Children and Families Bill

Memorandum submitted by the Department for Education (CF 51)

I am pleased to be able to send to the Committee initial drafts of both the regulations and Code of Practice to be made under Part 3 of the Bill.

During the second reading debate, a number of honourable members stressed the importance of the regulations and the Code in providing the detail of how the SEN clauses would be implemented. I undertook to provide drafts in time for the Committee consideration of Part 3 of the Bill to aid consideration of the clauses. I know that, like me, honourable members found the pre-legislative scrutiny process a positive and helpful one; and one that helped improve the legislation we have brought before Parliament. I hope that what is included here will help to reassure the committee about the coverage and strength of the primary legislative provisions.

In November I announced that we were extending our pathfinder programme so that we could maximise the learning from the programme to develop the regulations and the Code. The initial draft regulations and the initial draft of the Code I am providing today are, therefore, necessarily indicative. They show the broad content we expect them to cover but they will be developed considerably further before they are finalised in light of the experience of the pathfinders and the debates we have in Committee.

Of course, as with pre-legislative scrutiny, the process does not replace formal scrutiny. The final Code and regulations will be published in draft and subject to a formal consultation process before they are laid before Parliament. Subject to the passage of the Bill, I would expect this consultation to begin in the latter part of this year, and the regulations and Code to be laid in early 2014.

Publishing the indicative drafts of the regulations and Code in this early form also allows a focus on reforms that necessarily lie outside of the legislation, including maintaining protections and provision for those without an Education, Health and Care Plan.

I hope that the Committee will find further reassurance on those issues, both in terms of what we have set out and in the opportunity we have to continue to explore the issues.

Edward Timpson MP

Parliamentary Under Secretary of State for Children and Families

Indicative Draft: The (0-25) Special Educational Needs Code of Practice
This indicative draft Code of Practice is provided to Parliament to aid consideration of the SEN Clauses in Part 3 of the Children and Families Bill and the related draft indicative regulations. It is work in progress. 

Officials in the Department for Education are leading the process of drafting the Code of Practice. They will be producing a subsequent draft for formal consultation later in 2013 prior to a final draft being placed before Parliament for approval in time for it to come into force alongside the Children and Families legislation. 

This draft takes account of the widespread consultation that took place to develop the package of reforms included in the Children and Families Bill and the pre-legislative scrutiny of the reforms. It also reflects the provisions in the related draft indicative regulations. The draft Code and regulations are necessarily indicative and will be developed considerably further to reflect the passage of the Bill through Parliament as well as the emerging evidence from the pathfinder programme testing the SEN reforms in 20 pathfinders across England. 

Contents

The draft indicative regulations/policy statements for Committee relevant to this indicative draft SEN Code of Practice are: 

In Chapter 4 – The Local Off er 

The Special Educational Needs (Local Offer) (England) Regulations, Clause 30.  

In Chapter 5 - Early Years, Schools, Colleges and Other Providers 

The Special Educational Needs (SEN co-ordinators) Regulations, Clause 62;  

Remaining in special school or post-16 institution without an EHC plan Regulations, Clause 34;  

The Special Educational Needs (Information) Regulations, Clause 64.  

In Chapter 6 - Assessments and Education, Health and Care Plans 

The Approval of Independent Educational Institutions and Special Post-16 Institutions Regulations, Clause 41;  

Remaining in special school or post-16 institution without an EHC plan Regulations, Clause 34;  

Education (Special Educational Needs) (Assessment and plan), Clauses 36, 37, 44 and 45;  

Policy statement on regulations (Personal Budgets), Clause 48;  

Policy statement on regulations (Parents and young people lacking capacity), Clause 68;  

Policy statement on regulations (Transitional arrangements), Clause 107.  

In Chapter 7 - Resolving Disputes 

The Special Educational Needs (Appeal) Regulations, Clause 50;  

The Special Education Needs (Mediation) Regulations, Clause 51;  

Policy statement on regulations (Children’s Right to Appeal Pilots), Clause 53 and 54.  

   

1 Introduction 

1.1 A new system for special educational needs 

Our vision

Every child should be given the best chance to succeed in life .

Professionals who work with the fifth of children and young people who have a special educational need (SEN) should strive to enable them to achieve at school and college, and make a successful transition to adulthood, including finding paid work, living independently and participating in their community.

A new system for special educational needs

The Children and Families Bill and associated regulations take forward wide-ranging reform of the system for identifying, assessing and supporting children and young people with special educational needs and their families. Those reforms make provision for:

Children, and young people to be at the heart of the system;

Close cooperation between all the services that support children and their families through the joint planning and commissioning of services

Early identification of children and young people with SEN

A clear and easy to understand ‘local offer’ of education, health and social care services to support children and young people with SEN and their families

For children and young people with more complex needs, a coordinated assessment of needs and a new 0 to 25 Education, Health and Care plan (EHC plan), for the first time giving new rights and protections to 16-25 year olds in further education and training comparable to those in school.

A clear focus on outcomes for children and young people with Education, Health and Care Plans, anticipating the education, health and care support they will need and planning for a clear pathway through education into adulthood, including finding paid employment, living independently and participating in their community.

Increased choice, opportunity and control for parents and young people including a greater range of schools and colleges for which they can express a preference and the offer of a personal budget for those with an EHC plan.

1.2 The SEN Code of Practice 

This 0-25 Code of Practice sets out guidance on policies and procedures aimed at enabling children and young people with SEN to reach their full potential and support families to do the best for their children.

It reflects the provisions of Part 3 of the Children and Families Bill and associated regulations (indicative drafts of which have been published to help Parliament consider the Bill) and explains and provides guidance on carrying out the duties in the legislation.

1.3 The Purpose of the Code and who it applies to 

The purpose of the Code

The SEN Code of Practice is statutory guidance that provides practical advice on how to carry out statutory duties to identify, assess and make provision for children and young people’s SEN as set out in the Children and Families Bill (currently before Parliament).

The Code also sets out how legislation and regulations concerning children and young people with disabilities works alongside this.

Whilst this document aims to support effective decisions it cannot provide detailed advice for every individual case. The Code of Practice is framed so that it is easy for all interested parties to navigate to understand the statutory duties and provides guidance on how to fulfil those statutory duties.

References to statutory duties

In this Code of Practice where the text uses the word MUST this refers to a statutory requirement.

In this Code of Practice where the text uses the word SHOULD this refers to guidance which is a non-statutory requirement.

Definitions of special educational needs (SEN) and disability

Definition of special educational needs (SEN)

A child or young person has SEN if they have a learning difficulty or disability which calls for special educational provision to be made for them. A child of compulsory school age or a young person has a learning difficulty or disability if they:

(a) have a significantly greater difficulty in learning than the majority of others of the same age; or

(b) have a disability which prevents or hinders them from making use of educational facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.

(c) a child under compulsory school age has special educational needs if they fall within the definition at (a) or (b) above or would so do if special educational provision was not made for them. Clause 20 Children and Families Bill

Definition of disability

A child is disabled if he is blind, deaf or dumb or suffers from a mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed. Section 17 (11) Children Act 1989

A person has a disability for the purposes of this Act if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. (Section 6), Equality Act 2010

Who the Code applies to

This Code of Practice is statutory guidance for organisations who work with and support children and young people with SEN and their parents, such as:

local authorities (education, social care and relevant housing and employment services)

early years providers

schools

further education colleges

sixth form colleges

Academies

independent special schools and independent specialist providers

pupil referral units

the NHS Commissioning Board

clinical commissioning groups

NHS trusts

NHS foundation trusts

Local Health Boards

SEN Tribunal (see 7.7)

[Note: Further information to follow on how the document is structured, how to use the executive summary as a high-level guide, how statutory duties are highlighted for ease of reference and how best practice case studies can be found].

1.4 Roles and responsibilities 

The new SEN system will mean new ways of working and a strong focus on improving outcomes for children, young people and support for them and their families.

Good quality teaching at every stage in a child and young person’s journey through early education, school, further education and training is vital.

Health bodies have a vital role to play in collaborating with, and supporting, education and care providers in meeting the needs of children with SEN, as well as their general responsibility for ensuring the health and wellbeing of children and young people. The reforms of the NHS introduced by the Health and Social Care Act 2012 have enhanced the potential for the NHS to exercise these roles; the reforms of SEN commissioning introduced by the Children and Families Bill build on these to strengthen the role of the health sector in meeting the needs of this group.

Clinical Commissioning Groups (CCGs) and, where responsible for children and young people with SEN, the NHS Commissioning Board, will be full partners in the new arrangements for securing the provision to meet these needs.

[Note: This section and those that follow will be developed to include more on the respective roles of professionals in education, health and social care towards children and young people with SEN including a table on roles and responsibilities]

1.5 Related legislation, regulations and guidance 

Legislation and regulations

The SEN provisions in the Children and Families Bill are supported by the [xxxx] regulations covering the key areas of reform [See indicative regulations published alongside this draft of the Code of Practice.]

Evidence suggests that approximately 75% of disabled children have a special educational need. There are further duties on schools and colleges in relation to children and young people with disabilities under the Equality Act 2010 and duties on health and social care providers under the Health and Social Care Act 2012 and the draft Care and Support Bill. This Code should be used in conjunction with guidance relating to [Equality Act 2010 and xxxx regulations] to help ensure that all organisations meet their responsibilities for disabled children and young people.

The Health and Social Care legislation and current Adult Social Care legislation

[Note: Further information to follow on what this legislation means for organisations in the context of the Code of Practice.]

Related guidance

This Code is complemented by a number of other guidance documents. This is not an exhaustive list, but organisations will find it particularly helpful to consider:

Working Together to Safeguard Children, is statutory guidance which sets out sets out what is expected of organisations, individually and jointly, to safeguard and promote the welfare of children. This includes a detailed section on the process for assessment including how assessments for children and young people’s social care needs can be best coordinated with the other elements of their education and health assessments and describes best practice in local protocols for assessment.

Equality Act 2010 advice for school leaders, is non-statutory advice from the Department for Education. It has been produced to help schools to understand how the Equality Act affects them and how to fulfil their duties under the Act (including the reasonable adjustments to make for disabled pupils set out in detail in Chapter 5).

[Note: Further information to follow on other guidance that is relevant to matters covered in the Code, including key guidance on support for disabled children.]

1.6 Principles underpinning the Code and the new system 

The legislative framework for the new SEN system and the detailed guidance in this 0-25 Code of Practice are underpinned by a number of principles:

Early identification of needs so that professionals can intervene early with the most appropriate support for a child and their family

High expectations and aspirations for what children and young people with SEN and disabilities can achieve, including paid employment, living independently with choice and control over their lives and support and participating in society.

Focus on the outcomes that children and young people and their families want to achieve, so that all decisions are informed by these aspirations.

The views and participation of children and their parent/carer and young people are central and supported throughout the system, and person-centred planning is used to place children and young people at the heart of the system.

Choice and control for young people and parents over the support they/ their children receive, including greater choice of schools and colleges and personal budgets to tailor services.

Education, health and social care partners collaborate so that a coordinated and tailored support can be provided to children, young people and families.

Clarity of roles and responsibilities to ensure that collaboration goes hand in hand with accountability to fulfil duties.

High quality provision to meet the needs of most children and young people , alongside rights for those with EHC plans to say where they wish to be educated.

The skills, knowledge and attitude of those working with children and young people are central to achieving excellent outcomes.

This Code explains how all the organisations on which children and young people with SEN rely can bring these principles to life in fulfilling their statutory duties.

1.7 Implementation of the new Code of Practice 

From xxxx date all those organisations listed at 1.3 must have regard to this Code of Practice. This means that whenever decisions are taken relating to children with SEN, consideration must be given to what the Code says. Bodies must fulfil their statutory duties towards children with SEN in the light of the guidance set out in this Code of Practice (and the duty to have regard to this Code will continue for its lifetime).

All those organisations listed at 1.3 need to be able to demonstrate in their arrangements for children and young people with SEN, that they are fulfilling their statutory duty to have regard to this Code.

2 A Family Centred System 

2.1 Introduction 

Parents know their child best. Equally, children and young people are well placed to reflect on their experiences, their needs and their aspirations. For these reasons, at the core of the Children and Families Bill is the expectation that local authorities and educational settings place parents and young people at the heart of the processes and decisions that will affect the lives of children and young people with SEN.

[Note: Paragraph to be included here with references to where the other chapters have specific information about how children, young people and their parents are at the heart of the system]

Local authorities must ensure that parents and young people are involved when they are:

planning and reviewing the local offer;

reviewing special educational and social care provision;

drawing up individual EHC plans, and in reviews and reassessments.

Schools and colleges need to ensure that they fully engage parents and young people with SEN when drawing up policies that affect them. Pupil forums should always ensure that there is representation from pupils with SEN. Schools and colleges should also take steps to ensure that parents and young people are actively supported in contributing to assessment, planning and review processes.

The knowledge and understanding that parents have about their child is key information that can help teachers and others to meet their child’s needs. Enabling parents to share their knowledge and engage in positive discussion instils confidence that their contribution is valued and acknowledged. At times, parents, teachers and others may have differing expectations of how a child’s needs are best met to enable them to progress and achieve. Sometimes these discussions can be challenging but it is in the child’s best interests for a positive dialogue between parents, teachers and others to be maintained to work through points of difference and agree outcomes. It is important to engage directly with young people to discuss their needs, and plan how they can achieve the best outcomes.

2.2 Person-centred planning 

A key approach that ensures that parents and carers, children and young people are actively placed at the heart of the system is person centred planning. A person centred approach to planning means that planning should start with the individual (not with services), and take account of their wishes and aspirations, and the support they need to be included and involved in their community. It aims to empower parents, children and young people so that they have more control over assessment and decision-making processes. It enables continual listening and learning, focusing on what is important to someone now and in the future, and acting on this in partnership with their family and their friends.

Family or person-centred planning uses a number of techniques, all of which aim to reflect how the person communicates and help them to outline their needs, wishes and goals. Some of the central features of person-centred methods and approaches are:

focusing on the child or young person, not their needs or diagnostic label;

using ordinary language and images, rather than professional jargon;

actively highlighting a person's strengths and capacities;

strengthening the voice of the person, and those who know the person best to say what they have done, what they are interested in and what outcomes they are seeking in the future;

tailoring support and personal budgets around the person’s plan.

Using these approaches, educational settings, professionals and local authorities need to ensure that parents, children and young people are genuinely involved in planning, review and decision-making processes. This should then inform commissioning decisions for both support and opportunities; deliver a responsive local offer and for those that need them ensure that EHC Plans are co-produced and reflect aspirational and achievable outcomes for the individual.

A useful resource for that provides advice for using person-centred thinking, planning and reviews in schools and transition is available at: http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/documents/digitalasset/dh_115246.pdf .

2.3 Parent Partnership Services 

Parent partnership services provide impartial information, advice and support to parents of children and young people with SEN so they can make appropriate, informed choices. These services should be available to all parents of children and young people with SEN. Parent partnership services provide information to parents about the law on SEN and local policy and practice and are well placed to provide information and support to parents about the assessment process for an EHC plan. They also work with schools in promoting positive engagement with parents of children and young people with SEN and disabilities.

Each local authority commissions a parent partnership service. Many services are delivered at arms-length from the local authority, with some being delivered by another provider, often from the voluntary sector.

Effective parent partnership services have the following features:

a confidential service for parents providing impartial advice and guidance;

staff trained in the legal framework who inform and advise parents and also provide information in leaflets, on their website and in other languages;

providing access to additional trained support, such as volunteers, for all parents who request it, including support about appeals to the SEN Tribunal;

clear terms of reference and a development plan setting out needs and priorities for the service and its staff;

providing support and training for parents to (actively) participate in local strategic groups and develop and review local children’s services and SEND policy;

located in easily accessible premises that are perceived by parents as independent of the local authority.

Local authorities must ensure that advice and information is offered to young people with SEN directly. Some local authorities already commission services which work directly with young people.

Details of local parent partnership services can be found at www.parentpartnership.org.uk and information about standards for parent partnership services are set out in http://www.parentpartnership.org.uk/documents/parent-partnership-services .

Parents serving in HM Armed Forces have access to an information advice and support service through the MoD's Directorate Children and Young People Children's Education Advisory Service (DCYP (CEAS)): https://www.gov.uk/childrens-education-advisory-service .

2.4 Parent Carer Forums 

It is important to look at information about all children collectively at a strategic level.

Parent carer forums have been established in most areas and work with local authorities. Parent carer forums are local groups made up of parents and carers of disabled children who work alongside local authorities, education, health services and other providers to make sure the services they plan and deliver meet the needs of disabled children and families. There should be a steering group of parent carers who help to lead the forum and listen to the views of other parent carers in the local area to make sure they know what is important to them.

Effective parent participation happens when parents are enabled to work alongside professionals to ensure that:

the engagement of parent carers in the authority is valued, planned and resourced;

The parent carer forum offers proactive and on-going leadership;

the participation of parent carers is evident at all stages in the planning, delivery and monitoring of services;

the function of the parent carer forum to parents and providers;

there is genuine partnerships working, and user/ provider experiences are co-presented;

the contribution of parents is professionally valued through, for example, policies of reward, recognition and remuneration;

there are clearly described roles for parent representatives and

plans are in place for on-going recruitment and training.

There should be co-ownership of these aims between local authorities and parents to mark progress and build trust. Effective parent participation can lead to a better fit between families’ needs and service provision, higher satisfaction with service delivery, reduced service costs (as long term benefits emerge), better value for money decisions and less conflict between providers and those dependent upon services.

Local authorities and other service providers should work in partnership with parent carer forums in:

preparing and reviewing their local offer;

reviewing and planning SEN provision;

the joint commissioning of services.

Schools and colleges may also find their local parent carer forum a helpful resource in contributing to the development of their policies and practices for supporting children and young people with SEN and involving families.

[Note: Further information to follow on support provided for families from Health and Social Care]

3 Education, Health and Care: Integration, Joint Commissioning and Co-operation 

3.1 Education, Health and Social Care – working together for positive outcomes 

Children and young people with SEN need integrated, family focused support from a range of agencies. The Children and Families Bill places duties on local authorities and Clinical Commissioning Groups (CCGs) to support this.

Integrated services

Local authorities are required by clause 25 of the Children and Families Bill to exercise their duties and powers under the Bill with a view to ensuring the integration of special educational provision with health and social care provision where they think this would promote the wellbeing of children or young people in their area who have SEN or improve the quality of special educational provision. The wellbeing of children and young people includes:

their physical and mental health and emotional wellbeing;

protection from abuse and neglect;

control by them over their day to day lives;

participation in education, training or recreation;

social and economic wellbeing; domestic, family and personal relationships; and

their contribution to society.

Joint commissioning

Clause 26 of the Children and Families Bill requires local authorities and their partners CCG to commission services jointly for children and young people with SEN, both those with and without EHC plans. Those arrangements could involve joint funding agreements or pooled budgets. The details are decided locally but all local authorities and their partner clinical commissioning groups must make arrangements for considering and agreeing:

The education, health and care provision reasonably required by children and young people with SEN;

What education, health and care provision is to be secured and by whom;

What advice and information is to be provided about education, health and care provision and by whom and to whom it is to be provided;

How complaints about education, health and care provision may be made and are dealt with; and

Procedures for ensuring that disputes between local authorities and clinical commissioning groups are resolved as quickly as possible.

The joint commissioning arrangements must include arrangements for:

securing Education, Health and Care assessments;

securing the education, health and care provision specified in EHC plans; and

agreeing personal budgets.

Local authorities will provide Information about the services that result from joint commissioning arrangements in their local offer.

Children, young people and their families should be at heart of this process. The joint commissioning duty will help ensure that local councils, health professionals and volunteers come together to organise services, and set out a clear expectation of what parents, children and young adults with SEN can expect.

[Note: When the duty on health commissioners to ensure provision of healthcare services specified in Education, Health and Care Plans has been cleared by the Committee considering the Children and Families Bill it will be referenced here]

Co-operation

A local authority in England and its partner clinical commissioning groups must make arrangements to deliver the education, health and social care provision for 0-25 year old children and young people that the LA is responsible for who have SEN. To do that, the local authority must work with:

children and young people with SEN, and the parents of children with SEN, in its area;

the governing bodies of maintained schools and maintained nursery schools in its area;

the proprietors of Academies in its area;

the governing bodies, proprietors or principals of post-16 institutions in its area;

the governing bodies of non-maintained special schools in its area;

the advisory boards of children’s centres in its area;

the providers of relevant early years education in its area;

the governing bodies, proprietors or principals of other schools and post-16 institutions in England and Wales that the authority thinks are or are likely to be attended by children or young people for whom it is responsible;

a youth offending team that the authority thinks has functions in relation to children or young people for whom it is responsible;

such other persons as the authority thinks appropriate.

Local authorities also have a duty to ensure that there is suitable education and training for young people in their areas, including for those children and young people who are unable to attend school, for example, due to health needs.

The arrangements for joint commissioning for children and young people with SEN will draw on:

the local needs identified by Health and Wellbeing Boards in their Joint Strategic Needs Assessments, and

the agreed priorities of the Joint Health and Wellbeing Strategy.

Each CCG will determine what services must be provided to meet the reasonable health needs of the children and young people for whom they are responsible. At a population level, these services will be reflected in the local offer of services published by the local authority [1] . However, a CCG may also commission a specific service to meet the needs of a child or young person, based on the assessment of the child or young person’s needs and consideration of their individual case.

The local authority and the partner CCG(s) have a statutory duty to consider the extent to which children and young people’s needs could be more effectively met through partnership arrangements under section 75 of the NHS Act 2006. They must also have regard to the NHS mandate published by the Secretary of State (and any guidance issued by the Secretary of State) and, must involve the Local Healthwatch organisation for the area of the local authority, and the people who live or work in the area.

The objectives in the NHS Mandate include:

improving partnership across different services for children and young people with SEN or disabilities. The Board has a responsibility to ensure that they have access to the services identified in their agreed care plan;

giving parents of children who could benefit from it the option of a personal budget based on a single assessment across health, social care and education;

improving integration across health services, including the transition between children and adults services;

health services working with wider stakeholders, such as schools, to improve health outcomes;

mental health having the same importance as physical health throughout the NHS, and an emphasis on increasing young people's access to mental health services.

Involving children, young people and their families

Both clinical commissioning groups and the NHS Commissioning Board must develop effective ways of harnessing the views of patients and the public so that commissioning decisions on services for children and young people with SEN are shaped by people’s experiences and aspirations and focused on helping achieve agreed outcomes.

The integrated arrangements for commissioning services for children and young people with SEN must promote the involvement of children and young people, and their parents, carers and representatives in decisions which relate to their care, and in the development and review of a local offer of services, derived from commissioning plans which reflect the strategic participation of local young people and their families. CCGs will want to engage with Healthwatch organisations, patient representative groups, Parent-Carer forums and other local voluntary organisations and community groups to do this.

3.2 Keeping provision under review 

Joint commissioning is an on-going process and local authorities and their partner CCGs must keep the arrangements under review.

Local authorities also have a duty to keep under review the special educational provision and social care provision in their areas for children and young people who have SEN and the provision made for children and young people from their areas that are educated out of the area. The local authority will do this by working with the partners to their joint commissioning arrangements.

3.3 Working in partnership 

Health services

Local authorities and CCGs will want to consider how best to integrate the commissioning of services for children and young people with SEN with the CCG’s broad responsibility for commissioning health services for other groups, and the local authority’s responsibility for health protection and health improvement for the local population. The local authority in particular has responsibility for securing a range of public health services which may be relevant for children and young people, and will want to consider how their commissioning and provision can be aligned with the arrangements for commissioning services for children with SEN: for example, the Healthy Child Programme for pre-school and school-age children, including school nursing. [1]

Designated Medical Officer

The designated medical officer for SEN (who might be an employee of an organisation such as a CCG or NHS Trust), has responsibility for co-ordinating the role of the health body in statutory assessment. The officer must work strategically across health, social care and local government, and have good relations with local commissioners who are partners in the joint arrangements for SEN, working to ensure effectiveness in co-operation, and encouraging and supporting the optimum use of flexibilities for joint working (e.g. through partnership arrangements and pooled budgets).

They must provide a means for the local authority to access expert medical advice – for example, on whether or not a child can attend school, or on medical evidence provided in support of a school application - but may also be required to provide or facilitate access to, advice or support for the health community on SEN, particularly when health services are preparing reports on children. Whilst the advice and support may be provided by a number of health and care professionals as appropriate, the designated medical officer must be an identified, qualified and registered medical practitioner, with the appropriate training and/or experience to exercise this role in relation to children and young people with SEN.

The designated medical officer should ensure all early years providers, schools and colleges in the local authority have a contact for seeking medical advice on children who may have SEN, and should ensure other agencies are fully engaged with arrangements for ensuring appropriate statutory notifications are made. For example, the designated medical officer must ensure that there are arrangements in place to ensure local health services (including primary medical services and secondary care) are able to inform the local authority of children who they think may have SEN.

Social Care Services

Social care teams have a range of duties and responsibilities towards children and young people with SEN. In particular, they should:

Provide early years providers and schools with a contact for the provision of social care advice on children and young people with SEN;

Co-operate (with the local authority) in drawing up its local offer;

Undertake their duties to identify children and young people with SEN;

Respond to requests for advice for an EHC plan within required time limits;

Make available social care provision specified in the plan;

Undertake reviews of children and young people with plans where there are social care needs.

Social care departments may find it useful to designate an officer or officers to support their social care teams in undertaking these duties and to act as the central point of reference for the local authority’s SEN teams on matters related to social care.

[Note: This chapter will be developed to include more information on the roles of health and social care professionals in integrating, commissioning and reviewing services. Further information to be provided here in relation to duties of Adult Social Care services towards 18-25 year olds with SEN and EHC plans who are entitled to adult care]

4 The Local Offer 

[Draft indicative regulations for Committee relevant to this chapter are:

The Special Educational Needs (Local Offer) (England) Regulations, Clause 30.]

4.1 What is the local offer? 

Local authorities must publish, in one place, information about provision they expect to be available in their area for children and young people from 0 to 25 who have SEN.

The local offer must include both local provision and provision outside the local area that the local authority expects is likely to be used by children and young people with SEN for whom they are responsible, including relevant national specialist provision. For example, if an FE college in a neighbouring authority takes students from the "home" local authority then it should be included.

The local offer has two key purposes:

To provide clear, comprehensive and accessible information about the support and opportunities that are available; and

To make provision more responsive to local needs and aspirations by directly involving children and young people with SEN, parents and carers, and service providers in its development and review.

The process of developing the local offer is intended to help local authorities to improve provision. The local offer should not simply be a directory of existing services.

The local offer should be:

Engaging: local authorities must involve parents, children and young people in developing and reviewing the local offer and should cooperate with those providing services and education. Effective parent participation happens when parents have conversations with and work alongside professionals in order to design, develop and improve services

Accessible: the local offer should be easy to understand, factual and jargon-free. It should be structured in such a way that relates to young people’s and parent’s needs (for example by broad age category or by type of provision). This should be developed with local families.

Transparent and comprehensive: parents and young people should know what support is available across education, health and social care from 0 to 25, how to access it (including eligibility criteria where relevant), how decisions are made and who is accountable. The local offer should include details of where to go for information, advice and support, as well as how to make a complaint about support, or appeal against decisions.

The [xxxx] Regulations provide a common framework for the local offer. They specify the requirements that all local authorities must meet in developing, publishing and reviewing their local offer:

The information to be included

How the local offer is to be published

Who is to be consulted about the local offer

How children and young people with SEN and parents will be involved in the preparation and review of the local offer

The publication of comments on the local offer and the local authority’s response

4.2 What must be included in the local offer? 

Local authorities must include information about all the areas specified in the Regulations. Local authorities are also encouraged to include wider information, particularly in light of their discussions with children and young people with SEN and parents.

The local offer must include information about:

Education, health and care provision for children and young people with SEN (which should include information about its quality and the destinations/outcomes achieved by those who use it);

Arrangements for identifying and assessing children and young people’s SEN, including arrangements for requesting an EHC needs assessment;

Other education provision (educational provision outside of schools or colleges such as sports or arts provision)

Training provision, including Apprenticeships;

Arrangements for travel to and from schools, post-16 institutions and early years providers;

Support to help children and young people in moving between phases of education (for example from early years to school, from primary to secondary) and to prepare for adulthood;

Sources of information, advice and support in the local authority’s area relating to SEN including information provided under clause 32 of the Children and Families Bill, forums for parents and carers, support groups, childcare and leisure activities, and

Arrangements for making complaints, for the resolution of disagreements, mediation and parents’ and young people’s right to appeal a decision of the local authority to the Tribunal.

Arrangements for Identification and Assessment

Local authorities should make clear in the local offer the arrangements in schools, post-16 institutions and early years providers for:

Identifying the particular learning needs of any child or young person, modifications to teaching approaches and provision of ancillary aids.

Arrangements for involving the child’s parents or the young person in decisions about their provision;

Securing additional services, expertise, equipment and facilities required by children and young people with SEN;

Mainstream educational settings must use their best endeavours to secure the special educational provision called for by the child’s or young person’s needs.

As well as setting out the provision the local authority expects to be available in early years providers, schools and post-16 institutions, the local offer should make clear where information provided by schools [under clause 64 of the Children and Families Bill] about their arrangements for identifying, assessing and making provision for children and young people can be found. It will also need to make clear how young people and parents can find information published by post-16 institutions.

The local authority must include details of how to request an Education, Health and Care needs assessment.

Education, Health and Care Provision

Education Provision should include provision available in both mainstream and specialist educational settings, including details of provision available in the independent and non-maintained sectors that are attended or likely to be attended by children or young people in its area. It also includes:

The special educational provision (such as SEN support or learning support services, sensory support services or specialist teachers) made available to mainstream schools, early years providers, special units, alternative provision and other settings (including home visits), whether provided by the local authority or others;

Local arrangements for collaboration between institutions to support those with SEN (for example, partnership working between further education colleges or shared services between schools); and

The local authority’s arrangements for providing additional funding for children and young people with high needs in mainstream and specialist settings.

The local offer must include information about health care provision for children and young people with SEN, including speech and language and other therapies, services relating to mental health and services assisting relevant early years providers, schools and post-16 institutions to support children and young people with medical conditions.

It should include health and care provision commonly accessed by children and young people with SEN such as wheelchair services and community equipment, children’s community nursing, Portage, continence services, physiotherapy and other relevant therapy services, palliative and respite care and other provision for children with complex health needs.

The emphasis should be on ensuring all relevant information can be easily accessed by children, young people and their families. A CCG should ensure families can easily access information on other services, such as local urgent and emergency care provision. Local authorities and their partner CCGs should ensure that this information is accessible through the local offer. They should particularly include provision for children and young people’s continuing care arrangements, with information on how these are aligned with the Education Health and Care planning process locally, described in Chapter 3.

The local offer must include information about social care services provided in accordance with section 17 of the Children Act 1989 for children and young people with SEN. It must include support for young people when moving between social care services for children to social care services for adults, and support for young people in finding appropriate accommodation and assistance to support independent living and should include details of the short breaks for disabled children, young people and their families.

[Note: Further information on adult social care. The draft Care & Support Bill contains requirements for publishing information on adult social care. We will cross-reference that here]

Since April 2011, local authorities have been under a duty to provide a range of short breaks services for disabled children, young people and their families. A key part of that duty is the requirement for all local authorities to prepare a short breaks duty statement, providing details of the local range of services; how services are responding to the needs of local carers; and how services can be accessed, including any eligibility criteria. [1]  

Local authorities are required to publish statements on their websites and to review them on a regular basis. They must also consider the needs of local parents and carers when preparing and revising their statements. The short breaks duty statement will form a core part of the social care strand of the local offer.

This range of education, health and care provision is likely to be funded by a number of sources, including schools or colleges through their delegated resources, the local authority high needs funding block and other funding (for health and social care provision for example) from the local authority and partner clinical commissioning groups.

The local offer should provide information that is accessible to young people and parents on what provision is available and how it can be accessed, irrespective of the funding source involved.

In setting out the special educational provision the local authority expects to be available in early years providers, schools, post-16 and other institutions from their own budgets in their local offer must include information about the arrangements in place for:

Identifying children and young people’s SEN

Assessing and reviewing children and young people’s progress towards outcomes, including the opportunities available to work with parents and young people as part of this assessment and review.

Supporting children and young people in moving between phases of education and in preparing for adulthood. As young people prepare for adulthood outcomes should reflect their ambitions for employment, independent living and participation in society.

The availability of specialist expertise among teachers, lecturers or other professionals to support children and young people with SEN.

Assessment and evaluation of the effectiveness of SEN provision.

Access to facilities and extra-curricular activity used by all children and young people at the educational setting.

Extra pastoral support including practices for listening to the views of children and young people with SEN and measures to prevent bullying

Provision available in training settings

The local offer must identify training opportunities, including Apprenticeships, Traineeships and Supported Internships, available to local young people. Training is an important option for young people from age 16. Local authorities must therefore ensure they identify training providers who can serve young people with SEN in their area, and engage with those providers to ensure the local offer provides good quality information about that provision.

Transport arrangements to and from educational provision

Transport is often a critical factor in the support for children and young people with SEN. The local offer must make clear:

any support available from the local authority with transport costs and the local authority’s policy on transport support

any specific arrangements for specialised transport (e.g. specially fitted buses)

any arrangements for free or subsidised transport

where support might be obtained from other sources to help with transport costs

This must include transport arrangements for young people in relation to post-16 provision as set out in the section 509AA of the Education Act 1996. It must include any arrangements for transport provision for young people up to age 25 with an EHC plan, including independent travel training.

Local authorities will wish to include in this section any support that is offered to children and young people to help them use transport, including public transport, and what training is given to help independent travel.

Support available to children and young people to help them prepare for adulthood

The local authority must set out in the local offer what support is available to children and young people with SEN to enable them to move into adulthood with choice and control over their lives. This should include evidence of what works in achieving good outcomes.

Preparing for adulthood support must include provision relating to finding paid employment, housing and accommodation and participation in society:

Preparing for and finding employment, including supported employment: this must include Supported Internships and how to apply for them, and Apprenticeships and Traineeships, support available from job coaches and how to obtain that support, support available from employment agencies, and support available from Year 9 to help children and young people plan their careers. It should also include some signposting on where young people could obtain advice about setting up their own enterprise. It should also include signposting on where young people can obtain advice and information about financial support available for them when they are looking for work, or once they are employed.

Preparing for independent living - enabling young people with SEN to have informed choice and control over their lives, and finding accommodation: this must include information about different housing options such as social housing, housing association accommodation, private renting, shared housing and shared ownership, how to apply for accommodation, and where to get financial and other support (such as a personal assistant, assistive technology or modifications to a home) and more detailed advice on accommodation. For people eligible for social care or health support, it should include support to develop choice and control over who supports them and how they are supported, including managing their personal budget or recruiting a personal assistant.

