Welcome to Charles House, the new headquarters of Sinclairslaw - - PowerPoint PPT Presentation
Welcome to Charles House, the new headquarters of Sinclairslaw Leading the way in education law for over 25 years with cases including: The internet twins case, High Court X v Caerphilly County Borough Council, High Court
Today’s Speakers from Sinclairslaw Michael Charles, CEO – A Involved in some of the leading education law cases of the last 20 years. Kevin McManamon, Associate Solicitor – Leading SEN, disability and court of protection
Upper Tribunal cases. Deian Benjamin, Solicitor – Specialist in educational and professional negligence. Kevin has over 10 years experience successfully bringing claims against schools and colleges. Christopher McFarland, Solicitor – An up and coming star of the education law world, Chris’ focus is on the higher and further education sector with a developing practise in SEN. Jenny Archer, Legal Assistant – Having spent over 22 years assisting children with SEN, Jenny is a parental advocate of the highest calibre and, having won many an SEN Tribunal, gives a compelling insight into the problems faced by parents with the Tribunal system.
Today’s External Speakers Vivienne Clifford, Educational Psychologist – Having worked for many years in local authorities across London, Vivienne now runs her own private practise. She is one of a few specialist educational psychologists focusing on young people aged 19 – 25 and has considerable experience in SEN Tribunal proceedings. Alongside her busy private practise, Vivienne is also an Honourary Lecturer on University College London’s renowned Educational Psychology Doctorate programme. Juanita Hurley, Speech and Language Therapist – Having trained and worked in local authorities, Juanita now has a dual practise. She runs her own private practise specialising in working with children and young people with Autism and associated communication
secondary school in East London and is employed in a supervisory capacity at an independent special school for pupils with communication and language disorders.
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Adult Life Outcomes Paid Employment Health Independent Living Community Inclusion
Ridley and Hunter (2012) ‘Employment’: In Learning Disabilities: Toward Inclusion, Edited by Atherton, H. and Crickmore, D. Churchill Livingstone Elsevier
UK Commission for Employability and Skills (UKCES 2009)
Personal Interpersonal Self-management Initiative & delivery Confidence Self-esteem Motivation
Self-efficacy
Social/ interpersonal skills Communication skills Teamwork Assertiveness Self-control Reliability Positive attitude Presentation Planning Problem-
solving Prioritising
http://www.preparingforadulthood.org.uk
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Definitions
A child and young person – section 86 “Child” means a person not over compulsory school age “young person” means a person over compulsory school age but under 25. Young persons are treated differently under the Bill United Nations Convention on the Rights of the child Article 1 – defines child as a person under 18 NB – Children Act 1989 – Parental Responsibility means “the rights duties powers and responsibilities which by law a parent of a child has..”
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Additional Learning Needs – Section 2
(1) A person has additional learning needs if he or she has a learning disability which calls for additional learning provision (2) A… child… or person... has a learning difficulty or disability if he is or she: (a) Has a significantly greater difficulty in learning than the majority of others of the same age (b) Has a disability which prevents or hinders him or her from making use of facilities for education or training of a kind generally provided for others of the same age in mainstream maintained schools or mainstream insitutions in the further education sector.
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Additional Learning Needs – Section 3
Means educational or training provision additional to or different from that made generally for others of the same age in mainstream schools (or colleges) in Wales The definitions make no significant changes, save there is an extension to 16-25 year
Unclear what will occur in situations where a child is resident in Wales but attends school or college in England.
Duty to educate in mainstream maintained school – Section 45
Unless incompatible with: (a) The wishes of the child’s parents (b) The provision of efficient education for other children A mainstream maintained school section 68 means a maintained school that is not: (a) A special school or (b) A pupil referral unit NB – Duty exists irrespective of cost. If PRU’s are not mainstream maintained schools will it be lawful to educate children with additional needs in a PRU? Child has a voice only through parents.
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Involving children and parents in decision making – Section 6
A school, college or local authority must have regard to the wishes of the child and the child’s parent or the young person. NB - What about the parents of a young person? Will this be lawful? Poor decision making?
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Duty to inform – Section 7
Local Authority must provide:
known) to -
NB - What about information to parents of a young person aged 17?
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Individual Development Plans - Section 9 & 10
Where it has been brought to the attention of the school or college, or otherwise appears to its governing body, that a child may have additional learning needs and where no plan already exists, they will have a duty to decide whether the child or young person has additional learning needs… Similarly Local Authorities under section 12 have the same duty unless the young person does not consent. NB - What if parents disagree? If a plan is prepared, a copy must be given to a child or young person. NB - Only if the person is a child must it be given to the parents.
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Duty to admit children to named institutions – Section 42
If a school is named in plan a governing body must admit.
NB - Will parents retain the current right of parental preference? Section 9 Education Act 1996 NB - What about colleges? Unclear whether they will have to admit
Ceasing to maintain IDP Section 20: Notice only has to be given to a child’s parents or the young person?
