Children and Families Bill

Memorandum submitted by the Independent Parental Special Education Advice (IPSEA) (CF 23)
Part 3 of the Children and Families Bill on special educational needs
Introduction

IPSEA (Independent Parental Special Educational Advice) is a charity providing free legally based advice and support to parents in England and Wales who have children with special educational needs (SEN) and/or a disability. We have been advising parents for over 28 years, and therefore have a wealth of experience gathered over time and under changing legislation. We are recognised experts in SEN and disability discrimination law, providing independent services to thousands of parents each year. We are the largest single provider of advice and advocacy to parents taking a case to the SEND Tribunal.

We welcome the invitation from the Public Bill Committee to submit our evidence and views on the SEN provisions in the Bill to inform its scrutiny of the clauses.

After  scrutinising the legislation, we remain concerned that as they stand the provisions do not fully retain the current legal entitlement of children with special educational needs to have their needs assessed and then met.

We are also unsure that the Regulations, as much a part of the SEN framework of protections and rights as the Act itself, will be maintained in their current detailed and comprehensive form. If not, the assurances that parents have relied on from the Green Paper on that their protections will not be diminished will not be fulfilled.

The current framework is regarded as unfit for purpose, too slow and bureaucratic. However, much of this perception stems from abuse of the system rather than the system itself, and from inadequate policing of the performance of duties under it. Our evidence is drawn from our direct knowledge of many parents and families, some over years, and from our experience of using the levers in the system to make it work for those families’ children and young people, so as to provide good long-term outcomes.

Positive additions to the legal framework

 

· Extension of system to those aged up to 25 years.

· Extension of direct legal duties to cover academies.

· Pilot of appeal right for the child.

· Extension to non-maintained special schools of the duty to admit a child where they are named in the EHC plan.

Where the Bill may erode current rights

 

1 Health care provision and social care provision

Clause 21(5) says that health care provision and social care provision can be special educational provision if ‘made wholly or mainly for the purposes of … education or training’. This is important because in the Bill at the moment only the education section, containing what is defined as special educational provision, of the Education, Health and Care Plan is enforceable.

Clause 21(5) represents a step towards retaining the current case law definition of therapies as special educational provision but ‘wholly or mainly’ is too high a threshold and too rigid a barrier: Case law does not use ‘wholly or mainly’ but talks of a ‘spectrum’ or range of provision from the purely medical to the purely educational, with a determination being made on individual facts, London Borough of Bromley and Special Educational Needs Tribunal and Others, [1999] EWCA Civ 3038, (1999) ELR 260.

We there suggest this amendment:

In 21(5), omit the words "wholly or mainly"

2 Triggering duty to assess

Clause 22 of the Bill imposes a new duty on LAs to identify children and young people who have or may have SEN. If all children with SEN are identified as now, this means the duty applies to the 17% of children who currently have SEN but no statements as well as to the 2.8% who have statements, 19.8% in all (DfE statistical release, SFR 14/2012 12 July 2012).

However, the duty to identify the children and young people is only that – it is not a duty to identify their needs via assessment.

This duty will also not act, as Education Act 1996 section 321 does, as the first link in the chain towards obtaining a statement/plan, i.e. ensure a duty to identify in particular those children and young people for whom the LA must determine provision, currently 2.8%.

We therefore suggest the following amendment:

Number existing clause 22(1).

Add new 22(2):

"In particular, a local authority must identify and assess a child or young person who has, or probably has, special educational needs that require the authority to determine the special educational provision which any learning difficulty he or she may have calls for."

It also does not include all children and young people in need of health and social services if they do not have SEN.

IPSEA supports any amendment extending the duty to children and young people with medical and/or care needs but without special educational needs.