Community participation: for instance leisure and social activities so that young people with SEN are able to develop relationships and contribute to their community, including influencing local decision making. This must include information about how young people can access mainstream community facilities and local youth services, and volunteering opportunities. Access in this context does not simply mean wheelchair access: it means support to enable young people to participate in local society (for example, this could mean training staff at leisure facilities to better understand different needs). It should include information on how care support can enable young people to access social opportunities (e.g. a personal assistant or assistive technology) and develop friendships, and how to apply for that support.

Information about how to seek an Education, Health and Care assessment

In addition to providing information about the support that is available from the delegated budgets of schools, colleges and early years providers and, where appropriate, from the local authority through its high needs budget, it is important that parents and young people have information about how to seek an assessment for an EHC plan when support is not helping the child or young person to make progress.

The local offer should include information about:

how an assessment can be requested

how the local authority will consider a request for an assessment and inform parents and young people of their decision

how parents and young people will be involved in the assessment process

any support to help families during the assessment and planning process (such as key working or family support services)

any timescales involved in the assessment process

the process for making an EHC plan and how parents and young people will be involved

the option of a personal budget, who is eligible, how to ask for one and what information, advice and support is available for one

arrangements for mediation, disagreement resolution and appeals

Information about where to get advice and support

It is vital that parents and young people know where to get advice, information and support. Parents of children with SEN have benefited from the information, advice and support provided by local Parent Partnership Services for many years.

With the extension of protections enjoyed by young people in schools to those in colleges and much closer integration of education, health and social care services there is a need for parents and young people to have access to coordinated advice and information.

This Information and advice should be accessible through a single service or place, and direct parents, carers and young people, as well as those who support them, to the appropriate local authority voluntary and community sector SEN support services, factual information, advice on rights, legal requirements and what to do if things go wrong.

Local authorities must also publish information on how young people with SEN can access impartial advice and guidance on education, health and social care provision and ensure that this advice is tailored appropriately for them.

The information and advice should include arrangements for additional individual support for those families who find it particularly difficult to engage with services. This may be through the offer of an independent "key working" role or coordination role to deliver practical support to families going through the assessment process.

Local authorities have responsibilities to support young people into education or training and to secure sufficient suitable education and training provision for all young people aged 13-19 and for those aged 20-24 with an EHC plan [currently applies to those with a Learning Difficult Assessment] and make available to those young people support that will encourage, enable or assist them to participate in education or training. Tracking young people’s participation and outcomes/destinations is a key element of this duty.

4.3 How the local offer should be published 

Local authorities should make their local offer widely accessible by making it available as a web based resource and publishing their arrangements for enabling those without access to the web to get the information. It should also enable access for different groups, including disabled people and those with different SEN.

4.4 Who should be consulted by a local authority in preparing its local offer 

Children and young people with SEN and parents should be at the heart of the local offer and should co-produce it with the local authority. Local authorities are best placed to decide how to do this but it needs to go beyond a simple sign off process. Children, young people and families can influence usefully both the type of provision and how it is made accessible. The [xxxx] Regulations make clear that local authorities should involve them in:

planning the content of the local offer - to find out what services children and young people need

deciding how to publish the local offer - so it is easily accessible and easy to navigate reviewing the local offer

providing feedback on services in the local offer

Local authorities should publicise in the local offer the ways in which they will involve children, young people and parents. This should include any support available to enable them to contribute.

The success of the local offer rests on cooperation between the local authority and the range of bodies and organisations set out in the Children and Families Bill including schools, colleges and health services. Clause 28 of the Bill places a reciprocal duty to cooperate on those bodies and organisations and the local authority.

Local authorities and their partners will need to develop the local offer in the context of their local Health and Wellbeing Strategy, joint commissioning arrangements and agreements about the delegation of SEN funding with local partners. The local offer is the key vehicle for communicating the effects of these strategic discussions to local families affected by SEN.

More broadly, local authorities should consult with children and young people with SEN and parents and those bodies in keeping their special educational provision and social care provision under review, including the sufficiency of that provision (clause 27 of the Children and Families Bill). This will help local authorities to identify gaps in their provision.

Local authorities must seek and publish comments about their local offer, including those received from or on behalf of children and young people with SEN and their parents. Comments must be published if they relate to:

The content of the local offer, which includes the quality of existing content and any gaps in the content

The accessibility of information in the local offer

How the local offer has been developed or reviewed

Local authorities must publish their response to those comments in the local offer alongside an explanation of what action they are taking to respond. They are not required to publish abusive or vexatious comments and must ensure that comments must be published in a form that does not enable any individual to be identified.

4.5 The local offer: links to joint commissioning, co-operation and health and social care 

The local offer will be underpinned by joint commissioning arrangements made by local authorities and clinical commissioning groups agreeing what education, health and care provision is needed locally and who will provide and pay for that provision. Those joint commissioning arrangements will be informed by:

The local needs identified by Health and Wellbeing Boards in their Joint Strategic Needs Assessments, and

The agreed priorities of the Joint Health and Wellbeing Strategy.

Each CCG will determine what services must be provided to meet the reasonable health needs of the children and young people for whom they are responsible. At a population level, these services will be reflected in the local offer of services published by the local authority [1] .

Joint commissioning arrangements must include details of how advice and information will be provided to parents and young people, including details of how they should raise complaints about education, health and care. They must also have procedures to resolve disputes between local partners quickly.

Local authorities and their partners, including clinical commissioning groups will have a duty to co-operate with each other to assess children and young people, prepare EHC plans and to commission and provide services. This means the local authority must ensure that all its officers co-operate with each other to ensure a seamless and consistent service for children, young people and families. This must include those officers whose roles will contribute to helping young people make a successful transition to adulthood – for example housing, economic regeneration.

Co-operation between the local authority, its partner clinical commissioning groups and other local partners, including early years providers, schools and post-16 institutions [provided for in clauses 28, 29 and 31 of the Children and Families Bill] is essential so that the local offer provides a transparent and accessible picture of the range of services available locally.

4.6 How the local offer links to other duties 

[Note: This section will be developed to include references to other relevant statutory duties including The Equality Act (2010); Raising the Participation Age; providing suitable education and training for young people over compulsory school age and those 19 -25 with EHC plans; provision of Information, Advice and Guidance, publishing information on positive activities for young people, Care and Support Bill duties to publish information on adult care services, children of service personnel; and the duty to keep a register of disabled people]

5 Early Years, Schools, Colleges and Other Providers 

[Draft indicative regulations for Committee relevant to this chapter are:

The Special Educational Needs (SEN co-ordinators) Regulations, Clause 62;

Remaining in special school or post-16 institution without an EHC plan Regulations, Clause 34;

The Special Educational Needs (Information) Regulations, Clause 64.]

5.1 Improving outcomes for all – high expectations for children and young people with SEN 

All children and young people should have an appropriate education with opportunities to achieve their goals and aspirations and where their voice is heard. Education should always build on what has gone before; ensuring a child or young person continues to make progress and ultimately preparing them to make a successful transition to adulthood.

All education settings, including nurseries, early years providers, schools, colleges and other providers, should have high aspirations for all children and young people, including those with SEN. Improving outcomes for all children and young people involves early years providers, schools, colleges and local authorities in actively engendering a sense of community and belonging and seeking to remove barriers to learning and participation that can hold back or exclude children and young people with SEN. This is supported by the duties that local authorities, early years providers, schools and colleges have towards disabled people under the Equality Act 2010.

It is vital to identify quickly and accurately where children and young people have SEN that requires additional support so that this can be put in place. All teachers need to be equipped to teach children and young people with a diverse range of need. Early years providers, schools and colleges should plan their staff training, development and support to ensure all teachers are able to do this. Taking this approach should ensure a focus on the quality of teaching for all children and young people and on the development and evaluation of different approaches to meet the needs of individual children and young people within the early years provision, school or college.

Section 5.4 below provides guidance on identifying children and young people with SEN and providing Additional SEN Support. It emphasises the importance of teaching and learning strategies in meeting the needs of most children and young people and gives advice on providing additional or different support for those who cannot be supported effectively in this way.

5.2 "All teachers are teachers of children with special educational needs" 

Good practice on quality provision

Good quality teaching

Requirements for what all early years providers, schools, colleges and other providers should be providing to all children and young people

The integrated review at age 2/2.5

The Early Years Foundation Stage and its importance for early teaching, learning and identification of SEN

Phonics Check

Requirements from the National Curriculum – details

The National Curriculum – including P Scales

Programmes of study

For 14-16 year olds enrolled in college, the core KS4 curriculum

Principles of 16-19 Study Programmes (16-25 for young people with SEN) [Note: from September 2013]

All students should follow a coherent programme that supports progression to work or further study.

For some students, study at Level One or Entry level may be appropriate; for others, where the student has profound and/or complex learning difficulties, it may be appropriate for the Study Programme to concentrate on work experience or other non-qualification activities that will prepare them for adult life.

In all cases, Study Programmes should include English and maths at an appropriate level.

5.3 Inclusion and choice 

With the right training, strategies and support in place the majority of children and young people with SEN are already successfully included in mainstream education. This is reflected in the general principle in law that children and young people with SEN should be educated in mainstream settings. That principle is supported by provisions safeguarding the interests of all children and young people and ensuring that the preferences of the child’s parents or the young person for where they should be educated are met wherever possible.

Special schools (in the maintained, non-maintained and independent sectors), special post-16 institutions and specialist colleges all have an important role in providing for children and young people with SEN and in developing and working collaboratively with mainstream and special settings to develop and share expertise and approaches.

All children and young people have different needs and children and young people can be educated effectively in a range of settings, including mainstream and special schools and colleges. Alongside the general principle of inclusion parents of children with an EHC plan and young people with such a plan have the right to seek a place at a special school, special post-16 institution or specialist college.

Children and young people with SEN but without Education, Health and Care Plans

Most children and young people with SEN have always been taught in mainstream settings. Where a child or young person has SEN but does not have an EHC plan they must be taught in a mainstream setting except in specific circumstances (see below).

The School Admissions Code of Practice requires children and young people with SEN to be treated as fairly as others. Admissions authorities:

must consider applications from parents of children who have SEN who do not have an EHC plan on the basis of the school’s published admissions criteria as part of normal admissions procedures

must not refuse to admit a child who has SEN but does not have an EHC plan because they do not feel able to cater for those needs

cannot refuse to admit a child on the grounds that they do not have an Education, Health and Plan

FE colleges manage their own admissions policies. They will do so in line with the requirements of the Equalities Act. Students will need to meet the entry requirements for courses as set out by the college, but should not be refused access to opportunities based solely on whether or not they have SEN.

Children and young people without an EHC plan can be placed in special schools and special post-16 institutions in the following specific circumstances:

where they are admitted to a special school or special post-16 institution to be assessed for an EHC plan with the agreement of their parent, the local authority, the head teacher or principal of the special school or special post-16 institution and anyone providing advice for the assessment;

where they are admitted to a special school or special post-16 institution following a change in their circumstances with the agreement of their parent, the local authority and the head teacher or principal of the special school or special post-16 institution;

where they are in hospital and admitted to a special school which is established in a hospital; or

where they are admitted to a Special Academy (including a Special Free School) whose Academy arrangements allow it to admit children or young people with SEN who do not have an EHC plan.

The last of these provisions enables the Secretary of State to approve Academy arrangements for individual Special Academies or Special Free Schools that are innovative and increase access to specialist provision for children and young people for children and young people without EHC plans.

The Academy arrangements in such cases would make clear that a child or young person would only be placed in such a Special Academy or Special Free School at the request of their parents or at their own request and with the support of professional advice. A special Academy which has these arrangements can only admit children who have a type of SEN for which they are designated and the special Academy will have adopted fair practices and arrangements that are in accordance with the Schools Admission Code for the admission of children without an EHC plan.

Children and young people with Education, Health and Care Plans

Details of the arrangements relating to children and young people with Education, Health and Care Plans (EHC plans) are set out in Chapter 6, Assessments and Education, Health and Care Plans.

Parents of children with an EHC plan and young people with such a plan have the right to express a preference for a particular maintained mainstream or special school, Academy or Special Academy, non-maintained special school, Further Education College, or independent school or special post-16 institution approved by the Secretary of State under clause 41 of the Children and Families Bill. The local authority must comply with their preference unless it would:

be unsuitable to the age, ability, aptitude or SEN of the child or young person; or

the attendance of the child or young person there would be incompatible with the efficient education of others; or the efficient use of resources

Where a parent or young person does not express a preference for a particular school or further education college or special post-16 institution, or they do so and their preference is not met, the local authority has a duty to provide for a mainstream setting in the child or young person’s EHC plan unless it would be:

against the wishes of the parent or young person; or

incompatible with the efficient education of others.

Where the local authority considers a mainstream place to be incompatible with the efficient education of others it must demonstrate that there are no reasonable steps that it, or the school or college, could take to prevent that incompatibility by the school or college or local authority.

Children with EHC plans can also attend more than one school under dual placements. Dual placements can allow children time away from their mainstream school for specialist support. This can help to prepare children for mainstream education and prepare schools for meeting children’s needs. In order for a child with SEN who is being supported by a dual placement to be deemed as being educated at a mainstream school they must spend the majority of their time (at least 51%) there.

Where appropriate, a young person with an EHC plan can also attend a dual placement at an institution within the further education sector and a special post-16 institution. The local authority should work with the young person, post-16 providers and independent specialist colleges to commission such placements where that will achieve the best possible outcome for the young person. To be deemed as being educated in a mainstream further education institution, young people should spend the majority of their time there.

Disability and the Equality Act

Many disabled children also have a special educational need. Schools, early years providers, post-16 institutions and local authorities have duties under the Equality Act 2010 towards disabled children and adults and children and adults with other "protected characteristics". The Department publishes guidance for schools on their duti es under the Equality Act 2010 [ http://www.education.gov.uk/aboutdfe/advice/f00215460/equality-act-2010-departmental-advice ]

School and local authority duties towards disabled pupils are as follows:

They must not discriminate against or harass disabled children;

They must make reasonable adjustments for individual pupils and disabled pupils more generally to help alleviate any disadvantage they suffer;

They must (under public sector equality duties) have regard to the need to eliminate discrimination of, and promote equality of opportunity for, disabled pupils and foster good relations between disabled and non-disabled pupils;

Schools must publish accessibility plans and local authorities’ accessibility strategies setting out how they propose to increase the access of disabled pupils to premises, the curriculum and information. These plans and strategies must be published every three years;

Schools must publish specified information about their provision, policies, plans and practices in relation to disabled pupils.

Under schools’, local authorities’ and early years providers’ reasonable adjustments duty they must make reasonable adjustments to their policies, procedures and practices to prevent disabled children being put at a substantial disadvantage. They must also provide auxiliary aids and services for disabled pupils where reasonable and where failure to do so would put pupils at a substantial disadvantage.

Early years providers have the same duties as schools under the Equality Act not to discriminate against or harass a disabled child and to make reasonable adjustments. Also, if they are public authorities, the same public sector equality duty requirements apply.

Further Education Institutions within the Post-16 sector have duties under the Equality Act 2010. These include:

They must not discriminate against or victimise disabled students or applicants to the institution;

They must not discriminate in their admission policies;

They must not discriminate in the education, course or qualification they offer students;

They must make reasonable adjustments in all the above for individual students to prevent discrimination (schedule 13);

They must not discriminate in terms of who may access recreational or training facilities and the responsible body should make reasonable adjustments.

5.4 Identifying needs 

The importance of early identification

The benefits of early identification are widely recognised; identifying need at the earliest point that a physical, sensory, learning or mental health need presents itself, and then providing good interventions, improves long-term outcomes for the child.

Whilst for many children and young people, their needs can be identified at birth or at an early age, some difficulties only become evident as children grow and develop. It is therefore important that all those who work with children and young people are alert to emerging difficulties and respond early. In particular, parents know their children best, and it is important that all professionals listen and understand when parents express concerns about their child’s development.

Key points at which SEN may be identified

From birth to two - Many of the more complex needs, developmental and sensory, are identified at birth. Early health assessments, such as the hearing screening test which is used to check the hearing of all new-born babies, enable the very early identification of a range of medical and physical difficulties such as spina bifida and cerebral palsy, and sensory impairments, such as vision and hearing and deaf-blindness. Health services, including paediatricians, the family’s general practitioner, and health visitors, work with these families, and support them in understanding their child’s needs and working on their behalf to ensure they can access early support. Where the health services anticipate that the child will have SEN when they start school, they can refer early to education services, so that families can start receiving educational advice, guidance and intervention.

There are several forms of support and provision for this age group. Examples are:

Early Support is a programme underpinned by a set of principles that aim to improve the delivery of services for disabled children, young people and their families. It enables services to coordinate their activity better and provide families with a single point of contact and continuity through key working.

Portage is a home-visiting educational service for pre-school children with additional support needs and their families. It is based on the principle that parents are the key figures in the care and development of their children and offers a carefully structured system to help parents become effective teachers of their own children. Parents and children receive regular home visits from their Portage visitor.

Educational psychologists or specialist teachers such as a teacher of the deaf or visual impairment, or an early years support worker. These specialists may visit families at home, their role being to support parents and the child, answering questions, discussing communication, clarifying needs, and offering practical support.

Through early years providers - As part of their practice, providers will plan and offer activities which help the child reach their full potential. While children develop at their own pace, if a child’s progress in any prime area (personal social emotional development, communication and language, physical development) gives cause for concern, practitioners must discuss this with the child’s parents and/or carers and agree how to support the child. Practitioners must consider whether a child may have an SEN or disability which requires specialist support. They should link with, and help families to access, relevant services from other agencies as appropriate.

Progress check at age two - Practitioners must review the progress of 2 year olds and provide parents and/or carers with a written summary of their child’s development in the prime areas. The summary must identify strengths and where there is a concern that a child may have a developmental delay (an indication of SEN or disability). If there are concerns, or an identified SEN, practitioners should develop a targeted plan to support the child’s learning and development. Professionals should be involved as necessary. If a child moves settings between the ages of two and three, the progress check must be undertaken where the child spends most time.

[Note: From 2015] The integrated review - As part of the Healthy Child Programme, health visitors currently check 2 year old children’s physical development. The Government is committed to implementing a single integrated review from 2015. The integrated review will identify the child’s progress, strengths and needs and enable appropriate intervention and support for children and their families, where progress is less than expected

Assessment at the end of the Early Years Foundation Stage Profile (EYFS Profile) - In the final year of the Early Years Foundation Stage (EYFS) in which the child reaches five and no later than 30 June in that term, the EYFS Profile must be completed for each child. The Profile provides a picture of a child’s progress against expected levels and their readiness for Year 1. The Profile must reflect: on-going observation; all relevant records held by the setting; discussions with parents and carers, and any other adults whom can offer a useful contribution. It must inform plans for future activities and identify any additional support needed.

5.5 The four primary areas of special educational need 

Areas of Special Educational Need

There is a wide spectrum of difficulties that can lead to a child experiencing problems in learning and being assessed as having a special educational need. However, the spectrum can be narrowed into four areas of SEN, which helps schools and others to plan their provision, and to focus on interventions that are relevant and of good quality.

Although four areas of primary need are identified here, it is recognised that many children and young people experience difficulties that do not fit easily into one area, and may have needs which span two or more areas. It is important to carry out a detailed assessment of individual children and young people and their situations to make accurate judgements of their needs and provide appropriate interventions.

Schools and other providers should also ensure that they regularly review the appropriateness of their provision, including their behaviour policies as behavioural difficulties do not necessarily mean that a child has a special educational need.

The four primary areas of need are:

1. Communication and interaction;

2. Cognition and learning;

3. Emotional, social and behavioural development;

4. Sensory and/or physical.

Communication and interaction;
[Note: Further information to follow]

Cognition and learning;
[Note: Further information to follow]

Emotional, social and behavioural development;
[Note: Further information to follow]

Sensory and/or physical needs
[Note: Further information to follow]


5.6 Additional SEN Support in schools, early years and colleges 

The operation of Additional SEN Support

It is the responsibility of educational settings in consultation with parents, and, where appropriate, the young person, to decide whether a child or young person requires Additional SEN Support. They must ensure that children and young people who receive Additional SEN Support have an identified SEN and that their progress has not been hampered by weak teaching or poor attendance.

All mainstream educational settings, alternative provision Academies and Pupil Referral Units have a legal duty (in the Children and Families Bill), to use their best endeavours to secure that children and young people with SEN get the special educational provision they need. Schools should ensure that all those who teach or support children and young people with SEN are aware of their needs. This information is helpful in planning provision effectively to meet the needs of all children and young people with SEN. Educational settings are also expected to account to Ofsted for the progress of all children and young people with SEN or who are disabled.

Many of the children who are not progressing as expected, or are falling behind their peers can be supported, and have their needs met, through normal teaching and learning strategies, modification to teaching approaches and to classroom organisation, or through provision of ancillary equipment and aids.

However, for those who have SEN and who require support and/or interventions that are additional to or different from those normally provided as part of the differentiated curriculum offer and strategies, will need Additional SEN Support. A child or young person should be provided with such support following discussion with parents about the identified needs, the support to be provided, and how improved outcomes can be achieved.

Identification and Assessment

The educational setting should have a clear approach to assessing SEN which is known by all staff. This should include the use of effective tools and early assessment materials, as well as arrangements to draw on more specialised assessments from external agencies and professionals. These should be agreed and set out as part of the local offer.

Before providing a child or young person with the Additional SEN Support, a rigorous assessment of SEN should be undertaken by the institution using all available evidence/data sources, such as attainment and historical data, the child or young person’s development in comparison to their peers, information from parents and, if relevant, advice from external support services. The main areas of need that characterise pupils with SEN are set out in section 5.4.

Features of Additional SEN Support

Initial identification

All educational settings should accurately identify children or young people with SEN and should consider which children and young people have particular needs which might need additional or different provision in order to achieve their outcomes. As part of a graduated approach to tackling need they should first:

consider their core teaching and adapt that to meet needs of the cohort as a whole;

ensure that parents of children are fully engaged, consulted and informed and agreement is reached on how the child’s needs will be met;

ensure that the child or young person is fully engaged, consulted and informed and agreement is reached on how their needs will be met.

Where this identifies that a child or young person requires additional educational provision, from the school or from others:

there should be a plan that focuses on what outcomes are expected and the support that the school, college and any relevant agencies will provide;

reviews of progress should be held at least once a term;

where relevant, external services and providers should work with settings to meet the needs of children and young people with SEN; and

settings should review the effectiveness of what is happening and consider the need for a further assessment and any whether there should be changes to the support provided. Consideration should be given to requesting an assessment for an EHC plan if progress is not being made and outcomes are not improving.

Additional SEN Support in Early Years Providers

Early education practitioners working with children should monitor and review the progress and development of all children to differentiate between children who need support to catch up with their peers and those who need Additional SEN Support involving a more tailored approach to address a specific SEN, which is impacting on their ability to learn and develop.

Additional SEN Support in Schools and Colleges

Schools and colleges should plan, monitor and review their support arrangements for children and young people with SEN.

They should ensure they accurately identify children and young people with SEN who require additional or different levels of support from that which is normally provided. In particular, schools should take account of the support provided by early years providers, building on this and to ensure that momentum is maintained with a child’s progress. Likewise, post-16 institutions should take into account the support provided within school settings, where it is known to them. They should ensure that opportunities in further education enable young people to build on previous achievements and maintain their progress towards a successful transition to adulthood.

To ensure children and young people with SEN receive the right levels of support and intervention to help them to achieve good outcomes, schools and colleges should create a sharper focus on helping teachers to differentiate between:

Those children and young people who need support to catch up with their peers; and

Those children and young people who need a more tailored approach to address a specific SEN that is impacting on their ability to learn.

Monitoring Progress

All settings should monitor the impact of their interventions and whether adequate progress has been made. Where sufficient progress has not been made, settings should consider increasing the intensity and the frequency of the support and review the need for increased expertise.

Where sufficient progress has been made they should consider tailoring support to reflect the progress made and review whether Additional SEN support for the child or young person should be continued.

Reviewing progress [Note: replacement to current Individual Education Plans]

Funding to support children and young people who require Additional SEN Support

All schools are provided with resources in their delegated budget that they can use to support those with additional needs, including children and young people with SEN. This is determined by a local formula discussed with the Schools Forum. Similarly, colleges receive an allocation for both low level and high level needs of Additional Learning Support calculated on the basis of a 16-19 formula.

In addition, local authorities receive funding within their Dedicated Schools Grant which can be used to provide additional funds to early years providers, schools and colleges for children and young people with high needs and to provide support services such as for those with sensory impairment.

Funding arrangements for Additional SEN Support will be agreed locally.

5.7 The Special Educational Needs Co-ordinator (SENCO) 

Governing bodies of maintained mainstream schools, maintained nursery schools and the proprietors of Academy schools (including free schools) must ensure that there is a qualified teacher designated as Special Educational Needs (SEN) co-ordinator (SENCO) for the school.

The SENCO must be a qualified teacher working at the school. A newly appointed SENCO must be a qualified teacher and where they have not previously been the SENCO at that or any other relevant school for a total period of more than twelve months, they must achieve the National Award in Special Educational Needs Coordination within 3 years of appointment.

The role of the SENCO in schools

The SENCO has an important role to play with the head teacher and governing body, in determining the strategic development of the SEN policy and provision in the school. The SENCO will have day-to-day responsibility for the operation of SEN policy and coordination of specific provision made to support individual children with SEN and those who have EHC plans. The SENCO provides professional guidance to colleagues and will work closely with staff, parents and carers, and other agencies. The SENCO should be aware of the services provided under the Local Offer and be able to work with professionals providing an independent support role to the family to ensure that children with SEN. receive appropriate support and high quality teaching

The key responsibilities of the SENCO may include:

Overseeing the day-to-day operation of the school’s SEN policy;

Coordinating provision for children with SEN;

Liaising with, advising and contributing to the in-service training of fellow teachers and other staff;

Liaising with the relevant designated teacher where a looked after pupil has SEN;

Advising a on graduated approach to providing Additional SEN Support;

Ensuring that the records of all children with SEN are kept up to date;

Liaising with parents of children with SEN;

Liaising with early years providers and secondary schools, educational psychologists, health, social care, and independent or voluntary bodies who may be providing SEN support and advice to a child and their family;

Being a key point of contact with external agencies, especially the LA and LA support services;

Liaising with potential next providers of education to ensure a young person and their parents are informed about options and a smooth transition is planned;

Collaborating with curriculum coordinators so that the learning for all children is given equal priority;

Ensuring with the head teacher and school governors that the school meets its responsibilities under the Equality Act (2010) with regard to reasonable adjustments and access arrangements.

The SENCO is responsible for ensuring that the school can track and record support plans and decisions for all the children with SEN in the school. SENCOs can be particularly effective when part of the leadership team.

The role of the SENCO in early years provision

[Note: Further information to follow]

The SENCO’s role in supporting transition arrangements

The SENCO will play an important part in planning for children with SEN transferring between schools and phases of their education including entry to a college or a provider in the further education sector. Early planning is essential. The SENCO will need to liaise with those responsible for admissions, curriculum and support for young people with SEN, and ensure that the receiving school, college or other institution has all the relevant information including the strengths, capability, progress and aspirations of the young person.

Transition between early years and school
[Note: Further information to follow]

Transition school and post-16
[Note: Further information to follow]

Further Education – workforce skills
[
Note: Further information to follow]

5.8 Further information 

Best Endeavours

The governing bodies, proprietors and management committees of mainstream schools, maintained nursery schools, pupil referral units and institutions within the further education sector must use their "best endeavours" to make the special educational provision called for by a child or young person’s SEN. Using their "best endeavours" means that within the resources available to them these bodies must do their best to meet a child or young person’s SEN.

Informing parents and young people

Where a school, maintained nursery school, Academy or PRU begins to make special educational provision for a child or young person without an EHC plan they must tell the child’s parent or the young person that special educational provision is being made. This is to ensure that parents and young people are in a position to play an informed role in decisions about their child’s or their own provision.

SEN information report

The governing bodies of maintained schools and maintained nursery schools and the proprietors of Academy schools have a legal duty to publish information on their websites about the implementation of the governing body’s or the proprietor’s policy for pupils with SEN. Governing bodies and proprietors must also publish information about the arrangements for the admission of disabled pupils, the steps taken to prevent disabled pupils being treated less favourably than others, the facilities provided to assist access of disabled pupils and their accessibility plans. The information published must be updated annually and any changes to the information occurring during the year must be updated as soon as possible. The information should relate to provision set out in the local offer.

Colleges should build a relationship with all students with learning difficulties and disabilities without a plan and will wish to ensure the young person is aware of support they are receiving.

Early education for two-year-olds from lower income families

There is a legal duty on local authorities to, from September 2013, secure funded early education places for two-year-olds who are either looked after by the local authority or from lower income families. Around 20% of two-year-olds (some 130, 000 children) will be eligible for 570 hours of funded early education, which may be taken as 15 hours per week, for example [Note: The Government has also made a commitment to extend the duty to cover more children from September 2014, to around 40% of two-year-olds (some 260,000 children)].

[Note: This section will be updated once eligibility criteria for 2014 have been published in spring 2013. One of the criteria proposed in the recent Government consultation was that, from September 2014, a two-year-old would be eligible for 570 hours of funded early education if they have a current statement of special educational needs, an Education, Health and Care plan or they attract Disability Living Allowance (DLA)]

5.9 External Support and Wider Support for Education Settings 

The Educational Psychologist

One source of external support that schools and colleges can seek is from the local educational psychology service. These specialists provide on-going advice about children and young people with EHC Plans to education settings and to parents, as well as contributing to school and college understanding of practical interventions that will support progress and well-being. Educational psychologists also contribute to staff training and development.

Child and Adolescent Mental Health Services (CAMHS)

CAMHS can provide advice, support and consultation to family members, carers and workers from health, social care, educational and voluntary agencies. Some children and young people identified as having SEN may benefit from referral to specialist CAMHS for the assessment and treatment of their mental health problems. A variety of working arrangements exist between schools and local health partner organisations to facilitate co-operative partnerships and clear joined up care pathways to support individual children, young people and their families.

Specialist support teachers or support services

There is a range of specialist teachers who provide advice, direct support and guidance consultation to children and young people with a range of SEN. In particular, specialist teachers for children with hearing and visual impairment, including deafblindness, and those with physical impairment, support schools in modifying their curriculum and environment to ensure needs can be met. SEN support services may be commissioned by local authorities and delivered in a range of ways, including through schools.

Behaviour support teams

Behaviour support teams work to support children and young people with emotional and social difficulties in school. They provide early intervention and preventative work at whole school, group and individual level, and support schools in meeting the needs of those with more complex needs.

Youth Offending Teams

Youth Offending Teams (YOTS) work with young offenders (under 18) and those at risk of offending. YOTs are responsible for a range of youth justice services, including compiling pre-sentence reports, supervision of young offenders serving sentences in the community and supervision of those released from custody. Local authorities must ensure that Youth Offending Teams are involved in local commissioning arrangements. It is good practice to involve should involve the relevant probation services for young offenders who are aged 18 or over.

Other roles which support children and young people with SEN

Speech and language therapists

Occupational therapists

Physiotherapists

[Note: Further information to follow]

5.10 Transitions points and preparing for adulthood 

Discussions focusing on the wider aspirations of a child or young person should take place at an early stage with the child or young person and their parents/carers. They should consider progression, wherever possible encouraging education and training that will lead to greater independence and, where appropriate, employment. Person-centred planning should be at the heart of the discussion, which should include an in depth analysis of appropriate education and training provision for the young person, and promote where appropriate, independence and a future career.

Person-centred transition planning should begin as early as possible. The transition review should be a seamless transition from previous reviews and must allow time for the commissioning of any necessary provision and support to take place. It should build on existing plans which will have already been agreed with the child or young person and be integral to their learning and career guidance.

The role of Impartial Information, Advice and Guidance and transparent decision making for children and young people

Schools have a duty to secure independent, impartial careers guidance for pupils in years 9-11. [Note: This duty will be extended to years 8-13 from September 2013 and an equivalent requirement extended to 16-18 year olds in colleges through funding agreements.] Guidance secured under the duty must include information on the full range of 16-18 education or training options, including further education and Apprenticeships.

The Department for Education has issued statutory guidance which includes a clear requirement for schools to secure access to independent face-to-face support where this is the most suitable support for young people to make successful transitions - particularly children from disadvantaged backgrounds, or those who have SEN, learning difficulties or disabilities. A practical guide includes further information and models of good practice to help school meet their requirements under the duty.

Local authorities also have a duty to support all vulnerable young people aged up to 19 (and up to the age of 25 if they have an EHC plan) to participate in education, employment or training. Local authorities should have a relationship with schools and colleges in their area in order to support the joint delivery of an offer of a place in education or training.

Information Sharing

It is important that information about the young person’s previous education and training is shared with the further education provider. Schools, colleges and local authorities should work together to ensure that all appropriate information is passed onto the new provider before the student begins the programme of learning.

5.11 Children and young people in specific circumstances 

Children with health needs

Alternative provision is education arranged by local authorities or schools for children and young people who, because of behaviour, illness or other reasons, would not otherwise receive suitable education. It should provide education on par with that of mainstream, along with appropriate support to meet the needs of individual children and young people. Children unable to attend school because of health needs should be able to access suitable and flexible education appropriate to their needs. The nature of the provision must be responsive to the demands of what may be a changing health status.

Local authorities must:

Arrange suitable full-time education (or as much education as the child’s health condition allows) for children of compulsory school age who, because of illness, would otherwise not receive suitable education.

Local authorities should:

Provide such education as soon as it is clear that the child will be away from school for 15 days or more, whether consecutive or cumulative. They should liaise with appropriate medical professionals to ensure minimal delay in arranging appropriate provision for the child.

Ensure that the education children receive is of good quality, as defined in the statutory guidance Alternative Provision (2013), allows them to take appropriate qualifications, prevents them from slipping behind their peers in school and allows them to reintegrate successfully back into school as soon as possible.

Address the needs of individual children in arranging provision. ‘Hard and fast’ rules are inappropriate: they may limit the offer of education to children with a given condition and prevent their access to the right level of educational support which they are well enough to receive. Strict rules that limit the offer of education a child receives may also breach statutory requirements.

Local authorities should not:

Have processes or policies in place which prevent a child from getting the right type of provision and a good education.

Withhold or reduce the provision, or type of provision, for a child because of how much it will cost (meeting the child’s needs and providing a good education must be the determining factors).

Have policies based upon the percentage of time a child is able to attend school rather than whether the child is receiving a suitable education during that attendance.

Have lists of health conditions which dictate whether or not they will arrange education for children or inflexible policies which result in children going without suitable full-time education (or as much education as their health condition allows them to participate in).

