Children and Families Bill

Memorandum submitted by London and Home Counties Regional Conference of Officers in Charge of SEN and Disability (CF 56)

1. Introduction

1.1. The Conference was established in 1974 and has been in continuous existence since that time and currently represents 55 Local Authorities (Education) in the Region.

1.2. The AIMS of the Conference include:-

• exchange of information and ideas, including sharing best practice
• consideration of legislation and DfE Circulars and responses to consultations, as appropriate
• contact with DfE, HMI (Special), OFSTED, SEND Tribunal and other relevant agencies/organisations
• commissioning and/or monitoring data on Special Educational Needs/Provision
• monitoring trends in Special Educational Needs/Provision in the Conference area
• co-ordination of matters relating to effective provision in the Conference area
• contributions to the development of good practice and best value
• other matters as Conference shall decide

1.3. In that context Conference met on Wednesday March 13th and the comments below were drawn from discussion at Conference and agreed with all members.

2. Scope of Response

This response will focus on Part 3 (Children and Young People with Special Educational Needs) of the Bill – Clauses 19 to 66.

3. Specific Responses

3.1 Clause 19. LA functions: general principles.

Members were concerned that this level of prescription was both too exclusive and too weighty. They thought there should be regard to making the "right" provision. Sometimes professionals may actually have a ‘better’ or more appropriate view of what is is suitable for an individual child or young person. So it follows that Local Authorities must also have regard to the professional advice they receive as well as the views of the child and family. They also have to have regard to making efficient and effective use of the resources available.

3.2 Clause 20. When a child …

This Clause is fine as it stands. Conference does not support the suggestion that EHCs should extend to disabled children without any special educational needs. Other arrangements through the Equality Act 2010 and health exist for this.

3.3 Clause 21 SEN provision, health care provision

Conference members suggest that Clause 21 (5) is inappropriate. It could lead to health care provision only provided in school for feeding and other limited areas. 21(5) goes much further than the current case law. "Wholly" educational provision from health professionals could only be for a child with severe specific language impairment and no learning difficulties. Whilst input for mobility, for example, is "across life" and is not solely for education. Members suggest that this sub section is removed as it is contentious and confusing and could lead to litigation.

3.4 Clause 22 Identifying children with SEN

This duty would not seem to be possible to discharge with the fragmentation of education through Academies and Free Schools and the changes to health with GPs leading commissioning. The clause should either be removed or substantially re-drafted.

3.5 Clause 24 Duty of health bodies

With the re-organisation of health how will this duty be enforceable? Regulations or primary legislation need to set out requirements for Child Development Teams/Child Development Centres to provide this information.

3.6 Clause 26 Joint commissioning

It is difficult to comment on the proposed amendment to require CCGs to "secure services". Members queried the role of HWBs, specialist commissioners and social care? Should these not also be included?

3.7 Clause 30 Local Offer

This clause appears, at present, merely a statement with the local offer not being enforced, should the delivery of the local offer be a statutory duty on all agencies? Will the promised indicative Draft Regulations provide for this duty?

3.8 Clause 31 Cooperating in specific cases: LA functions

There is great anxiety across professionals and parents that there appears to be no duty for anyone to help children at the less severe school-based stage except for ‘best endeavours’. The current Code sets out detailed requirements for provision and the responsibilities at School Action and School Action Plus. Without further primary legislation, the mere provision of £6000 for school-based SEN will not offer any protection or guarantee of quality provision. This lacuna may well lead to an increase in parental requests for assessments and EHC plans rather than the reverse which is surely the aim?

3.9 Clause 33 Children and young people with EHC Plans

There is a concern on the part of some members that new EHC plans will only be provided for children and young people requiring input from at least 2 of the agencies. Members are concerned about those children who currently have a Statement but where only special educational provision is an issue? There will be children with severe learning needs, perhaps dyslexia, who currently receive the protection of a Statement and Members thought this kind of protection should be replicated in the new system.

3.10 Post 16 requirements are unclear and only mentioned in passing in (5-7). Currently there is not enough provision in health and social care post 16 and even less post 19.

3.11 It seems surprising that young people in further education, apprenticeships and NEET will continue to have EHC plans, but those in Higher Education will not have Plans. Parliament should re-consider this lack of provision. Young people with SEN at University need continuing support also.

3.12 Clause 34 Children with SEN but no EHC plan

What will the new Code cover? There is extensive Guidance in the old Code on pre-Statement provision. This new arrangement may encourage parents to request assessments. The only replacement for School Action and School Action Plus is in the area of funding (the current £6,000) which gives no protection at all.

3.13 Clause 66 Code of Practice

3.13.1 Members of Conference believe that the Code is extremely important and integral to the effective delivery of the SEN system. As such the Code must be placed before Parliament for positive resolution not negative because it should be considered in detail by both Houses. Parliamentary consideration will ensure that parents and professionals believe that parliament recognises the Code’s status and centrality to the new system.

3.13.2 A number of additions are needed to the list of those required to "have regard" to the Code. The list of bodies at Clause 66 (6) should be amended to include the First Tier Tribunal, Social Care, JHWBs non-maintained special schools and Universities, if higher education is included.

3.13.3 Clause 66 (6) should be deleted. The First Tier Tribunal must have regard to the whole of the Code. Without this requirement it will be difficult to know, or understand, the rationale if the Tribunal ‘pick and choose’ on a ‘case by case’ basis which parts of the guidance to take into account. It would mean that presenting a case, either for the parent or the LA, would be guesswork as there would be no way to predict what issues the Tribunal would consider.

3.13 4. Members are aware that an indicative Code and some Regulations have been provided at Committee Stage, but how can Parliament consider all the implications of this Bill without seeing the new Code in full and the Regulations? When and how will Local Authorities and others have a formal opportunity to make constructive comment?

4. Conference is concerned that there does not seem to be recognition of how much more the consequences of the Bill will cost? In effect, with the new EHC Plans covering 0 – 25 years costs of provision are for at least 9 more years of a child’s life. Additional staff costs to ‘manage’ the system will also be required. With the current cuts and the government’s austerity budget this lack of recognition may lead to the new system failing before it even starts.

March 2013

Prepared 22nd March 2013