1 The Law Part 3 Children and Families Act 2014 Special - PDF document

Special Educational Needs Update 2014 Presented by Russell Holland Training Topics § Special Educational Needs (SEN) core concepts. § Key legal principles. § Practical considerations for the Tribunal. § Key points for Local Authorities (LA) under Children and Families Act (CFA). 1 Health Warning! § CFA represents a major change in SEN law and practice. § CFA does not apply in Wales. § It is necessary to keep up to date with updates in the regulations. § Expected that case law around the core concepts will remain broadly similar but likely to be new case law. 2 1 ¡

The Law § Part 3 Children and Families Act 2014 § Special Educational Needs and Disability Regulations 2014/1530 § Special Educational Needs (Personal Budgets) Regulations 2014/1652 3 Transition https://www.gov.uk/government/uploads/system/uploads/ a t t a c h m e n t _ d a t a / f i l e / 3 3 5 4 8 9 / transitional_arrangements_for_parliamentarians.pdf Basically § From 1 st September 2014 new entrants will have EHC plan. § Or a transfer review may take place. § Systems will operate in parallel for 4 years. § More detail on transition expected and for young people leaving offender institutions. 4 Core Concepts § Section 19 – overriding principles. § Code of Practice § Definition of SEN. § Transition between statements/plans § Assessment § Contents of statements/plans § Ceasing statements. § Appeals § Tribunal practice and procedure § Case law (a) SEN specific (b) general admin. 5 2 ¡

Section 19 In exercising a function under this Part in the case of a child or young person, a local authority in England must have regard to the following matters in particular— (a) the views, wishes and feelings of the child and his or her parent, or the young person; (b) the importance of the child and his or her parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned; (c) the importance of the child and his or her parent, or the young person, being provided with the information and support necessary to enable participation in those decisions; (d) the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes. 6 Code of Practice s.77 Must “ have regard ” to Code of Practice. NB. LA may have their own local policies but Code of Practice will always have greater weight. Approved by Parliament on 28 th July 2014. Came into force 1 st September 2014. https://www.gov.uk/government/publications/send-code-of- practice-0-to-25 Assess, plan, do, review. 7 The more things change …… . § Child has SEN. § Statutory assessment of SEN. § Statement Parts 2,3 and 4. § Child has SEN § Statutory assessment Education, Health and Care. § Plan has Parts A to I § Transition will be complex! 8 3 ¡

Definition of SEN 1 • S.20 CFA (1) A child or young person has special educational needs if he or she has a learning difficulty or which calls for special educational provision to be made for him or her. (2) A child of compulsory school age or a young person has a learning difficulty or disability if he or she— (a) has a significantly greater difficulty in learning than the majority of others of the same age, or (b) has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions. 9 Definition of SEN 2 (3) A child under compulsory school age has a learning difficulty or disability if he or she is likely to be within subsection (2) when of compulsory school age (or would be likely, if no special educational provision were made). (4) A child or young person does not have a learning difficulty or disability solely because the language (or form of language) in which he or she is or will be taught is different from a language (or form of language) which is or has been spoken at home. 10 EHC Assessment Section 36 § Request can be made by CP, YP or person acting on behalf of school or post 16 institution. § Regulations provide detail of how this happens. § Must consult. § Section 19 CFA. § Statutory test 36(8) has or may have SEN or EHC provision needed. § Must give reasons for decision. 11 4 ¡

EHC Assessment Reg.6(1) Must seek advice from: § Child ’ s parents or YP. § Headteacher or principal. § Medical advice and information from health care professional. § Educational Psychologist. § Advice and information in relation to Social care. § Any person who Child ’ s parents or YP reasonably requests. § If HI or VI then specialist educationalist. Must not seek advice if previously provided and LA, Child ’ s parents or YP and person providing advice agree not necessary reg.6(4). 12 After Assessment LA should issue draft plan within 14 weeks or not issue after 16 weeks. Parent or YP can request school, make representations and require a meeting within 15 calendar days of draft plan. Obligation to consult school. Finished plan should be produced within 20 weeks of original request. 13 EHC Plan Section 37 (1) Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan— (a) the local authority must secure that an EHC plan is prepared for the child or young person, and (b) once an EHC plan has been prepared, it must maintain the plan. (2)-(4) Specifies contents: needs, outcomes, provision in relation to EHC. Section 38 provides for a draft plan. 14 5 ¡

EHC plans General § LA is under a duty to ensure that the provision is made. No best endeavours. Remedy for parent is JR no appeal to FTT. § Provision must meet the needs and normally should be specific and quantified. § May be dispute over whether or not a need is an educational need § Whether education question of fact rather than law Bromley –v- SENT [1999] ELR 260. Some could be both then question of provision A –v- Hertfordshire County Council [2006] EWHC 3428. § Speech and language will almost always be educational X&X –v- Caerphilly BC [2004] EWHC 2140 § NB Therapies under s.21(5) health care or social care provision which educates or trains will be treated as SEN. So LA duty to provide and fund. 15 EHC CFA s.37 (2) For the purposes of this Part, an EHC plan is a plan specifying— (a) the child's or young person's special educational needs; (b) the outcomes sought for him or her; (c) the special educational provision required by him or her; (d) any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs; (e) in the case of a child or a young person aged under 18, any social care provision which must be made for him or her by the local authority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970 (as it applies by virtue of section 28A of that Act); (f) any social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs, to the extent that the provision is not already specified in the plan under paragraph (e). (3) An EHC plan may also specify other health care and social care provision reasonably required by the child or young person. (4) Regulations may make provision about the preparation, content, maintenance, amendment and disclosure of EHC plans. 16 EHC Plan Sections Section A Views, interests and aspirations. Section B SEN. Can be appealed. Section C. Health care needs. Cannot be appealed. Section D. Social care needs. Cannot be appealed. Section E. Outcomes. Cannot be appealed. Section F. Provision. Can be appealed. Section G. Health Care Provision. Cannot be appealed. CCG has right of veto. Section H. Social care provision. Cannot be appealed. Section I. Placement. Can be appealed. Section J. Personal budget. Section K. Advice sought. 17 6 ¡

Placement s.33 and s.39 S.33 right to mainstream placement unless 1. CP or YP does not want it. 2. Incompatible with the provision of efficient education of other children and no reasonable steps can be taken to prevent this. High threshold and applies only to other children not child concerned Hampshire v R & SENDIST [2009] EWHC 626. 18 Placement s.33 and s.39 Comply with CP or YP request. (a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or (b) the attendance of the child or young person at the requested school or other institution would be incompatible with— (i) the provision of efficient education for others, or (ii) the efficient use of resources. 19 Costs 1 In Oxfordshire the fees for the PS were £16,800. The costs of the LS were calculated as £14,049 using the following elements: a. Learning support assistant (10 hours) 2,473 b. Age weighted pupil unit (AWPU) cost 2,076 c. Teacher for the deaf (5 hours) 5,500 d. Transport 4,000 § The LA successfully argued that because the Teacher for the Deaf was going to be employed anyway and there were already two other children in the taxi that items c and d should not have been included as part of the costs. 20 7 ¡