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

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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).

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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.

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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

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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 1st 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

• ffender institutions.

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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.

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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,

• r 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.

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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 28th July 2014. Came into force 1st September 2014. https://www.gov.uk/government/publications/send-code-of- practice-0-to-25 Assess, plan, do, review.

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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!

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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

• r she—

(a) has a significantly greater difficulty in learning than the majority

• f 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.

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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.

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EHC Assessment Section 36

§ Request can be made by CP, YP or person acting

• n 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.

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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

• r YP and person providing advice agree not necessary reg.6(4).

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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.

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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.

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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.

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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.

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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.

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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
• ther 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.

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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

• f 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.

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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.

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Costs 2

Coventry v SENDIST [2007] EWHC 2278 (Admin) it was held that the “resources” to be considered were all LA resources, including delegated funding. As such extra school spending needed can be taken into account even if extra funding would not be delegated. In Coventry the PS had fees of £11,500. The FTT found that the costs to support the child at the LS were £13,000. The LA argued that because of the way in which funding is delegated that the cost had already been incurred and therefore applying Oxfordshire that the cost should effectively be nothing or that the additional provision needed was only about £7,500. This argument was rejected, delegated funding was still public funding.

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Costs 3

O v Lewisham [2007] EWHC 2130 (Admin) it was held that all public expenditure is relevant, particularly the LA social services

• function. In Lewisham the PS was residential and was found to

cost £20,000 but by attending the PS the LA would save money because respite care would not have been provided if the child attended the PS school. Therefore the FTT should have taken into account the savings of the respite care.

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Costs 4

Haining v Warrington [2014] EWCA Civ 398

“B’s parents would like him to attend W school (“WHS”), which is an independent residential special school (which Warrington accepts would meet his needs). Warrington says that he should go to G school (“GHS”), which is a maintained day special school. Warrington accepts that, if he attends GHS as a day pupil, it will also provide him with residential “respite care”, which it currently provides for him at WHS. The comparative figures put before the Upper Tribunal (Administrative Appeals Chamber) (Judge David Williams) (“the UT”) for the two schools were as follows. The total figure for a placement at WHS was £92,900 and the total figure for a placement at GHS was £90,441. The main differences between the figures were that (i) the school costs for WHS were £33,448 and the school costs for GHS were £61,238; and (ii) the cost of a placement at GHS included £29,336 for boarder/respite fees, whereas there was no such cost in respect of WHS. “ Essentially Lewisham and previous authorities followed.

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Costs 5

In K v Hillingdon [2011] UKUT 71 (AAC) a successful ground of appeal was that there was an unlawful failure by the FTT to consider wider benefits in deciding whether additional public expenditure would be unreasonable. Judge Pearl held that there was such a failure (at para.29) he said “applying this general principle, it is my view that a LA (and the Tribunal on appeal) when conducting the balancing exercise, are obliged to take account of wider social and health benefits when deciding whether additional public expenditure is unreasonable.”

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Costs 6

Transport – if two schools named and both can meet needs then if transport costs differential on transport then can name more expensive school. Dudley v S [2012] EWCA Civ 346 Child’s preference – costs differential of over £30,000. 16 year old with severe visual difficulties preference was sufficient to still name school even though LA school could make provision. West Sussex v ND [2010] UKUT 349 Out of Borough Placements T v Bromley [2013] UKUT 0529. Same reasoning applies as with usual costs cases.

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Reviews and Re-assessments. S.44

(1) A local authority must review an EHC plan that it maintains—

(a) in the period of 12 months starting with the date on which the plan was first made, and (b) in each subsequent period of 12 months starting with the date on which the plan was last reviewed under this section. (2) A local authority must secure a re-assessment of the educational, health care and social care needs of a child or young person for whom it maintains an EHC plan if a request is made to it by— (a) the child's parent or the young person, or (b) the governing body, proprietor or principal of the school, post-16 institution or other institution which the child or young person attends. But will be regulations on this setting out when not necessary to review/re-assess.

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Ceasing to maintain s.45

(1) A local authority may cease to maintain an EHC plan for a child or young person only if— (a) the authority is no longer responsible for the child or young person, or (b) the authority determines that it is no longer necessary for the plan to be maintained. (2) The circumstances in which it is no longer necessary for an EHC plan to be maintained for a child or young person include where the child or young person no longer requires the special educational provision specified in the plan. (3) When determining whether a young person aged over 18 no longer requires the special educational provision specified in his or her EHC plan, a local authority must have regard to whether the educational

• r training outcomes specified in the plan have been achieved.