3 Requirement for time limits for assessment and advice during assessment

Currently the Education Act 1996 requires Regulations to prescribe time limits for the different stages of the process of assessment and statementing, i.e. the Act sets out these actions and requires Regulations to prescribe limits for local authorities (LAs) in:

· serving notices to do with assessment and the making and maintenance of a statement;

· making a decision whether or not to make an assessment of the child's educational needs;

· informing the parent or young person of the decision and right of appeal;

· where they are carrying out a statutory assessment the performance of that duty;

· deciding whether to make a statement; issuing the draft statement; and issuing the final statement.

These requirements are omitted from the Bill. In particular, Clause 36 of the Bill requires the LA to decide whether to assess and to inform the parent/young person of that decision, but there is no explicit requirement for that decision to be made and communicated within a prescribed time period. Clause 36(11) sets out what Regulations may prescribe, such as the period during which the parent/young person is ‘consulted’ before the decision is made, but does not include the bullet points above. We therefore think that the following amendment is needed to clearly restore these rights where assessment is concerned, otherwise delay could be indefinite.

Insert new 36(11) and (12):

"(11) Regulations must prescribe time periods for:

(a) serving notices to do with assessment;

(b) making a determination under subsection (3);

(c) where a local authority have served a notice under subsection (7) on a child's parent or young person, making a decision whether or not to make an assessment of the child's educational needs,

(d) informing the parent or young person of determinations in (b) and (c) above and of their right of appeal against a refusal to assess;

(e) and that where a local authority are under a duty to make an assessment, the performance of that duty.

(12) Provision made under subsection (11)-

(a) may be subject to prescribed exceptions, and

(b) does not relieve the authority of the duty to serve a notice, or make a decision or assessment, which has not been served or made within the prescribed period.

In addition, the current Act requires a minimum standard of professional advice to be sought during assessment. Again this is a right not carried forward into the Bill. We therefore suggest a new Clause 36(13):

(13) Regulations must require the authority, except in such circumstances as may be prescribed, to seek medical, psychological and educational advice and such other advice as may be prescribed.

4 The form and content of the Plan

The current Act requires statements to be ‘in such form and contain such information as may be prescribed’. Clause 37(4) of the Bill allows for (but does not require) regulations about ‘preparation, content and maintenance’ of Plans. Not form. The current Act’s Regulations are detailed and comprehensive, containing a model statement demonstrating the form and the content to be ‘specified’. We believe that the Bill must retain this requirement so that children’s and young people’s right to an adequate and nationally defined Plan is as strong as it is currently. We therefore suggest a new subsection 37(3):

EHC plans must be in the form and contain the information prescribed.

We hope that the new Regulations will be at least as detailed in their prescriptions as the current ones on which our families and we rely.

5 Parental/young person’s involvement during the Plan’s preparation: maintain current requirements

LA prepares and sends the draft Plan to the parent/young person

Clause 3 8(1) requires LA to ‘consult’ parent/young person during the preparation of the Plan. The manner of the ‘consultation’ is not defined. In any case, consultation at this stage (between the decision to make the Plan and the formal issue of a draft Plan) may lead to iterations of informal drafts and delay of the formal stage. This compares to the current obligation in the Act’s Schedule 27 to prepare and issue the draft statement within two weeks from the decision to make the statement. The current eight weeks from issue of draft to issue of final statement allows for parental representations, meetings, etc., and we believe works well when done properly. We suggest the following amendment:

Delete 38(1) and renumber subsections accordingly.

In 38(2) replace

"The local authority must then –"

by

"Where a local authority is required to secure that an EHC plan is prepared for a child or young person it must –"

After the draft is issued: period for parent’s/young person’s representations and request

The current Act defines the time period for making representations about the draft statement in Schedule 27(3)(2). Parents have 15 days from service of the proposed statement to make their representations and express a preference, or, if they have a meeting with the LA (again allowed for on the face of the Act), 15 days from that meeting or the last of more than one meetings. The Bill in Clause 38(4) merely requires LAs to specify a period within which parents/young people make their representations/requests. This period seems to be at the discretion of an LA in each case.

The Bill does not repeat the current law’s provision of the parent’s right to meet the LA and does not extend it to young people.