The full guidance is available from here: http://media.education.gov.uk/assets/files/pdf/s/health%20needs%20statutory%20guidance%20for%20las.pdf "

Young Offenders

Where children and young people have identified needs it is important that information about those needs is shared with those who are responsible for education in custody. This will enable the right support to be put into place as soon as possible.

Local authorities should put appropriate arrangements in place to ensure that this information can be provided without delay to ensure that education providers in detention have access to all relevant information and can arrange appropriate provision for the young person from the start of their detention. The Youth Offending Team (YOT) will notify a young person’s local authority about their detention, transfer or release and will facilitate the transfer of information. The Skills Funding Agency requires its providers who deliver education and training in the adult secure estate ("OLASS providers") to exchange information as prisoners move around the system.

Identifying SEN in custody

A significant proportion of young offenders have some level of SEN, which might only be identified once they have entered custody. If a local authority in which a young offenders’ institution is located thinks a child or young person under the age of 18 has special educational needs, they must notify the young person’s home local authority on release (in accordance with section 562H of the Education Act 1996) and, if necessary, a full assessment will be carried out on release. Similarly, an education provider in an adult prison who identifies SEN in a young person aged 18-25 should notify the young person’s home local authority on release so that, if necessary, a full assessment can be carried out.

Education in Custody for young people under 18

Youth Offending Teams (YOTs) must notify the local authority in which the child or young person is detained (host) and the local authority in which the young person normally resides, (home) when a child or young person (under 18) has become subject to a detention order or if they are being transferred between relevant youth accommodation (Section 39A of the Crime and Disorder Act 1998).

The home local authority is under a duty to monitor the education and training of all children or young persons (under 18) in detention and to take such steps as they consider appropriate to promote the fulfilment of his or her learning potential while they are detained and on their release (Section 562B of the 1996 Education Act). Where the local authority was maintaining an EHC plan for a child or young person detained in a young offender institution, the home local authority may supply appropriate goods and services to the local authority where the young person is detained or to the actual person providing the special educational provision [Section 562D of the 1996 Education Act].

If the young person had an EHC plan immediately before custody the local authority maintaining the plan must inform the host local authority. This information should also be shared with the YOT and the young offenders’ institution (YOI). The host local authority should work with the YOI to ensure that appropriate special educational provision is in place for the young person] as soon as possible. Appropriate provision is the provision that was in place immediately before custody and set out in the EHC plan or provision that is as close as possible to that set out in the EHC plan.

If the host local authority, working with the home local authority, the Youth Offending Team, and the young offenders’ institution decide that the provision set out in the EHC plan is no longer appropriate the host local authority should put in place special educational provision that it considers to be appropriate for the young person. This might be the case, where for example a young person has had a plan for a number of years and has recently been re-assessed – indicating that their needs have changed, but where the plan has not yet been amended before the person entered custody.

Education on release from custody for young people under 18

The YOT must notify the host and home local authority when it becomes aware that someone is due to be released from relevant youth accommodation. If the young person had an Education Health and Care Plan before custody the responsible LA has a duty to maintain and review the Plan. Local authorities must work with the Youth Offending Team when undertaking this duty to decide whether the EHC plan still accurately reflects the young person’s needs. Where possible this review should take place as early as possible when planning for release and in any event within a month of release from custody.

On transition from youth justice to adult secure estate

A young person still in custody after their eighteenth birthday can be transferred into the adult estate. In line with the National Offender Management Service (NOMS) Transitions Protocol on managing transitions in custody, the youth justice establishment should ensure that all relevant SEN information is passed to the young adult YOI prior to transfer taking place.

Education in custody for young people aged 18 and over

There is no requirement for people to stay in education or training after the age of 18. Where young people with SEN opt to continue their education in custody it is important that they have access to appropriate special educational provision. The Chief Executive of Skills Funding has a duty to encourage those in adult detention to participate in education and training and to have regard to the needs of those with learning difficulties. If the young person had an EHC plan immediately before custody the LA should pass the information to those providing education in prison and work with them to ensure that appropriate special educational provision is in place for them as soon as possible.

Education on release from custody for young people aged 18 and over

If young people with an EHC plan immediately before custody plan to continue their education on release, the OLASS provider and the National Careers Service provider should liaise to ensure the responsible local authority is aware so that they can review the EHC plan. Where appropriate those reviews can take place before release.

Not all young people engage in education in custody. Local authorities should therefore consider provision for children young people with SEN in custody, or who are just coming out of custody.

[Note: Sections to be included on the following]

Children of Service Personnel

Mobility and movement for children of Service personnel

Home education

Looked after Children

Information on the Virtual School Head

Children in Need (with a section 17 assessment)

6 Assessments and Education, Health and Care Plans 

[Draft indicative regulations/policy statements for Committee relevant to this chapter are:

The Approval of Independent Educational Institutions and Special Post-16 Institutions Regulations, Clause 41;

Remaining in special school or post-16 institution without an EHC plan Regulations, Clause 34;

Education (Special Educational Needs) (Assessment and plan), Clauses 36, 37, 44 and 45;

Policy statement on regulations (Personal Budgets), Clause 48;

Policy statement on parents and young people lacking capacity, Clause 68;

Policy statement on transitional arrangements, Clause 107.]

6.1 Introduction 

The great majority of children and young people with SEN will have their needs met within their local mainstream school or college (as set out in the information on identification and support in Chapter 5).

Local authorities should work closely with children, young people and their parents to plan for their future, as part of an on-going process, which continues to identify and meet the needs of children and young people as they develop and grow.

In a small number of cases, planning will identify a need to conduct formal assessments of education, health and care needs, leading to an Education Health and Care (EHC) plan. A statutory assessment should not be the first step in the planning process; rather it should flow from planning undertaken with parents and young people. The statutory assessment process must be co-ordinated across education, health and care to ensure a cohesive experience for children, parents and young people. Information from existing relevant assessments should be used and professionals should share information so that families do not have to keep giving the same information to different professionals.

EHC plans are integrated support plans for children and young people with SEN from 0 to 25. They are focused on achieving outcomes and helping children and young people make a positive transition to adulthood, including into paid employment and independent living. They will be produced in partnership with parents, children and young people and will be based on a coordinated approach to the delivery of services across education, health and care.

Statutory assessment itself will not always lead to an EHC plan. The information gathered during an assessment may indicate ways in which the school, college or other provider can meet the child or young person’s needs without the need for any special educational provision to be made by the local authority in accordance with an EHC plan. This section includes information on determining whether an EHC assessment and EHC plan is required.

6.2 Timescales 

The EHC planning and assessment process should be carried out in a timely manner. The time limits set out here (and in associated regulations) represent the maximum time that should be taken; wherever possible, steps should be completed more quickly.

The whole assessment and planning process, from the point an assessment is requested or that a child or young person comes to the local authority’s notice to the completion of an EHC plan, should take no more than 20 working weeks (subject to exemptions set out below).

Specific requirements

a. Local authorities must respond to any requests for a statutory EHC assessment within a maximum of 6 working weeks, during which time they must seek the views of the parents or young person and offer them the opportunity to submit any evidence relating to the decision. They must then inform the parents or young person, the educational provider and the relevant health commissioner – usually the clinical commissioning group of whom the patient’s GP is a member - of their decision as to whether to undertake an education, health and care assessment.

b. When local authorities request advice as part of the assessment process, those giving the advice must reply within a maximum of 6 weeks.

c. Children, young people and their parents must be involved and consulted throughout the assessment and planning process; they must be given at least 15 days to consider and provide views on the final draft of the EHC plan and to request that a particular school or other institution be named in it.

Exemptions

Local authorities do not need to comply with the time limits above in circumstances in which it is not reasonable to expect the bodies concerned to meet those time scales.

The local authority need not respond to any requests for a statutory EHC assessment within a maximum of 6 working weeks if it is impractical to do so because:

a. the authority has requested advice from the head teacher or principal of a school or post-16 institution during a period beginning 1 week before any date on which that school or institution was closed for a continuous period of not less than 4 weeks from that date and ending 1 week before the date on which it re-opens;

b. the authority has requested advice from the head of SEN in relation to, or other person responsible for, a child’s education at a provider of relevant early years education during a period beginning 1 week before any date on which that provider was closed for a continuous period of not less than 4 weeks from that date and ending 1 week before the date on which it re-opens;

c. exceptional personal circumstances affect the child or his parent, or the young person; or

d. the child or his parent, or the young person, are absent from the area of the authority for a continuous period of not less than 4 weeks during the 6 week period.

The local authority need not complete the whole assessment and planning process within a maximum of 20 working weeks if it is impractical to do so because:

a. the authority has requested advice from the head teacher or principal of a school or post-16 institution during a period beginning 1 week before any date on which that school or institution was closed for a continuous period of not less than 4 weeks from that date and ending 1 week before the date on which it re-opens;

b. the authority has requested advice from the head of SEN in relation to, or other person responsible for, a child’s education at a provider of relevant early years education during a period beginning 1 week before any date on which that provider was closed for a continuous period of not less than 4 weeks from that date and ending 1 week before the date on which it re-opens;

c. exceptional personal circumstances affect the child or his parent, or the young person; or

the child or his parent, or the young person, are absent from the area of the authority for a continuous period of not less than 4 weeks during 20 week period.

Bodies providing advice as part of the assessment process need not comply with the time limit if it is impractical to do so because:

a. exceptional circumstances affect the child, the young person or the child’s parent during that 6 week period;

b. the child, the child’s parent or the young person are absent from the area of the authority for a continuous period of not less than 4 weeks during the 6 week assessment window; or

c. the child or young person fails to keep an appointment for an examination or a test made by the body during the 6 week assessment window.

Parents or the young person should be told if any of these exemptions apply, so that they understand the reason for any delays. Local authorities should aim to keep delays to a minimum and as soon as the conditions that led to an exemption no longer apply the local authority should endeavour to complete the process as quickly as possible. Any remaining components of the process must be completed within their prescribed periods, regardless of whether exemptions have delayed earlier components.

6.3 Requesting an assessment 

A child’s parent, a young person or a person acting on behalf of a school or post-16 institution may request that a local authority conduct an education, health and care needs assessment.

In addition, anybody can bring a child or young person who has (or may have) SEN to the attention of their local authority, and the local authority must consider whether an assessment is required. This might include, for example, health and social care professionals, youth offending teams or probation trusts and those responsible for education in custody.

All requests and referrals for assessment must be considered as quickly as possible by the local authority, regardless of their source.

6.4 Considering whether an assessment is necessary 

Following a request, the local authority must determine whether an assessment is necessary. In doing so, they must ensure parents and young people are fully consulted and given the opportunity to share their views and submit evidence.

In considering whether a statutory assessment is necessary, local authorities should pay particular attention to:

a. The views, wishes and feelings of the child and parents or young person

b. Evidence of the child or young person’s academic attainment and their rate of progress

c. Evidence provided by the school, post-16 institution or others involved with the young person as to the nature, extent and cause of the child or young person’s learning difficulties (for example communication and interaction difficulties, behaviour emotional and social development, and sensory or physical needs)

d. Evidence of action already taken by the school or post-16 institution to meet and overcome those difficulties, and provision made

e. Evidence that where some progress has been made, it has only been as the result of much additional effort and instruction at a sustained level over and above that which is usually provided through Additional SEN Support.

f. Evidence of the child or young person’s physical, emotional and social development and health needs.

g. Where a young person is aged over 18, their age and whether remaining in education or training would help them to progress, building on what they have learned before and helping them to make a successful transition to adult life.

The local authority must inform the child’s parent or young person of their decision within a maximum of 6 weeks of receiving a request for an assessment (or otherwise becoming responsible for the child or young person under Clause 23 of the Children and Families Bill). The local authority must give its reasons for this decision. If the local authority intends to conduct an assessment, it must also ensure the child’s parent or the young person are aware of how they will be involved. If the local authority decides not to conduct an assessment it must inform the parents or young person of their right to appeal that decision and of the requirement for them to consider mediation.

6.5 Conducting co-ordinated assessments and planning 

It is important that children, young people and families experience a straightforward and joined-up process which leads to timely, well-informed decisions. The following principles should be taken into account when conducting co-ordinated planning and assessments:

[Note: Further information to be added to this section on how professionals from education, health and social care should work together to ensure a fully co-ordinated assessment process]

a. Children, young people and their parents should be at the centre of the process, and their views on how, when and to what extent they would like to engage are important and should be taken into account;

b. The assessment and planning process should be as streamlined as possible;

c. There should be a ‘tell us once’ approach to sharing information, so families and young people do not have to repeat the same information to different agencies. Local authorities should be pro-active in ensuring that where there is existing, relevant information about the child or young person, within the local authority or different agencies, they use this rather than requesting further information or assessment. Local authorities should minimise unnecessary disruption and take account of the needs of the child, young person and their family. For example: where families are required to attend multiple appointments with different professionals, these should be co-ordinated or combined where possible; and children and young people with challenging behaviour may need special arrangements for appointment times or venues;

d. Local authorities and clinical commissioning groups are required (under the Children and Families Bill) to work together to arrange local services to meet the education, health and care needs of children and young people with SEN. They must ensure the integration of education, health and care provision where this would improve the well-being of children and young people with SEN. Joint commissioning arrangements must include arrangements to secure education, health and care needs assessments. Local education, health and care services must work together effectively to reach agreement on key outcomes with families and to agree the appropriate joint provision across services to deliver the agreed outcomes. Approaches to integrated working may range from single planning meetings to development of shared services to ensure effective co-ordination of assessment and support.

e. Although assessments should be co-ordinated across agencies, provision of individual services should not be delayed when completing an EHC assessment. The EHC assessment and planning process may take up to 20 weeks from initial request/referral to issuing a completed EHC plan. Where particular services are assessed as being needed, such as those resulting from statutory social care assessments under the Children Act, 1989 or adult social care legislation, their provision should be delivered in line with the relevant statutory guidance and should not be delayed until the EHC plan is complete.

f. Practitioners in all services, including education, health and social care, should be engaged and committed to the assessment and planning process and, where necessary, trained to support families and young people themselves to make informed decisions. In particular the LA should consider the support that parents and young people need in order to take part effectively in the assessment process. Families who have particularly complex needs, requiring the involvement of many different agencies may need support in understanding and contributing to the assessment process. Local authorities must consider providing additional practical support, such as keyworking support, to families who might not be able to take part in the process without such support;

g. Assessment and planning should be an on-going process, which continues to identify and meet the needs of children, young people and families as they develop, ensuring support and provision is planned and delivered in a way that enables children and young people to progress and achieve agreed outcomes.

Whilst many people will contribute to the planning and assessment process, one person should work closely with the young person and their parent/carer and be responsible for co-ordinating the information and the process. The process should actively be supported by senior leadership teams monitoring the quality and sufficiently of the assessments produced through robust quality assurance systems. Young people and their parents should have confidence that those overseeing the assessment process will be impartial and act in their best interests. [Note: This section will be developed further]

6.6 Sharing information 

Agencies must share information to facilitate joined up working. The principles of information sharing between agencies around children and young people with SEN are:

Principles of information sharing

[Note: Further information to follow]

Local authorities

Sharing of individual data

Sharing of strategic data

[Note: Further information to follow]

Information sharing between Education, Health and Social Care and other agencies and settings

Between early years, schools, colleges and other providers in advance of transition

Health and Social Care

Youth Offending Teams

[Note: Further information to follow]

Information sharing across borders

Children and young people with SEN may move across local authority or country borders during the assessment process and when they have an EHC plan. It is important that information on their assessment and plan is shared appropriately by the relevant agencies.

The local authority the child or young person is moving from should share the information and advice they have already gathered with the local authority the child or young person is moving to. This authority must take account of and use this information.

The movement of children and young people may include:

across local authority borders

between England and the devolved administrations

children of service personnel moving between areas

Responsibilities for children and young people educated out of area

[Note: Further information to follow]

6.7 Advice for education, health and care assessments 

When conducting an education, health and care assessment for the first time, local authorities must seek advice from relevant professionals:

a. Educational advice from the head teacher or principal of the early years provider, school or post-16 or other institution attended by the child or young person. Where this is not available, the authority should seek advice from a person it is satisfied has experience of teaching children or young people with special educational needs.

b. If the child or young person is either visually or hearing impaired, or both, the educational advice must be given after consultation with a person who is qualified to teach pupils with these impairments, if the person giving the educational advice is not qualified to do this.

c. Medical advice from a person nominated by the Clinical Commissioning Group which exercises functions in relation to the child or young person, or from health care professionals where relevant.

d. Psychological advice from an educational psychologist.

e. Advice from social care professionals within the local authority.

f. Any other advice which the local authority considers appropriate for the purpose of arriving at a satisfactory assessment, for example from a youth offending team or probation service, or in the case of Service children, the Children’s Education Advisory Service; and

g. Advice from anybody else the parent or young person thinks the local authority should consult, for example a lead support worker.

The local authority should consider with the parent, young person and the parties listed above the level of advice needed in order to enable a satisfactory assessment of needs to take place. For example where a child or young person with SEN does not appear to have significant health or social care needs, a full health and social care assessment may not be necessary.

6.8 Determining whether an EHC plan is necessary 

The local authority should prepare an EHC plan when it considers that the special educational provision needed to meet the child or young person’s needs cannot reasonably be provided within the resources normally available to mainstream early years providers, schools and post 16 institutions.

In determining whether a plan is necessary, the local authority should consider all the information gathered during the EHC assessment and relate it to any evidence presented by the school, other educational institution or others at the time of any request or referral for assessment.

If the local authority decides that a statutory EHC plan is not necessary, it must notify the parents or young person and the early years provider, school or post-16 institution, and give the reasons for its decision. The local authority must also tell the parents or young person of their right to appeal to the SEN Tribunal against the decision and set out the time limits for appeal, the availability of parent partnership and disagreement resolution services, and the fact that the parent or young person must be offered mediation. The local authority should ensure that the parents or young person are aware of the resources available to meet SEN within mainstream provision and other support set out in the local offer.

The local authority should consider providing feedback collected during the assessment process, such as evidence from professionals, which the parents, young person, early years provider, school or post-16 institution may find useful. This information can then inform how the outcomes for the child or young person can be achieved through special educational provision already made by the early years provider, school or college and co-ordinated support from other agencies. It may be appropriate for the format of the summary to broadly follow the statutory format of the EHC plan, although it will be essential to make clear the different legal status of the two documents.

Children and young people without a statutory EHC plan remain entitled to services to meet their reasonable health or care needs under other legislation, including section 3 of the NHS Act 2006, which places CCGs under a statutory duty to provide the health services to meet the reasonable needs of a child with a complex health need, and the Equality Act, which requires schools, colleges and local authorities to make reasonable adjustments to policy and practice, including providing auxiliary aids and services such as specialised computer programmes, hoists and sign language interpreters.

Young people aged 19-25

Where a young person is aged over 18, local authorities must take their age into account when deciding whether special education and an EHC plan is necessary.

Support can continue up to age 25 for those young people who need to take longer to complete or consolidate their education or training. This includes the right to request an assessment of SEN and the provision that might result from that assessment. However, it may not be in the best interests of every young person to stay in education until they are 25. Many young people will want to complete their education and progress into adult life and work much sooner than this. Local authorities will need to make a judgement, in close consultation with parents and the young person, about whether or not agreed outcomes have been met, and the young person has been prepared and enabled to make a successful transition to adulthood.

Some young people with complex needs will primarily require on-going health and/or care support. In such circumstances it is right that these young people receive the support and care that they need via Health Services and/or Adult Care and Support. For others, following time on an Apprenticeship or a Supported Internship the best option may be to leave formal education and access the support and training available to help them to secure a job through the welfare system. Some young people may want to enter Higher Education where local authorities’ general duties with regard to securing educational provision no longer apply. In these cases, maintaining an EHC plan would not be appropriate.

6.9 Preparing an Education, Health and Care Plan 

Local authorities should have regard to the following principles when preparing an EHC plan:

[Note: Further information to be added to this section on how professionals from education, health and social care should work together to ensure a fully co-ordinated planning process]

a. Decisions about the content of EHC plans should be transparent and involve parents and young people themselves.

b. EHC plans should be clear, concise, readable and accessible to parents, children, young people and providers/practitioners.

c. EHC plans should be person-centred, evidence-based and focussed on outcomes (both short term outcomes and longer term aspirations for children and young people). An outcome is not the delivery of support or a service; it is what that support or service is trying to help the child or young person achieve. Outcomes need to be specific, measurable, achievable and time-bound.

d. EHC plans should be specific about the interventions that will make a difference towards securing the agreed outcomes, and the provision needed to support this. They should not simply be a list of services. This can only be done by a careful assessment of the child or young person’s needs and the setting in which they may be educated. Provision should be detailed and specific and should normally be quantified (for example, in term s of the level of support and who will provide it) but it must be clear how the type and level of provision will support the agreed outcomes. There will be cases where some flexibility will be required to meet the changing needs of the child or young person.

e. EHC plans should be written in a way that means they could be used in any local area, particularly the assessment information and agreed outcomes.

f. EHC plans should support preparation for key transition points, including from early years providers to primary school, primary to secondary school, school to college or training and from education into the adult world. Plans must be "forward looking" – e.g. anticipating, planning and commissioning for important transition points in a child or young person’s life. This is vital to ensure children, parents and young people know which educational institution they are going to next, what they are going to study – and why that will help them achieve their longer term outcomes - and that relevant services, equipment and other support are identified, commissioned and in place by the time the transition takes place.

g. The content of EHC plans should be used by local authorities and their partners to inform commissioning of future individual strategic support and provision in their area.

h. EHC plans should explore how informal (family and community) support as well as formal support from statutory agencies can be used to achieve agreed outcomes.

Content of EHC plans

The exact format of an EHC plan will be determined locally, so that plans can best meet the needs of children, young people and their families. To ensure that all plans are as clear as possible, and to make things easier for families who move between local areas, there are some distinct sections that must be in all plans. They are:

a. The views, interests and aspirations of the child and their parents or young person.

b. The child or young person’s SEN.

c. The outcomes sought for him or her.

d. The special educational provision required by him or her. Where provision is to be delivered through a direct payment the plan should set the needs and outcomes to be met by the direct payment and how this will be done under the arrangements for the direct payment.

e. Any health and social care provision [of a prescribed description] required by him or her. [Note: Health and social care provision to be defined when new duty on health to ensure provision of services in EHC plan has been cleared by Bill committee]

f. Any additional provision, e.g. support for finding employment, housing or for participation in society

g. The name of the school, maintained nursery school, post-16 institution or other institution or the type of school or other institution to be attended by the child or young person.

Exemplars of EHC plans developed by the SEN pathfinders will be made available to support local authorities in considering the best format for EHC plans locally.

Local authorities should agree a process for how different agencies input into draft EHC plans, and how information about the content of plans collectively in a local area can inform the commissioning of education, heath, care and other services (e.g. housing and employment support).

[Note: When the new duty on health commissioners to ensure provision of healthcare services specified in EHC plans has been cleared by the bill committee, it will be referenced here]

[Note: Information on the interface with statutory adult social care plans set out in the draft Care and Support Bill will be referenced here]

Speech and Language Therapy

Case law has established that speech and language therapy can be regarded as either educational or non-educational provision, or both, depending upon the health or developmental history of each child. It could therefore be included in the Plan as either educational or health provision or both.

However, since communication is so fundamental in learning and progression, addressing speech and language impairment should normally be recorded as educational provision unless there are exceptional reasons for not doing so. The Children and Families Bill, clause 21 (5) makes clear that where health provision is wholly or mainly for the purposes of education and training it is to be treated as education provision.

Local authorities and their partner clinical commissioning groups must make arrangements to secure education, health and care provision for children and young people with SEN.

Power to continue children’s social care services to those aged 18-24

Where a local authority has been providing children’s social care services to a young person under the age of 18, and they have an EHC plan in place, local authorities can continue to provide these services on the same basis after the age of 18.

The local authority retains discretion over how long it chooses to provide these services, so long as an EHC plan remains in place. Where the young person no longer has an EHC plan, the local authority no longer has the power to extend the provision of these services to young people over 18.

This will enable local authorities to agree with young people when the most appropriate time for transition to adult services will be, avoiding key pressure points such as exams or a move from school to college. Poorly timed and planned transition to adult services will have a detrimental effect on achievement of outcomes and may result in young people requiring far longer to complete their education or dropping out altogether. This can have a negative impact on their health and care needs and it is in the vested interests of both local authorities and young people that the transition between children’s and adult’s services is managed and planned carefully.

6.10 Expressing a preference for a particular school, college or other institution 

Parents of children with an EHC plan and young people with such a Plan have a right to express a preference that they attend a particular school, college or other institution of the following type:

a. maintained school (mainstream or special), Academy, Free School;

b. Special Academy or Special Free School;

c. non-maintained special school;

d. further education or sixth form college

e. independent school or independent specialist colleges (where they have been approved for this purpose by the Secretary of State and published on a list available to all parents and young people)

If a parent or young person expresses a preference for a particular school or college in these groups the local authority must comply with that preference and name the school or college on the EHC plan unless it would:

a. be unsuitable for the age, ability, aptitude or SEN of the child or young person; or

b. the attendance of the child or young person there would be incompatible with the efficient education of others; or the efficient use of resources

The local authority must consult the governing body, principal or proprietor of school or college concerned and consider their comments very carefully before deciding whether to name them on the child or young person’s Education, Health and Care Plan, sending them a copy of the draft Plan. If another local authority maintains the school, they too should be consulted.

The local authority should expect the school or college, and where relevant the other local authority, to respond in 15 working days unless the period falls within a school or college holiday that is longer than 2 weeks. Where a school or college is named on an EHC plan they must admit the child or young person.

Parents and young people may make representations for places at independent schools or Independent Specialist Providers that are not on the list mentioned above and the local authority must consider their request. The local authority is not under the same conditional duty to name the independent school or independent specialist provider but must have regard to the general principle in section 9 of the Education Act 1996 that children should be educated in accordance with their parents’ wishes so long as this is compatible with the provision of efficient instruction and training and does not mean unreasonable public expenditure. If a local authority is minded to name the independent school or independent specialist provider on the child or young person’s EHC plan it must make sure that they will admit them before it can name them on the Plan.

Where no preference is expressed for a particular school or college

Where a parent or young person does not express a preference for a particular school or college, or they do so and their preference is not met, the local authority has a duty to provide for a mainstream setting in the child or young person’s EHC plan unless it would be:

a. against the wishes of the parent or young person; or

b. incompatible with the efficient education of others.

Where the local authority considers a mainstream place to be incompatible with the efficient education of others it must demonstrate that there are no reasonable steps that it, or the school or college, could take to prevent that incompatibility by the school or college or local authority. What constitutes a reasonable step will depend on all the circumstances of the individual case. The following are some of the factors that may be taken into account:

a. whether taking the step would be effective in removing the incompatibility;

b. the extent to which it is practical for the school, college or local authority to take the step;

c. the extent to which steps have already been taken in relation to a particular child or young person and their effectiveness;

d. the financial and other resource implications of taking the step; and

e. the extent of any disruption that taking the step would cause.

[Note: This section to be developed further]

Transport costs for children and young people with EHC plans

The parents or young person’s preferred school or college might be further away from their home than the nearest school or college that can meet the child or young person’s SEN. In such a case, the LA can name the nearer school or college if that would be deemed appropriate by the LA. The LA could name the school or college preferred by the parents or the young person on condition that the parents or young person agreed to meet all or part of the transport costs.

The school or college named in a child or young person’s EHC plan must be capable of meeting the child or young person’s SEN. LAs should not, therefore, promulgate general transport policies that seek to limit the schools or colleges for which parents of children, or young people, with EHC plans may express a preference if free transport is to be provided.

Transport should only be recorded in the EHC plan in exceptional cases where the child has particular transport needs. In most cases LAs will have clear general policies relating to transport for children and young people with SEN that should be made available to parents and young people, and should be included in the local offer. Such policies would need to set out those transport arrangements which are over and above those required by section 508B of the 2006 Education and Inspections Act.

Where the LA names a residential provision at some distance from the family’s home, the LA should provide transport or travel assistance; the latter might be reimbursement of public transport costs, petrol costs or provision of a travel pass.

Transport costs may be provided as part of a personal budget arrangement as agreed.

Building full time programmes

In agreeing the content of an EHC plan, local authorities should consider the need to provide a full package of provision and support – including for independent study - that covers five days a week where that is appropriate to meet the young person’s needs. This provision and support does not all have to be at one provider and could be a combination of time at different providers and periods outside education institutions with appropriate support.

When commissioning provision, local authorities should have regard to how young people learn and the additional time and support they may need to undertake coursework and homework as well as time to socialise with their college peers within the college environment. In some cases, courses normally offered over three days may need to be spread over four to five days to enable the young person to maximise their learning outcomes. Local authorities will need to work with providers and young people to ensure there is a range of quality opportunities that can be tailored to individual needs.

Children educated at parents’ expense

Parents may choose to place a child with an EHC plan in an independent school or a non-maintained special school at their own expense. If parents choose to make such provision for their child, the LA must be satisfied that the school is able to make special educational provision for the child that meets their SEN before it is relieved of its duty to arrange provision in an appropriate school.

The LA is not required to specify the name of a school in the child’s EHC plan where they are satisfied that the child’s parents have made suitable arrangements but they must, in those circumstances, state the type of provision. The LA is, whether or not a school is named in the EHC plan, still under a duty to maintain the child’s EHC plan and to review it annually.

6.11 Personal Budgets in EHC plans 

A personal budget is an amount of money identified by the local authority to deliver all or some of the provisions set out in an EHC plan. By having a say in the way this budget is used, a parent or young person can control elements of their support. Personal budgets should reflect the holistic nature of an EHC plan, covering education, health and care services as appropriate, where additional and individual support is agreed through the planning process.

Personal budgets should be based on clear, agreed outcomes. The decision making process to establish and agree a budget should be transparent and challengeable.

Parents and young people can request a personal budget once the authority has confirmed an EHC plan is necessary, or when the authority is undertaking a statutory review of an existing EHC plan. Local authorities must consider this request, and offer information to parents to help them to decide whether they wish to make such a request.

What can be included in a personal budget?

The personal budget can include funding from education, health and social care sources. Local authorities and their partners must set out arrangements for the local agreement of personal budgets in their joint commissioning arrangements. Where local governance or pooling arrangements exist, funding in a personal budget can be used to commission joint provision across all three services.

Personal budgets in education should relate to needs that are significant enough to need additional and individual support above and beyond that which is normally available and funding to meet these needs, from the high needs block (element 3), should be considered for inclusion in a personal budget. Funds that are delegated to schools and colleges will not normally be in scope for inclusion in a personal budget, unless the institution has previously agreed to this. Personal budgets must not be used to fund a school place

Setting and agreeing the personal budget

Details of personal budgets should be set out clearly within an EHC plan, including the amount of the budget and what it will be used for. Funding for special educational provision must be set at a level that will deliver the specified provision. Local authorities should include details of any proposed personal budget in the draft plan that is shared with parents.

Mechanisms for delivery of a personal budget

Parents should be given three options for the control of their budget:

a. Notional arrangements – where the authority retains the funds but the parent/young person directs its usage;

b. Third party arrangements – where funds are paid to an individual or another organisation on behalf of the parent/young person and they manage the funds;

c. Direct Payments – where individuals receive the cash to purchase services themselves.

Direct Payments

Direct payments are cash payments made directly to parents, young people or their representatives, allowing them to arrange their own provision. Regulations governing the use of direct payments for special educational provision place a number of requirements on both local authorities and parents before a direct payment can be agreed. These include requirements:

a. To consider the impact on other service users and value for money;

b. To seek agreement of educational establishments where a service funded by a direct payment is delivered on their premises;

c. To make arrangements to monitor and review the payment;

d. For direct payments to be paid into a separate bank account unless the payment is a one off.

The regulations also prohibit certain people from receiving cash payments (such as those subject to Drug or Alcohol rehabilitation orders).

Information advice and support

Information on how to request a personal budget and eligibility criteria must be provided as part of the local offer. Local authorities should provide information, advice and support for parents and young people themselves in understanding what a personal budget entails and how it can be used. Information should include sources of independent advice available to families and should provide support on both the take-up and management of a personal budget (especially when this is delivered through a direct payment).

6.12 Children and young people in specific circumstances 

Young Offenders

Youth Offending Teams (YOTs) work with young offenders (under 18) and those at risk of offending. YOTs are responsible for a range of youth justice services, including compiling pre-sentence reports, supervision of young offenders serving sentences in the community and supervision of those released from custody. Local authorities must ensure that Youth Offending Teams are involved in supporting assessments and the development of EHC plans for a child or young person who has been in custody, is serving a sentence in the community or if they have been identified as being at risk of offending. If the young person is aged 18 or over Local Authorities should involve the relevant probation services.

Children of Service Personnel

At each key transition or decision-making point, local authorities and professionals need to consider whether mobility or deployment issues around the family are likely to affect the outcomes for the service child or young person.

For service children with EHC plans, or those undergoing EHC assessments, where mobility is an issue, local authorities should work with each other and with the family and the MoD’s Directorate Children & Young People (DCYP) Children’s Education Advisory Service (CEAS). This is to ensure good advance planning and a smooth transition to appropriate educational provision.

[Note: Further information to follow including information in the sections below]

Looked after Children
Children in Need (with a section 17 assessment)
Children and YP in Pupil Referral Units or Home Tuition
Home education

6.13 Finalising an EHC plan 

The local authority must send a draft EHC plan to the child’s parents or the young person and give them at least 15 days to give views on the content and to request that a particular school or other institution be named in the plan.

When changes are suggested to the proposed plan and agreed by the local authority and the parents or young person, the final plan should be amended and issued immediately. Every effort should be made to ensure that parents or young person understand the significance of any changes and the nature of the provision that is proposed to meet the child or young person’s SEN. When the plan is issued parents and young people must be given notice of their rights of appeal to the Tribunal and the time limits for lodging an appeal, the availability of mediation, parent partnership and disagreement resolution services, and the fact that the parents’ or young person’s right of appeal cannot be affected by any disagreement resolution procedure. Parents or the young person may appeal against the description in the EHC plan of SEN, the special educational provision, and the school or other provider named, or if no school or other provider is named, that fact.

Where parents or young people are unwilling to agree changes to the proposed plan, or where the local authority refuses changes proposed by parents of young people, the authority may nonetheless proceed to issue the final EHC plan. It must, however, inform the parents or young person of the option to access mediation and to appeal to the SEN Tribunal with respect to the provision specified in the Plan, including the school that has been named, and of the procedures to be followed if they wish to do so. The final plan should also be issued to the governing body, proprietor or principal of any school or other institution named in the EHC plan, and to the clinical commissioning group that exercises functions in relation to the child or young person.

6.14 Maintaining an EHC plan 

When an EHC plan has been made for a child or young person, the local authority must inform the head teacher or principal of the educational institution that they will attend. The head teacher or principal should ensure that those teaching or working with the child or young person are aware of their additional needs and have arrangements in place to meet them. Institutions should also ensure that teachers/lecturers monitor and informally review the child or young person’s progress during the course of a year.