(4) A local authority may not cease to maintain an EHC plan for a child or young person until— (a) after the end of the period allowed for bringing an appeal under section 51 against its decision to cease to maintain the plan, where no such appeal is brought before the end of that period; (b) after the appeal has been finally determined, where such an appeal is brought before the end of that period. (5) Regulations may make provision about ceasing to maintain an EHC plan, in particular about— (a) other circumstances in which it is no longer necessary for an EHC plan to be maintained; (b) circumstances in which a local authority may not determine that it is no longer necessary for an EHC plan to be maintained; (c) the procedure to be followed by a local authority when determining whether to cease to maintain an EHC plan.

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Rights of appeal

Can appeal against: § Refusal to assess. § Refusal to provide a plan following assessment. § Contents of plan § Changes (or refusal to amend plan) following annual review. § Decision to cease to maintain plan. § NB child’s parents or young person has right of appeal. Question whether parent or young person will be able to appeal. Implications for legal aid?

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The FTT Purpose

When determining an appeal, the Tribunal “stands in the shoes” of the LA. In Bromley v SENT

[1999] All ER 5867 Sedley LJ stated (at 594) “Until the welcome setting up of the [FTT]...challenges to [LA’s] statements [of special educational needs] could be made only on questions of law by judicial review...Unlike the High Court, it is a specialist tribunal with a lawyer chairman and lay members chosen for their knowledge and experience....In my view this restructuring has jurisprudential implications. Where previously the parent’s only resort from the [LA] was to the court, which had therefore to do its best to construe the statutory language in so far as construction was an appropriate exercise, there is now interposed a specialist tribunal whose remit is not necessarily the same. In particular where a court has to limit itself to the interpretation of terms of legal art and the setting out of limits to the meaning of ordinary words in their statutory context, the [FTT] is empowered to take a much closer look at the context of the [LA’s] statement. Indeed for many purposes it stands in the [LA’s] shoes, re-evaluating the available information in order if necessary to recast the statement. But in carrying out this function it also has a supervisory role – to interpret and apply the relevant law.” FTT must not simply review what LA did must perform its function see CW v Hertfordshire [2013] UKUT 090. Appeal upheld as FTT reviewed what Tribunal did in relation to a decision to cease to maintain.

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FTT Mediation (s.52-55)

§ Parent or YP must consider mediation. § Must obtain certificate to say mediation has been considered or if mediation has taken place that it has taken place.

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FTT Rules

§ The FTT is governed by the Tribunal Procedure (First Tier Tribunal (First-tier Tribunal) Health Education and Social Care Chamber) Rules 2008 (SI 2008 No.2699). Rule 2 provides an overriding

• bjective, broadly comparable to the Civil Procedure Rules.

§ Case management and other powers. § Applications to strike out § Applications for costs

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Practical Suggestions

§ Take a co-operative approach. Agree what you can. Where you don’t agree don’t argue, leave for FTT and have reasons ready. § Have evidence ready (Class teacher, SENCO, Experts). § Ensure evidence is available in respect of issues in dispute (don’t argue about what is agreed). § Ensure evidence is relevant in relation to legal principles. § Have good evidence on costs read (Be prepared for Coventry, Oxfordshire and Warrington debates). § Be ready to use Code of Practice DO NOT rely on local plans. § If something goes wrong procedurally aim to correct it as soon as possible and be candid about any mistakes.

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Local Authority New Duties under CFA

§ Local Offer (s.30) – not legally binding. § Duty to Co-operate (s.25-29, 31-32) § Personal budgets and direct payments (s.49)

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Specific Situations to Consider

§ Overlap between SEN and family law issues. § Transport § Detained persons (see s.70-75) § Persons lacking capacity s.80 § Provision outside England or Wales s.62 § Outside of school s.61 must be satisfied inappropriate in school.

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Equality Act 2010

§ LA as public body must not discriminate. Usually not an issue for LA in connection with SEN appeals. But may be an issue in relation to transport or other provision. § Can be an issue for schools in connection with disciplinary matters. § Regulation 4 arguments in exclusions – violence in context of disability discrimination claims. See P v Governing Body [2013] UKUT 154.

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Recent Upper Tribunal Case Law

§ Specificity in the context of small groups. KvK v an Authority [2013] UKUT 0624. § Useful case dealing with costs in FTT Buckinghamshire v ST (LA appeal against costs order against them upheld) [2013] UKUT 468 § Analysis of what is a “school” – unit attached to a school can be a school. TB v Essex County Council [2013] UKUT 0534 § Waking day curriculum London Borough of Hammersmith and Fulham v JH [2012] UKUT 328 (AAC) § Necessity for a statement ND and CH v Leicestershire County Council [2012] UKUT 85 § Late appeals CM v Surrey CC [2014] UKUT 0004

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Wales

§ Education (Special Educational Needs) (Wales) Regulations 2002 § Code of Practice for Wales

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Good luck! Feel free to get in touch at any time!

Presented by Russell Holland + 44 (0) 845 210 5555 rh@no5.com