Pre-legislative scrutiny: Special Educational Needs - Education Committee Contents


The Government's draft legislation on reform of provision for children and young people with Special Educational Needs (SEN) was intended to deliver "the biggest reforms for 30 years" for children and young people with SEN. Expectations amongst interested parties were raised extremely high as a result of the ambitions expressed in the 2011 Green Paper on SEN, and the risk of failing these expectations is very real if—as the Minister conceded —the Government does not "get the legislation right".

Our report concludes that the general thrust of the draft clauses is sound, but the legislation lacks detail, without which a thorough evaluation of the likely success of the Government's proposals is impossible. The Government intends to provide this detail in regulations and a revised SEN Code of Practice. It is essential that these documents address the concerns raised in the detailed written submissions to our inquiry and that the revised Code of Practice remains a statutory document, subject to consultation and laid before Parliament.

The SEN Pathfinders are at an early stage. We welcome the Minister's decision to extend the Pathfinders for a further 18 months to inform regulations and the Code of Practice. We do not recommend any delay in introducing the Bill.

In the light of the Government's proposals for an SEN framework that supports young people from birth to 25 years of age, we are particularly concerned at the Pathfinders' lack of engagement with post-16 education providers. We recommend that this shortcoming is addressed in the extended Pathfinders.

We believe that the Government is relying too heavily on the duty of joint commissioning between local authorities, Health and social care in order for the reforms to work. The active involvement of the NHS in commissioning, delivery and redress is critical to the success of the legislation. Despite the acknowledged difficulties, the Government must ensure that the NHS is obliged to participate fully. We make various recommendations on this point, including that regulations should commit Health to adhere to timetables for assessments of SEN. We also call for the Government to clarify in the legislation how responsibility for the provision of services which can be defined either as supporting health or special educational needs—such as speech and language therapy—will be decided.

We welcome the principle of integrated Education Health and Care assessments, but believe that they will require much more rigorous testing and shaping through the Pathfinders in order to advise regulation in this area. We conclude that the Government should focus on how to achieve good quality assessments and that regulations should stipulate how this should be achieved. We also recommend that all current protections afforded by a Statement of SEN be maintained in the new legislation.

The Government's proposals for compulsory mediation met with strong resistance from our witnesses. However, we also noted much support for the concept of early and meaningful engagement and discussion with parents and so we recommend that mediation should not be compulsory, but that consideration of mediation should be.

We believe that the scope of entitlement to integrated Education Health and Care provision and assessments should be extended to disabled children, with or without SEN, and also to young people undertaking apprenticeships. Whilst we maintain that Education Health and Care Plans (EHCPs) should retain a focus on the achievement of educational outcomes, we make recommendations as to how this aspect of the legislation could be made more accommodating to the needs of young people with SEN who move in and out of education, and to young people not in education, employment or training (NEETs).

We welcome the extension of the list of schools for which parents can express a preference in an EHCP to include academies and free schools. However, we recommend that independent special schools and colleges should also be included on this list.

Good quality Local Offers are pivotal to the success of the Government's proposals, particularly for those children with SEN but without an EHCP. The involvement of parents and young people in the development of Local Offers is critical, and we recommend that the role of parents and young people be reinforced in primary legislation. We also make recommendations for minimum standards and a national framework for Local Offers, along with improved accountability measures.

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Prepared 19 December 2012