Local authorities must arrange the special educational provision and may arrange the social care provision specified in the plan, from the date on which the plan is made. Clinical commissioning groups must arrange the health services specified in the plan, from the date on which the plan is made.

If a child or young person’s SEN change, a review must be held as soon as possible to ensure that the provision specified in the EHC plan is still appropriate.

6.15 Reviewing an EHC plan 

EHC plans can be used as effective tools for on-going monitoring of progress and can be reviewed regularly in whole or in part – particularly where agreed dates for specific outcomes to be achieved have been reached before an annual review is due.

Local authorities must arrange for a review of a child or young person’s EHC plan at least annually, and beginning within 12 months of the date it commenced. Professionals across education, health and care must co-operate with local authorities during review processes.

Where a young person is aged over 18, local authorities must take their age into account when reviewing their support and deciding whether a Plan should continue to be maintained.

As part of the review, local authorities and the relevant educational institution must cooperate to ensure a review meeting takes place. The local authority can require the relevant educational institution to convene the meeting on the local authority’s behalf where appropriate, and provide a report on the child or young person. The following requirements apply:

a. The child and child’s parents or young person must be invited and given at least two weeks’ notice of the date of the meeting. The meeting must take account of their views, wishes and feelings and children and young people should be supported to engage in the review.

b. Representatives of education, health and care relevant to the child or young person’s plan must be invited, including youth offending teams where relevant, and given at least two weeks’ notice of the date of the meeting.

c. The meeting must focus on the child or young person’s progress towards achieving the outcomes specified in the EHC plan, and on what changes might need to be made to these.

If following the review meeting the plan must be amended, there must be a clear process of consultation with the child, young person and their parents, as well as those professionals and others who fed into the plan. All parties must be given 2 weeks to consider and reply.

Local authorities must then provide the parent or young person, and the relevant educational institution, with a revised copy of the plan and give them 2 weeks to consider and comment on it.

Transfer between phases of education

A plan must be reviewed and amended in reasonable time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution.

At the latest the review and amendment must be completed by 15 February in the calendar year of the transfer. The key transfers are:

a. Early years providers to infant school;

b. Infant school to junior school;

c. Primary school to middle school;

d. Primary school to secondary school;

e. Middle school to secondary school; or

f. Secondary school to a further education, specialist or sixth form college, or training provider (including onto an Apprenticeship)

A plan should also be reviewed prior to the final exit from formal education or training (i.e. when outcomes will have been achieved and the plan will cease). The plan should set out what will be happening as part of the transfer to adulthood

Young people who move in and out of education, including those who are excluded or who become NEET

Where a young person is of compulsory participation age, an EHC plan should be maintained for them if they are excluded from education or training or leave voluntarily. The focus of support should be to reengage that young person in full time educational participation.

Where a young person is aged 18 or over leaves education before the end of their course or before the outcomes in their EHC plan have been met, the local authority should review their EHC plan. If this review determines that the young person wants to complete their education and that re-engaging them in education or training is in their best interests, then support should be maintained to help them do so.

Where a young person who had an EHC plan before entering custody is released from custody the EHC plan must be maintained and reviewed. Local authorities should start the review when planning for the young person’s release and in all cases within a month of the young person leaving custody.

6.16 Re-assessments 

When conducting a re-assessment of an EHC plan following a request for re-assessment by a parent, young person, school or post-16 institution, the local authority must:

a. Take account of and use existing information where it is still relevant;

b. Engage professionals across education, health and care;

c. Fully engage the child and the child’s parents or the young person, taking account of their views, wishes and feelings;

d. Where a young person is aged over 18, take their age into account when re-assessing their continued participation in education.

A local authority can refuse requests for re-assessments if less than 6 months have passed since the assessment was conducted, however they can re-assess sooner than this if they think it necessary.

Where a local authority instigates a re-assessment rather than by a parent, young person, school or post-16 institution, it must follow the same process as above, except that it only needs to consult those professionals across education, health and care it considers appropriate, taking into consideration which of the educational, health care and social care provision is being re-assessed. It must still fully engage the child and the child’s parents or the young person, taking account of their views, wishes and feelings.

[Note: Information will be included here on the requirement for health professionals to be able to request a re-assessment following changes to the Bill to include a new duty on health to provide services in EHC plans and has been cleared by Committee]

6.17 Preparing for the transition to adulthood 

Local authorities should ensure that early transition planning is in place for all young people with an EHC plan focusing on positive outcomes and how to achieve them. Person-centred planning should be at the heart of this discussion, focusing on an in-depth analysis of the appropriate learning provision for the young person to help them meet their outcomes. The planning process should raise young people’s and parent’s expectations reinforcing and promoting notions of work and independent living with clear and achievable outcomes.

EHC plans reviewed after the age of 19 should plan for phased transition into the key life outcomes listed, with a greater emphasis on pathways to independent living and links to job seeking, for example Job Centre Plus.

When the child or young person is expected to leave education or training within the next two years, the review meeting must consider what provision is required to assist in preparing the young person for adulthood and independent living. Local authorities and learning providers should support young people to a smooth transition to adulthood so they are prepared when their EHC plan ends. Both providers and local authorities should give advice to young people and help them to understand what support is available to them after they complete their education, including support to find work, housing support and on-going health and social care support. Good transition planning should plan clear hand-overs to new professionals and services so that young people and parents know and are confident in who they are dealing with and where they need to go for help.

When a young person takes up a place in higher education, their Education Health and Care Plan will cease. However transition planning should include how health and social care support will be maintained, where it is still required. For some young people, the same local authority will continue to provide their care and support others will be supported by the local authority they are moving to. This will depend on the circumstances of their case. The Ordinary Residence guidance published by the Department of Health provides a number of examples to help local authorities in making these decisions. http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_113627 Local authorities should also ensure that young people are aware of the support available to them through the Disabled Students Allowance and how they can claim it.

[Note: Further information on how this will work under the changes set out in the draft Care & Support Bill will be provided here].

6.18 Ceasing an EHC plan 

A local authority may cease to maintain an EHC plan in the following circumstances:

the local authority are no longer responsible for the child or young person, for example if they have moved to another local authority area;

if they determine that special educational provision is no longer needed;

a young person aged 16 or over takes up paid employment (including employment with training but excluding Apprenticeships);

if the young person enters Higher Education; or

a young person aged 18 or over leaves education and no longer wishes to engage in further learning.

In making this decision, the local authority must consult with child’s parent or the young person and take into account whether the educational outcomes specified in the EHC plan have been achieved. They must also, for a young person aged 18 or over, have regard to their age. Local authorities must not simply cease to maintain Plans once a young person reaches 18.

The local authority should continue to maintain their EHC plan where it is clear that:

the young person wants to remain in education or training so they can complete or consolidate their learning – including accessing provision that will help them make a successful transition to adulthood;

special educational provision is still needed;

agreed outcomes set out in their EHC plan have not yet been achieved; and

remaining in education or training would enable them to progress and achieve those outcomes – and others that may subsequently be agreed.

Where a young person aged 18 or over leaves education or training and does not enter employment, the local authority should review their EHC plan, applying the criteria listed above. Where these are applicable, the local authority should maintain the plan and seek to re-engage the young person in education or training as soon as possible.

A local authority may not cease to maintain an EHC plan for a young person still of compulsory participation age who leaves education but does not start paid employment. The Plan must be maintained and the local authority should take appropriate steps to re-engage the young person in education or training.

Where a local authority is considering ceasing to maintain a child or young person’s EHC plan it must:

a. inform the child’s parent or the young person that it is considering ceasing to maintain the child or young person’s EHC plan; and

b. consult the child’s parent or the young person;

c. consult the school or other institution that is named in the EHC plan.

d. where, following that consultation the local authority determines to cease to maintain the child or young person’s EHC plan, notify the child’s parent or the young person and the institution named in the child or young person’s EHC plan of that decision.

Where the child’s parent or young person disagrees with the local authority’s decision to cease their EHC plan, they may appeal to the Tribunal. Local authorities must continue to maintain the EHC plan until the time has passed for bringing an appeal or the appeal has been resolved.

7 Resolving disputes 

[Draft indicative regulations/ policy statement for Committee relevant to this chapter are:

The Special Educational Needs (Appeal) Regulations, Clause 50;

The Special Education Needs (Mediation) Regulations, Clause 51;

Policy statement on Children’s Right to Appeal Pilots, Clause 53 and 54.]

7.1 Early resolution of disagreements 

It is in the best interests of children and young people for decisions about what provision is right for them to be made as soon as possible. In most cases this is achieved through providers, local authorities and clinical commissioning groups working closely with parents and young people.

However, there will be occasions where agreement cannot be reached and it is always preferable for these situations to be resolved as soon as possible, for example through discussion between the parties, or school, college or local authority complaints procedures. Early resolution of disagreements benefits parents and young people by avoiding unnecessary stress, and providers and local authorities by avoiding potentially costly disputes.

Where agreement cannot be reached on education matters through these complaints procedures disagreement resolution services are available in each local authority area to deal with disagreements between parents and young people on the one hand and schools, post-16 institutions and local authorities on the other. Where parents or young people have received decisions from local authorities about assessments and Education, Health and Care plans and they do not agree with them, they can make an appeal to the First-tier Tribunal (SEND) and in most cases they will contacted by a mediation adviser who will provide them with information about mediation. If the parent or young person wants to go to mediation it will be arranged by the local authority, otherwise they can register an appeal with the Tribunal straightaway.

7.2 Local complaints procedures 

Early education providers’ and schools’ complaints procedures

[to be developed]

Local authority complaints procedures

[to be developed]

Local Government Ombudsman

[To be developed]

7.3 Disagreement resolution arrangements 

Disagreement resolution services

Local authorities must arrange for disagreement resolution services to be available to parents and young people. The service must be independent of the local authority and any local authority employees can’t be involved.

The service is to help avoid and resolve disagreements about two types of complaints. The first is between parents or young people and local authorities, the governing bodies of maintained schools and maintained nursery schools, further education institutions or the proprietors of Academies about how these authorities, bodies or proprietors are carrying out their education, health and care duties for children and young people with SEN. These duties include duties on the local authority to keep their education and care provision under review and the duty on governing bodies and proprietors to do their best to meet children and young people’s SEN. The second is disagreements between parents or young people and early years providers, schools or post-16 institutions about the special educational provision made for a child or young person.

Local authorities must make the availability of disagreement resolution services known to parents, young people, heads, governing bodies proprietors and principals of schools and post-16 institutions in their areas. Use of the disagreement resolution services has to be with the agreement of both parties. Use can be made of the services at any time, including after an appeal has been registered with the Tribunal. Failure to use the disagreement resolution services has no effect on parents’ and young people’s right to appeal to the Tribunal and no inference will be drawn by the Tribunal if the parties to a dispute have not used the disagreement resolutions services.

Effective disagreement resolution services

In delivering an effective disagreement resolution service, local authorities:

should take responsibility for the overall standard of the service;

should have clear funding and budgeting plans for the service: parents and young people should not be charged for the use of this service;

should ensure that the service is impartial and it must be independent of the local authority;

should ensure that the service has a development plan which sets out clear targets and is regularly reviewed;

must make the arrangements for disagreement resolution and how they will work known to parents and schools in their areas and should make the arrangements known to others they think appropriate;

should ensure that the independent persons appointed as facilitators have the appropriate skills, knowledge and expertise in disagreement resolution; an understanding of SEN processes, procedures and legislation; have no role in the decisions taken about a particular case, nor any vested interest in the terms of the settlement; are unbiased; maintain confidentiality; carry out the process quickly and to the timetable decided by the parties;

should establish protocols and mechanisms for referring parents to disagreement resolution;

should ensure that those providing the service receive appropriate initial and on-going training and development to enable them to carry out their role effectively;

should establish a service level agreement for delivering the service which ensures sufficient levels of resources and training, and sets out the appropriate standards expected of, and the responsibilities delegated to, the provider. There should be appropriate arrangements for overseeing, regularly monitoring and reviewing the performance of the service, taking account of local and national best practice; and

should seek feedback from the service to inform and influence local authority and provider decisions on SEN policies, procedures and practices.

7.4 Mediation 

Mediation information and advice

Parents and young people who wish to make an SEN appeal to the First-tier Tribunal (SEND) may only do so after they have contacted an independent mediator. The issues which may be appealed against to a Tribunal are set out under ‘appeals’ above. When the local authority sends the notice accompanying their decision in relation to a matter which can be appealed to the Tribunal to parents or young people, they have to include contact details for an independent mediator. The mediator will provide information on mediation. The information will normally be provided on the telephone, although information can be provided in written form, through face-to-face meetings or through other avenues if the parent or young person prefers that.

Where the parent or young person decides not to go to mediation following contact with the mediation adviser the adviser will issue a certificate, within three working days, saying that information has been provided. Parents and young people are not able to register an appeal at the Tribunal without a certificate.

Exceptions to the requirement to contact a mediation adviser

Parents and young people do not have to contact the mediation adviser if their appeal is solely about the name of the school or other institution named on the plan, the type of school or other institution specified in the plan or the fact that no school or other institution is named. Parents and young people will have had the opportunity to request a school or other institution and there would have been the opportunity to discuss this in detail with local authority. The mediation information and advice arrangements do not apply to disability discrimination claims.

Going to mediation

Once the information and advice has been provided it is for the parent or young person to decide whether they want to go to mediation. If they do then the mediation provider will contact the local authority and the local authority must arrange a mediation session within 30 calendar days. If the parent or young person wants to go to mediation then the local authority must also take part.

A mediation session or sessions which arise out of these arrangements must be conducted by independent mediators. In addition to the mediator, the parent or young person will attend and a representative or representatives of the local authority. The parent or young person will be able to be accompanied by friend, adviser or advocate and, in the case of parents, the child if that would be appropriate. In cases where parents are the party to the mediation and it is not appropriate for the child to attend in person the mediator must take reasonable steps to get the views of the child. Once mediation is completed the mediator must issue a certificate within three working days which says that this is the case. If the parent or young person still wants to appeal following the mediation they must send the certificate to the Tribunal when they register their appeal. The certificate will not set out any details about the mediation – simply stating it is completed and when.

Effective services for mediation and mediation information and advice

[Note: Further information to follow]

Registering an appeal with the Tribunal

Parents and young people have two months to register an SEN appeal with the Tribunal, from the date of receiving a notice from the local authority with a decision that can be appealed. In the great majority of cases where parents and young people have to contact a mediation adviser before registering an appeal there will be time for the appeal to be registered before the two month deadline, even in cases which go to mediation. In some cases parents and young people will not be in a position to register the appeal within the two month limit. The Tribunal has the power to accept appeals outside the two month time limit.

The Tribunal will not take account of the fact that mediation has taken place, or has not been taken up, nor will it take into account the outcomes of any mediation.

The local authority will pay reasonable travel expenses and other expenses to the parent or young person taking part in mediation. This will include phone call costs in excess of the local rate.

7.5 Parents’ and young people’s right to appeal to the First-tier Tribunal (SEND) about EHC assessments and Education, Health and Care Plans 

Who can appeal to the Tribunal about EHC assessments and plans

Parents and young people (over compulsory school age until the end of the academic year in which they reach age 25), can appeal to the First-tier Tribunal (Special Educational Needs and Disability) about EHC assessments and EHC plans, following contact with a mediation adviser in most cases (see below).

What parents and young people can appeal about

Parents and young people can appeal to the Tribunal on:

a decision by a local authority not to carry out an EHC needs assessment or re-assessment;

a decision by a local authority that it is not necessary to make special educational provision in accordance with a plan following an EHC assessment;

the description of a child or young person’s SEN specified in a plan, the special educational provision specified, the school or other institution or type of school or other institution specified in the plan or that no school or other institution is specified;

a decision by a local authority not to amend or replace an EHC plan following a review or re-assessment;

a decision by a local authority to cease to maintain a plan.

Conditions related to appeals

The following conditions apply to appeals:

appeals have to be registered with the Tribunal within two months of the local authority sending a notice in connection with one of the matters that can be appealed to the Tribunal;

the right to appeal a refusal of an assessment will only be triggered where the local authority has not carried out an assessment in the previous six months;

when the parent or young person is appealing about a decision to cease to maintain the plan the local authority has to maintain the plan until the Tribunal’s decision is made;

the parent or young person can appeal to the Tribunal when the EHC plan is first finalised or following an amendment or replacement of the plan.

Decisions the Tribunal can make

The Tribunal has prescribed powers under the Children and Families Bill to make certain decisions in relation to certain appeals. The Tribunal can dismiss the appeal, order the local authority to carry out an assessment, to make and maintain a plan or to maintain a plan with amendments. The Tribunal can also ask the LA to reconsider or correct a weakness in the plan. Local authorities have time limits within which to comply with decisions of the Tribunal.

7.6 Disability discrimination claims 

Venues for claims

The parents of disabled children and disabled young people in school have the right to make disability discrimination claims to the First-tier Tribunal (SEND) if they feel their children or they themselves have been discriminated against by schools or local authorities when carrying out some of their education functions. Claims must be made within six months of the alleged instance of discrimination. The parents of disabled children, on behalf of their children, and disabled young people in school can make a claim against maintained, maintained nursery, non-maintained, independent and most Academy schools about alleged discrimination in the matters of exclusions, the provision of education and associated services and the making of reasonable adjustments, including the provision of auxiliary aids and services. They can also make claims to the Tribunal about admissions to independent and non-maintained special schools and most Academies. Claims about admissions to maintained schools are made to local admissions panels.

Disability discrimination claims by young people against post-16 institutions, by parents about early years provision and about treatment of them as a parent in respect of being provided with an education service for their child, are made to the county courts.

Guidance on how to make a disability discrimination claim to the Tribunal is available at http://www.justice.gov.uk/forms/hmcts/send .

Exclusion

The Government issues statutory guidance on school exclusion, which can be found on the Departmental website. The guidance sets out details of the permanent exclusion review panel process, including parents’ right to ask for an SEN expert to attend. In addition, claims for disability discrimination in relation to permanent and fixed-period exclusions may be made to the First-tier Tribunal (SEND).

Local authorities have a duty to arrange suitable, full time education for pupils of compulsory school age who would not otherwise receive such education, including from the sixth day of a permanent exclusion. Schools have a duty to arrange suitable, full time education from the sixth day of a fixed period exclusion. In carrying out their duties schools and local authorities must ensure that this education is in line with a pupil’s Education, Health and Care plan, if one is in place.

7.7 The First-tier Tribunal (SEND) 

The Special Educational Needs and Disability Tribunal (the SEND Tribunal) forms part of the First-tier Tribunal (Health, Education and Social Care Chamber). Tribunals are overseen by Her Majesty’s Courts and Tribunals Service.

The role and function of the tribunal

The SEND Tribunal hears appeals against decisions made by the local authorities in England in relation to children's and young people’s assessments and Education, Health and Care Plans. It also hears disability discrimination claims against schools.

The Tribunal seeks to ensure the process of appealing is as user-friendly as possible, and seeks to avoid hearings that are overly legalistic or technical. It has always been the Tribunal’s aim to ensure that a parent or young person should not have to engage legal representation when appealing a decision.

How to appeal

When appealing to the Tribunal parents and young people should identify the decision that they are appealing against and the date when the local authority’s decision was made. The parent or young person that is appealing (the appellant) will be required to give the reasons why they are appealing. The reasons do not have to be lengthy or written in legal language but should explain why the appellant disagrees with decision. If there is any information or evidence which supports the appeal, the appellant should include it when they submit their appeal form.

When the appeal is registered with the Tribunal a copy will be sent to the local authority. The local authority will also receive a copy of the directions that set out the time limits for sending documents or providing details of witnesses; these will apply to all parties. Once the appellant’s case is fully prepared they will receive a date for the hearing. Hearings are heard throughout the country at various Her Majesty's Courts and Tribunals Service buildings. The Tribunal will try to hold hearings as close to where the appellant lives as possible. Appeals are heard by a panel of Tribunal members who have been appointed because of their knowledge and experience of children with SEN and disabilities.

A DVD is available from the Tribunal that gives appellants some guidance on what happens at a hearing

Timescales following the hearing

Both the young person or parent making the appeal and the local authority should receive a copy of the Tribunal's decision and reasons by post within 10 working days of the hearing. Along with the decision notice the Tribunal will send a leaflet which will explain the application process for permission to appeal the Tribunal decision to the Upper Tribunal, if the appellant considers that the decision made was wrong in law.

Step by step guidance on the process of appealing to the Tribunal and what it involves can be found at http://www.justice.gov.uk/tribunals/send/appeals

7.8 Legal Aid 

If a parent or young person has decided to appeal against a decision concerning SEN provision for their child, legal aid may be available to assist with that appeal. Before someone can be granted legal aid they must satisfy a financial means assessment. The case must also satisfy a merits test of whether it has a reasonable chance of succeeding.

Legal aid can provide advice and assistance in preparing an appeal to the First-tier Tribunal (SEN and Disability), but it does not cover having a lawyer act as a formal legal representative before the Tribunal (that is, advocacy).

If the parent or young person’s appeal to the Tribunal is unsuccessful, and they wish to mount a further appeal to the Upper Tribunal (or beyond to the Court of Appeal or Supreme Court), then legal aid can provide advice, assistance and having a lawyer act as their formal legal representative and speak for them.

A parent or young person seeking access to legal aid for a SEN case can go online via www.gov.uk/legal-aid to find out if they are eligible. Alternatively they can contact the Civil Legal Advice (CLA) service on 0845 345 4 345. If the CLA assesses a person as eligible, the legal advice will be provided by phone, online or by post, unless the specialist advice provider assesses them as unsuitable to have advice in this way.

The following groups will be exempt from having to apply via CLA: young people under 18 and those assessed by the gateway in the previous 12 months as requiring face-to-face advice and who have a further linked problem and are seeking further help from the same face-to-face provider.

7.9 NHS Complaints – Healthwatch 

[Note: This section to be developed]

7.10 Complaints about social services provision 

[Note: this section to be developed]

The Special Educational Needs (Local Offer) (England) Regulations 2014

Citation and commencement

1.  These Regulations may be cited as the Special Educational Needs (Local Offer) (England) Regulations 2014 and come into force on 1st September 2014.

Interpretation

2. In these Regulations-

"the Act" means the Children and Families Act 2014;

"health and wellbeing board" means a board established under section 194 of the Health and Social Care Act 2012; and

"provision to assist in preparation for adulthood and independent living" has the meaning in section 30(3) of the Act.

Information to be included in the local offer

3. A local authority must include the information in the Schedule when it publishes its local offer.

Consultation

4. - When preparing and reviewing its local offer, a local authority must consult the following persons in its area-

(a) children with special educational needs, their parents and young people with special educational needs;

(b) the governing bodies of maintained schools and maintained nursery schools;

(c) the proprietors of Academies;

(d) the governing bodies, proprietors or principals of post-16 institutions;

(e) the governing bodies of non-maintained special schools;

(f) the management committees of pupil referral units;

(g) the advisory boards of children’s centres;

(h) the providers of relevant early years education;

(i) the youth offending teams that the authority thinks have functions in relation to children or young people for whom it is responsible;

(j) any other person that makes special educational provision for a child or young person for whom it is responsible and those who provide advice in relation to making that provision;

(k) persons who make provision to assist in preparing children and young people for adulthood and independent living;

(l) its officers who-

(i) exercise the authority’s functions relating to education or training;

(ii) exercise the authority’s social services functions for children or young people with special educational needs;

(iii) so far as they are not officers within paragraph (i) or (ii), exercise the authority’s functions relating to provision to assist in preparing children and young people for adulthood and independent living; and

(m) such other persons as it thinks appropriate.

(2) When preparing and reviewing its local offer, a local authority must also consult-

(a) the National Health Service Commissioning Board;

(b) a clinical commissioning group-

(i) whose area coincides with, or falls wholly or partly within, the local authority’s area, or

(ii) which exercises functions in relation to children or young people for whom the authority is responsible;

(c) an NHS trust or NHS foundation trust which provides services in the authority’s area, or which exercises functions in relation to children or young people for whom the authority is responsible;

(d) a local Health Board which exercises functions in relation to children or young people for whom the authority is responsible;

(e) a health and wellbeing board which exercises functions in relation to children or young people for whom the authority is responsible.

(3) When preparing and reviewing its local offer, a local authority must also consult any bodies specified in paragraphs 1(b) to (k) and (m) that are not in the local authority’s area, but which the local authority thinks are or are likely to either-

(a) be attended by children or young people for whom it is responsible; or

(b) have functions in relation to children or young people for whom it is responsible.

Involvement of children, their parents and young people in preparation and review of local offer.

5. A local authority must consult children with special educational needs, their parents and young people with special educational needs in their area about-

(a) the services children and young people with special educational needs require;

(b) how the information in the local offer is to be set out when published;

(c) how the information in the local offer will be available for those people without access to the Internet

(d) how the information in the local offer will be available to those with a disability which prevents them from accessing the information on the Internet;

(e) how they can provide comments on the local offer.

Publication of comments on the local offer

6. - A local authority must seek from children with special educational needs, their parents and young people with special educational needs comments on-

(a) the content of its local offer, including the quality of the provision available and any provision that is not available;

(b) the accessibility of the information contained in its local offer; and

(c) how the local offer has been developed or reviewed, including how those children, parents and young people have been involved in the development and review of the local offer.

(2) A local authority must publish comments received by or on behalf of those people in accordance with paragraph (1), and its response to those comments on its website, with the local offer.

(3) Comments received and the local authority’s response must be published at least annually, and must be in a form that does not enable any individual to be identified.

Manner of publication

7. - A local authority must-

(a) publish its local offer by placing it on their website;

(b) publish its arrangements for enabling-

(i) people without access to the Internet; and

(ii) enabling different groups, including people with a disability,

to obtain a copy of the offer.

(2) In this regulation, "disability" has the meaning given by section 6 of the Equality Act 2010.

SCHEDULE 1 Regulation 3

Information to be published by a local authority in their local offer

1. Information about how to request an EHC needs assessment

2. The special educational provision which the local authority expects to be available in its area for children and young people for whom it is responsible by-

(a) providers of relevant early years education;

(b) maintained schools, including provision made available in any separate unit;

(c) Academies, including provision made available in any separate unit;

(d) non-maintained special schools;

(e) post-16 institutions;

(f) institutions approved under section 41 of the Act;

(g) pupil referral units; and

(h) persons commissioned by the local authority to support children and young people with special educational needs

3.  The special educational provision the local authority expects to be made outside of its area by persons specified in sub-paragraphs (a) to (g) of paragraph 2 for children and young people with special educational needs for whom the local authority is responsible.

4. The information in paragraphs 1 and 2 must include information about-

(a) the special educational provision provided by mainstream schools and mainstream post-16 institutions including any support provided in relation to learning or the curriculum;

(b) the special educational provision provided by special schools, including those approved under section 41 of the Act;

(c) the special educational provision secured by the local authority in mainstream schools, mainstream post-16 institutions, pupil referral units and alternative provision Academies; and

(d) the arrangements the local authority has for funding children and young people with special educational needs.

5. The arrangements the persons specified in paragraphs 1 and 2 have for-

(a) identifying the particular special educational needs of a child or young person;

(b) consulting with the child’s parent or the young person;

(c) securing the services, provision and equipment required by children and young people with special educational needs; and

(d) supporting children and young people with special educational needs in moving between phases of education, and in preparing for adulthood.

6. Information, in relation to the bodies specified in paragraph 2, about-

(a) their approach to teaching of children and young people with special educational needs;

(b) how they adapt the curriculum and additional learning support available to children and young people with special educational needs;

(c) how the progress towards any the outcomes identified for children and young people with special educational needs will be assessed and reviewed, including information about how those children, their parents and young people will take part in any assessment and review;

(d) how the effectiveness of special educational provision will be assessed and evaluated, including information about how children, their parents and young people will take part in any assessment and evaluation;

(e) how facilities that are available can be accessed by children and young people with special educational needs;

(f) what activities are available for children and young people with special educational needs in addition to the curriculum; and

(g) what support is available for children and young people with special educational needs.

7. Where further information about the bodies specified in paragraphs 1 and 2, including the information required by section 64 of the Act, can be obtained.

8. Special educational provision the local authority expects to be made in relation to young people for whom it is responsible who have entered into an apprenticeship agreement within the meaning of section 32(1) of the Apprenticeships, Skills, Children and Learning Act 2009.

9. Special educational provision the local authority expects to be made by providers of training in its area, and outside its area for young people for whom it is responsible.

10. Provision available in the local authority’s area to assist in preparing children and young people for adulthood and independent living.

11. Health care provision for children and young people with special educational needs, including in particular-

(a) speech and language and other therapies, including any criteria that must be satisfied before this provision can be provided,

(b) services relating to mental health, including any criteria that must be satisfied before this provision can be provided, and

(c) services for relevant early years providers, schools and post-16 institutions to assist them in supporting children and young people with medical conditions.

12. Social care provision for children and young people with special educational needs and their families including, in particular-

(a) services provided in accordance with section 17 of the Children Act 1989;

(b) the arrangements for supporting young people when moving from receiving services for children to receiving services for adults;

(c) support for young people in planning and obtaining support to assist with independent living.

13.  Transport arrangements for children and young people with special educational needs to get to and from school or post-16 institution, or other institution in which they are receiving special educational provision including in particular-

(a) arrangements for specialist transport,

(b) arrangements for free or subsidised transport,

(c) support available in relation to the cost of transport, whether from the local authority or otherwise.

14.  Sources of information, advice and support in the local authority’s area for children and young people with special educational needs and their families including information-

(a) provided in accordance with section 32 of the Act,

(b) about forums for parents and carers of children and young people with special educational needs,

(c) about support groups for children and young people with special educational needs and their families,

(d) about childcare for children with special educational needs,

(e) about leisure activities for children and young people with special educational needs and their families.

(f) about persons who can provide further support, information and advice for children and young people with special educational needs and their families.

15. The procedure for making a complaint about provision mentioned in section 30(2) of the Act.

16. The procedure for making a complaint about any provision or service set out in the local offer.

17. Arrangements for the resolution of disagreements made in accordance with section 52 of the Act.

18. Arrangements for mediation made in accordance with section 51 of the Act.

19. Arrangements for notifying parents and young people of their right to appeal a decision of the local authority to the Tribunal.

20. Information on where the list of institutions approved under section 41 of the Act is published.

21. Information about any criteria that must be satisfied before any provision or service set out in the local offer can be provided

Illustrative Regulations for Committee

Remaining in special school or post-16 institution without an EHC plan Regulations

Clause 34

Interpretation

22. In these regulations "school or institution day" means a day on which the school or post-16 institution is open to admit students.

Remaining in a special school or special post-16 institution without an EHC plan

23. - Where a child or young person has been admitted to a special school or special post-16 institution for the purposes of an EHC needs assessment, he or she may remain at that school or post-16 institution-

(a) for a period of ten school or college days after the local authority serves a notice under section 36(9) of the Act informing the child’s parent or the young person that it does not propose to make an EHC plan; or

(b) until an EHC plan is made.

(2) Where a child or young person has been admitted to a special school or special post-16 institution following a change in his or her circumstances, he or she may remain at that school or post-16 institution provided that his or her admission to the school or post-16 institution is reviewed by the local authority at the end of every term.

Draft illustrative regulations

Clauses 36, 37, 44 and 45

Education (Special Educational Needs) (Assessment and plan)

Citation and commencement

24.  These Regulations may be cited as the Education (Special Educational Needs) (Assessment and Plan) Regulations 2014 and come into force on 1st February 2014.

Interpretation

25.  In these Regulations-

"the Act" means the Children and Families Act 2014;

"relevant clinical commissioning group" means the clinical commissioning group that exercises functions in relation to the child or young person concerned.

EHC Needs Assessments

Consideration

26. Where a local authority receives a request for an EHC needs assessment under section 36(1) of the Act or otherwise becomes responsible for a child or young person, before determining whether it may be necessary for special educational provision to be made for the child, it must consult the child’s parent or the young person as soon as practicable after the request being made, or of it becoming responsible for the child.

Determination whether or not special educational provision may be necessary

27. - Where a local authority determines that it is not necessary for special educational provision it must notify the child’s parent or the young person in accordance with section 36(5) of the Act as soon as practicable, but in any event within 6 weeks of receiving a request for an EHC needs assessment under section 36(1) of the Act or of becoming responsible for the child or young person in accordance with section 23 of the Act.

(2) Where the local authority determines that it may be necessary for special educational provision to be made, it must notify the child’s parent or the young person that it is considering securing an EHC needs assessment in accordance with section 36(7) of the Act.

(3) Where the local authority determines that it is considering securing an EHC needs assessment it must also notify-

(a) the relevant clinical commissioning group;

(b) the officers of the authority who exercise the authority’s social services functions for children or young people with special educational needs;

(c) in relation to a child-

(i) if the child is a registered pupil at a school, to the head teacher (or equivalent position) of that school, or

(ii) if the child receives education from a provider of relevant early years education to the head of SEN in relation to that provider; and

(d) in relation to a young person-

(i) if the young person is a registered pupil at a school, to the head teacher (or equivalent position) of that school, or

(ii) if the young person is a student at a post-16 institution, to the principal of that institution,

of its decision.

Decision whether or not to conduct an EHC needs assessment

28. - The local authority must notify the child’s parent or the young person of its decision whether or not it is necessary to secure an EHC needs assessment for the child or young person as soon as practicable and in any event within 6 weeks of receiving a request for an assessment under section 36(1) of the Act or of becoming responsible for the child or young person in accordance with section 23 of the Act.

(2) The local authority must also notify the persons who were notified in accordance with regulation 4(3) of its decision.

(3) When notifying the child’s parent or the young person of its decision, it must also notify them of their right to appeal that decision, and of the requirement for them to consider mediation.

(4) The local authority need not comply with the time limit referred to in paragraph (1) if it is impractical to do so because-

(a) the authority has requested advice from the head teacher or principal of a school or post-16 institution during a period beginning 1 week before any date on which that school or institution was closed for a continuous period of not less than 4 weeks from that date and ending 1 week before the date on which it re-opens;

(b) the authority has requested advice from the head of special educational needs in relation to, or other person responsible for, a child’s education at a provider of relevant early years education during a period beginning 1 week before any date on which that provider was closed for a continuous period of not less than 4 weeks from that date and ending 1 week before the date on which it re-opens;

(c) exceptional personal circumstances affect the child or his parent, or the young person during the time period referred to in paragraph (1); or

(d) the child or his parent, or the young person, are absent from the area of the authority for a continuous period of not less than 4 weeks during the time period referred to in paragraph (1).

