Important questions on send reforms

When did the SEND legislation receive Royal Assent?
The Children and Families Bill refers to the reform to the provisions for children and young people with SEND. Following agreement by both Houses of Parliament, the Bill received Royal Assent on 13 March and is now an Act of Parliament (law). The Act seeks to reform legislation relating to the following areas: adoption and children in care; aspects of the family justice system; children and young people with special educational needs; the Office of the Children’s Commissioner for England; and statutory rights to leave and pay for parents and adopters. It also concerns time off work for antenatal care and the right to request flexible working.

When will the new legislative changes around SEND come into force?
The legislation within the new Children and Families Act 2014 will come into effect from 1 September 2014. This is the commencement order designed to bring into force the whole Act of Parliament at the date specified after Royal Assent has granted. The practical implementation of the Act is the responsibility of the appropriate government department, not Parliament. The associated regulations, SEND Code of Practice and other related guidance documentation provided by Department for Education (DfE) provide comprehensive statutory and non-statutory advice and guidance on implementation of the new legislation.

In the new Code of Practice, what replaces School Action and School Action plus?
These are replaced with a single school stage called SEN Support. It will be provided by early years settings, schools, colleges and other providers and will be based on early identification of needs, early help and SEN support. This replaces the work currently done under the headings of School Action and School Action plus. This work will be done with other services as needed, working in an integrated way using the Common Assessment Framework and the Team Around the Child. This work will be centred on children, young people and their parents/carers, their aspirations and desired outcomes.

Will the introduction of the single school stage reduce the number of children with SEN?
The definition of SEN and the thresholds are the same as they are now and should stay the same in September. The reforms have not been introduced as a number-cutting exercise; however, settings, schools, colleges and other providers will need to decide clearly what constitutes ‘SEN Support’ in their respective context. They are well placed to do this, as they will know their cohorts best. Nasen recognises that for some this may present a challenge, particularly when the new guidance recalibrates the significance of the phrase ‘every teacher is a teacher of every child’. We anticipate that the real challenge for settings will be the point at which quality-first, highly differentiated teaching is no longer meeting the needs of some individual children and young people.

Will SENCOs still have to be qualified teachers?
The regulations concerning the role of SENCO have not changed and the requirement for qualified teacher status is embedded within the new legislation and the new guidance. Governing bodies of maintained mainstream schools and the proprietors of mainstream academy schools (including free schools) must ensure that there is a qualified teacher designated as SENCO for the school.

Will local authorities still issue statements?
From September the education, health and care (EHC) plan will replace new statements and there will be a programme to ensure conversion so that all children and young people who previously had had a statement will have been transferred to an EHC plan by 2017. The aim is to start with conversions at key transition points.  

Will the changes in school funding arrangements allow schools to reduce the hours of support for a child without a statement?
The same duties apply under the new legislation; however, schools and colleges may deliver outcomes differently. The focus of the new legislation in this regard should be outcomes, not hours. This may be a challenge for some, but we need to continue actively pursuing quality provision that contributes to longer-term life outcomes.

Parental involvement after 16?
The parents can be involved, but the young person’s voice is the main one. For some providers, this may mean an opportunity to review existing arrangements for listening to pupil and student voice within their organisation and to address how they will support and educate families in enabling their children to become increasingly more independent.

Will fewer children and young people get an EHC plan?
The definition of SEN remains the same as now, so according to the new legislation there is no suggestion that fewer children and young people will be eligible for an EHC plan than currently are for statements. However, nasen recognises the concerns that many providers have around this particular issue and we have already voiced these concerns directly with government. There are some isolated yet worrying indications that a few local authorities are beginning to ‘move the goalposts’ in relation to local eligibility criteria for statutory assessment. This is unacceptable practice within the reform framework and any changes which do take place at local level should be undertaken in open and full consultation with all stakeholders.

How long does the new legislation affect councils’ responsibilities?
The new legislation extends the local authority’s responsibility to the age of 25 if a young person is in education, college, training or supported employment.

Will those with an EHC plan be able to get a direct payment?
All parents and young people with an EHC plan will be able to request a personal budget for some services. This is an option for all of them to consider.

Is the local authority’s local offer a directory of services?
This is not correct as it takes a very narrow view of the local offer. It should be a website, or some webpages, that will enable all families to find out exactly what they can expect from schools, health services and other services, what criteria services have for access and what happens at transition points. There should also be a facility for service users to comment on the usefulness of the information. The local offer should be co-produced by parents, children and young people to ensure it answers all of their questions and should be subject to regular review by all stakeholders.

Do the new arrangements in the Children and Families Act apply to disabled children as well?
Some of the duties do apply to disability. The Government amended the Children and Families Bill to include disabled children and young people within the scope of the Bill in December 2013. Previously the Bill covered only children and young people identified as having a special educational needs; the decision to include disabled children has been warmly welcomed by the voluntary and community sector. The amendments mean that disabled children are now incorporated into number of clauses in the Bill, including the local offer and local joint commissioning arrangements.

If a parent is not happy with their child’s EHC plan can they appeal to the Tribunal?
They can make an appeal, but only for the education element of the plan. There is no single point of appeal for parents and carers in respect of the entire EHC plan. This reflects the fact that, in law, the EHC plan is largely an ‘educational plan’. Should parents and families wish to appeal about the health or social care aspects of their child’s plan, they will have to follow the appropriate and separate appeals process for each provider. Nasen believes that this is a flaw in the appeals process for the new legislation and will make life more difficult for those parents who may wish to appeal.

Are Parent Partnership Services featured in the revised guidance?
Parent Partnership Services are there and support for parents is detailed, as is advocacy and support for young people with SEN. Local information will be made available on how to access these services.

Are individual education plans (IEPs) still needed?
IEPs are not a statutory requirement and never have been. The new Code of Practice provides guidance which promotes child- and pupil-centred approaches to recording individual needs, targets, interventions and outcomes. Nasen supports the use of pupil passports and this guidance refers readers to range of examples. However, the continued use of IEPs should not be cause for revolution. We would suggest that evolution is a good route when considering what works best for you, your pupils and students and your staff.
Schools and settings are advised that it is good practice to provide a record of pupils and students in receipt of SEN Support –presently this is referred to as the SEN register. There is no requirement on settings and schools to keep a register; however, nasen would advise that all providers have an up-to-date record of those pupils and students who have or are receiving SEN support and this should provide clear, precise information relating to entrance and exits points on and off the record.

Further information