Threat to SEN law? IPSEA responds May 2012

IPSEA welcomes, after much anticipation, the Government’s response to the SEN Green Paper consultation launched on 9th March 2011. We are busily reading what the Government has to say and digesting the proposals. Here is an easy-read version of the Government's proposals.

IPSEA looks forward to working with the Government to get legislation right for children / young people. We are committed to ensuring that all changes are positive in enhancing the support that children / young people receive. We feel it is essential that the voice of parents is heard in such potentially dramatic changes. We will comment more fully as soon as we are able. Meanwhile we would like to make the following initial points:

Single Assessment
We welcome the continued commitment of the Government to the single assessment plan from birth to 25 years old across Education, Health and Social care. This has the potential to be life changing for Children/ Young People and their families.
Education, Health & Care Plan
We warmly welcome and are reassured by the Government’s commitment that the new EHCP will afford parents the same statutory protection as the Statement of SEN.
We would therefore expect to see: statutory duties on local authorities to identify, assess and arrange provision for the same children that are currently statemented; that this process is governed by strict legal time limits; that legislation requires all relevant agencies to contribute full reports; that parents can initiate the process, have rights to all information as well as to making their own input, and can appeal the major decisions to an independent national tribunal; and that the provision is identified on the basis of the child’s needs not resources available.
We are concerned that the EHCP does not yet have the support of health or social care legislation to ensure that provision identified as being necessary to support a child’s needs is put into place. This issue needs to be addressed if this measure is to be a radical change in supporting children/ Young People. There is a real danger the EHCP will be no different from the existing system where a child is entitled only to the educational support identified in a statement and not any non-educational help.
We have concerns that therapies that have long been regarded, and accepted by courts, as being essential in the education of children with special educational needs/disabilities, such as speech and language therapy, occupational therapy and physiotherapy, may in a EHCP be regarded as provision for health services to make, so medical rather than educational provision. Children would therefore not have an entitlement to them and parents on their child’s behalf would have no remedy if such services were stopped.
The Government say that ‘the lessons learned from the pathfinders will help us to decide how best to change the law and will be reflected in the legislation we aim to introduce to Parliament in the current session... we aim to publish a draft Bill in summer 2012.’ But as of May 2012, Pathfinders have only just started recruiting families to trial single assessment and planning processes. This summer is clearly far too soon to expect that there will be ‘lessons learned’.
The Government say that ‘an interim evaluation of the pathfinders will be published by October 2012, with a final evaluation report following in 2013. It would be easy to conclude that there is a determination to place on statute the practices piloted through the Pathfinder Schemes well in advance of knowing whether these practices will bring any actual benefit to children and their parents.
We would welcome the introduction legislation to support a more extensive and in-depth piloting process and for the results of evaluation to be publically disseminated and discussed before incorporating Pathfinder Schemes into education law.
Local Offer
We warmly welcome the introduction of a Local Offer that would make it clear what provision is normally available within a LA to cover education, Health and Social care. It is our experience that transparency builds trust between parents and professionals.
To be effective in supporting good partnership working between parents and professionals the Local Offer needs to be specific about what can and cannot be provided within a LA. The need for flexibility in distributing finite resources should not excuse failing to quantify and qualify what a Local Offer includes.
It must be recognised that the provision that Local Offer outlines is generalised. The law will still entitle a child to an assessment of their special educational needs when there is the probability that their needs call for an Education, Health and Care Plan. Only statutory assessment can determine the actual provision an LA will be legally obliged to arrange for a child with SEN and this may be in excess and different from what is contained in the Local Offer.
We are alarmed that the Government ‘ ... envisage that the local offer will support The First-tier Tribunal (for Special Educational Needs and Disability) and others considering redress when making their decisions since they will be able to see what provision can reasonably be expected in local schools and colleges and from local health and social care services to support children and young people with SEN and their families in each local area.’ Under the current legal framework the Tribunal must have regard only to the child’s needs and whether the special educational provision determined by the LA is adequate in kind and amount to meet those needs.
We urge the Government to be open and explicit about the changes to legal entitlement for individual children which they intend to implement. It is currently unlawful for the Tribunal to judge that provision is adequate on the grounds that it is ‘what can reasonably expect in local schools and colleges.’ The Government is in danger of misunderstanding the function and the legality of the ‘Local Offer’ or being accused of weakening the law on SEN so that children’s right to the provision required to meet their individual needs is removed and replace with a right to what can be ‘reasonable expected.’
There needs to be an effective means to challenge where the Local Offer provision is not being made.
Improving Parents’ choice of school
We warmly welcome the Government’s commitment to ensuring that admission into all state funded schools, including academies and free schools, will be on the same basis for children with statements of special educational needs as admissions to maintained schools. This is overdue as parents currently are unable to appeal to the SEND Tribunal for a place in an Academy unless the Academy agrees to be named in a statement. Many children will be left without a school placement in September because of this disparity in the law so we would urge the Government to implement this change as soon as possible.
We are still gravely concerned that there is not direct parity of protection under the SEN legal framework for children in Maintained schools and those attending Academies, Free schools, Studio schools and University Technical Colleges. We again call upon the Government to ensure this happens as soon as possible.
Inclusive schooling guidance
We welcome the incorporation of the current commitment to Inclusion into revised statutory guidance - the SEN Code of Practice. We are pleased that the commitment to parental choice supports this position.
Personal Budgets
We welcome the Government’s recognition of the issues around personal budgets and their interaction with a LAs statutory duty to make provision to support a Child/ Young person’s needs. A planned and cautious approach towards legislation will ensure that if introduced this proposal will benefit families when they choose to use it and when they choose to leave it.
We welcome the Government’s intention not to remove parent’s right to bring a case to the First Tier Tribunal (SEN & Disability). We are supportive if the proposal is that parents should consider mediation. We would question of any attempt to introduce a non-judicial layer to the process of appealing via compulsory meditation. Mediation between parties with unequal knowledge and experience of the law can easily lead to agreements that do not stand up to scrutiny.
Giving children the right to appeal
We welcome the piloting of this long stated position of IPSEA. If implemented and supported appropriately it will be of particular benefit to those children with SEN who are looked after within the care system. These are our most vulnerable children.
We welcome the inclusion of indicators in performance tables that give parents clear information on the progress of the lowest attaining pupils. It will give parents of children with SEN a “real” measure of the potential effectiveness of a school for their child.

New single school-based SEN category
We are committed to ensure that any new single category of SEN is effective in ensuring any child who has different learning needs from a typically developing peer gets the support they need as early as a potential issue is identified. We are curious to see how this will be developed.
The Government's Next Steps document has been published to the SEN and disability green paper page of the Depatrment for Education website. Here is a link to that page.