We suggest the following amendment:

Replace Clause 38(4) with:

"must be expressed or made within the period of 15 days beginning-

(a) with the date on which the written notice mentioned in subsection 2(b) was received by the parent, or

(b) if a meeting has (or meetings have) been arranged under subsection (5), with the date fixed for that meeting (or the last of those meetings)."

Insert new 38(5) and renumber accordingly:

(5) A parent or young person who has received a copy of a draft plan under subsection (2) may-

(a) make representations (or further representations) to the local authority about the content of the draft plan, and

(b) require the authority to arrange a meeting between him or her and an officer of the authority at which the draft plan can be discussed.

(c) Where a parent or young person, having attended a such a meeting, disagrees with any part of the assessment in question, he or she may require the authority to arrange such meeting or meetings as they consider will enable him or her to discuss the relevant advice with the appropriate person or persons.

(d) In this subsection-

"relevant advice" means such of the advice given to the authority in connection with the assessment as they consider to be relevant to that part of the assessment with which the parent or young person disagrees, and

"appropriate person" means the person who gave the relevant advice or any other person who, in the opinion of the authority, is the appropriate person to discuss it with the parent or young person.

(e) Any representations under subsection (5)(a) must be made within the period of 15 days beginning-

(f) with the date on which the written notice mentioned in subsection (2) was received by the parent or young person, or

(g) if a meeting has (or meetings have) been arranged (b) or (c), with the date fixed for that meeting (or the last of those meetings).

(h) A requirement under (b) must be made within the period of 15 days beginning with the date on which the written notice mentioned in subsection (2) was received by the parent or young person.

(i) A requirement under (c) must be made within the period of 15 days beginning with the date fixed for the meeting arranged under(b).

6 Finalising the Plan

Current law is again very detailed and the Bill is very sparse.

Time period: the current Act’s Schedule 27(5)(1) prohibits the LA from making the statement until after the period prescribed for the parent to make representations/prefer a school. The Bill is ambiguous. The LA must secure any changes at the ‘end of the period specified in the notice under section 38(2)(b)’, i.e. the period specified by the LA in their notice with the draft Plan sent to the parent/young person, which is the period in which the parent/young person makes their representations about the Plan and requests a specific school. That does not allow time for dealing with any changes as a result of the representations which the current law allows for.

No time limit in which to finalise a EHC plan. The current Act requires Regulations to prescribe time periods for issuing the final statement and current regulations (Regulation 17(3)) require the LA to finalise the statement within 8 weeks of the date on which the proposed statement or proposed amended statement was served. No limit is indicated for finalising the Plan in the Bill other than the period in which the parent makes their views known (which, it appears, is up to the LA to specify).

What can be changed between draft Plan and final. The current Act’s Schedule 27(5)(2), (2A) and (2B) allow only changes resulting from representations by the parent or, in the case of a statement being amended, by the LA. The draft provisions allow the LA a free hand to make ‘any changes it thinks necessary’.

We therefore suggest the following amendments:

Replace 39(7) with:

"(7) The final plan must be issued within the time period prescribed, subject to any exceptions specified, and –

(a) Where representations are made to a local authority under section 38([new]5), the authority shall not finalise or amend the plan until they have considered the representations and the period or the last of the periods allowed by section 38([new]5) for making requirements or further representations has expired.

(b) When a local authority finalises the plan, it may be in the form originally proposed (except for the matters required to be excluded from the copy of the draft plan) or in a form modified in the light of the representations."

7 Education otherwise

The Bill does not reflect the current Act on what the LA must do in specifying placement if school is not appropriate: Currently under section 324(4) of the Act the LA must ‘specify any provision for the child for which they make arrangements under section 319 [where school is inappropriate] and which they consider should be specified in the statement.’

The Bill omits this.

The current SEN Regulations repeat this requirement in the model statement in Schedule 2: the LA must specify ‘any provision for his education otherwise than at a school which the authority make under section 319 of the Act and consider it appropriate to specify’.