Conduct of EHC Needs Assessments

29. - Where the local authority secures an EHC needs assessment for the first time for a child or young person, it must seek the following advice, where it considers it appropriate to do so-

(a) advice from the child’s parent or the young person;

(b) educational advice, from the head teacher or principal of the school or post-16 or other institution that the child or young person is attending, or where this is not available, from a person who the local authority is satisfied has experience of teaching children or young people with special educational needs, or knowledge of the differing provision which may be called for in different cases to meet those needs;

(c) medical advice from a medical practitioner identified by the relevant clinical commissioning group;

(d) psychological advice from an educational psychologist;

(e) advice in relation to social care; and

(f) advice from any other person the local authority thinks is appropriate;

(g) where the child or young person is in or beyond their tenth year of compulsory schooling, advice from an officer of the authority who exercises the local authority’s functions in relation to assisting in preparing children and young people for adulthood and independent living; and

(h) advice from any person the child’s parent or young person requests that the local authority seek advice from.

(2) Where it appears to the authority, in consequence of medical advice or otherwise, that the child in question is-

(a) hearing impaired;

(b) visually impaired; or

(c) both hearing and visually impaired,

and any such person from whom advice is sought as provided in paragraph (1)(b) is not qualified to teach pupils who are so impaired, then the advice sought shall be advice given after consultation with a person who is so qualified.

(3) Where the local authority secures a re-assessment for the child or young person on receipt of a request in accordance with section 44(2) of the Act it must seek advice from the persons specified in paragraph (1) where it thinks it is appropriate to do so.

(4) When seeking advice in accordance with paragraph (1)(b) to (g), the local authority must provide the person from whom advice is being sought with copies of-

(a) any representations made by the child’s parent or the young person, and

(b) any evidence submitted by or at the request of the child’s parent or the young person.

(5) The local authority must not seek the advice referred to in paragraphs (1)(b), (c), (d), (e), (f) or (g) if such advice has previously been provided (whether in relation to an EHC needs assessment or otherwise) and the person providing that advice, the local authority and the child’s parent or the young person are satisfied that it is sufficient for the purpose of arriving at a satisfactory assessment.

Duty to co-operate in EHC needs assessments

30. - Where a local authority requests the co-operation of a body in securing an EHC needs assessment in accordance with section 31 of the Act, that body must comply with such a request within 6 weeks of the date on which they receive it.

(2) A body need not comply with the time limit referred to in paragraph (1) if it is impractical to do so because-

(a) exceptional circumstances affect the child, the young person or the child’s parent during that 6 week period;

(b) the child, the child’s parent or the young person are absent from the area of the authority for a continuous period of not less than 4 weeks during the 6 week period referred to in paragraph (1); or

(c) the child or young person fails to keep an appointment for an examination or a test made by the body during that 6 week period.

Provision of advice, information and support to parents and young people

31. When securing an EHC needs assessment the local authority must consider whether the child’s parent or the young person requires any information, advice and support in order to enable them to take part effectively in the EHC needs assessment, and if it considers that such information, advice or support is necessary, it must provide it.

Matters to be taken into account in securing an EHC needs assessment

32. When securing an EHC needs assessment a local authority must-

(a) consult the child and his or her parent, or the young person and take into account their views, wishes and feelings;

(b) consider any information provided to the local authority by or at the request of the child, his or her parent or the young person;

(c) consider the advice obtained in accordance with regulation 6(1);

(d) engage the child and his or her parent, or the young person and ensure they are able to participate in decisions; and

(e) minimise disruption for the child, the child’s parent, the young person and their family.

Decision not to secure an EHC plan

33. - Where, following an EHC needs assessment, a local authority decides that it is not necessary for special educational provision to be made for a child or young person in accordance with an EHC plan, it must notify the child’s parent or the young person of its decision, giving the reasons for it.

(2) It must also notify the person notified in accordance with regulation 4(3)(c) or (d).

(3) When notifying a child’s parent or young person in accordance with paragraph (1) the local authority must also notify them of-

(a) their right to appeal that decision;

(b) the time limits for doing so;

(c) the need to consider mediation; and

(d) the availability of dispute resolution services.

Plans

Preparation of EHC plans

34. When preparing a child or young person’s EHC Plan a local authority must-

(a) take into account the evidence received when securing the EHC needs assessment; and

(b) consider how best to achieve the outcomes to be sought for the child or young person.

Form of EHC plan

35. When preparing an EHC plan a local authority must set out in separate sections-

(a) the information specified in section 37(2) of the Act;

(b) the name of the school, maintained nursery school, post-16 institution or other institution or the type of school or other institution to be attended by the child or young person ;

(c) the views, interests and aspirations of the child and his parents or the young person; and

(d) where any special educational provision is to be secured by a direct payment, the special educational needs and outcomes to be met by the direct payment.

Timescales for EHC plans

36. - When a local authority sends a draft plan to a child’s parent or young person it must give them at least 15 days in which to make representations about the content of the draft plan, and to request that a particular school or other institution be named in the plan.

(2) A local authority must send the finalised EHC plan to-

(a) the child’s parent or to the young person;

(b) the governing body, proprietor or principal of any school or other institution named in the EHC plan; and

(c) to the relevant clinical commissioning group,

as soon as practicable, and in any event within 20 weeks of the local authority receiving a request for an EHC needs assessment in accordance with section 36(1) of the Act, or of the local authority becoming responsible for the child in accordance with section 23 of the Act.

(3) The local authority need not comply with the time limit referred to in paragraph (2) if it is impractical to do so because-

(a) the authority has requested advice from the head teacher or principal of a school or post-16 institution during a period beginning 1 week before any date on which that school or institution was closed for a continuous period of not less than 4 weeks from that date and ending 1 week before the date on which it re-opens;

(b) the authority has requested advice from the head of special educational needs in relation to, or other person responsible for, a child’s education at a provider of relevant early years education during a period beginning 1 week before any date on which that provider was closed for a continuous period of not less than 4 weeks from that date and ending 1 week before the date on which it re-opens;

(c) exceptional personal circumstances affect the child or his parent, or the young person during the time period referred to in paragraph (1); or

(d) the child or his parent, or the young person, are absent from the area of the authority for a continuous period of not less than 4 weeks during the time period referred to in paragraph (1).

Sending the finalised EHC plan

37. When sending a copy of the finalised EHC plan to the child’s parent or the young person in accordance with section 39(8)(a) of the Act, the local authority must notify them of their right to appeal matters within the EHC plan in accordance with section 50(2)(c) of the Act, and of the need for them to consider mediation.

Transfer of EHC plans

38. - This regulation applies where a child or young person in respect of whom an EHC plan is maintained moves from the area of the local authority which maintains the EHC plan ("the old authority") into that of another local authority ("the new authority").

(2) The old authority, within 15 working days beginning with the day on which it became aware of the move, shall transfer the EHC plan to the new authority.

(3) From the date of the transfer-

(a) the EHC plan shall be treated as if it had been made by the new authority on the date on which it was made by the old authority; and

(b) where the new authority makes an EHC needs assessment and the old authority has supplied the new authority with advice obtained in pursuance of the previous assessment the new authority must not seek further advice where the person providing that advice, the old authority and the child’s parent or the young person are satisfied that it is sufficient for the purpose of the new authority arriving at a satisfactory assessment.

(4) The new authority shall within 6 weeks of the date of the transfer notify the child’s parent or the young person informing him-

(a) that the EHC plan has been transferred;

(b) whether it proposes to make an EHC needs assessment; and

(c) when it proposes to review the statement in accordance with paragraph (5).

(5) The new authority shall review the EHC plan in accordance with section 44 of the Act before the expiry of the later of-

(a) the period of 12 months beginning with the making of the EHC plan, or as the case may be, with the previous review, or

(b) the period of 3 months beginning with the date of the transfer.

(6) Where, by virtue of the transfer, the new authority comes under a duty to arrange the child or young person’s attendance at a school or post-16 institution specified in the EHC plan but in the light of the child or young person’s move that attendance is no longer practicable, the new authority may arrange for the child or young person’s attendance at another school or post-16 institution appropriate for him or her until such time as it is possible to amend the EHC plan.

Restriction on disclosure of EHC plans

39. - Subject to the provisions of the Act and of these Regulations, an EHC plan in respect of a child or young person shall not be disclosed without the child or young person’s consent except-

(a) to persons to whom, in the opinion of the local authority concerned, it is necessary to disclose the EHC plan in the interests of the child or young person;

(b) for the purposes of any appeal under the Act;

(c) for the purposes of educational research which, in the opinion of the local authority, may advance the education or training of children or young persons with special educational needs, if, but only if, the person engaged in that research undertakes not to publish anything contained in, or derived from, an EHC plan otherwise than in a form which does not identify any individual including, in particular, the child concerned and the child’s parent or the young person;

(d) on the order of any court or for the purposes of any criminal proceedings;

(e) for the purposes of any investigation under Part 3 of the Local Government Act 1974 (investigation of maladministration);

(f) to the Secretary of State when he requests such disclosure for the purposes of deciding whether to give directions or make an order under section 496, 497 or 497A of the Education Act 1996;

(g) for the purposes of an assessment of the needs of the child or young person with respect to the provision of any statutory services for him or her being carried out by officers of an authority by virtue of arrangements made under section 5(5) of the Disabled Persons (Services, Consultation and Representation) Act 1986;

(h) for the purposes of a local authority in the performance of its duties under sections 22(3)(a), 85(4)(a), 86(3)(a) and 87(3) of the Children Act 1989;

(i) to Her Majesty’s Chief Inspector of Education, Children’s Services and Skills, exercising the right to inspect and take copies of a statement in accordance with section 10(1)(e) of the Education Act 2005 and section 140(2)(a) of the Education and Inspections Act 2006;

(j) to a Young Offender Institution for the purposes of the performance of its duties under rule 38 of the Young Offender Institution Rules 2000;

(k) to a Secure Training Centre for the purposes of the performance of its duties under rule 28 of the Secure Training Centre Rules 1998.

(2) A child may consent to the disclosure of an EHC plan for the purposes of this regulation if his or her age and understanding are sufficient to allow him to understand the nature of that consent.

(3) If a child does not have sufficient age or understanding to allow him to consent to such disclosure, his parent may consent on his behalf.

(4) The arrangements for keeping a child or young person’s EHC plan must be such that the ensure, so far as is reasonably practicable, that unauthorised persons do not have access to them.

(5) In this regulation, any reference to an EHC plan includes a reference to any representations, evidence, advice or information obtained in relation to an EHC plan.

Reviews and re-assessments

Circumstances in which a local authority must review an EHC plan

40. - Where a local authority becomes aware that a young person in respect of whom it is maintaining an EHC plan is no longer undertaking education or training, the local authority must review that young person’s EHC plan to ascertain whether it is possible for the young person to return to education or training.

(2) Where the local authority determines that amending the EHC plan would enable the young person to resume their education or training, the local authority shall amend the EHC plan in accordance with regulation 24.

(3) Where a child or young person is within 12 months of a transfer between phases of his or her education, the local authority must review and amend, where necessary, the child or young person’s EHC plan before 15 February in the calendar year of the child or young person’s transfer and amend the EHC plan so that it names the school, post-16 or other institution which the child or young person will attend following that transfer.

(4) For the purposes of paragraph (3) a transfer between phases of education means a transfer from-

(a) relevant early years education to school;

(b) infant school to junior school;

(c) primary school to middle school;

(d) primary school to secondary school;

(e) middle school to secondary school; or

(f) secondary school to a post-16 institution.

Conduct of reviews

41. When undertaking a review of an EHC plan, a local authority must-

(a) consult the child and the child’s parent or the young person, and take account of their views, wishes and feelings;

(b) consider the child or young person’s progress towards achieving the outcomes specified in the EHC plan and whether these outcomes remain appropriate for the child or young person;

(c) consult the school or other institution attended by the child or young person.

Review meeting

42. - As part of the annual review of a child or young person’s EHC plan, the local authority must secure that a meeting to review that EHC plan is held.

(2) The following persons must be invited to attend that meeting-

(a) the child’s parent or the young person;

(b) provider of the relevant early years education or the head teacher or principal of the school, post-16 or other institution attended by the child or young person

(c) a person nominated by the relevant clinical commissioning group to provide advice about health care provision to the child or young person;

(d) an officer of the authority who exercises the local authority’s social services functions in relation to children and young people with special educational needs.

(3) At least two weeks’ notice of the date of the meeting must be given.

(4) The meeting must consider the child or young person’s progress towards achieving the outcomes specified in the EHC plan.

(5) When the child or young person is expected to leave education or training within the next two years, the review meeting must consider what provision is required to assist in preparing the young person for adulthood and independent living.

(6) The local authority may ask the person identified in paragraph (2)(b) to provide a written report on the child or young person in advance of the meeting.

Review of EHC plan where the child or young person does not attend a school or other institution

43. - This regulation applies where a local authority carry out a review of an EHC plan and the child or young person concerned does not attend a school or other institution.

(2) The local authority must prepare a report on the child.

(3) The local authority must invite the following persons to a meeting as part of the review of an EHC plan-

(a) the child’s parent or the young person;

(b) an officer of the authority who exercises the local authority’s education functions in relation to children and young people with special educational needs;

(c) a person nominated by the relevant clinical commissioning group to provide advice about health care provision to the child or young person;

(d) an officer of the authority who exercises the local authority’s social services functions in relation to children and young people with special educational needs;

(e) any other person whose attendance the local authority considers appropriate.

(4) At least two weeks’ notice of the date of the meeting must be given, and the report prepared in accordance with paragraph (2) must be sent to everyone invited to the meeting in advance of that meeting.

Circumstances in which a local authority must secure a re-assessment

44. A local authority must secure a re-assessment of a child or young person’s EHC Plan where it receives a request to do so from the relevant clinical commissioning group for that child or young person.

Securing a re-assessment of educational, health care and social care provision

45. - When securing a re-assessment of educational, health care and social care provision in a child or young person’s EHC plan, where the local authority has received a request under section 44(2) of the Act or under regulation 21 it must-

(a) take account of-

(i) the views, wishes and feelings of the child and the child’s parent or the young person; and

(ii) any information it has obtained in previous assessments, reviews or re-assessments, where that information is still relevant;

(b) consult those people identified in regulation 6(2).

(2) When securing a re-assessment of any or all of the educational, health care and social care provisions in a child or young person’s EHC plan, in the absence of a request under section 44(2) of the Act the local authority must-

(a) take account of-

(i) the views, wishes and feelings of the child and the child’s parent or the young person; and

(ii) any information it has obtained in previous assessments, reviews or re-assessments, where that information is still relevant;

(b) consult whichever of those people identified in regulation 6(2) it considers appropriate, taking into consideration which of the educational, health care and social care provision is being re-assessed.

Circumstances in which it is not necessary to re-assess educational, health care and social care provision

46. Where a local authority receives a request to re-assess a child in accordance with section 44(2) of the Act it does not need to do so where it has carried out an assessment or re-assessment within the period of six months prior to that request.

Amending or replacing an EHC plan following a review or re-assessment

47. - Where the local authority decides to amend or replace an EHC plan following a review or reassessment it must consult-

(a) the child’s parent or the young person,

(b) any person invited to attend the review meeting; or

(c) any person whose advice was sought during the reassessment.

(2) When amending the EHC plan following a review or reassessment the local authority must comply with the requirements of section 33 of the Act.

(3) Where the local authority proposes to amend the name of any school or other institution named in the EHC plan, it must consult the governing body, proprietor or principal of the school or other institution it proposes to name.

(4) The local authority must send a draft of the amended or replacement EHC plan to the child’s parent or to the young person and must give them at least two weeks to make their views on the EHC plan known to the local authority.

(5) The local authority must send a copy of the finalised EHC plan to-

(a) the child’s parent or the young person;

(b) the governing body, proprietor or principal of any school or other institution named in the plan; and

(c) the relevant clinical commissioning group.

Ceasing to maintain an EHC plan

Circumstances in which it is no longer necessary to maintain EHC plan

48.  It will no longer be necessary for a local authority to maintain a child or young person’s EHC plan-

(a) where the young person leaves education or training to take up employment for which he is paid, including where training is provided as part of that employment (other than where the young person is on an apprenticeship); and

(b) where the young person undertakes higher education.

Circumstances in which a local authority may not determine it is no longer necessary to maintain EHC plan where the person is under the age of 18

49. A local authority may not determine that it is no longer necessary to maintain an EHC plan for a child or young person under the age of 18 unless-

(a) the local authority determines that it is no longer necessary for special educational provision to be made for the child or young person in accordance with an EHC plan; or

(b) subject to regulation 27, the young person ceases to receive education or training, other than training provided in relation to paid employment with training (unless this is paid employment because the young person is on an apprenticeship).

Action to be taken where a person under the age of 18 ceases to receive education or training

50. Where a young person under the age of 18 ceases to receive education or training, the local authority must review the EHC plan in accordance with regulations 18 and 19 and amend it in accordance with regulation 24 where appropriate, to ensure that the young person continues to receive education or training.

Circumstances in which a local authority may not determine it is no longer necessary to maintain EHC plan where the person is aged 18 or over

51. - When a young person aged 18 or over ceases to attend the post-16 institution specified in his or her EHC plan, so is no longer receiving education or training, a local authority may not determine that it is no longer necessary to maintain that EHC plan, unless it follows the procedure set out in this regulation.

(2) When a young person aged 18 or over ceases to receive education or training, the local authority must review the EHC plan in accordance with regulations 18 and 19 and determine whether the young person wishes to return to education or training, either at the post-16 institution specified in his or her EHC plan, or otherwise.

(3) Where the local authority determines that the young person wishes to return to education or training at the post-16 institution specified in his or her EHC plan, and that it is appropriate for the young person to do so, it must amend the young person’s EHC plan as it thinks necessary in accordance with regulation 24.

(4) Where the local authority determines that the young person wishes to return to education or training at somewhere other than the post-16 institution specified in his or her EHC plan, and that it is appropriate for the young person to do so, it must amend that EHC plan in accordance with regulation 24 following the review in accordance with paragraph (2).

(5) Where the local authority determines that the young person does not wish to return to education or training, or that returning to education or training would not be beneficial to the young person, it may cease to maintain that person’s EHC plan in accordance with regulation 29.

Procedure for determining whether to cease to maintain EHC plan

52. - Where a local authority is considering ceasing to maintain a child or young person’s EHC plan it must-

(a) inform the child’s parent or the young person that it is considering ceasing to maintain the child or young person’s EHC plan; and

(b) consult the child’s parent or the young person;

(c) consult the school or other institution that is named in the EHC plan.

(2) Where, following that consultation the local authority determines to cease to maintain the child or young person’s EHC plan, it must notify the child’s parent or the young person, the institution named in the child or young person’s EHC plan and the relevant clinical commissioning group of that decision.

DRAFT ILLUSTRATIVE REGULATIONS

The Approval of Independent Educational Institutions and Special Post-16 Institutions Regulations

Clause 41

Citation and interpretation

53. - These regulations may be cited as the Approval of Independent Educational Institutions and Special Post-16 Institutions Regulations.

(2) In these regulations-

"the Act" means the Children and Families Act 2014;

"Ofsted" means the Office for Standards in Education, Children’s Services and Skills.

Types of special post-16 institution that may be approved

54. The Secretary of State may approve a special post-16 institution under section 41 of the Act where it is-

(a) not an institution in the further education sector;

(b) not a 16-19 Academy;

(c) not maintained by a local authority.

Criteria a special post-16 institution must meet before being approved

55. Before a special post-16 institution can be approved by the Secretary of State under section 41 of the act, it must have been inspected Ofsted or by the Care Quality Commission, and found to be offering a satisfactory quality of education and care.

Matters to be taken into account in deciding to give approval

56.  The Secretary of State may take into account the following matters when deciding whether to give approval-

(a) whether the institution is financially viable;

(b) the proportion of children and young people attending the institution who have an EHC plan (or a statement of special educational needs or learning difficulty assessment);

(c) the proportion of children and young people attending the institution for whom the cost of doing so is met by a local authority or by the Secretary of State; and

(d) reports relating to the institution by Ofsted and the Care Quality Commission.

Matters to be taken into account in deciding to withdraw approval

57. The Secretary of State may take into account the following matters when deciding whether to withdraw approval-

(a) whether the institution is financially viable;

(b) the proportion of children and young people attending the institution who have an ECH plan (or a statement of special educational needs or learning difficulty assessment);

(c) the proportion of children’ and young people attending the institution for whom the cost of doing so is met by a local authority or by the Secretary of State;

(d) reports relating to the institution by Ofsted and the Care Quality Commission; and

(e) any information received about the institution from a local authority or a young person attending the institution or from any other person.

Procedure when the Secretary of State decides to withdraw approval

58. - When the Secretary of State decides to withdraw the approval of an institution, the Secretary of State must notify the proprietor of the institution of that decision.

(2) The Secretary of State must also notify all local authorities in England of that decision.

(3) The decision will take effect 28 days after that notification is given, and shall remove the institution from the list published in accordance with regulation 7 on the date that the decision takes effect.

Publication of list of approved institutions

59. The Secretary of State must publish a list of all institutions that have been approved on the Internet.

Illustrative Regulations for Committee

The Special Educational Needs (Appeal) Regulations

Clause 50

Commencement and application

60. - These Regulations may be cited as the Special Educational Needs (Appeals) Regulations.

(2) These Regulations apply in relation to England.

Notices

61. - Where a local authority makes a decision which may be appealed to the First-tier Tribunal, it shall provide the child’s parents or the young person with a notice.

(2) The notice must be in writing and contain the following-

(a) The decision;

(b) The reasons for the decision;

(c) Information about the child’s parent or young person’s right to appeal to the First-tier Tribunal;

(d) The time limits within which any appeal must be submitted to the First-tier Tribunal;

(e) Details of the arrangements which the local authority has available for resolving disagreements under section 52.

[Cross reference to the indicative Mediation Regulation; in relevant cases:-]

(f) a notice must inform the child’s parent or young person that he or she may only make an appeal (other than an appeal falling within section 51 (2) of the Act) if a mediation adviser has issued a certificate under section 51(4) or (5) of the Act.

(g) inform the parent or young person of the timescales for mediation

(h) explain how the child’s parent or young person may contact a mediation adviser to receive information about mediation and the provision of advocacy services which are available in the area of the local authority; and

(i) give the telephone number, address and email address of at least one a mediation adviser.

62. - The local authority must send the notice to the child’s parent or young person as soon as reasonably practicable but no later than 7 calendar days from the date on which the decision was taken.

(2) Where the decision concerns a request for an assessment under section 36 or a request for a reassessment under section 44(2), the notice must be sent to the child’s parent or young person within [6] weeks from the date which the original request was received.

(3) A local authority does not need to comply with the time limit in paragraph (2) where any of the circumstances listed in [Regulation 5(4) of the indicative Assessment and Plan Regulations] apply.

Powers of the First-tier Tribunal

63. Before determining any appeal the First-tier Tribunal may, with the agreement of the parties correct any deficiencies in the EHC Plan which relate to the special educational needs or special educational provision.

64. - When determining an appeal the First-tier Tribunal will have the power to-

(a) dismiss the appeal;

(b) order the local authority to arrange an assessment of the child or young person under section 36 or a reassessment under section 44(2) where the local authority has refused to do so;

(c) order the local authority to make and maintain an EHC Plan where the local authority has refused to do so;

(d) refer the case back to the local authority for them to reconsider whether, having regard to any observations made by the First-tier Tribunal, it is necessary for the local authority to determine the special educational provision for the child or young person;

(e) order the local authority to continue to maintain the EHC Plan in its existing form where the local authority has refused to do so;

(f) order the local authority to continue to maintain the EHC Plan with amendments so far as that relates to either the assessment of special educational needs or the special educational provision [and make any other consequential amendments as the First-tier Tribunal thinks fit].

(g) where the appeal concerns the type of school or other institution, or the specific school or other institution, named in the EHC Plan, the First-tier Tribunal may order the local authority to substitute for the school or other institution that is preferred by the child’s parent or young person.

(h) where appropriate when making an order in accordance with paragraph (g) this may include naming-

(i) a special school or institution approved under section 41 where a mainstream school or mainstream post-16 institution is specified in the EHC Plan; or

(ii) a mainstream school or mainstream post-16 institution where a special school or institution approved under section 41 is specified in the EHC Plan.

Compliance with First-tier Tribunal Orders

65. - Subject to paragraph (3), if the First-tier tribunal make an order following an appeal from a child’s parent or young person requiring a local authority to perform an action, the authority shall perform that action within the period specified in paragraph (2).

(2) In the case of an order -

(a) to dismiss an appeal against a determination to cease an EHC Plan, the local authority shall cease to maintain the EHC Plan immediately or on any date subsequent to preferred by the local authority.

(b) to make an assessment or reassessment, the local authority shall within [4] weeks notify the child’s parent or young person that they will make the assessment or reassessment;

(c) to make and maintain an EHC Plan, the local authority shall serve a proposed EHC Plan within [5] weeks;

(d) to refer the case back to the local authority for them to reconsider, the local authority shall take the action within [2] weeks to either serve a copy of the proposed EHC Plan [under Regulation 13 of the indicative Assessment and Plan regulations] or give notice [under Regulation 2 of the indicative Appeal Regulations] of their decision not to maintain an EHC Plan;

(e) to amend an EHC Plan, the local authority shall amend the EHC Plan within 5 weeks

(f) to continue an EHC Plan in its existing form, the local authority shall continue to maintain the EHC Plan with immediate effect

(g) to continue and amend an EHC Plan, the local authority shall continue to maintain the EHC Plan with immediate effect and amend the EHC Plan within [5] weeks; and,

(h) to substitute either the name of the school or other institution or the type of school or other institution, with either the name of the school or other institution or type of school or other institution preferred by the child’s parent or young person, the local authority shall make the specification in the EHC Plan within [2] weeks.

Unopposed Appeals

66. - This regulation applies where the child’s parent or young person has appealed to the First-tier Tribunal and the local authority notifies the First-tier Tribunal that they will not oppose the appeal.

(2) The appeal is to be treated as determined in favour of the appellant.

(3) Where an appeal is treated as determined in favour of the appellant under paragraph (2) the First-tier Tribunal is not required to make any order.

(4) Where the appeal concerns a request for a local authority to make an assessment under clause 36 or a review or reassessment under clause 44, then the local authority shall make the assessment or review or reassessment within [4] weeks.

(5) Where the appeal concerns the contents of the EHC Plan, then the local authority shall amend the EHC Plan so far as that relates to either the assessment of special educational needs or the special educational provision within [4] weeks.

(6) Where the appeal concerns the refusal of the local authority to make an EHC Plan, then the local authority will arrange to make an EHC Plan within [5] weeks.

(7) For the purposes of paragraphs (4) to (6), the period shall begin on the day on which the local authority notifies the First-tier Tribunal that they have determined that they will not oppose the appeal.

(8) The local authority need not comply with the time limits specified in paragraphs (4) to (6) if it is impractical to do so because-

(a) exceptional personal circumstances affect the child or their parent or the young person during the relevant period;

(b) the child or his parent or the young person are absent from the area of the local authority for a continuous period of not less than 2 weeks during the relevant period;

any of the exceptions listed in [Regulation 13(3) of the indicative Assessment and Plan Regulations] apply.

Draft illustrative Regulations under clause 51

Draft Special Education Needs (Mediation) Regulations

Clause 51

Commencement and application

1. (1) These Regulations may be cited as the Special Education Needs (Mediation) Regulations.

§ (2) These Regulations apply in relation to England.

Interpretation

2. In these Regulations –

§ "the Act means the Children and Families Act 2014;

§ "Appeals Regulations" means the Special Education Needs (Appeals) Regulations;

§ "working day" means any other day than (a) a Saturday or Sunday, (b) Christmas Day or Good Friday or (c) a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971.

Giving notice

3. (1) A notice given to a parent of a child ("Parent") or young person by the local authority under the Appeals Regulations must inform the parent or young person that he or she may only make an appeal (other than an appeal falling within section 51 (2) of the Act [1] ) if a mediation adviser [2] has issued a certificate under section 51(4) or (5) of the Act.

(2) The notice must also –

(a) inform the parent or young person of the timescales for mediation;

(b) explain how the parent or the young person may contact a mediation adviser to receive information about mediation and the provision of advocacy services which are available in the area of the local authority; and

(c) give the telephone number, address and email address of at least one a mediation adviser.

Certificate under section 51 (4) of the Act

4. The mediation adviser must issue the certificate to the parent or young person under section 51(4) of the Act within 3 working days of the date on which the parent or young person informed the mediation adviser that he or she does not wish to pursue mediation.

Certificate under section 51 (5) of the Act

5. The mediation adviser must issue the certificate under section 51 (5) of the Act within 3 working days of conclusion of the mediation.

Duty on local authority to make arrangements for mediation

6. (1) Where the parent or young person informs the mediation adviser that he or she wishes to pursue mediation, the mediation adviser must inform the local authority within 3 working days of receipt of notification.

§ (2) The local authority must make arrangements for the appointment of a mediator and for the mediation to take place within 30 calendar days of being informed by the mediation adviser.

§ (3) The local authority must inform the parent or young person of the date and place in which the mediation is to take place.

§ (4) The information in (3) must be provided to the parent or young person at least [5] working days prior to the date of the mediation. Any shorter period of notice will only be permitted if this is agreed by the parent or young person prior to the mediation.

Mediation meeting

7. The following persons may attend a mediation meeting –

(a) the parent or young person and any advocate or other supporter he or she wishes attend the mediation;

(b) no more than two representatives from the local authority.

(c) where the child’s parent is a party to the mediation, the child may attend the mediation with the agreement of the child’s parent and the mediator.

8. Where the child’s parent is a party to mediation the mediator must take reasonable steps to ascertain the views of the child about issues raised by the appeal.

Travelling expenses etc.

9. Limits on travelling expenses and other expenses which may be prescribed for the purpose of section 51(7) will be subject to consultation.

Training etc.

10. The local authority must ensure that mediation advisers and mediators have appropriate knowledge of the legislative framework relating to special education needs and appropriate training and other qualifications and experience.

Steps to be taken by local authority after mediation meeting

9. The steps which should be taken by the local authority following the conclusion of mediation will reflect the agreement reached at mediation. These steps will be similar to those set out in regulation 25 of the Education (Special education Needs) (England) (Consolidation) Regulations 2001.

Illustrative Regulations for Committee

SEN co-ordinators

Clause 62

Citation and commencement

67.  These Regulations may be cited as the Education (Special Educational Needs Co-ordinator) (England) Regulations 2014 and come into force on 1st September 2014.

Interpretation

68. In these Regulations-

"the appropriate authority" means-

(a) in relation to a community, foundation or voluntary school or a maintained nursery school, the governing body of the school; and

(b) in relation to an Academy, the proprietor;

"relevant school" means a community, foundation, or voluntary school, a maintained nursery school or an academy school that is not a special school;

"relevant services" means-

(c) special educational provision, or advice or assistance in relation to such provision or its management;

(d) assessment of special educational needs, or advice or assistance in relation to such needs or in relation to the management of pupils with such needs.

"the SENCO", in relation to a relevant school, means the person who has been designated to be the special educational needs co-ordinator for the school by the appropriate authority.

Prescribed qualifications and experience of SENCOs

69. - The appropriate authority of a relevant school must ensure that the SENCO appointed under section 62(2) of the Children and Families Act 2014 meets all of the requirements in either paragraph (2) or (3).

(2) The requirements in this paragraph are that the SENCO-

(a) is a qualified teacher;

(b) if required to complete an induction period under regulations made under section 19 of the Teaching and Higher Education Act 1998( [3] ), has satisfactorily completed such an induction period; and

(c) is working as a teacher at the school.

(3) The requirement in this paragraph is that the SENCO is the head teacher or acting head teacher (or equivalent in the case of an Academy school) of the school and meets the requirements of regulations made under section 135 of the Education Act 2002( [4] ) if required to do so.

(4) Where a person becomes the SENCO at a relevant school after 1st September 2009, and has not previously been the SENCO at that or any other relevant school for a total period of more than twelve months, the appropriate authority of the school must ensure that, if the person is the SENCO at the school at any time after the third anniversary of the date on which that person becomes a SENCO, that person holds the qualification, mentioned in paragraph (5).

(5) The qualification referred to in paragraph (4) is the qualification for the time being known as "The National Award for Special Educational Needs Co-ordination".

Appropriate authority functions relating to the leadership and management role of the SENCO

70. The appropriate authority of a relevant school must determine the role of the SENCO in relation to the leadership and management of the school.

Appropriate authority functions relating to the key responsibilities of the SENCO

71. - The appropriate authority of a relevant school must determine the key responsibilities of the SENCO and monitor the effectiveness of the SENCO in undertaking those responsibilities.

(2) The key responsibilities referred to in paragraph (1) may include the carrying out, or arranging for the carrying out, of the following tasks-

(a) in relation to each of the registered pupils who the SENCO considers may have special educational needs, informing a parent of the pupil that this may be the case as soon as is reasonably practicable;

(b) in relation to each of the registered pupils who have special educational needs-

(i) identifying the pupils special educational needs,

(ii) co-ordinating the making of special educational provision for the pupil which meets those needs,

(iii) monitoring the effectiveness of any special educational provision made for the pupil,

(iv) securing relevant services for the pupil where necessary,

(v) ensuring that records of the pupil’s special educational needs and the special educational provision made to meet those needs are maintained and kept up to date,

(vi) liaising with and providing information to a parent of the pupil on a regular basis about that pupil’s special educational needs and the special educational provision being made for those needs,

(vii) ensuring that, where the pupil transfers to another school or educational institution, all relevant information about the pupil’s special educational needs and the special educational provision made to meet those needs is conveyed to the appropriate authority or (as the case may be) the proprietor of that school or institution, and

(viii) promoting the pupil’s inclusion in the school community and access to the school’s curriculum, facilities and extra-curricular activities;

(c) selecting, supervising and training learning support assistants who work with pupils with special educational needs;

(d) advising teachers at the school about differentiated teaching methods appropriate for individual pupils with special educational needs;

(e) contributing to in-service training for teachers at the school to assist them to carry out the tasks referred to in paragraph (b); and

preparing and reviewing the information required to be published by the appropriate authority pursuant to [the Education (Special Educational Needs)(Information)(England) Regulations 2014], the objectives of the appropriate authority in making provision for special educational needs, and the special educational needs policy referred to in [paragraph 1 of Schedule 1 to those Regulations].

Illustrative Regulations for Committee

Special Educational Needs (Information) Regulations

Clause 64

Citation and commencement

72.  These Regulations may be cited as the Special Educational Needs (Information) Regulations and come into force on [1st September 2014].

Interpretation

73. In these Regulations, "the Act" means the Children and Families Act 2014.

Prescribed information that must be included in SEN information report

74.  For the purpose of section 64(3)(a) of the Act-

(a) the SEN information which the governing body or proprietor of every mainstream school and maintained nursery school must include in a report containing SEN information is set out in Schedule 1; and

(b) the SEN information which the governing body of every maintained special school and the proprietor of every Academy that is a special school (other than a special school that is established in a hospital) must include in a report containing SEN information is set out in Schedule 2.

