Don't panic! Much of the new law is still the same – some is even better. If your child has special educational needs (SEN) under the old system, they will still have SEN under the new system. If your child has a statement of SEN they must be transferred to an Education Health and Care (EHC) plan unless their needs have changed and they no longer need a statement.
The local authority (LA) has a duty to consider how a child or young person can be supported to achieve the “best possible educational and other outcomes”. This reflects a new and higher level of outcome required by the new law than under the old system.
The new system of supporting children and young people with SEN is now the same from birth to 25 years - as long as they stay in education or training.
The new SEN legal framework will only cover children and young people if they have SEN. A child or young person will have SEN if they have a learning difficulty (which may be a disability) and their school or college cannot provide what they need. This new system will not cover children or young people if they are disabled and have health and/or social care needs but no SEN.
A young person in further education (i.e. college) is now legally entitled to the special educational provision specified in their EHC plan. This is new. Regrettably though, EHC Plans do not apply to higher education (i.e. university).
An EHC needs assessment is the only route to getting an EHC plan. It must cover a child or young person’s education, health and social care needs.
If a parent or a young person asks the LA to seek advice from any education, health or social care professional as part of this assessment then the LA must oblige. The only exception is if the request is unreasonable. For example, if you have been waiting for a CAMHS appointment and now request it as part of the EHC assessment then the LA must request your CAMHS appointment from the health service.
This will happen when your LA decides it is your turn to transfer. It will be outlined clearly in the LA transition plan which they must issue and make publicly available.
Every child or young person with a statement must undergo an EHC needs assessment before they can obtain an EHC plan. There are no exceptions. A LA must use an existing piece of evidence as part of the EHC needs assessment if parents, the young person, the professional who wrote the advice and the LA agree it is “sufficient”. If you do not agree, then the LA must seek new advice. This includes advice from an educational psychologist.
All statements must be transferred to EHC plans by April 2018.
An LDA does not give the same right to special educational provision as a statement. If you have an LDA you can request that your LA carries out an EHC needs assessment any time from 1 September 2014. IPSEA has a model letter to help make this request. It is expected that the LA will carry out this assessment for all young people with a LDA and then issue them with EHC plans unless there is a particular reason why they think a young person no longer needs the same level of support.
Even if you do not trigger an EHC needs assessment, the LA must transfer all LDAs to EHC plans by April 2016
The views, wishes and feelings of children, young people and their parents, and their participation, must be central to every decision the LA makes in regard to assessing a child or young person’s SEN and how to support them. If they do not involve you, any subsequent decision is illegal and can be challenged. The LA can be made to do the assessment again. It is not good enough to offer a “token” involvement.
If your child or young person has SEN but does not have a statement or EHC plan they are still entitled to support that enables them to achieve the “best possible educational and other outcomes”. The school or college that a child or young person attends should put support in place to make sure this is happening. If it does not, the LA has the responsibility to ensure it does.
If a child or young person has an EHC plan the school/college named in Section I of the plan must do their best to deliver the special educational provision specified in Section F. If they cannot do this, the LA, which has a direct duty to the child or young person to secure the provision they need, must provide the school/college with the resources (finances or expertise) to do so.
Whether or not they have an EHC plan, the school or college must tell you if your child or young person has been identified as having SEN, they must identify their needs to the best of their ability and they must put the right support in place to make sure they progress and achieve specified outcomes. All this information should be documented in a clear record that should be available to you on request. The school must meet with you at least three times a year to discuss this record.
Every LA must develop a “Local Offer”. This is a document which sets out in one place what services and provision they expect to be available both inside and outside their area for children and young people with SEN and/or a disability. It should be a good resource for parents and young people as to what they can expect to be able to receive. Just because something is included in the Local Offer, it does not mean that it will be available. If it is available, you have no legal right to make sure it is provided, except through an EHC plan.
The Local Offer should make clear what special educational provision it expects the schools and colleges in its area to make from their existing budgets. This is not the same as what a school or college actually provides. This information will be useful if a LA argues that support for a child or young person should be coming from existing resources and therefore they do not need to carry out an EHC needs assessment.
Your LA is obliged to consider identifying a personal budget for educational provision for your child or young person only if you request it when they are carrying out an EHC needs assessment or when they are reviewing an EHC plan. The personal budget is the notional amount of money that would be needed to cover the cost of making the special educational provision specified in the EHC plan. You cannot have a personal budget unless you have an EHC plan.
You can at the same time ask the LA to identify elements of the personal budget which you could then receive as a direct payment. This is an actual amount of money that you would receive so that you could commission the provision in the EHC plan yourself.
A head teacher or principal has a veto if they do not agree to a direct payment being made for special educational provision which would need to be delivered in their school or college.
You cannot appeal a decision made by a LA not to identify a personal budget or direct payment but you can ask them to review it.
Young people are legally defined in this legislation (but not in social care law) as those who are over compulsory school age – i.e. those who have finished the school year in which they turn 16 years old. At that point it will be assumed they have mental capacity to make decisions about their education and must be included in all decisions and correspondence in their own right.
If a young person does not have the mental capacity to make a decision on their own, then their parents will automatically be assumed to be making the decision on their behalf unless the Court of Protection has appointed a Deputy. A deputy is usually a young person’s parent.
The decision as to whether a young person has mental capacity to make a particular decision is something that they and their parents should make in the first instance. It would be very rare for a school or college or LA not to agree with their assessment of the situation. If thhey do not agree, the young person and their parents need to get advice. It would be usual in such an event for an independent medical professional to assess mental capacity.
Mental capacity needs to be considered for every decision that a young person needs to make around their education. It is therefore essential that parents are kept fully informed and involved in all decision making at all times. It can never be assumed by a school or college that a young person has or has not got mental capacity to make a decision.
It is the LA’s duty to ensure they identify all children and young people who have or may have SEN and/or disabilities for whom they are responsible because they live in their geographical area. Only the LA can carry out an EHC needs assessment to identify needs and provision to meet those needs. If they then issue an EHC plan it is the LA alone that has the legal duty to ensure that the educational provision is then made. This duty can never be delegated to a school or college whatever funding arrangements are in place. If a school or college’s actual resources – finances or teaching expertise – cannot make the provision outlined in the plan, the LA must provide it.
Where there is health provision in an EHC plan, the local health commissioning body – usually the Clinical Commissioning Group – has the duty to provide.
It is also the Local Authority’s duty to provide the social care provision in an EHC plan if it results from an assessment under social care legislation.
The new SEN legal framework
Our Tribunal Helpline Gives next step advice on SEN appeals and disability discrimination claims to the Special Educational Needs and Disability Tribunal. When you call we will also assess whether you need casework support. Please click here to book an appointment to get one of our advisers to call you back.