We therefore suggest this amendment:

In both 39(5) and 40(2), add:

"(c) specify any provision for the child or young person for which they make arrangements under section 56 and which they consider should be specified in the plan."

8 Reviews and reassessments

The Bill omits the current requirement on the LA to inform parents of rights of appeal etc. (‘as prescribed’) in a notice to be served within a prescribed period.

The current Regulations contain essential protections for parents on behalf of children and must be retained.

Clause 44(6) requires LAs to ‘consult’ parents/young people during reviews and re-assessments, whereas current law requires LAs to enable full participation.

We therefore suggest the following amendments:

Add to 44(1)

"(c) where the authority has conducted a review of a plan and has determined not to amend the plan, the authority shall give written notice of the determination and of their reasons for making it to the child’s parent or the young person.

(d) The parent or young person may appeal to the Tribunal.

(e) A notice under subsection 44(1)(c) must inform the parent or young person of the right of appeal and of the period within which the right may be exercised.

(f) A notice under subsection 44(1)(c) must be given to the parent or young person within the period of seven days beginning with the day on which the determination is made."

Amendment to find out what the intention is behind 44(2) and 44(4):

Insert new 44(3) and renumber:

"(3) If in any case where subsection (2) applies the authority decides not to comply with the request-

(a) they shall give notice in writing of that fact to the child's parent or young person, and

(b) the parent or young person may appeal to the Tribunal against the determination.

(c) the notice under subsection(3)(b) must inform the parent or young person of the right of appeal under subsection (3)(b) and contain such other information as may be prescribed."

Add to 44(7):

"(d) that where a local authority are under a duty under this section to serve any notice, the duty must be performed within the prescribed period.

(e) as to the manner in which reviews of plans are to be conducted,

(f) as to the participation in such reviews of such persons as may be prescribed."

9 Ceasing to maintain a Plan

The Bill does not contain the current Act’s requirements that LAs serve notices informing parents of rights of appeal etc. (‘as prescribed’) within a prescribed period. We suggest the following amendment:

Insert new 45(5) and renumber:

"(5) Where the local authority determine to cease to maintain a plan-

(a) they shall give notice in writing of that fact to the child’s parent or young person, and

(b) the parent or the young person may appeal to the Tribunal against the determination.

(c) A notice under subsection 45(5)(a) must inform the parent of the right of appeal under section 50 and contain such other information as may be prescribed."

10 Appeals

Overall the powers of the Tribunal in each type of appeal, currently specified on the face of the Act, are omitted, but ‘regulations may make provision’ about them. We ask that these are restored to the Bill by amending Clause 50:

Add new (4) to (8), and renumber:

"(4) On an appeal under subsection 2(a), the Tribunal may –

(a) dismiss the appeal, or

(b) order the authority to arrange for an assessment to be made in respect of the child or young person under section 36.

(5) On an appeal under subsection 2(b), the Tribunal may –

(a) dismiss the appeal,

(b) order the local authority to make and maintain such a plan, or

(c) remit the case to the authority for them to reconsider whether, having regard to any observations made by the Tribunal, it is necessary for the authority to determine the special educational provision which any learning difficulty the child or young person may have calls for.

(6) On an appeal under subsection 2(c), the Tribunal may –

(a) dismiss the appeal,

(b) order the authority to amend the plan, so far as it describes the authority's assessment of the child's or young person’s special educational needs or specifies the special educational provision, and make such other consequential amendments to the statement as the Tribunal think fit, or

(c) order the authority to cease to maintain the statement.

(4) On an appeal under subsection 2(c), the Tribunal shall not order the local authority to specify the name of any school or further education institution, or any provision under to be made under section 56 in the statement (either in substitution for an existing name or in a case where no school or further education institution is named) unless-

(a) the parent or young person has expressed a preference for the school or further education institution under section 39(1),

(b) in the proceedings the parent or the young person, the local authority, or both have proposed the school.