Manner of publication of report

75.  A school must publish its report containing SEN information available on its website.

SCHEDULE 1 Regulation 3(a)

Information from mainstream schools

76.  Information about the school's policies for the identification, assessment and provision for pupils with special educational needs, whether or not pupils have EHC Plans, including how the school evaluates the effectiveness of its provision for such pupils.

77. The school’s arrangements for assessing the progress of pupils with special educational needs

78. The name and contact details of the SEN co-ordinator.

79. Information about the expertise and training of staff in relation to children and young people with special educational needs and about how specialist expertise will be secured.

80. Information about how equipment and facilities to support children and young people with special educational needs will be secured.

81. The role played by the parents of pupils with special educational needs.

82. Any arrangements made by the governing body or the proprietor relating to the treatment of complaints from parents of pupils with special educational needs concerning the provision made at the school.

83. The contact details of support services for the parents of pupils with special educational needs, including those for arrangements made in accordance with clause 32.

84. Information on where the local authority’s local offer is published.

SCHEDULE 2 Regulation 3(b)

Information from maintained special schools and Academies that are special schools

85.   The kinds of special educational needs for which provision is made at the school.

86. Information about the school's policy for making provision for pupils with special educational needs, including how the school evaluates the effectiveness of its provision for such pupils.

87. The school’s arrangements for assessing the progress of pupils with special educational needs.

88. The role played by the parents of pupils with special educational needs.

89. Any arrangements made by the governing body relating to the treatment of complaints from parents of pupils with special educational needs concerning the provision made at the school.

90. How the governing body involves other bodies, including health and social services bodies, local authority support services and voluntary organisations, in meeting the needs of pupils and in supporting the families of such pupils.

91. The contact details of support services for the parents of pupils with special educational needs, including those arrangements made in accordance with clause 32.

Information on where the local authority’s local offer is published.

Department for Education

Children and Families Bill: Note from the Department for Education to the Public Bill Committee on Clause 48.

March 2012

1. This note provides information to aid the Committee’s considering of the Children and Families Bill. It provides further information on the delegated powers in clause 48 pending the publication of indicative regulations. The Department is currently considering how the regulations will need to reflect the proposed new duty on health commissioners, but expects to provide indicative regulations to the Committee in the week commencing 18 March 2013, before clause 48 is considered.

2. Clause 48 provides parents and young people with the right to request a personal budget when they have an Education, Health and Care Plan or where the authority is in the process of preparing a plan.

3. A personal budget is defined in the clause as an amount as available to secure particular provision in the plan with a view to the child’s parents or the young person being involved in securing the provision. This will include special educational, health and social care provision but regulations will make provision to exclude universal provision where this is included in the plan.

4. The regulations made under this clause will set out a number of important provisions that will offer protections for both the family and the public purse in relation to direct payments for special educational provision (payments for health and social care provision will be covered by their own regulations except where funds are pooled). A number of these will reflect the safeguards set out in The Special Educational Needs (Direct Payments)(Pilot Scheme) Order 2012 including requirements to:

· Provide information, advice and support in relation to the take-up and management of a personal budget including information about independent organisations that may be able to provide advice and assistance;

· Consider the impact of any individual agreement for direct payments on other service users and whether it represents value for money;

· Gain written consent of the recipient in relation to the direct payment and the consent of the headteacher or principal of a school or FE institution where the provision will be used or provided on their premises;

· Ensure the amount of the direct payment is sufficient to secure the full cost of the agreed provision;

· Monitor and review the use of direct payments once established.

Department for Education

CHILDREN AND FAMILIES BILL: NOTE FROM THE DEPARTMENT FOR EDUCATION TO THE PUBLIC BILL COMMITTEE ON CLAUSES 53 AND 54

March 2013

1. To aid the Committee’s consideration of the Children and Families Bill, this note provides further information on the delegated powers in clauses 53 and 54.

Policy background

2. Part 4 of the Education Act 1996 and the Equality Act 2010 give parents in England the right to appeal special educational needs (SEN) cases and make disability discrimination claims against schools in relation to admissions, exclusions, the provision of education and access to a benefit, facility or service to the First-tier Tribunal (SEN and Disability) ("FtT"). The Children and Families Bill maintains these rights for parents and also allows young people who are over compulsory school age to appeal and make disability discrimination claims.

3. Article 12 of the United Nations Convention on the Rights of the Child states:

Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

For this purpose the child shall in particular be provided with the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

4. Briefly by way of background the UN Committee on the Rights of the Child (UNCRC) examined the UK on its progress in implementing the Convention in September 2008. One concern of the Committee was that children have no direct right to appeal a decision in relation to special educational needs to the FtT. The Committee was also concerned that the right to appeal is restricted to parents which represents a particular problem for looked after children and recommended "that children who are able to express their views have the right to appeal against their exclusion as well as the right, in particular for those in alternative care, to appeal to the special educational needs tribunals".

5. The previous Government carried out a consultation between April and July 2009 on giving children a right to appeal in relation to decisions about special educational needs and to make disability discrimination claims. 86% of the 76 responses agreed that children should have the right to appeal in such cases and make such claims. A smaller majority agreed that the right should be from secondary school age, although 26% thought there should be no age limit. A small majority felt there should be no competency test for children to bring appeals against decisions in relation to special educational needs and make disability discrimination claims. Subsequently, the Parliamentary Joint Committee on Human Rights recommended that looked after children (LAC) with SEN should have an independent right to appeal against decisions made about them and the Lamb Inquiry into parental confidence in the SEN system (December 2009) recommended that the Government should implement the children’s right of appeal to the FtT.

6. In the SEN and Disability Green Paper Support and aspiration the Government said that it was important to open up the right to appeal to children and that the Department would work with the FtT to pilot giving children the right to appeal and claim in two or three local authorities with a view to extending the right to all children across England. The pilot would test whether the right to appeal is something that children would use, the best way to handle these appeals, and the cost implications of this change.

7. The Welsh Government has already amended the Education Act 1996 and the Equality Act 2010 to give children in Wales the right to appeal and make disability discrimination claims to the Welsh Tribunal. ]Pilots are being carried out in Carmarthenshire and Wrexham prior to the right being given to all disabled children and those with SEN in Wales.

8. In Scotland young people over the age of 16 have the right to appeal to the Additional Support Needs Tribunal over co-ordinated support plans and children of 12 and over have the right to make disability discrimination claims relating to discrimination in schools to the Tribunal.

Order-making powers in Clauses 53 and 54

9. Clause 53 provides that the Secretary of State may make by order pilot schemes enabling children in England to make appeals under clause 50 ("appeals") and disability discrimination claims under Schedule 17 to the Equality Act 2010 ("claims") to the FtT (SEND). We are proposing that pilots should be run in three local authority areas. The pilots will test the practicalities of giving children these rights and whether children will use the rights. In those areas children of compulsory school age and below will have the same rights to appeal and to make claims on the same grounds as parents and young people, the same access to advice from what are now called parent partnership services (under clause 32), the same access to disagreement resolution services (under clause 52) and be subject to the same mediation information and advice arrangements (under clause 51).

10. Clause 53 provides that the order may make provision about the following among other matters –

about the age from which children can appeal or make a claim. The Department is proposing to trial three age ranges, 0 until the end of compulsory schooling (in relation to Wales there is no lower age limit at which children may appeal), 10 to the end of compulsory schooling (so that children may appeal about the secondary school named on their Education, Health and Care plan) and 11 to the end of compulsory schooling (to cover the secondary phase of education);

about the bringing of appeals or making of claims by a child and by his or her parent concurrently. The Department is proposing that children and their parents will be able to make appeals or claims about the same matters concurrently. The FtT, under the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (5(3)(b)) has powers to order that appeals may be conjoined. If the appeals or claims are about different matters they can be taken separately;

about determining whether a child is capable of bringing an appeal or making a claim, and the assistance and support a child may require to be able to do so. The Department does not want to routinely impose a competency test on all children who want to appeal or claim. There are children who would be capable of taking through an appeal or claim by themselves. However, other children who may want to take an appeal through by themselves may not be capable of doing so. We would like the pilot areas to test different ways of applying a "support test" where children are not taking through an appeal with the help of an adult;

enabling a person to exercise a child’s rights on behalf of the child. The child will be a party to the appeal or claim. However, some children will not be capable of exercising their right properly and will need an adult to exercise the child’s rights. The Department proposes to make provision for ‘case friends’, who could be parents or people from voluntary organisations, for example, who can help the child in his or her engagement with the whole process, including any contact with "parent partnership services", disagreement resolution services, mediation and the FtT itself;

about the provision and other support services to children. The Department would also want to parallel the arrangements in Wales which require local authorities to make arrangements for the provision of independent advocacy services. Local authorities must refer any child or case friend who requests independent advocacy services to a service provider and the authorities must take such steps as are necessary to make the availability of the services known to children, parents, head teachers and other people as they consider appropriate;

about requiring notices and documents to be given and served on a child. Children in the pilot areas will receive the same notices, for example giving the local authority decision, and the same documents, such as finalised Education, Health and Care Plans, as their parents so that they have the same information on which to base appeals or claims.

11. Clause 53 will be repealed at the end of five years beginning with the day on which the Act is passed so that any pilots will have to be completed within that time period.

12. Clause 54 gives the power to the Secretary of State to make an order following the pilots to roll out the right of children to appeal and to make claims to other local authority areas in England. The order cannot be made until the end of two years beginning on the day on which the first order is made under clause 53. The order may make the same provision as the pilot scheme order under clause 53.

13. Unlike in Wales where the pilots are a preliminary to the right for children to appeal and claim being nationwide, in England an assessment will be made, depending on the success of the pilots, as to whether they will followed by nationwide roll out.

Department for Education

Policy statement on parents and young people lacking capacity. Clause 68 Children and Families Bill.

March 2013

Many provisions within the Children and Families Bill require the parents of children with special educational needs, and young people with special educational needs to take decisions. It is possible that some of those parents and young people will lack the capacity to make such decisions. However, it is important that someone represents the interests and views of the children and young people with special educational needs when those decisions are taken.

Therefore clause 68 enables regulations to be made which apply provisions in the Bill with modifications, to ensure that specified references to a child’s parent are to be read as references to a representative of the parent and specified references to a young person are to be read as a representative of the young person, the young person’s parent or a representative of the young person’s parent.

A representative is a deputy appointed under the Mental Capacity Act 2005, the donee of a lasting power of attorney appointed by the parent or young person, or an attorney in whom an enduring power of attorney has been vested and registered.

In relation to parents, we anticipate using the regulations to modify all references to a child’s parent to be read as references to the parent’s representative.

In relation to young people, it is more complicated, as some references will need to stay as those to the young person and others will need to be modified.

We anticipate modifying the provisions as follows –

a) in these clauses, references to a young person are to be read as references to both the young person and the relevant alternative person, where the young person lacks capacity at the relevant time:

section 19(a) and (d) (first reference)

section 27(3)(a)

section 30(8)(d)

b) in these clauses, references to a young person are to be read as references to the relevant alternative person instead of the young person, where the young person lacks capacity at the relevant time:

section 19(b) and (c)

section 32(1)(first reference) and (2)(b)

section 33(2)(a)

section 34(5)(c) and (7)(c)

section 36(1)(second reference), (4), (5) (second reference), (7) (opening words and paragraph(b)) and (9)(opening words)

section 38(1)(second reference), (2)(a) and (b), and (5)

section 39(8)(a)

section 40(5)(a)

section 42(2)

section 44(2)(a) and (6)

section 48(1) (second reference), (2) (second reference), (3)(d) and (4)(a)

section 50(1) and (3) (opening words)

section 51(1), (3), (4) (opening words and paragraph (b)), (5), (6) (opening words and paragraph (b), and (7)(g))

section 52(2)(b), (4)(a) and (6)(b)

section 56(3)

section 63(2)(first reference).

"The relevant alternative person" will be –

a) any representative of the young person,

b) the young person’s parent, where the young person does not have a representative,

c) any representative of the young person’s parent, where the young person’s parent also lacks capacity at the relevant time and the young person doesn’t have a representative.

§ Department for Education

CHILDREN AND FAMILIES BILL: NOTE FROM THE DEPARTMENT FOR EDUCATION TO THE PUBLIC BILL COMMITTEE ON TRANSITIONAL, TRANSITORY AND SAVING PROVISION (CLAUSE 107) RELATING TO PART 3 OF THE BILL (CHILDREN AND YOUNG PEOPLE IN ENGLAND WITH SPECIAL EDUCATIONAL NEEDS)

§ March 2013

1. To aid the Committee’s consideration of the provisions relating to children and young people in England with special educational needs (part 3; clauses 19-72) in the Children and Families Bill, this note provides further information on how we intend to use the powers in clause 107 to support transition to the proposed special educational needs system.

§ Policy background

2. Support and aspiration: A new approach to special educational needs and disability, published in March 2011, set out the Government’s intention to introduce by 2014:

· an integrated assessment process, which is more streamlined, better involves children, young people and families and is completed quickly;

· Education, Health and Care (EHC) plans, which bring services together and are focused on improving outcomes; and

· the offer of a personal budget for families with an EHC plan who want one.

3. In 2011, 27,445 children were issued with a statement of special educational needs for the first time. Approximately a quarter of a million children and young people in England have statements of special educational needs or a Learning Difficulty Assessment (LDA) at any one time.

4. The Government wants all children and young people with special educational needs and their families to benefit from the new arrangements proposed in the bill as soon as possible. Elements of the new system are increasingly becoming available to children and young people in the 20 pathfinder areas (covering 31 local authorities) and it is our aspiration that this will begin to happen in non-pathfinder areas from September 2014.

5. It is the Government’s intention that, from the point at which legislation comes into force, no further assessments under the current provisions will be carried out by local authorities and new entrants to the system would be assessed for EHC plans rather than statements or LDAs.

6. We are committed to ensuring that the best service possible is maintained for children and young people with special educational needs and their families. For most local authorities, replacing children and young people’s statements and LDAs with EHC plans at the same time as introducing the new assessment process for new entrants to the system will be a significant undertaking. We want to be sure that the changeover to EHC plans happens at a pace that allows for a smooth transition whilst maintaining the quality of existing services. To achieve this, we believe it will be necessary to adopt a phased approach to the transfer.

7. We will identify and consult on an approach for the transition from statements and LDAs to EHC plans that minimises unnecessary burdens on families and which meets the key principles of being:

· responsive to the wishes of children, young people and their parents;

· as fair as possible to the children and young people involved;

· achievable for local authorities and others involved in the assessment while enabling children, young people and their families to benefit as quickly as possible from the reforms.

8. To design appropriate arrangements for transfer to EHC plans, we are gathering views from local authorities (pathfinders and non-pathfinders) and other interested parties. This will help inform our views on a feasible timescale for transition and the support needed by local authorities and others to implement the changes within the identified timescale.

Order-making powers in Clauses 107

9. Clause 107 gives the Secretary of State the power to make by Order transitional, transitory or saving provision in connection with the coming into force of any provision in the Act.

10. The Secretary of State will use this power to make provision to set the parameters relating to the transfer of children and young people with statements and LDAs to EHC plans, and those who might be undergoing an assessment for a statement or a LDA when the legislation comes into effect. The Order will set out arrangements relating to:

· the sequence in which groups of children and young people with statements and LDAs will be transferred to EHC plans;

· the approach to assessment for the purposes of transfer to EHC plans;

· the duration of the transitional period, i.e. the date by when all statements and LDAs should be phased out;

· any elements of the current Code of Practice and LDA guidance that might remain in force during the transition;

· information and advice to support parents and young people through the process.

11. We expect consultation on a draft Order to begin in the latter part of this year.

Evidence Pack

Special Educational Needs: Children and Families Bill 2013

This evidence pack pulls together the information that has informed the Department’s assessment of the impact of the provisions in Part 3 of the Children and Families Bill, including in relation to equalities. It is provided in support of Parliamentary scrutiny because formal regulatory impact assessments were not required in these areas of the Bill. Work continues to inform developing plans for implementation of the Bill provisions and the Department would be pleased to receive any additional relevant evidence. Please contact: TheBillTeam.MAILBOX@education.gsi.gov.uk to make contact with the policy teams concerned.

Contents

SECTION 1: LOCAL OFFER

Summary of the measures in the policy area

This assessment covers a single measure which requires local authorities to develop a local offer of services for children and young people with special educational needs, including those who are disabled.

What are the problems that the measures address?

There are currently over 17 different information documents which a local authority is required by law to publish, providing information about provision for children with SEN within the school setting. These 17 documents include for example: a policy statement by the authority on their general approach to SEN; details of funding for children with SEN; a document setting out transport services for children with SEN or disabilities; a document setting out guidance for parents who suspect their child may have special educational needs. There are no duties on local authorities specifically to provide information regarding services for young people, although local authorities are under a duty to encourage, enable or assist the effective participation of young people in education and training. In some cases, this may include providing young people and their parents with information as a means of supporting young people to participate.

Responses from Parents to the Green Paper [1] provided evidence that despite existing information on provision, parents and young people remain confused about what services are available and what criteria is applied in order to access them. They also felt that as parents they could not routinely engage in discussions with their local authority about who was responsible for providing support and how to access services and this lack of engagement often led to mistrust in processes and professionals.

Some 28,325 statutory assessments were carried out in 2011. [2] A key finding of the Ofsted review of Special Educational Needs in 2010, was that a lack of clearly defined information on services normally provided by schools and colleges for all SEN pupils, especially those without statements, increases the number and cost of assessments authorities need to make. This is because some parents and young people are unable to identify and access the services already provided by schools and colleges.

There are currently, according to data from MoJ, some 3,200 appeals to the First Tier Tribunal per annum, where parents are in dispute with an LA’s decision regarding a statutory assessment or their delivery of services. Parents and young people are faced with incomplete information when making decisions on appropriate support and this often leads to an adversarial situation, created, for example, where a family believes they should be able to access a particular service for which the local authority does not believe they meet the eligibility criteria.

What are the measures and what is the rationale for their introduction?

· The Department is seeking to ensure that parents and young people have access to a single source of coherent and complete information to manage their choices with regard to services which support children and young people with SEN and disabilities. This single source should also include information about family support services and guidance on dispute resolution. It should be published as a web-based document but should also be available in other accessible formats.

· The Department is seeking to ensure that parents and young people are directly involved in the development and review of the local offer with the local authority and that their feedback is published. This will enable local authorities to get a clear idea about gaps in provision. Experience in relation to parental engagement in developing local authority short break statements has shown that it can vastly improve relations and lead to more cost effective provision of services that better meet users’ needs. For example a local authority in the North East shifted from a block contract with a big short break provider for out of authority facilities to a more community-based solution, as a result of listening to what parents wanted and saved about £2 million.

· The Department intends to place a duty on local authorities in primary legislation to publish a local offer of services for children and young people with special educational needs and set out in regulations more detailed information about what should be included. We are currently using the on-going work of the pathfinders to inform this detail.

· This measure is intended to significantly reduce the information barriers currently faced by parents, by making information more accessible and enabling parents and young people to make informed decisions which are based on clear and consistent information. It will also give parents, children and young people a bigger say in what services are on offer. This will improve both efficiency within the market for services for children and young people with SEN and the increase of provision of services that best meet parents’ and children and young people’s needs. It will also improve the equity of access to services, where currently those parents and young people who are able to deploy considerable time in searching through the existing plethora of information published by a Local Authority have better access to services.

· This measure also supports other aspects of the SEN reforms. For example, it will provide parents, children and young people with information on assessment and developing Education Health and Care Plans . The select committee pre-legislative scrutiny report notes the extent to which good quality local offers are pivotal to the success of the Government’s proposals.

What are the impacts of the measures and which groups of people do they affect?

Who will this measure affect?

· Any changes to the nature and format of information provision, has the potential to affect all parents and carers of children with SEN and their children, many of whom will be disabled, as well as being a significant new benefit for young people with SEN who had very limited access to information under the current legislative framework. The department currently estimates that there are 1.78 million children and young people up to the age of 25 with special educational need which includes just over 261,000 with high level needs and approximately 1.5 million with lower level SEN needs.

· The requirement to publish a local offer of services for local children and young people with SEN will create a new area of responsibility for the 152 local authorities in England and also will affect children and young people with SEN and their parents through the opportunity to be involved in helping LAs develop and review their local offer.

· The measure will also require a number of bodies including health bodies, schools, (independent and state-funded) colleges (including Independent Specialist Colleges) and training providers to cooperate with the local authority in developing the local offer. The duty of co-operation will extend to some state-funded schools, non-maintained special schools and health bodies in Wales where they have admitted children from English Authorities, or where an English Authority has responsibility for a looked after child.

What are the desired effects (benefits) of the measure?

· Better outcomes for children and young people – With a local offer in place, which parents and young people have been involved in developing and reviewing, parents and young people make better decisions about services which best meet their individual needs.

· Improved satisfaction and trust – increased transparency about entitlements and services and increased information at a local level should lead to greater equity in access to provision for parents and make it easier to benchmark local performance. Evidence submitted to the Disabled Children Review (2007) [1] suggested the benefits of parents’ forums which are primarily about improved information, include an increased feeling of control for parents over their child’s wellbeing, leading to lower levels of stress for families, better use of services and increased parental understanding of how services work, which often leads to better working relationship with professionals. This benefit accrues to parents and young people.

· Reduction in conflict and the number of appeals – It is likely that the local offer will reduce the number of appeals made to the Tribunal. It costs a local authority approximately £5,000 to defend a case at the Tribunal, it costs the Tribunal itself approximately £1,600 to hold a hearing and the costs to the exchequer of supporting a family to prepare for a hearing are estimated to be around £1,800. [2] Therefore, the benefits of avoided appeals accrue to parents and young people, local authorities and the exchequer. It is not possible to predict the total reduction in the number of appeals due to the production of the local offer, therefore the estimated total cost saving cannot be monetised. Furthermore, it would however be extremely challenging to isolate the downward effect on the number of appeals arising from this measure from the introduction of other measures in the Children and Families Bill in relation to SEN.

· Improved transparency supports improved commissioning by LAs and acts to drive down costs – A national set of local offers from local authorities will stimulate the market for services, revealing gaps in provision and enabling authorities to compare services in different geographic locations. This enhanced transparency will improve the local authority’s position as a commissioner of services. For example evidence from the NAO (2011) [3] showed that there were very different levels of funding spent on children with very similar needs across different geographical areas and a local offer would enable the local authority to help reduce that variability of service provision through the mechanism of transparency. Transparency may also lead to greater collaboration between local authorities to offer shared provision for children and young people with low incidence needs.

The department has not quantified the benefits derived from the introduction of a local offer.

What are the resource implications (costs) of this measure?

· The Department has not finalised its assessment of the costs to local authorities of developing and publishing a local offer, but is testing this in the pathfinder project, where 31 local authorities alongside parents, carers and young people will develop and test a local offer.

· The Department expects there to be relatively modest one-off costs incurred by local authorities to develop their systems, design processes and establish protocols for parents and young people to be involved in the development of the local offer. Our best estimate of this currently, using initial findings from some of the pathfinders, is that this will require around £4.5m of additional support across all local authorities to enable them to develop processes which will lead to the publication of their first local offer. This will also include developing processes for gathering information across health and social care. We expect non pathfinder local authorities to benefit from the experience of pathfinder authorities through the work of pathfinder champions during 2013/14. Evidence from pathfinders regarding the likely net additional costs of maintaining and reviewing the local offer will be considered to inform an understanding of the recurring costs of this measure.

What other measures were considered and why were they not pursued?

The alternative options considered were:

Encouraging local authorities to develop a Local Offer as best practice but not creating a specific duty in legislation

· There would be no requirement for the rationalisation of existing information, the proliferation of which is one of the main causes of concerns for parents.

· A voluntary approach would not help generate the benefits of national transparency and comparability, as without specifying the broad content of the local offer in regulations to ensure consistency, there is likely to be significant local variation.

· A voluntary local offer would fail to provide a legal requirement to include information about provision for young people and would perpetuate the inequality of access to information between those children and young people in school settings and those in further education or training.

· If local authorities opt not to develop a local offer under a voluntary system, this may have a detrimental effect for those parents and young people who wish to access a personal budget, as the local offer is an important means of accessing information as parents look to purchase a package of services.

Maintain the current legal framework

· There would be no change in the availability of information about services for young people, and in a joined up system from birth to 25 years under the reforms this will create significant new inequalities between information available for services for children and those for young people.

· Local authorities will continue to publish information in vastly variable ways which will perpetuate significant inefficiency as parents search for information required in order to make informed decisions.

Are there any key assumptions or risks?

The local offer is currently being tested in a pathfinder pilot project. By spring 2013, all pathfinders will have published their draft local offer. Therefore, the Department will be building on this assessment in light of this further evidence.

SECTION 2: CO-ORDINATED ASSESSMENT AND EDUCATION, HEALTH AND CARE PLANS

Summary of the measures in the policy area

To replace the current system of statementing and learning difficulty assessments with a co-ordinated 0-25 assessment process and an Education Health and Care Plan. Also, to enable all children and young people with an Education Health and Care Plan to express a preference for any state funded school, college or training provider or any approved independent provider where the provider is mainly or wholly catering for children and young people with SEN. The measures apply to children and young people who require educational provision which cannot reasonably be provided within the resources normally available to mainstream early years settings, schools and post 16 institutions in the area.

What are the problems that the measures address?

The Government’s 2011 Green Paper, Support and Aspiration: A new approach to Special Educational Needs and Disability, [1] described parents’ views of the current system for SEN as bureaucratic, bewildering and adversarial. Responses to the consultation informing the Green Paper found that the legislative framework underpinning the system for the assessment of needs and provision of support has created a combative culture which is resource-driven rather than needs-led.

Late Identification. It was highlighted in Bercow (2008) [2] that for many children their special educational needs are not identified early enough and the opportunities to benefit from early identification missed. Lewis et al (2010) [3] also points out that there can be significant variation between authorities in terms of the speed of identification.

Separation of education, health and social care. Families often have to negotiate each element of their child’s statement separately, giving professionals the same information on multiple occasions. This means that the process of assessment and agreeing support is time consuming and onerous. Outcomes for children and young people whose parents are unable to navigate the complex, education, health and social care systems are disproportionately affected. Parents and young people are exposed to stress and increased tension as a result of disputes and delays. Professionals from education, health and social care can not readily collaborate due to separate commissioning and budget systems. The system lacks clear shared accountability, which increases the likelihood of disputes between services and the risk of needs going unmet. The onus often falls overly on local authorities as the only body with a statutory duty to deliver the services identified in the SEN statement.

A separate system for young people. At the point a young person leaves school for further education they face a different assessment process, leading to a Learning Difficulty Assessment. While this is meant to take place in the young person’s last year in school, too often it is done very late in the day. It often does not take into account progress young people have already made or their aspirations and the outcomes they want to achieve, such as independent living. It is not used in a strategic way for commissioning – well in advance – the support and provision that young people need. It also comes at a time when young people are facing re-assessment for other services such as the transition from children’s to adult social care, which as the Law Commission found, can be a difficult experience for many.

There are fewer protections for young people (as compared to those under 16 or 18 years). They do not have the right to express a preference for a further education college they wish to attend, nor is there a requirement for the local authority to act on any preference that might be expressed. This creates inequality between those able to remain in school sixth forms – where the current SEN system still applies until 18, and those who access further education, where the SEN system does not apply. It leaves parents and young people unable to hold the system to account unless they are prepared and able to go to judicial review.

Limited choice of school types and post-16 provision. Parents reported as part of the Green Paper consultation, that in reality they have little choice of schools, as they are not clear about the options, their local mainstream school are not able to offer appropriate provision or there is a lack of special school places locally. In addition, there are different assessment criteria for assessing a parent’s preference for some independent schools. In the case of young people, currently they have no right to express a preference for a particular institution and there are no duties on FE Colleges and other post 16 institutions to admit young people. Ofsted reported that there is limited choice and opportunity for young people in post-16 education and what does exist is very rarely focused on preparing and enabling young people to make a successful transition to adulthood, including employment and independent living. [4]

What are the measures and what is the rationale for their introduction?

The measures include:

1. The introduction of a co-ordinated assessment process across education, health and social care.

2. The replacement of the current system of statements and learning difficulty assessments, with a single 0-25 Education Health and Care Plan, which retains all the protections of statements, places parents and young people at the heart of decision making and is clearly focused on both short and long term outcomes – including employment and independent living.

3. For those children and young people with an EHCP, enabling parents and young people to express a preference for any state funded school, college or training provider and some independent provision.

The rationale for Government intervention is based on equity arguments and the aim to address co-ordination failures and improve outcomes.

Equity Arguments. The Government wants to enable all children and young people with special educational needs to receive consistent support throughout school and further education and up to the age of 25 for those who need longer to complete their learning. Raising the participation age (RPA) implementation, where young people are required to stay in education or training until their 18th birthday, would expose further the inequalities of the current system. Enabling those who stay in schools to retain their rights while those accessing further education lose the protections secured by the statement can’t be right, if the Government is requiring them to stay in education.

The Government also wants to create equal rights for children and young people to express a preference for any state funded school or further education provision which will apply equally to academies, free schools, non-maintained special schools, independent schools catering mainly or wholly for children with special needs, all further education colleges and approved independent specialist colleges (ISCs).

Co-ordination Failure. The Government wants to address the co-ordination failure of the current system. For parents, their children and young people the low level of joint working across services in some areas leads to confusion and a sense of unfairness. For the exchequer, there are significant costs due to the late identification of needs, duplication of assessments and variation in provision of support. In the longer term, this system failure leads to these young people having high welfare dependency in adulthood, as shown by: significantly lower employment rates, poor health and often a higher than necessary dependency on parents and /or support services.

What are the impacts of the measures and which groups of people do they affect?

Who will the measures affect-

· Parents, children and young people. There are currently 261,835 children and young people with high level needs who would be likely to have an EHCP under the new system (including: those with a statement of educational needs, an LDA, participating post 16 without an LDA but had a statement at school and a proportion of young people who had a statement at school but are currently not participating but may do so in the future). The table below breaks this down by age with further details set out in annex 1.

Age

0-under 5

10,415

5-16

187,275

16 and 17 year olds

45,740

18-24 year olds – participating or NEET and likely to participate

18,405

EHCP total

261,835

The number of new statements issued in 2011 was 27,445. Over the past few years, this number has in general fluctuated around 25,000 [1] . This is around 10% of the total number of statements/LDAs or expected EHC plans.

· Local authorities and the health service. The changes to the system will need to be implemented by local authorities (education and social care services for children and adults), clinical commissioning groups and health service providers.

· The measures will affect maintained schools, non-maintained special schools, academies, free schools and independent schools, colleges and approved independent specialist colleges which mainly or wholly provide for children and young people with SEN. These providers will have a duty to admit a child or young person whose EHCP names that provider.

The Impacts (benefits) of the measures are:

Improved wellbeing for children and young people. The introduction of the EHCP aims to improve joined up working and could lead to a better experience for both children and young people with SEN and their families. An on-going support approach provides a better locus of control of their lives leading to an improved sense of wellbeing and potentially improved longer term outcomes. Evidence from the Department of Health (2008) suggests that treatment satisfaction can be improved following the introduction of care planning for treatment of long-term conditions. Similar health based evidence (see for example: Forman et al, [2] Kinmonth et al, [3] and Fuller et al [4] ) provide further evidence of the benefits of care planning and self-management approach in terms of health outcomes.

The benefits of reducing the number of full assessments. Once EHCPs are in place for children, they will take their plans forward into further education if they continue to be needed, without the need for the development of a separate learning difficulty assessment. The Department estimates the average cost of statutory assessments to be around £3,200, and assume that the cost of an ECHP assessment will be similar. [5] By 2015/16, the Department estimates that there could be just over 3,000 young people per year for whom no re-assessment will be required as they move into further education or training. This could rise to just over 8,000 by 2023/24, amounting to a maximum total saving in the region of £170m, in Net Present Value terms over the ten year appraisal period (from 2014/15 when EHCP is first implemented). [6] It should be noted that these estimates are uncertain and represent an upper estimate – savings may be lower where young people need a re-assessment if their needs change. In addition, the projections also assume that raising the participation age (RPA) means all academic age 16 year olds are participating in education and training during the appraisal period. [7]

Benefits of improved support for young people who are NEET. Maintaining an EHCP for a young person until they achieve their desired educational outcomes is likely to have an impact in terms of supporting young people into employment and semi-independent living. NAO evidence suggests that the costs of supporting a person with moderate learning difficulties through adult life (16-64) are £2.3m in today’s prices. Equipping a young person with the skills to live semi-independently rather than in fully supported housing could reduce these costs by up to £1m. Supporting one person with a learning difficulty into employment could reduce these costs by £170,000. [8] Much of these cost savings would be realised by local health, housing and adult care services.

Earlier identification of needs. The late identification of needs poses an opportunity cost as costly remedial interventions could according to Bercow (2008), [9] be targeted at earlier identification and support. We expect that the introduction of the single assessment process may lead to an improvement in earlier identification of needs due to a more rigorous categorisation of needs, thus avoiding the need for very expensive and intensive remedial interventions and support. Goswami (2008) reports that early detection and intervention would alter development learning trajectories for children with SEN, with consequent benefits through the life courses. In particular, improvements in early capability makes later learning more efficient, and enhancing early capability at the outset of learning also increases the complexity of what can be learned. The Department has not been able to monetise these likely benefits.

Reduced number of appeals. The Department expects that the number of new appeals should decline in the medium to long term due to the new co-ordinated assessment process and the EHCP, which aim to better assess and cater for children and young people’s needs, involving the family in the decision making process and thus decreasing the likelihood of formal disputes. We have not monetised these benefits.

The impacts (costs) of these measures are:

The Department is testing approaches to the development of a co-ordinated assessment process and EHC Plan through local authorities who are participating in a pathfinder programme. This will help inform an estimate of the likely resource requirements in terms of transition to a new system and on-going implementation. The next interim evaluation report, with quantitative analysis and an assessment of the costs of new approaches will be published in September 2013. These resource requirements relate to a step change in the current set-up of multi-agency working and will include changes in workforce deployment, development of systems, and improvements in advocacy and support in the assessment and planning process.

The Department expects that local authorities will require transitional support to develop the new approach and during a period where they are maintaining both statements and LDAs and converting these into education health and care plans. The Department has selected 20 ‘pathfinder champion’ LAs, covering all nine English regions, to support implementation in non-pathfinder areas on a regional and national basis, by sharing examples of effective approaches.

The Department expects the non-monetised benefits and monetised savings will significantly outweigh the costs of moving to the new system.

What other measures were considered and why were they not pursued?

