burden for parents. However, outside of such a core form and content, RPCAG supports the idea that local templates should be permissible, to allow them to meet local needs.

RPCAG supports the IPSEA proposal1 for a new subsection 37(3) and for regulations to set minimum national standards for the form and content of an EHC Plan.

5. Time Limits for Assessment

RPCAG strongly supports the IPSEA proposals1 in relation to this matter and does not consider that the time limits in the draft SEN Code of Practice are sufficient. The time limits currently provided under the law are essential to ensure an efficient and predictable process. In addition, RPCAG considers that a time limit should be placed on any reassessment under Section 44.

RPCAG strongly supports the IPSEA proposal to include time limits and also suggests that a new sub-section be added to Section 44 limiting the period for review to an appropriate period of time.

6. Transition of Statements into EHC Plans

EHC Plans are not the same as Statements, so it will not be possible simply to convert existing Statements into EHC Plans and a reassessment will be required in every case. Such reassessments will be time-consuming and costly and in times of shrinking local government budgets, it would not be reasonable to expect this cost to be met locally. It might be possible to draft transitional provisions allowing a phased transition to cushion the impact, although exactly how that could be done is not something that RPCAG members can envisage. In the absence of such cushioning transitional provisions, RPCAG requests that the cost of conversion of Statements to EHC Plans be funded by central government.

 April 2013

Prepared 24th April 2013