(5) Before determining any appeal under sub section 2(c), the Tribunal may, with the agreement of the parties, correct any deficiency in the statement.

(6) On an appeal under subsection 50(2)(d) the Tribunal may-

(a) dismiss the appeal, or

(b) order the authority to arrange for an re-assessment to be made in respect of the child or young person under section 44.

(7) On an appeal under subsection 50(2)(e) the Tribunal may-

(a) dismiss the appeal,

(b) order the authority to amend the plan, so far as it describes the authority's assessment of the child's or young person’s special educational needs or specifies the special educational provision, and make such other consequential amendments to the statement as the Tribunal think fit, or

(c) order the authority to cease to maintain the statement.

(8) On an appeal under subsection 50(2)(f) the Tribunal may-

(a) dismiss the appeal, or

(b) order the local authority to continue to maintain the plan in its existing form or with such amendments of-

(i) the description in the plan of the child's or young person’s special educational needs, or

(ii) the special educational provision specified in the plan,

and such other consequential amendments, as the Tribunal may determine."

11 Admission to special academies without a Plan

Clause 34(9) allows special academies to admit children or young people permanently without their having had their special educational needs properly assessed or an EHC plan put in place for them.

Currently any child that is placed in a special school can only be so placed by an LA following statutory assessment of their needs and the issuing of a statement of SEN naming that school. It cannot be right to allow a regression to pre-Warnock Report days, when children were found to have had difficulties wrongly identified and were placed in inappropriate institutions. In addition this breaches the right to an inclusive education set out in section 316 of the current Act, and reinforced by the statutory guidance Inclusive Schooling. The principle is surely right that all children should have, as far as possible, the right to an education in an ordinary school with their friends and family, in their community and culture. The current Act allows exceptions to that for statemented children where parents wish otherwise or the child’s presence in an ordinary school is incompatible with the education of other children, but insists that non-statemented children attend ordinary schools.

A practical unintended consequence of this measure may be that ordinary schools will feel relieved of their duties to engage properly with a child’s difficulties when that child or young person is a problem to them, and shuffle them into such special academies via ‘managed moves’. Special academies do not have to offer the national curriculum, may not offer what the child or young person would have received in educational opportunities in a maintained mainstream school, and may not (because the child or young person has not been assessed) be able to adequately provide for their SEN.

We therefore ask that Clause 34(9) is deleted.

12 Young person vs parent as responsible person

The Bill introduces a potential problem via its definition of young person in Clause 72, Interpretation: " ‘young person’ means a person over compulsory school age but under 25". That means anyone over the age of 16 at the lower limit.

The current Act defines child for the purposes of the SEN framework in section 312(5):

"In this Part- ‘child’ includes any person who has not attained the age of 19 and is a registered pupil at a school."

Throughout Part 3 of the Bill there is a problem in the switch of the parent’s rights to initiate and respond in all the processes to do with assessment and statementing (including appeals) to a ‘young person’ immediately the young person reaches end of compulsory school age (16). At the same time, parents remain legally responsible for a "child" under the Children Act until that young person reaches the age of 18.

We think that the Bill should reinstate the parent’s right in current SEN law to act on behalf of a young person who has not attained the age of 19, especially given that these young people by definition have learning difficulties. We note the age of majority is 18.

We do not see in the Bill how a young person who does not officially lack capacity (see Clause 68) but cannot or does not want to manage this process assigns their responsibilities to their parent or representative.

We believe it would be better to ensure that both parent and young person 16–19 years old receive all documents etc., and the parent can respond/appeal, go to annual review meetings, maintain a file of correspondence, etc., by providing an overlapping definition of the ‘child’s parent (‘parent’ is not defined in Clause 72). We therefore suggest the following addition to the clause:

"In this part, ‘parent’ has the meaning given by s576. References to the ‘child’s parent’ shall include parents of those young people over compulsory school age but below the age of 19."

March 2013

Prepared 13th March 2013