The Department has considered the option of maintaining the current system. This would involve local authorities continuing to provide statutory assessment for children and young people and developing either a statement of special educational needs for those in a school setting or a learning difficulties assessment for those entering further education or training. The Department has heard representations over a long period which detail the problems that parents and young people have encountered in the current system, and also has observed the consistently high number of appeals in cases of dispute and the disproportionately high number of young people with LDD who are in the NEET group. Consultation responses received in advance of the publication of the Green Paper confirmed the problems families and young people were encountering in the current system.

An alternative option of promoting culture and practice change within the existing legislative framework, building on the findings of the pathfinder programme was considered. However, this was dismissed as among other issues, it would fundamentally not address the issue of the lack of parity pre and post 16, and therefore would not be effective in improving equity in the system.

Are there any key assumptions or risks?

Assumptions

The department assumes a flexible definition of the term "co-ordinated (or single) assessment process" acknowledging that local authorities are under statutory duties to complete statutory plans in certain circumstances (e.g. a care plan for a looked after child). We do not expect the co-ordinated assessment process to negate the need for other statutory processes. Pathfinder experience has shown that the EHCP can act as a ‘filing cabinet’ – reducing the amount of duplication between statutory assessments and bringing together their results into a single, coherent family facing document.

Improved partnership working and information sharing between agencies will deliver cost savings and cost efficiencies in the longer term as well as improvements in the quality of support planning. The evaluation of the pathfinder programme will explore the cost of these reforms to the different agencies involved, and this information will help refine considerations about how best to support local authorities in implementing the legislation.

Further evaluation evidence from the pathfinder programme (in particular the findings from the formal evaluation) will help refine the estimates presented here.

Risks

There are a number of important risks to delivery of the benefits set out here:

1. Working practices prove to be intractable and local areas are unable to achieve truly effective partnership working within the defined timescales, meaning that children, families and young people do not experience improved outcomes.

Mitigations: pathfinders will champion changes and sharing their experiences of

effecting culture change across workforces with non-pathfinders, particularly through

the work of the pathfinder champions; we will work to maximise the impact of the

health system reforms in particular the new duties for joint planning and

commissioning of services for children and young people with SEN.

2. Local authorities are unable to fund the cost of extending protections up the age range.

Mitigations: we are considering transitional arrangements for the new legislation, which will enable LAs to take a staged approach and plan and commission services accordingly over the longer term. The Department has also made clear that it will take action to support local authorities that are not fulfilling their duties to increase participation of young people. We are already providing improvement support for local areas with the most challenging data on NEET and participation.

3. Local authorities who choose to operate wider eligibility criteria for EHC Plans than they do currently for statements, going beyond their statutory requirements, risk additional costs in co-ordinating and preparing plans.

Mitigation: A number of pathfinders are taking this approach and implementing system wide reforms in order to reap longer term benefits. The evaluation will explore the cost of reform and the impact on improving outcomes at system and individual level. Non pathfinder areas will be able to build on the experience of findings of the pathfinder in order to inform their own approach to eligibility. The Children and Families Bill does not change the eligibility for a statutory EHC Plan compared with statements or Learning Difficulty Assessments.

ANNEX 1: What are the impacts of the measure and which groups of people does it affect?

Number of children/young people participating with statements/LDAs that would have an EHCP plan

Age

Number

Notes

0-5

10,415

5-16

187,275

16/17

20,462

18-24

12,234

Total

230,385

Number of potential additional EHCP Plans

Age

Number

Notes

16/17

15,918

Participating, low needs but had statements at school. However, this figure does not necessarily represent all new EHC Plans as students can be low needs and have an LDA now or an EHC Plan in future.

16/17

9,361

NET 16/17 year olds. We assume 100% participation under RPA then these would all be participating as a result of RPA and would all have LDAs.

18-24

6,171

It is estimated that 61,700 young people aged 18 to 24 with a statement of SEN will be NEET in 2014/15. This is based on combining numbers of young people who currently are or were in the school system with a statement of SEN with an estimate of their likelihood to be not in education, employment or training (NEET).

It is then assumed that overall 10% of that 18-24 age NEET group will both choose to and be successful in applying to their Local Authority for an Education, Health and Care Plan (EHC Plan).

For more details see Annex 2.

Total

31,450

So, as an expected upper limit, total additional numbers of EHC Plans is 31,450 - i.e. 25,279 (NEET 16/17 year olds plus low needs 16/17 year olds who had statements at school) plus 6,171 NEET 18-24 year olds. This assumes RPA doesn’t have any impact. If this were to occur, the total number of EHC Plans would be 261,835. It is possible that there may be an increase in the number of 0-5 children with an EHC Plan as the system becomes more integrated, with earlier identification and intervention. However, an expected number is not yet known and depends on local implementation of the reforms.

The lower limit of additional EHC Plans would be 6,171 – ie those 18-24 year old NEETs that we think might re-enter the system. This assumes RPA is 100% effective for 16/17 year olds and that all those 16/17 year olds participating with low needs already have an LDA.

ANNEX 2: Estimating the number of 18 to 24 year olds who are not in education, employment or training (NEET) and have high special educational needs

It is estimated that 61,700 young people aged 18 to 24 who had a statement of SEN will be NEET in 2014/15. This is based on combining numbers of young people who currently are or were in the school system with a statement of SEN with an estimate of their likelihood to be not in education, employment or training (NEET).

There are no routine national statistics available that breakdown the number or proportion of young people NEET by whether they had or had a statement of SEN, and so the likelihood cannot be calculated directly. However, it can be estimated for 18 and 19 year olds based on data from the Longitudinal Study of Young People in England, and a combination of whole cohort and disability data from the Annual Population Survey (APS) to create a proxy group for young people with a SEN statement for 18-24 year olds [using the methodology underpinning the national statistics].

It is then assumed that overall 10% of that 18-24 age NEET group will both choose to and be successful in applying to their Local Authority for an Education, Health and Care Plan (EHC Plan), and that this proportion will vary with age (from 30% at age 18 to 4 % at age 24). It is unlikely that many people in this group would seek to re-enter the system. Many will be on active benefits – which they would lose if they returned to education - or will be firmly embedded within the adult care system and will not want to risk losing established support

Academic age

18

19

20

21

22

23

24

Total

Statement at 15

21,300

21,900

22,000

22,700

23,400

23,400

23,400

158,200

of which NEET

5,100

8,100

8,500

9,300

10,000

10,600

10,000

61,700

Of which receive EHCP

1,900

1,600

1,100

600

500

300

200

6,200

SECTION 3: PERSONAL BUDGETS

Summary of the measures in the policy area

Introduction of an option for a personal budget for parents of children and young people with an Education Health and Care Plan.

What are the problems that the measures address?

There are three main problems that this measure is seeking to address:

Lack of parental control – Local Authorities are currently responsible for arranging the delivery of services which are required for a child with a statement of special educational needs but are not similarly required to arrange delivery of services for young people with a learning difficulties assessment. [1] In arranging services, families frequently report that this is characterised by often uniformly delivered services and many parents and young people share a concern that this does not provide services which meet their child’s/ an individual’s needs. Parents have expressed a preference to have more choice and control over the services they receive.

Lack of transparency – There is currently no transparency about the funding committed across the different public services to support a child’s needs as identified in a statement / Education Health and Care Plan.

Limited market development of services – There is currently a very limited market in the provision of some services for children and young people with SEN, with local authorities both commissioning and delivering within rigid service structures, which limits innovation and could affect the price paid for services.

What are the measures and what is the rationale for their introduction?

The policy measure aims to provide parents and young people who have an EHCP, the option to have a personal budget. For a child or a young person with an EHCP, the Local Authority will identify an amount of money available to secure provision that is specified in the EHCP with a view that the child’s parents or the young person is involved in securing the provision. The personal budget will cover the individualised support activity as set out in an EHCP, but not the school or college / training provider place.

This policy measure seeks to improve access to services and support the effective use of public resources for special educational needs. It seeks to empower parents and their children by giving them choice and control over the services they access, thus improving transparency and encouraging a special educational needs service that is more responsive to families’ needs and preferences. This in turn could improve the quality and efficiency of service provision, satisfaction and lead to improved longer term outcomes for children and young people with SEN.

Evidence from the Individual Budget Pilot (2010) [1] and from individual health budget pilots led by the Department of Health [2] provides evidence regarding the extent to which personal budgets can improve outcomes and create wellbeing effects from greater choice and control and changes in the type of services families choose to access . Further evidence from the UK and internationally shows that where personal budgets work well they give families more flexibility and they feel empowered. [3]

Efficiency arguments apply to the case for introducing personal budgets. Asymmetric information exists such that while parents in theory have better information on what services are most appropriate given their personal circumstances, local authorities currently arrange for services to be put in place on behalf of the family which are generally uniformly provided by local authorities. This means it is not specifically linked to an understanding of the child or their family circumstances. Families participating in the IB pilot benefited from the flexibilities afforded by an individual budget, including: changing the emphasis in the care package on respite and short breaks, having more family centred interventions and being able to innovate with new services that better suit their requirements.

What are the impacts of the measures and which groups of people do they affect?

The option for parents and young people to request a personal budget can benefit all parents and young people with an EHCP. However, we know that not all families will want the responsibility of managing their own budget which, in some cases, can include employing their own personal assistants. Based on the findings from the Individual Budget Pilot we estimate up to 13% of families will wish to take up the option of a personal budget. The Department estimates that this could mean between 31,000 and 34,000 families and young people taking up this option. This range is partly dependent on the number of young people for whom an EHCP continues to be maintained.

Local Authorities will be affected by this measure, as they will be expected to run systems in parallel. This will mean for parents and young people not requesting a personal budget they will continue to commission services which are required and detailed in a child / young person’s plan. For parents and young people who do request a personal budget, local authorities will need to make arrangements for a sum of money to be identified for the child or young person. Parents will be able to choose whether to direct where they wish this funding to be spent (with the local authority managing the funds on their behalf) or receive a direct payment in order that the family or young person holds the budget and directly commissions services.

The main impacts (benefits) for parents and young people will be:

Choice and Control – The Government wants to provide families with greater choice and control over the services they receive, allowing them to tailor provision to meet their own unique needs. A personal budget will enable parents or young people to have a much greater say in the way their child or they themselves are supported. This will provide a clear role for the service recipient in designing a package of support that is personalised. This can lead to welfare benefits for parents and young people, and longer term to improved outcomes for the child / young person. These benefits cannot be readily monetised however a recent NAO report [1] highlighted that in special educational needs, focussed support over many years can bring high net returns. The public sector costs of supporting a person with a moderate learning disability through adult life (16-64) is £2-3 million, while the impact of supporting one person with a learning disability into employment could, in addition to improving their independence and self-esteem, reduce lifetime costs to the public purse by around £170,000 and significantly increase that person’s income by 55-95%.

Transparency – The Government wants to provide families with greater transparency. A personal budget will provide clear information about the funding committed across the different public services to support their child, according to the needs identified in the EHCP. This will provide both commissioners and families with better information about the costs of different options which may in turn, for some, enable savings to be made. This, in turn, should help to create a more competitive market in the provision of service, encourage market development, and potentially address post code variation in the cost of service provision and funding provided to support children young people with similar needs. These benefits cannot be readily monetised.

Innovation – The individual budgets pilots have shown shifts in the types of services families use and individual case studies have highlighted innovative approaches to meeting needs. This is to be expected and encouraged to ensure that the package of support is truly personalised to meet the unique needs and circumstances of any individual child with an EHCP. Families will be supported in this process and good providers that offer innovative and responsive services will be able to grow.

Preparing young people for adulthood – Young people will find that in the adult social care and health services there is increasing use being made of personal budgets and direct payments. Introducing young people or older children to personal budgets will assist with the transition to adult services.

The main impacts (costs) for Local Authorities will be:

The Department has been able to draw on independently evaluated evidence from the Individual Budget Pilot to assess the likely costs of implementing this measure. The IB pilots included 6 sites, where individual budgets for provision of social care services for disabled children were tested. The IB pilots were delivered through a common delivery framework, which was a model including activities for both the initial transitional set up and on-going delivery of the pilot. The Department has assessed the likely costs to Local Authorities for the implementation of the option for a personal budget using the qualitative analysis from the IB pilots, and those elements of the common delivery model, established as part of that pilot, which would be relevant to the roll out of SEN personal budgets. The Department is in discussions with the Department for Communities and Local Government regarding how this will be funded at implementation.

Transitional costs:

The Department estimates that it will cost all 152 local authorities in aggregate between £17.5m and £47m to implement the personal budgets measure (over a 2 to 3 year period). Within this range, our central case estimate is around £32.5m. From the common delivery model, this is made up of: staff costs (44%) change management costs (18%) awareness raising with families (18%), IT development (3%) developing a resource allocation system (5%), developing systems which to put in place a choice of services (5%) and market development activities (18%).

Recurring Annual Costs:

The Department estimates that it will cost all local authorities in aggregate between £11.5m and £35m per annum to sustain this measure. Within this range, our central case estimate is around £23m pa. This will be made up of staff costs (63%), awareness raising activities (1%), on-going IT development (2%) maintaining a resource allocation system (1%), maintaining systems which put in place a choice of services (4%) and on-going market development activities (22%).

The Department believes the benefits to parents and young people afforded through individualised support has the potential to significantly outweigh the costs of setting up and running a personal budget system. In addition, the market stimulation and transparency that this measure is likely to generate, may have a downward impact on the cost of services and stimulate more innovation in the market.

What other measures were considered and why were they not pursued?

There are two alternative options which the Department has considered:

Leave the current funding arrangements for SEN provision unaltered – In the absence of the opportunity to request a personal budget, parents would continue to experience a system where Local Authorities put in place the specific services to be delivered as part of a child or young person’s EHCP. There would continue to be a lack of transparency and empowerment for parents.

All parents and young people access personal budgets for children and young people with an EHCP – While this would create a single system for local authorities to manage, consultation responses to the SEN Green Paper [1] indicated that around 60% of respondents felt some concern that managing a personal budget would be an unwelcome extra responsibility. The provision of an option for a personal budget means that parents can select to continue to have the Local Authority commission the services set out in a child’s plan. Parents who are concerned about the complexities of accessing a personal budget would be supported by the Local Authority to help them understand the system and navigate through it.

Are there any key assumptions or risks?

No evaluated evidence yet of SEN direct payments – While the evaluated Individual Budget Pilot has given the Department some good evidence to develop an understanding of likely take up and the costs of implementation, the IB pilots were not based on either personal budgets or direct payments in relation to educational services, which will be one core part of the EHCP. In mitigation of this risk, the Department is testing SEN personal budgets and direct payments as part of a pathfinder programme and further evidence from the evaluation of this programme will support the Department in refining our estimates of costs and benefits. A qualitative evaluation of the pathfinder programme will be available in September 2013 as well as a number of case study examples of personal budgets in an SEN context. As part of this process the Department has put into place a number of safeguards to prevent the misuse of funds including conditions for receipt of direct payments and requirements for the monitoring and review of their use.

Distribution of outcomes – The Department is alert to risks around the distribution of outcomes i.e. that personal budgets may be more likely to be taken up by middle to upper income families as these families may be feel more equipped to understand the complexities of managing a personal budget / direct payments. However, analysis of the take up in the Individual Budget pilot suggested this was broadly in line with the population and around a quarter of families were categorised in social grade E (main earner in casual or lower grade employment or dependent on the welfare state).

SECTION 4: APPEALS AND MEDIATION

Summary of the measures in the policy area

This document appraises three complementary measures:

· Establishing a common right of appeal across the post compulsory school (16-25) age range.

· Establishing a small number of pilot schemes to enable children to make appeals in relation to their Special Educational Needs (SEN) and disability discrimination claims.

· Promoting use of mediation through a mandatory mediation information telephone call.

What are the problems that the measures address?

There are currently different redress arrangements between:

· children and young people with special educational needs of compulsory school age (and 16-19 year olds in schools); and

· young people over compulsory school age who are not in school.

Under current arrangements, young people outside of the school setting are in an inferior position relative to children of compulsory school age and 16-19 year olds still in school. They have no legal right to access a Tribunal directly, or through their parents. Currently, young people are only able to use Judicial Review or an Ombudsman for dispute resolution. As we seek to introduce Education, Health and Care Plans across the 0-25 age range regardless of educational setting, we want to ensure that equivalent access to redress is available.

The United Kingdom of Great Britain and Northern Ireland ratified the UN convention on the rights of the Child (UNCRC) in 1991 and the Government continues to make progress to ensure that every child and young person in England has all the rights laid down in the Convention. The UNCRC examined the UK on its progress in 2008. Among other concerns, the UN was concerned that children (with SEN or suspected SEN) have no rights to appeal a decision to the First-tier Tribunal. The rights are currently restricted to parents, which represents a particular problem for looked after children. They recommend that children who are able to express their views have the rights to appeal to the special educational needs tribunals

To ensure children and young people with SEN have the right assessment so services can be put in place quickly, both users and providers of special educational needs and disability services have an interest in resolving disputes in a resource efficient way. The length of the statutory assessment process means that a child or young person with SEN may not be receiving the right support for six months or more, often at a crucial point in their development. This can increase to over a year once any appeals to the First-tier Tribunal (SEN and Disability) are taken into account. The current set of incentives for users may be distorting an optimal choice. It is possible that parents exercise the right to appeal, instead of using alternative options such as independent dispute resolution services which may have a lower overall cost and avoid the need for formal hearings.

What are the measures and what is the rationale for their introduction?

There are three measures proposed:

· Establishing a common right of appeal across the post compulsory school (16-25) age range. This includes extending the right of appeal to the First-tier Tribunal (SEND) by allowing young people in school and post-16 education over compulsory school age the right to appeal up to the end of the academic year in which they turn age 25. The rationale for this measure is based on equity arguments, to ensure that there are the same appeal rights across the 16-25 age range.

· To enable children to make appeals in relation to their SEN assessments and statements/plans and to make disability discrimination claims. Establishing a small number of pilot schemes for children of compulsory school age and below to make appeals in relation to their special educational needs and to bring disability discrimination claims. On completion of any pilots the Secretary of State would have the power to extend the right to all children in England. The rationale for this measure is based on equity arguments. The pilot and any subsequent move to give all children a right of appeal which will specifically help ensure that looked after children and older children have a right of appeal. This will also fulfil commitments made under the UNCRC. Government intervention is necessary to amend the current legislation and thus to ensure children and young people’s interests are being treated and protected equally.

· Promoting use of mediation/ mandatory mediation information telephone call. Introducing a mediation information call for parents and young people before appeal aims to improve the take-up of mediation services. This will reduce costs and the time and stress of resolving disagreements by avoiding the formal appeal process. If the parent or young person wished to appeal to the Tribunal they must first contact an independent mediator for advice and information on mediation with the local authority unless the case is an exception (e.g. only relates to the naming of a school or post-16 institution) [1] The parent or young person will then decide whether to participate in mediation or go straight to appeal. Currently, only around 23% of SEN appeals registered with the Tribunal are heard. The rest are either withdrawn by parents or are conceded by the local authority. [2] This is time consuming, expensive and stressful for the families involved. Voluntary mediation, which was supported by the responses to the Green Paper and the Education Select Committee during pre-legislative scrutiny, would provide an effective practical solution. Parents and young people will have the opportunity to discuss with an independent mediator how mediation may help them, before deciding whether to go to mediation with the aim of avoiding the delays / costs / stress which would be incurred through the Tribunal route.

What are the impacts of the measures and which groups of people do they affect?

Figures are based on the best estimates and assumptions we have currently but there will be some variation in reality.

Who will these measures affect?

Establishing a common right of appeal across the post compulsory school (16-25) age range. This measure is likely to benefit between 23,500 and 39,400 young people aged 16-25. This estimate does not include those 16, 17 and 18 year olds who are in a school setting, whose parents currently have a right of appeal. We estimate that there could be some 600 additional appeals per year from young people aged 16-25 (see annex A.2).

To enable children to make appeals in relation to their SEN assessments and statements/plans and to make disability discrimination claims. Initially this measure will only impact those children who are resident within the pilot site areas and these areas have not currently been selected. The pilot schemes may also test which age ranges such a measure would have greatest impact upon. However, on the assumption that the pilot demonstrates this is a beneficial approach and full roll-out is extended across England, this measure would potentially apply to around 200,000 children (0-16) with statements of SEN. The group which we expect to make greatest use of the right of appeal may be looked after children, where around 30% of all looked after children currently have statements of special educational needs. Some 6,780 looked after children have statements of SEN. [1]

Promoting use of mediation / mandatory mediation information telephone call. This measure will impact on all local authorities in England. It will also impact on all parents and young people who find themselves in dispute with their local authority on matters relating to their EHCP or a decision not to make or amend a Plan. We estimate that there will be over 250 additional calls per year from under 16 year olds and 16-19 year olds in school (see annex A.6) and 500 additional calls per year (see annex A.8) from young people outside of the school setting.

What are the desired effects (benefits) of the measures?

Establishing a common right of appeal across the post compulsory school (16-25) age range. The benefits relate to welfare improvements for young people outside the school setting, who are currently not able to appeal in the same way as the parents of those in school or early years settings.

To enable children to make appeals in relation to their SEN assessments and statements/plans and to make disability discrimination claims. The pilots will help the Department to make an assessment of the benefits of this measure. There are possible welfare benefits for children who are able to appeal in their own right, particularly those who are looked after by their local authority.

Promoting use of mediation / mandatory mediation information telephone call. The benefits of this measure include a range of welfare improvements, including the potential to avoid the time commitment, stress and anxiety caused by going through the appeals process. There are however, also savings which are likely to result in the event that participation in telephone mediation results in more cases being managed successfully through mediation and avoiding the need for an appeal to the Tribunal. The use of compulsory phone call should give users the opportunity to take more responsibility towards a settlement that avoids the courts or the Tribunal. There is currently no large scale, robust research available showing to what extent current voluntary mediation sessions have been able to resolve disputes and thus lead to a reduction in court applications. Interviews between DfE officials and three mediation organisations (specifically providing dispute resolution services for SEN appeals), in July 2012 suggests that mediation could fully resolve between 60 and 80% of cases referred (see annex A.5)

A reduction in appeals in the younger age group. Savings will be generated for the Exchequer and local authorities as a result of mediation reducing the number of appeals that go to Tribunal. We estimate that 10 - 20 per cent of appeals would access mediation and where the mediation session successfully manages these cases there will be fewer cases reaching the Tribunal hearing stage. We estimate this would generate savings in relation to avoided appeals of approximately £300k pa for the Exchequer and £500k pa for local authorities (see annex A.10).

What are the desired effects (costs) of the measures?

Establishing a common right of appeal across the post compulsory school (16-25) age range. There are costs associated with an increased number of appeals from the older age group, who previously had no right of appeal to the First –tier Tribunal. This excludes those who avoid a Tribunal as a result of mediation. We estimate that there will be a total cost of £350k to the Exchequer and £600k for local authorities to defend these additional cases (see annex A.12) per annum. There will also be some information provision costs to local authorities in setting out the new process for parents and young people. This has been estimated based on administrative time drafting correspondence and guidance at approximately £20k across all LA areas (see annex A.14).

To enable children to make appeals in relation to their SEN. The Department will support the costs of establishing a pilot, which we have estimated at £150,000 pa over two years (see annex A.4). If this pilot is successful, the Department will make a further appraisal of the costs of implementing the findings of the pilot across all English local authority areas.

Promoting use of mediation / mandatory mediation information telephone call for the older age group and parents of the younger age group. There are a range of costs which this measure will create. First there will be costs in relation to providing the phone call. We estimate additional costs of £30k per annum to local authorities from parents of the younger group (see annex A.6) and £5k per annum to local authorities from the older age group (see annex A.8). It is also expected that the mediation information sessions will generate more referrals to mediation. This will require further costs to be met. Market evidence suggests that mediation in this area has a cost of between £520 and £840 per session [2] . Assuming that 16% of cases result in mediation taking place, this has a cost of £350k for parents of the younger age group (see annex A.7) and £50k for the older age group (See annex A.9).

The total costs set out in this section are around £1.40m per annum (including pilot costs). While the monetised benefits of these three measures taken together create a small net additional annual cost, this does not include the significant welfare improvements for young people in being able to effectively appeal against decisions made in relation to their SEN by local authorities and to have this appeal heard in the same way which parents of children with SEN have had in place for some time. It also does not include the significant welfare improvements for parents who could benefit from avoiding Tribunal hearings and delays in resolving matters with the local authority. Taking into account these non-monetised benefits, the Department considers across these three measures that the benefits outweigh the likely costs.

What other measures were considered and why were they not pursued?

Not establishing a common right of appeal across the post compulsory school (16-25) age range. This do-nothing option was not pursued. With the implementation of a 0-25 year old single assessment process and plan, it would be inappropriate to consider maintaining the existing differentiated systems for redress across the two age ranges.

To enable children to make appeals in relation to their SEN. The Department considered an option of legislating to put in place the children’s right without the pilot occurring first. However, there is a need to test on a small scale to understand more about what age of children would be likely to take advantage of this right, and in what number children may come forward. A pilot would also enable the appeals system (mediators and the court system for example) to start to understand the implications of working directly with children and learn lessons for other sites.

Promoting use of compulsory mediation. The Green Paper, Support and Aspiration: a new Approach to Special Educational Needs [1] set out the proposal that parents would be obliged to participate in mediation before they would be eligible to have their appeal registered with the First-tier Tribunal. This measure would have led to a net cost of £550,000 per annum, which slightly exceeds the net cost under the option set out above. In this scenario, significantly greater cost would have been incurred in providing mediation services, but this would have resulted in more mediation cases helping to reduce the number of cases heard at Tribunal. However, responses to consultation during PLS suggested that this option was deeply unpopular across a range of interested parties. Therefore the Department is proposing the alternative option which ensures that the benefits of mediation are discussed with all appellants.

Are there any key assumptions or risks?

Key assumptions and risks:

· The costs and benefits presented here assume that the new system generates the same volume of appeal cases as the current system. We have assumed that on average 3,600 appeal cases arise each year and have assessed the costs under the new system on this basis. There is a risk that the new system as it is implemented, creates a higher case load of appeals, as professional develop their understanding and expertise in working in the new system. There is also a likelihood that the reforms with their intended effects of giving parents more control, ensuring that professionals work together and providing more information to parents about the process and locally available services, will mean that there is a much less adversarial system which emerges. This may mean the costs are much lower as the number of cases reduces longer term.

· There is an assumption that there will be capacity amongst providers of mediation to meet the increased demand following on from this new duty or capacity can be quickly expanded.

· Mediation information sessions will not cover disability discrimination claims or cases where the appeal is only about the education provider to be named on a statement/Plan. These cases will be permitted to progress directly to the Tribunal, as it is likely that mediation would be ineffective where the matter only relates to the named establishment.

· Children and young people may need, due to the introduction of the right to appeal and compulsory mediation information call, additional help to understand the mediation process and the appeal process through advocacy support. We are unable to estimate how many children and young people may opt to take up advocacy support, so we have not monetised this cost.

Annex: Supplementary Evidence and Cost Benefit Calculations

1. In this annex we lay out additional sources of information and narrative and the calculations behind the cost and benefit estimates reported above.

A.1. Establishing a common right of appeal across the post compulsory school (16-25) age range.

2. Under this option, legislation would be used to give young people aged 16-25 equal access to appeal in connection with their new Education, Health, and Care Plan, regardless of the young person’s age or education setting.

A.2. Impact on the number of young people launching an appeal

3. Beginning with under 16 year olds and 16-19 year olds in school, the parents of children who have either been denied assessments, statements or disagreed with the contents of the statements launched 3,600 appeals in 2011-12. We expect that there will be no, or near zero, additional on-flow from this group as their parents already have the right to appeal and we expect the additional numbers of children launching an appeal independently of their parents to be small.

4. Turning to the young people outside of the school setting, this group can currently only attempt to resolve disputes through either Judicial Review or the use of an Ombudsman, not through Tribunals, but through the widening of the right to appeal, we expect the number of formal appeals to rise. We estimate that between 23,500 and 39,400 young people could be additionally drawn into the Right to Appeal.

5. To obtain an estimate of the number of additional appeals launched from this age group in England, we have firstly taken the number of appeals launched by parents from the younger age group in 2011-12 (this is 3,600 in total) and have expressed this as a proportion of the population with statements (this is 197,675). [5] Therefore, our central estimate is that 1.8% of young people currently outside of the school setting who could be drawn into the Right to Appeal will launch an appeal each year. In addition to this central estimate, we have also made two assumptions on what the higher and lower case could look like, assuming double the proportion for the higher case (3.6%) and half the proportion for the lower case (0.9%).

6. Given these assumptions, our high case estimate is that there are 1,418 additional appeals from this age group per annum (3.6% of 39,400 young people). Our central case scenario is 566 additional appeals per annum (1.8% of 31,450 young people). Our lower case scenario is 212 additional appeals per annum (0.9% of 23,500 young people).

A.3. On-going cost of additional Tribunal cases to the older age group

7. The increase in the number of appeals from the older age group will lead to an increase in the number of case heard per year. We can use data on the proportion of appeals launched by the parents of the younger age group that go to Tribunal to estimate the number of additional Tribunal cases that will be generated by the older age group.

8. The average number of appeals launched by parents from the younger age group was 3,600 in 2011-12. The number of cases heard in 2011-12 was 830. Therefore around a quarter (23%) of appeals go to Tribunal. [6] Applying this proportion to the additional appeals coming from the older age group implies an increase of 130 cases going to Tribunal (e.g. 23% of the 566 additional appeals).

9. The cost to the Exchequer of a Tribunal case ranges between £2,067 and £3,909 (in 2012 prices). [7] Therefore, the annual additional cost could range between £269k (130 Tribunal cases x lower cost estimate of £2,067) and £508k (130 Tribunal cases x higher cost estimate of £3,909). The cost to a Local Authority of defending a Tribunal case is estimated at £5,116 (in 2012 prices). Therefore, the annual additional cost for local authorities would be £665k (130 Tribunal cases x cost estimate of £5,116).

A.4. Establishing a small number of pilot schemes to enable children to make appeals in relation to their Special Educational Needs (SEN).

10. There are currently no pilots in England which could offer us an insight into the true magnitude of costs and benefits associated with the Right to Appeal. Thus we intend to establish a pilot in two or three local authority areas to test out children’s willingness to use their new right and its operation, working with the First-tier Tribunal (SEND). The proposed two year pilot could, based on estimates provided by the Welsh Government, cost around £130,000 (in 2010 prices) per annum. The equivalent in 2012 prices is £133,023. [8]

A.5. Promoting use of mediation / mandatory mediation information telephone call

11. The use of compulsory phone call should give users the opportunity to take more responsibility towards a settlement that avoids the courts or the Tribunal. There is currently no large scale, robust research available showing to what extent current voluntary mediation sessions have been able to resolve disputes and thus lead to a reduction in court applications.

12. Interviews between DfE officials and three mediation organisations (specifically providing dispute resolution services for SEN appeals) on 4th July 2012 suggests that mediation can fully resolve between 59 [9] per cent, 70 per cent [10] and 80 per cent [11] respectively. The three mediation companies provide services collectively for 69 local authorities. It is expected that we can see a similar success rate in new referrals to mediation that the compulsory phone call is expected to lead to due to the similar nature of it being voluntary for parents and young people (although compulsory for local authorities) and these customers being informed of the prospects. To anticipate the total avoided appeals to tribunal, we would have to estimate how successful the phone calls are likely to be in leading to mediation in cases where this would not have occurred previously. It is also the case that the percentages quoted above are for dispute resolution sessions where the involvement of parents and local authorities is voluntary whereas under this proposal involvement will be voluntary for parents but compulsory for authorities. Therefore the percentages quoted above might be slightly optimistic for this proposal.

A.6. The cost of arranging a telephone call for parents of the younger age group to Local Authorities

13. There will be additional costs for Local Authorities in arranging telephone calls for all appeals lodged with the Local Authority. Local Authorities have been required under section 332B of the Education Act 1996 to make arrangements for independent people to provide a service for avoiding or resolving disagreements between parents, local authorities and schools. The Department for Education provides the Local Authority with funding to cover the provision of these services. However, our evidence shows that very few cases are currently referred to mediation services.

14. As laid out above, there will be on average, 3,600 appeals each year from the younger age group who will require a phone call. However, as the legislation is to be set out, an estimated 10% of these appeals will not be subject to this, because the case would relate solely to the naming of a school or college within the EHCP and in this instance the call will not apply. Therefore, an estimate of 3,240 (3,600 x (1-0.10)) is provided for the purposes of estimating the costs and benefits of the compulsory phone call measure.

15. The estimated cost of a phone call, covering all required training and possible multiple attempts for 3,240 cases is estimated to be £30k. This is calculated from an estimated mediator’s fee of £9.38 for a 10 minute call. This estimate was gathered from mediation companies and is an indicative, upper bound estimate.

A.7. On-going cost of providing additional mediation sessions to the younger age group

16. The estimated unit cost of a mediation case can range, according to a 2008 evaluation from the National Centre for Social Research [12] , from £500 (2008 prices) where the LA also paid a retainer fee (of an unknown amount), to £800 (2008 prices) where the LA paid no retainer fee and the cost of any associated administration was included in this per case figure. The adjusted figures in 2012 prices (using the GDP deflator) are £523 and £836.

17. From a mediation tribunal pilot, 67 parents were referred, with 11 parents calling opting for full mediation services. We therefore estimate that 16% of appeals will now go and use a mediation service. The true figure is likely to be slightly different, given the nature of the trial against the proposed measure. The expected on-going cost of mediation is therefore estimated to be £433k in the high case scenario [3,240 appeals x £836 x 0.16], and £271k in the lower case scenario [3,240 appeals x £523 x 0.16]. Our central estimate is £353k [3,240 appeals x £680 x 0.16].

A.8. The on-going of arranging a telephone call for the older age group to Local Authorities

18. Again, we assume that 10% of the additional appeals from the older age group (10% of 566) will not be subject to mediation because they relate solely to the naming of a school, so there will be 509 additional appeals subject to mediation. The estimated cost of a phone call, covering all required training and possible multiple attempts for these 509 cases is estimated to be £5k. This is calculated from a mediator’s fee of £9.38 for a 10 minute phone call.

A.9. On-going cost of providing additional mediation sessions to the older age group

19. We expect there to be an increase in the number of appeals due to the extension of the right to appeal to the older age group. These appeals will also be subject to a compulsory phone call and will thus require LAs to arrange some additional mediation sessions. We anticipate the overall number of cases to go through mediation to be 16%. Therefore, the on-going cost of mediation is estimated to range between £68k in the high case scenario [509 appeals x 16% x £836] and £43k in the lower case [509 appeals x 16% x £523]. Our central estimate is £55k [509 appeals x 16% x £680].

20. Regarding possible additional training costs of mediators, an indicative departmental allocation has been suggested that is understood to cover the additional costs involved. The allocation will be confirmed once development plans are further discussed in the autumn.

