New Code of Practice threatens children's provision

• Quantification
• Duty to identify
• Medical problems and assessment

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The final version of the Code of Practice on Special Educational Needs threatens children's rights to the provision required to meet their needs. IPSEA is contacting all concerned voluntary sector organisations, urging them to make urgent representation on these issues to the Secretary of State, and to members of both Houses of Parliament. The Code has been laid before Parliament, and MPs and Lords have three weeks to consider whether or not to approve it (i.e. until 12 July).

Speaking for IPSEA, John Wright said:

'Our view is that children's best interests would be served if Parliament refused approval of the new Code and insisted that the Government make the necessary improvements. This may lengthen the life of the existing Code, but this in itself would in no way disadvantage children with special needs. The omission of clear guidance on quantifying provision from the new Code was expected, but, in addition there are some completely new, last-minute changes which could have serious consequences for children with special educational needs.

For example, it omits guidance to LEAs on how to fulfil their duties to:

• identify children who have special educational needs;
• undertake assessments of children with medical problems which constitute a barrier to their being able to access educational provision.

We hope that the Government is asked by Parliament to think again on these issues, as we have obtained Counsel's Opinion that the advice on quantification is now unlawful. We intend to post the full Opinion on this web site by Friday 6 July.'

Quantification

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The current Code of Practice (paragraph 4:28) advises LEAs that

'the provision (in Part 3 of a Statement) should normally be specific, detailed and quantified (in terms for example of hours of ancillary or specialist teaching support).'

The Code laid before Parliament on 20 June 2001 advises LEAs that:

'The statement should .... quantify provision as necessary' (paragraph 8:36)

and that

'there may often be a need to express it in terms of hours, equipment or personnel' (paragraph 8:37)

Neither of these phrases embodies the concept of 'the norm'. There is no guidance on the criteria to be used when deciding if it is necessary to quantify provision. As it stands the new Code is an invitation to LEAs to quantify provision in fewer statements in the future, an invitation which, if accepted, will bring them in direct conflict with parents, the Tribunal and ultimately the High Court.

IPSEA has obtained Counsel's Opinion on the wording of the new Code: in short, the Opinion is that the guidance on quantification in the new Code is not lawful. We believe that Parliament should withhold approval of the Code unless the following clear guidance is included as the penultimate sentence in paragraph 8:37:

'LEAs must make decisions about which actions and provision are appropriate for which pupils on an individual basis. This can only be done by a careful assessment of the pupils' difficulties and consideration of the educational setting in which they may be educated. The special educational provision in Part 3 of a Statement should normally be specific, detailed and quantified (in terms, for example, of hours of ancillary or specialist teaching support) unless there are exceptional reasons for not it not to be so.'

This would defend children's interests and accord with case law.

Download Counsel's opinion as a Word 97 document

Removal of guidance on the duty to identify children with special educational needs

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The final version of the new Code, as laid before Parliament, contains no guidance at all on LEAs' duty to identify children in their area who have special educational needs. This is a serious omission: it will be difficult for LEAs to plan ahead in terms of their budget and the development of adequate service without the knowledge which identification gives them. For schools, the requirement to send the LEA information on pupils at Action Plus stage sharpens their practice with regard to record keeping and provides them with a regular reminder of their LEA's duty to assess children who are failing to prosper on the basis of provision the school itself is able to make.

Children's best interests will be served by a reinstatement of the relevant paragraph from the consultation version of the new Code:

To help them fulfil this duty it is good practice for LEAs to gather information from schools about registered pupils who live in the LEA's area for whom schools are intervening through School Action Plus. LEAs should also be aware of children of statutory school age who are not attending school, whether they are excluded, educated otherwise than at school or educated at home.

Omission of guidance on when an assessment is necessary for children with medical needs

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Under s312(2)(b) Education Act 1996, children with medical needs which do not give rise to learning difficulties as such, but which prevent or hinder them 'from making use of educational facilities of a kind generally provided ...', are entitled to be considered for statutory assessment.

The current Code provides guidance to LEAs on their duty to assess children with medical needs by:

1. providing examples of some of the commonest medical conditions: 'congenital heart disease, epilepsy, asthma, cystic fibrosis, haemophilia, sickle cell anaemia, diabetes, renal failure, eczema, rheumatoid disorders and leukaemia and childhood cancers' (para 3:85); and
2. advising 'where there is clear recorded evidence that the child's medical condition significantly impedes or disrupts his or her access to the curriculum, ability to take part in particular classroom activities or participation in aspects of school life ... the LEA should very carefully consider the case for a statutory assessment of the child's special educational needs' (paragraphs 3:92 and 3:94).

The new Code as laid before Parliament omits examples of medical conditions. It omits mention of an LEA's duty to undertake assessment. Further, there is no guidance on the criteria an LEA should apply when deciding if they have a duty to undertake statutory assessment of children with medical conditions which hinder or prevent access to educational facilities.

This change in guidance, together with the implication in the use of the word 'indirect' that, somehow, a medical condition which hinders access is a lower order of special educational need, risks encouraging LEAs in the belief that their legal duties towards such children have changed. This is not the case, but again, will lead to an increase in conflict between parents and LEAs, LEAs and tribunals and, ultimately, LEAs and the High Court.

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