A.10. The benefit to the Exchequer and Local Authorities from a reduction in Tribunal cases for the younger age group

21. The number of avoided Tribunals in the younger age group is estimated to be 78 (16 per cent x 59 per cent x 830) in the lower case, 106 (16 per cent x 80 per cent x 830) in the higher case, and 93 (16 per cent x 70 per cent x 830) for the central estimate. Given this, the estimated savings to the Exchequer could range between £414k in the high case (106 avoided Tribunal cases x £3,909), £161k in the low case (78 avoided Tribunal cases x £2,067) and £278k in the central case (93 avoided Tribunal cases x £2,988). Similarly, the estimated savings to Local Authorities would be £542k in the high case (106 avoided Tribunal cases x £5,116), £399k in the low case (78 avoided Tribunal cases x £5,116), and £476k in the central case (93 avoided Tribunal cases x £5,116)

A.11. The benefit to parents of avoiding Tribunal cases

22. The primary non-monetisable benefit of the measure, is to improve the wellbeing of children and families through ensuring that fewer families go through the process of a Tribunal hearing, which involves a delay ensuring that the right services are in place for the child and young person, as well as the opportunity costs associated with the time and effort that both parties experience from having to go through an appeal hearing. This wellbeing improvement was a key rationale within the Green Paper.

23. Encouragingly, 70 per cent of respondents to the consultation [13] felt that there should be mediation before a parent registers an appeal with the Tribunal, although many of them said it should not be compulsory. A study by the Ministry of Justice (2010) [14] on the use of mediation in employment tribunals states that some claimants felt a lessening of stress involved in mediation compared to a formal case. However, exploring how mediation could improve parents’ and carers’ experience of the system should be one of the elements which all the pathfinders will be making available to parents who are unhappy with their children's assessments and Education, Health and Care Plans.

A.12. Net effect of the three changes: On-going cost of additional Tribunal cases to the older age group

24. When examining the extension of the right to appeal above, we estimated the cost to the Exchequer and Local Authorities of additional Tribunal cases for the new appeals coming from the older age group. We expect that the introduction of compulsory mediation alongside extending the right to appeal will reduce these costs as a greater number of appeals will be resolved before going to Tribunal, although they will still be higher than the current Tribunal costs for this age group (which are zero).

25. As outlined above, we estimate that the proportion of disputes resolved by mediation to range from 59 per cent to 80 per cent. We expect a similar success rate for cases where parent and young people choose to go to mediation under the proposed arrangements as under the current dispute resolution arrangements. We estimated there would be an additional 130 Tribunal cases from the older age group from extending the right to appeal. Therefore the additional number of Tribunal cases per annum (taking into account both the introduction of compulsory mediation information call and extending the right to appeal) is estimated to be 118 in the high case [130 – (16 per cent x 59 per cent x 130)], 113 in the lower case [130 - (16 per cent x 80 per cent x 130)], and 115 in the central case [130 - (16 per cent x 70 per cent x 130)].

26. The cost to the Exchequer of a Tribunal case ranges between £2,067 and £3,909 (in 2012 prices), therefore, the annual additional cost could range between £461k in the higher case (118 cases x £3,909) and £234k in the lower case (113 cases x £2,067). The central case estimate is £345k. The cost to a Local Authority of defending a Tribunal case is estimated at £5,116 (in 2012 prices). Therefore the annual additional cost could range between £602k in the higher case (118 cases x £5,116) and £580k in the lower case (113 cases x £5,116). The central case estimate is £591k.

A.13. The cost to Local Authorities from communicating changes and providing advocacy support

27. It has not been possible to separate out the information and advocacy costs for local authorities for each of the specific policy measures. This is because we expect local authorities to provide information on the changes together, and children and young people may need additional help to understand the new process as a result of both changes.

A.14. Transitional Information cost

28. The primary responsibility for promotion lies with the Local Authorities, which can use a range of modes for promoting independent SEN mediation services to young people. It is likely that LAs will experience a cost for the dissemination of the new policy to children, young people and parents. This is the cost of producing a letter and guidance to parents to raise awareness. We are assuming (based on discussions with three Local Authorities) that producing and distributing the letter and guidance takes one day of clerical worker’s time, one hour for a junior manager to check the accuracy of the literature and half an hour for a senior manager to sign off. Taking into consideration the average wage costs, the hourly wage cost [15] is estimated to be:

§ £12.93 for a Clerical Worker (£10.18 per hour x 27 per cent onset cost [16] )

§ £24.03 for a Junior Manager (£18.92 per hour x 27 per cent onset cost)

§ £25.03 for a Senior Manager (£19.70 per hour x 27 per cent onset cost)

29. The total transitional information cost comes to [(£12.93 x 8 hours) + (£24.03 x 1 hour) + (£25.03 x 0.5 hours) x 174 Local Authorities in England and Wales] = £24,357.

A.15. Advocacy cost (on going)

30. Children and young people may need, due to the introduction of the right to appeal and compulsory mediation information call, additional help to understand the mediation process and the appeal process through advocacy support. We have been unable to obtain a unit cost for support for advocacy services, though a proportion of Local Authority social care expenditure is currently focussed on advocacy work. We thus have assumed (based on discussions with colleagues at the Ministry of Justice) that an advocacy service may require six hours (four hours preparation time and two hours to attend a mediation session) of a mediators time and we have assumed a median hourly earning of £16.10 for professional, scientific and technical activities [17] , including uplift for onset cost of 27 per cent the hourly cost is £20.45 (£16.10 x 27 per cent). This gives us an approximate cost of £122.68 per case (£20.45 x 6 hours). However, we are not able to say how many children and young people may opt to take up advocacy support.

A.16 Summary of costs and benefits

Costs

Group

Best estimate

Additional Tribunal cases from older age group (A.12)

Exchequer

£345k per annum

Local Authority

£591k per annum

Establishing pilot schemes to enable children to make appeals (A.4)

Exchequer

£133k per year of pilot

Cost of arranging a telephone call for the younger age group (A.6)

Local Authority

£30k per annum

Cost of providing additional mediation sessions to the younger age group (A.7)

Local Authority

£353k per annum

Cost of arranging a telephone call for the older age group (A.8)

Local Authority

£5k per annum

Cost of providing additional mediation sessions to the younger age group (A.9)

Local Authority

£55k per annum

Information costs (A.14)

Local Authority

£24k (one-off)

Advocacy cost (A.15)

Local Authority

un-monetised (on-going)

Benefits

Reduction in tribunal cases for the younger age group (A.10)

Exchequer

£278k per annum

Local Authority

£476k per annum

Children and Families

un-monetised

SECTION 5: Impact on the NHS of the Special Educational Needs Reforms

Summary of the measures in the policy area

The Children and Families Bill will introduce from September 2014:

1) New joint-arrangements for assessing, planning and commissioning services for children and young people with special educational needs, which make it clear what will be offered, and who will deliver and pay for it, underpinned by a process to swiftly resolve local disputes between partners.

2) A new local offer, so children, young people and their families are clear what is available locally, with a clear complaint process and redress system.

3) Introduction of local Education, Health and Care (EHC) Plans from 0 to 25 which set out in one place the support from education, health and care services children and young people will receive; with a new focus on helping to improve outcomes, including future employment and independent living.

4) Personal budgets for those families who want to have them.

5) A duty on clinical commissioning groups (CCGs) (and in some limited cases, the NHS Commissioning Board) as health commissioners to secure the provision of health services which they have agreed in the EHC plan, similar to the duty on local authorities in respect of special educational services.

Overall, these reforms will deliver a new more child and family-centred system, which is quicker, more streamlined, less combative, and better able to identify need early (for example through the two year old progress check). The approach dovetails with the changes to NHS Commissioning made by the Health and Social Care Act 2012. This will enable professionals to work with families to start meeting children’s needs from a much earlier point and prevent some problems from escalating. Above all the new arrangements will provide a platform for integration. The EHC plan approach will bring services together, with as focus on personal outcomes for the child. The introduction of a clear local offer and personal budgets will put families of children and young people with SEN in control of their support.

What are the problems that the measures address?

The current system of SEN support tends to be system-focused rather than child-focused.

The Government wants to address the co-ordination failure of the current system. For parents, their children and young people the low level and inconsistency of joint working across services in some areas leads to confusion and a sense of unfairness. The late identification of needs, duplication of assessments and variation in provision of support has significant cost implications. In the longer term, this system failure can lead to young people with special educational needs having high welfare dependency in adulthood, with significantly lower employment rates, poor health (with its consequent impact on the NHS) and often a higher than necessary dependency on parents and /or support services.

Specifically:

- Education, Health and Social Care are separate: families of children with complex needs often have to negotiate each element of their child’s statement separately, giving professionals the same information on multiple occasions. This means that the process of assessment and agreeing support is time consuming, onerous and unnecessarily stressful.

- Lack of accountability: this increases the likelihood of disputes between services and the risk of needs going unmet. The onus often falls overly on local authorities as the only body with a statutory duty to deliver the services identified in the SEN statement.

- Poor health and educational outcomes for children and young people with SEN: outcomes for children and young people whose parents are unable to navigate the complex, education, health and social care systems are disproportionately affected.

The Government’s 2011 Green Paper, Support and Aspiration: A new approach to Special Educational Needs [1] and Disability summarised the evidence base for this position. It described parents’ views of the current system for SEN as bureaucratic, bewildering and adversarial. Responses to the consultation informing the Green Paper found that the legislative framework underpinning the system for the assessment of needs and provision of support has created a combative culture which is resource-driven rather than needs-led. This has resulted in late interventions for this very vulnerable group of children and young people, which ultimately results in increased costs, and poorer outcomes.

The number of these children expected to need an Education, Health and Care Plan is comparatively small (1.64% of the overall 0-24 population), their outcomes are markedly lower than the rest of the population. As adults, they are likely to have significantly lower employment rates, poor health and often a higher than necessary dependency on parents and /or support services than the wider population.

What are the measures and what is the rationale for their introduction?

1) New joint-arrangements for assessing, planning and commissioning services for children and young people with special educational needs, which make it clear what will be offered, and who will deliver and pay for it, underpinned by a process to swiftly resolve local disputes between partners.

Joint commissioning arrangements will ensure that assessments and arrangements for special education, health and care provision are agreed locally and meet the needs of the local population. The Bill requires local authorities and clinical commissioning groups to work together with their partners to make a strategic agreement over what provision is needed, how it will be funded and by who; arrangements in place to support a joined-up single assessment process, for developing EHC plans and for agreeing personal budgets; arrangements for providing information, advice and handling complaints about the EHC Needs Assessment and EHC plans.

By requiring partners to work together to agree these key areas in advance, funding agreements and strategic plans will be in place to make sure that families get access to the support they need. It should also ensure that all of the key agencies are involved in assessing and meeting children and young people’s needs from the start of the process.

2) A new local offer, so children, young people and their families are clear what is available locally, with a clear complaints process and redress system.

The local offer will enable families to see what support they should expect from mainstream services and how to access more specialist provision. This should make it easier for them to make informed choices about their health provision and care. Children, young people and families will be able to develop the local offer with the local authority to ensure that it focuses on local needs. This will make services more responsive and more accountable. As every area will produce a local offer, parents and young people can make comparisons between them. This will stimulate debate locally about what should be included and should also encourage local authorities to work more closely together to meet local needs. Local authorities will also have to involve children, young people and parents in reviewing local provision. 74 per cent of respondents to the relevant question in the Green Paper supported the idea of a locally published offer which made clear what support was available for parents. They thought this would offer clarity around what could be accessed and expectations could be managed. Respondents stressed that the offer should be a comprehensive information service which set out a full directory of services, the criteria for accessing them and explanations of the different options open to parents to help with their decision-making. Information specific to each local authority was also proposed for publication, including its policy on SEND, disagreement resolution procedures and funding information. More detailed evidence is given in the accompanying IA of the local offer.

3) Introduction of local Education, Health and Care Plans from 0 to 25.

These plans will have all the statutory protections offered by a statement, but will set out the services children and young people will receive; with a new focus on helping to improve outcomes, including future employment and independent living. They will reflect the child or young person’s own aspirations and a child’s parents’ views.

The SEN Green Paper consultation showed 49 per cent of respondents believed that a single EHC assessment and plan process would result in a more holistic approach to determining the support needed and quicker access to services. 41 per cent of respondents stressed the success of the single assessment process and the EHC plan depended on agencies working together. They noted the present difficulties in getting busy professionals together, establishing accountability and maintaining effective communication. 23 per cent felt that to have the confidence of parents the EHC plan would need to have the same statutory basis as the statement of SEN and a comparable legal obligation on all agencies to provide the services in the plan. 42 per cent respondents thought that a helpful outcome for families would be a reduction in the number of appointments they needed to attend and less delay in getting the help they needed. A single assessment process was envisaged to be quicker and less complex for parents, saving them time in having to repeat information to a succession of different professionals. Respondents considered that simplifying the process would give parents a better understanding of the system and that they would benefit from having agencies working together to put into effect one co-ordinated plan covering all their child’s needs. [1]

4) Personal budgets for those families who want to have them.

Every family with an EHC Plan will have the right to a personal budget. Personal budgets will enable parents and young people to have a much greater say in the way they get support, and give them a clear role in designing a personalised package of support. Evidence from the UK and internationally shows that where personal budgets work well they give families more flexibility, choice and control. We are not starting from scratch in this area. Our commitments around personal budgets are based on strong evidence from the three-year pilot of individual budgets for disabled children and the recent evaluation of the personal health budgets pilot. Pathfinder local authorities are building on the learning from these pilots to test out personal budget payments for children and young people with SEN – including how direct payments can be used for special educational provision. Early findings are very positive. [2]

5) A duty on CCGs (and in some cases, the NHS Commissioning Board) as health commissioners to secure the provision of health services agreed in the plan, similar to the duty on local authorities in respect of special educational services.

Securing strong commitment from the National Health Service for joined up working, has been a recurrent theme through every stage of the SEN reforms. During pre-legislative scrutiny, the Education Committee reported that "the active involvement of the NHS in commissioning, delivery and redress is critical to the success of the legislation." Without health’s full engagement, the SEN reforms will fail. This duty will ensure health engagement in an integrated process, and delivery against agreed local plans.

Under the Duty, CCGs would retain their existing legal duties to determine what services would be commissioned to meet the reasonable needs of their population (under section 3 of the NHS Act 2006). They would retain their duty to lead and manage the local planning and allocation of resources, which will determine the health element of the local offer, which includes the services which might be included within a Plan. Clinicians would of course retain their discretion to determine a child or young person’s clinical needs. The NHS Commissioning Board has responsibility for commissioning health services for some groups of children (for example, the children of members of the armed forces), and commissioning specialised services.

The NHS Commissioning Board will have responsibility for holding CCGs to account for the exercise of their statutory functions, and this would include their duties in relation to meeting the needs of children with SEN. The Board will of course determine how it does this, and will itself be held to account by the Secretary of State for Health for its delivery of the Mandate, which includes a very clear expectation in relation to children with SEN and disabilities.

What are the impacts of the measures and which groups of people do they affect?

Who will the measures affect:

· Parents, children and young people. There are currently 261,835 children and young people with high level needs who would be likely to have an EHC Plan under the new system. This is 1.64% of the 15,954,962 0-24 year old population registered to a GP surgery in England (Annex 1 refers).

· Local authorities and the health service. The changes to the system will need to be implemented by all local authorities (education and social care services for children and adults) and clinical commissioning groups (and in some cases the NHS Commissioning Board).

The impacts (benefits) of these measures:

Improved wellbeing for children and young people. The introduction of the EHC plans aims to improve joined up working and could lead to a better experience for both children and young people with SEN and their families. An on-going support approach provides a better locus of control of their lives leading to an improved sense of wellbeing and potentially improved longer term outcomes. Evidence from the Department of Health (2008) suggests that treatment satisfaction can be improved following the introduction of care planning for treatment of long-term conditions. Similar health based evidence (see for example: Forman et al, [1] Kinmonth et al, [2] and Fuller et al [3] ) provide further evidence of the benefits of care planning and self-management approach in terms of health outcomes. Evidence from the Individual Budget Pilot (2010) [4] and from individual health budget pilots led by the Department of Health [5] provides evidence regarding the extent to which personal budgets can improve outcomes and create wellbeing effects from greater choice and control and changes in the type of services families choose to access. Further evidence from the UK and internationally shows that where personal budgets work well they give families more flexibility and they feel empowered. [6]

Reduced number of appeals. The Department expects that the number of new appeals should decline in the medium to long term due to the new co-ordinated assessment process and the EHC plan, which aim to better assess and cater for children and young people’s needs, involving the family in the decision making process and thus decreasing the likelihood of formal disputes. We have not monetised these benefits.

Integration and increased effectiveness of assessment, planning and provision

Requiring joined-up arrangements for commissioning of services across education, health and care, focused on the individual EHC plan, provides a far stronger basis for ensuring clarity of responsibility, and the relevant interdependencies of services, partnership working and agreements (e.g. under section 75 of the NHS Act 2006) between local authorities and CCGs, including pooling of budgets. The arrangements will result in fewer disagreements between the different commissioners, who will have a framework for collaboration. Heath commissioners have clear statutory responsibilities in relation to their contribution to the assessment and planning process, and for securing health services as planned. The SEN reforms have been trialled in a range of pathfinders across the country, and some have found that new approaches can be delivered from within existing resources through cutting out duplication.

Patient and parental satisfaction should also be greatly improved, as a result of the joined-up services and the joint arrangements for providing advice, liaison and mediation. The Green Paper consultation found that 74% of respondents to the question thought that arrangements for provision of health advice for existing statutory SEN assessments could be improved by agencies working together. 379 (62%) respondents thought that reducing the amount of paperwork generated would help to reduce the bureaucratic burdens on frontline professionals, schools and services. Many respondents highlighted the paper trail associated with the referral, assessment and statementing process. They also noted that the completion of paperwork impacted on the time professionals had to spend with children with SEND.

A mandated, joined up approach will ensure also that the needs of the child are considered across the different sectors, and the question of what to provide will not necessarily focus on educational or clinical need, but take into account the patient (and their family’s) preference for independent living, or mobility and wellbeing.

The impact (costs) of these measures:

We consider these reforms will be cost neutral. CCGs already have a statutory duty under section 3 of the NHS Act 2006 to commission services to meet the reasonable needs of their population; note too the existing requirement for co-operation with local authorities, for which this Bill provides a framework. CCGs will work with LAs and other agencies to agree a local offer of services available which will reflect their commissioning plans (and the identified local need). This will in turn have been informed by local health and wellbeing strategies (alongside the content of existing EHC Plans). EHC plans will then draw on this offer. Therefore the SEN reforms are entirely consistent with CCGs’ existing statutory duties and the NHS Mandate.

By working with LAs and other local agencies, CCGs will be able to make the most efficient use of funds that are locally available, and will keep their local offer under regular review to ensure it continues to reflect the needs of children or young people in their area, commissioning and decommissioning their support to ensure their provision meets the needs of local children and young people with SEN. The SEN reforms place greater emphasis on early intervention and support than the current system, which will in turn reduce costs over time.

The Department estimates the average cost of statutory assessments to be around £3,200, and assume that the cost of an ECHP assessment will be similar. [7] The number of new statements issued in 2011 was 27,445. Over the past few years, this number has in general fluctuated around 25,000 [8] . This is around 10% of the total number of statements/LDAs or expected EHC plans.

Key risks

1. The capacity implications of a more sophisticated assessment and planning process.

Mitigation: the Pathfinder programme is testing new approaches to a co-ordinated assessment and planning approach – which will identify a body of learning which will inform local authorities and CCGs in moving to the new system; an interim evaluation report will be published in September 2013 with an indicative assessment of the costs of the reforms based on the Pathfinder experience. It is anticipated that the non-monetised benefits will significantly outweigh the costs of moving to the new system, which builds significantly on existing capacity requirements, and partnership working between health and social care whilst promising potential savings through partnership working (e.g. key-working across health and education, single planning process and document, etc.)

2. The duty on CCGs may force CCGs to commission additional services, placing pressure on CCG commissioning budgets.

Mitigation: The Children and Families Bill does not change the eligibility for a statutory EHC Plan compared with statements or Learning Difficulty Assessments. CCGs will retain their duty to determine the services to be commissioned to meet the reasonable needs of their population; [1] this will ensure that the requirement to deliver on agreed EHC plans does not undermine the autonomy of commissioners and does not lead to CCGs having to commission services additional to those which their local health and wellbeing strategies recommend, or which they would have chosen to commission if the current system had been maintained.

There is a range of evidence on attitudes towards, and satisfaction with, the current process, some suggesting satisfaction once services are provided, others suggesting significant problems in the process for ensuring services are provided in a seamless and timely way without burdens falling on parents (which the reforms as a whole are intended to avoid).

The most recent survey of parental experience (with 31,466 respondents) suggests there is unlikely to be significant unmet need for health services: 80% of parents rated the health care received in the last twelve months as good or very good - the equivalent figure for education services, by way of comparison, was 73%, and for social care and family support 57%. Satisfaction with health assessments was very high. Only 4% of respondents said that health services were poor (the lowest rating for the three sectors). [2]

In terms of access, only 6% of parents felt that they child received little or none of the health services they required (with 80% of those who responded on these questions stating that their child had received all or most of the health services their child required). See Annex 1 for further information on satisfaction levels and access to health services.

3. The inclusion of health within a single assessment and plan framework for commissioning may lead to an increase in requests for assessment from the families of children and young people with disability or complex health needs, but which have no special educational needs (for example, a child confined to a wheelchair, who could attend a mainstream school.

Mitigation: there are clear criteria for determining whether or not a child has special educational needs and is eligible for an Education, Health and Care plan. Health commissioning plans will be informed by local joint strategic needs assessments and health and wellbeing strategies, which should identify the broader health needs across the population, and provide the basis for ensuring commissioning for complex care and disability is not neglected. The local health offer will provide far greater clarity for parents and patients, in the services available.

4. The duty on CCGs to secure the health services agreed in the plan may lead to CCGs significantly limiting their local offer for services in respect of children with special educational needs, to avoid over-commitment (as services cannot be reduced towards the end of the financial year in response to financial pressures), which could place pressure on the local authority to make up the deficiency.

Mitigation: CCGs will remain statutorily obliged to commission services to meet the reasonable health needs of their population and will be held to account for this by the NHS Commissioning Board. Joint Commissioning arrangements will be closely aligned with the local joint strategic needs assessment and health and wellbeing strategy. The NHS Commissioning Board will have a duty to perform an annual assessment of how well each CCG has fulfilled its duties in the previous financial year. This will include, in particular, an assessment of how well it has taken account of the Joint Strategic Needs Assessment, and the agreed Health and Wellbeing Strategy. It will also include an assessment as to how well the group has met its statutory functions such as delivering on the objectives set out in the Mandate (which includes a specific objective to ensure that children and young people with SEN can access the services set out in their agreed care plan). The local Health and Wellbeing Board (which must include the Director of Children’s Services and patient representatives through Healthwatch) can report to the NHS Commissioning Board on how well it feels the commissioning plans meet the agreed local Health and Wellbeing Strategy. The apparatus for involving patients and public in NHS commissioning will provide a significant means of assurance/ challenge that services are being commissioned.

5. The duty on CCGs to secure the health services in an EHC plan will prevent CCGs from changing commissioning plans, or decommissioning / scaling back a service, if delivered to children or young people in fulfilment of an EHC plan, reducing their flexibility in managing cost pressures.

Mitigation: given the very small proportion of CCG health commissioning in respect of children with special educational needs (just 1.6% of 0-24 year olds are likely to be in receipt of an EHC plan - see Annex 1, Table 2), the marginal cost of any changes which CCGs would theoretically be inhibited from making by this statutory duty will be negligible. The average costs collated by the PSSRU provide a useful index to the potentially marginal nature of these costs. [3]

Note also the ability for plans to be reviewed and revised to take account of changing needs. The emphasis on earlier identification means that many special educational needs will be less expensive to address. The introduction of personal budgets will also help reduce cost (evidence from the Pathfinders backs this suggestion).

ANNEX 1: Impact of the duty on CCGs to secure provision in EHC plans.

Table 1: Number of children/young people participating with statements / LDAs that would have an EHCP plan [18]

Age

0-under 5

10,415

5-16

187,275

16 and 17 year olds

45,740

18-24 year olds – participating or NEET and likely to participate

18,405

EHCP total

261,835

Table 2: Comparison of total eligible population with likely numbers of children and young people having an EHC plan.

Age

Total

0-24 total in population in England (based on GP practice registrations) [1]

15,954,692

0-24 year olds projected to be in receipt of an EHC plan.

261,835

% of total eligible population projected to be in receipt of an EHC plan.

1.64%

Table 3: Satisfaction with health services

Extent to which parents felt their child had received the health care services required over last 12 months. [19]

% (rounded)

Number

All that he/she required

50

14,881

Most of what he/she required

27

8,108

Some of what he/she required

14

4,096

Little/none of what he/she required

6

1,865

(29,760)

Table 4: Health services used. [20]

March 2013


[1] Note that the NHS Commissioning Board may also have commissioning responsibility for some children and young people (for example in some secure children’s homes), and therefore a similar duty to meet their reasonable health needs. See the National Health Services Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012: http://www.legislation.gov.uk/uksi/2012/2996/contents/made

[1] A factsheet has been produced on the public health responsibilities of local authorities: http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/documents/digitalasset/dh_131901.pdf

[1] The Breaks for Carers of Disabled Children Regulations 2011

[1]

[1] The NHS Commissioning Board may also have commissioning responsibility for some children and young people (for example in some secure children’s homes), and therefore a similar duty to meet their reasonable health needs. See the National Health Services Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012: http://www.legislation.gov.uk/uksi/2012/2996/contents/made

[1] An appeal falls within Section 51(2) of the Act where the appeal concerns only:-

[1] (a) the school or other institution named in an EHC plan;

[1] (b)the type of school or other institution specified in an EHC plan;

[1] (c)the fact that an EHC plan does not name a school or other institution.

[2] Mediation adviser is defined in Section 51(8) of the Act.

[3] ( )

[4] ( )

[1] Support and Aspiration: A New Approach to Special Educational Needs and Disability (2010)

[2] Department for Education 2012- Statistical First Release – Special educational needs in England: January 2012 - Date, Research and Statistics

[2]

[1] Department for Education, HM Treasury (2008) ‘Aiming High for Disabled Children’ – Aiming High for Disabled Children.PDF

[1]

[2] Legal Services Commission internal statistical data pack 2010/11.

[3]

[1] Department for Education (201 1 ): Support and Aspiration: A new Approach to Special Educational Needs and Disability.

[2] Department for Education (2008): The Bercow Report- The Bercow Report

[3] Lewis et al (2010), ‘Special Educational Needs and Disability: understanding local variation in prevalence, service provision and support’, source Special Educational Needs and Disability: understanding local variation in prevalence, service provision and support.PDF

[3]

[4] Ofsted (Aug 2011) Progression post-16 for learners with learning difficulties and/or disabilities

[4]

[1] DfE: Special Educational Needs in England, January 2012 DfE: Special Educational Needs in England, January 2012

[1]

[2] Forman et al (1997), “Clinical improvement with bottom line impact: Custom care planning for patients with acute and chronic illnesses in a managed care setting”. The American Journal of Managed Care Vol 3(7) pp 1039-1048

[3] Kinmonth et al (1998), “randomised controlled trial of patient centred care in diabetes in general practice: impact on current wellbeing and future disease risks”, BMJ vol 317 pp1202-1208, https://bmj.bmjjournals.com/cgi/content/abstract/317/7167/1202?ck=nck

[3]

[4] Fuller et al (2004), “Is client-centred care planning for chronic disease sustainable? Experience from rural South Australia”, Health and Social Care in the Community Vol 12(4), pp318-326

[4]

[5] Audit Commission (2002), “Statutory assessment and statements of SEN: in need of review?”, Statutory assessment and statements of SEN: in need of review? PDF ( The Audit Commission reported that the average statutory assessment cost was around £2,500.Applying a price deflator, the estimated cost in 2011 would be £3,186 .

[6] Further assumptions are made about the number of reassessments that can be avoided in each year between 2014/14 and 2023/24. The HM Treasury ‘Green Book’ discount rate of 3.5% is applied to estimate the ‘present value’ of the benefits in 2013.

[7] The Government is requiring them to continue until the end of the academic year in which they turn 17 from 2013 and until their 18th birthday from 2015 .

[8] NAO (Nov 2011) Oversight of special education for young people aged 16-25

[9] Bercow (2008) ‘the Bercow Report, source: The Bercow Report

[9]

[1] Other measures within the Children and Families Bill will introduce a single 0-25 Education Health and Care plan to replace a child’s statement or a young person’s learning difficulties assessment. In doing so It will retain all the protections of statements for children and extend these to 16-25 year olds

[1] Department for Education (2011), ‘individual budgets for families with disabled children’ source: individual budgets for families with disabled children’ source .

[1]

[2] Department of Health (2012), Personal health budgets pilot - final evaluation report – source Personal health budgets pilot - final evaluation report

[3] See for example Greig et al (2010), Glendinning et al (2008) and SCIE (2009)

[1] National Audit Office ( 2011 ) – Oversight of special education for young people aged 16-25 source : Oversight of special education for young people aged 16-25

[1]

[1]

[1] Department for Education (2010) Support and Aspiration: A New Approach to Special Educational Needs and Disability

[1] Parents and young people will not have to contact a mediation adviser if the potential appeal is solely about the school or college named on the EHC plan, the type of school or college named or that no school or college or type of school or college is named. Parents and young people will not have to contact a mediation adviser if they want to make a disability discrimination claim.

[2] Data from Ministry of Justice - http://www.justice.gov.uk/downloads/statistics/tribs-stats/tribs-tables-q2-2012-13.xls?type=Finjan-Download&slot=00000239&id=00000238&location=0A64020D

[1] See Outcomes for Children Looked After by Local Authorities in England, as at 31 March 2012

[1]

[2] These estimates are taken from research by the National Centre for Social Research (2008) ‘Special Educational needs Disagreement Resolution Services National Evaluation’ Special Educational needs Disagreement Resolution Services National Evaluation PDF ’ However, the figures quoted in the research of between £500 and £800 have been expressed here in 2012 prices.

[1] Support and Aspiration: A New Approach to Special Educational Needs and Disability (2010)

[5] Source MoJ (2011) SEND Annual Report 2009/10.

[6] Ministry of Justice (2011), http://www.justice.gov.uk/downloads/statistics/tribs-stats/quarterly-tribs-stats-q2-11-12.pdf

[6]

[7] Legal Services Commission internal statistical data pack 2010/11, http://www.legalservices.gov.uk/docs/about_us_main/Statistical_information_pack_2010-2011.pdf

[8] Welsh Government, Department for Education and Skills (2010/11)

[9] Annual Quality Report (2010-12) of Global Mediations, Link: http://www.globalmediation.co.uk/uploads/files/Annual%20Quality%20Report%202011%282%29.pdf

[10] A mediation firm, providing services in the North West of England.

[11] A mediation firm, providing services in the North East and West Midlands.

[11]

[12] National Centre for Social Research (2008), “Special Educational Needs Disagreement Resolution Services National Evaluation”, Special Educational Needs Disagreement Resolution Services National Evaluation PDF

[12]

[13] Department for Education (2012), “Support and Aspiration, A new approach to special educational needs and disability. Progress and next steps”, Link: Support and aspiration: A new approach to special educational needs and disability

[14] Ministry of Justice (2010), “Evaluating the use of judicial mediation in Employment Tribunals”, Link: Evaluating the use of judicial mediation in Employment Tribunals PDF

[15] Office for National Statistics (2010), “Annual Survey of Hours and Earnings (ASHE)”, http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%3A77-227495

[16] Department for Education Appraisal and Evaluation Guidance 2012, unpublished

[17] Office for National Statistics (2010), “Annual Survey of Hours and Earnings (ASHE)”, http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%3A77-227495

[1] Department for Education (201 1 ): Support and Aspiration: A new Approach to Special Educational Needs and Disability.

[1] Support and Aspiration: A new Approach to Special E ducational Needs and Disability – Progress and Next steps (Department for Education, December 2012)

[1] A new Approach to Special Educational Needs and Disability – Progress and Next steps

[2] Personal health budgets – final evaluation report (Department of Health, November 2012)

[2] Personal health budgets – final evaluation report

[1] Forman et al (1997), “Clinical improvement with bottom line impact: Custom care planning for patients with acute and chronic illnesses in a managed care setting”. The American Journal of Managed Care Vol 3(7) pp 1039-1048 .

[2] Kinmonth et al (1998), “randomised controlled trial of patient centred care in diabetes in general practice: impact on current wellbeing and future disease risks”, BMJ vol 317 pp1202-1208,

[2] https://bmj.bmjjournals.com/cgi/content/abstract/317/7167/1202?ck=nck

[3] Fuller et al (2004), “Is client-centred care planning for chronic disease sustainable? Experience from rural South Australia”, Health and Social Care in the Community Vol 12(4), pp318-326.

[4] Department for Education (2011), ‘individual budgets for families with disabled children’ source: individual budgets for families with disabled children’ .

[4]

[5] Department of Health (2012), Personal health budgets pilot - final evaluation report – source Personal health budgets pilot - final evaluation report

[6] See for example Greig et al (2010), Glendinning et al (2008) and SCIE (2009)

[7] Audit Commission (2002), “Statutory assessment and statements of SEN: in need of review?”, Statutory assessment and statements of SEN: in need of review ( The Audit Commission reported that the average statutory assessment cost was around £2,500.Applying a price deflator, the estimated cost in 2011 would be £3,186 .

[8] DfE: Special Educational Needs in England, January 2012 Special Educational Needs in England, January 2012

[8]

[1] Section 3 of the NHS Act 2006 as amended by section 13 of the Health and Social Care Act 2012 places a duty on each CCG - unless the NHS CB is under a duty to do so – to arrange for the provision of secondary care health services to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility.

[2] Data is taken from the second – and most recent - parental experience survey conducted in 2009-10: Becky Hamlyn, Catherine Grant, Barry Fong, Jessica Moran, Parental experience of services for disabled children. Findings from the second national survey (March 2010), p. viii.

[2] Parental experience of services for disabled children. Findings from the second national survey PDF

[3] For example, one-to-one speech and language therapy costs an average of £84 per session: Unit Costs of Health and Social Care 2011 (PSSRU, 2012) , p. 73, Unit Costs of Health and Social Care 2011 PDF

[18] Data taken from Children and Families Bill - Evidence of Impact.

[1] Data as at 30 September 2011 (General and Personal Medical Services Statistics), The Health and Social Care Information Centre.

[19] Becky Hamlyn, Catherine Grant, Barry Fong, Jessica Moran, op. cit. p. 18.

[20] Becky Hamlyn, Catherine Grant, Barry Fong, Jessica Moran, op. cit. p. 1 1 .

Prepared 20th March 2013