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Appeals to Tribunal – Section 63
Applies only to:
Wales or a local authority ie whether a child or young person has additional needs. – i.e. reconsideration of school decision that ie (a) A child does not have additional learning needs – schools can make representations
education sector or IDP’s prepared or maintained by Local Authorities – ie reconsideration of school IDP’s - It can either direct the school to maintain a revised plan or take over responsibility for it from the school. NB – Appeals will not be against school based IDP’s but against local authority decisions under its powers of reconsideration
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Appeals to Tribunal grounds
NB - Only a child, or a child’s parents or a young person themselves may appeal – (not the parents of a young person), against: (a) A decision by a further education institution or local authority whether a person has additional learning needs. A decision to refuse a plan by a further education institution
(b) The contents of the plan i.e. description of need, provision (NB - provision is likely to include the name of an institution in the further education sector?) Although unclear if an FE will have to admit (although it should cooperate – section 25) (c) The naming of a particular school or lack of any school being named. (d) Decisions made by local authorities under its reconsideration duties under section 24 (not to take over responsibility of a plan) or decisions under section 21 (not to amend the plan)
Although there is no appeal to tribunal directly against school decisions, or plans – parents or young people will be able to challenge school decisions via the local authority processes and thereafter local authority decisions to the tribunal.
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A local authority must make arrangements to avoid and resolve disagreements (section 61) The obligation upon a local authority to make arrangements for the provision
young people for whom it is responsible (Not the parents)
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A new offence of failing to comply without reasonable excuse with a requirement to produce a document, allow inspection of a document, or failure to give evidence and produce a document.
What is Negligence? Duty of Care: Legal obligation, which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. Breach of Duty of Care: Claimant will need to prove that the professional fell below the standards of a reasonably competent professional taking into account the standards normally expected within his/her profession. Causation: Key hurdle for a Claimant to overcome in pursuing a successful negligence claim is to demonstrate that he or she has suffered loss as a result of the professional’s negligence. The ‘But For’ test - ‘What would have happened ‘but for’ the negligence?’
Educational Needs or Additional Learning Needs;
decision of Phelps v Hillingdon London Borough Council [2001]. As Per Lord Slynn:
education, his well being and his future life”
result of which a child’s level of achievement is reduced (which leads to a loss of employment and wages) may constitute damage for the purposes of a claim”
acts or omissions of a head teacher or teacher in its employment.
Friern Barnet Hospital Management Committee [1957] (‘Bolam’ Test)
Risks and Areas of Concern within the current proposed Bill:
commitment?
psychologists.
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“S.140 - Assessments relating to learning difficulties: Wales (1) Subsection (2) applies if– (a) A local authority in Wales maintains a statement of special educational needs for a person under section 324 of the Education Act 1996, and (b) the Welsh Ministers believe that the person will leave school at the end of his last year of compulsory schooling to receive post-16 education or training…or higher education. (2) The Welsh Ministers must arrange for an assessment of the person to be conducted at some time during the person's last year of compulsory schooling. (3) The Welsh Ministers may at any time arrange for an assessment to be conducted of a person– (a) who is in his last year of compulsory schooling or who is over compulsory school age but has not attained the age
(b) who appears to the Welsh Ministers to have a learning difficulty… and (c) who is receiving, or in the opinion of the Welsh Ministers is likely to receive, post-16 education or training…or higher education. (4) For the purposes of this section an assessment of a person is an assessment resulting in a written report of– (a) his educational and training needs, and (b) the provision required to meet them. (5) A local authority in Wales must send a copy of a statement maintained by it under section 324 of the Education Act 1996 to the Welsh Ministers on their request”
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“31 – Education and training for persons aged 16 to 19 (1) The Welsh Ministers must secure the provision for proper facilities for – (a) education…suitable to the requirements of persons who are above compulsory school age but have not attained the age of 19, (b) Training suitable to the requirements of such persons, (c) Organised leisure-time occupation connected with such education, and (d) Organised leisure-time occupation connected with such training.”
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“32 – Education and training for persons over 19 (1) The Welsh Ministers must secure the provision of reasonable facilities for – (a) education…suitable to the requirements of persons who have attained the age of 19, (b) Training suitable to the requirements of such persons, (c) Organised leisure-time occupation connected with such education, and (d) Organised leisure-time occupation connected with such training.”
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“41.— Persons with learning difficulties. (1) In discharging its functions under sections 31… 32 the Welsh Ministers must have regard– (a) to the needs of person with learning difficulties, and (b) in particular, to any report of an assessment conducted under section 140”
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people who have a learning difficulty (see ‘Statutory context’ section on page 5 for a definition) should be provided equitable access to further education at a mainstream FE establishment, through the delivery of inclusive options available locally to meet their needs. Contrast with
young person’s capability to progress and achieve…the duration will be comparable with the duration of provision available within mainstream FE establishments, i.e. two academic years
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establishments, the Welsh Government’s approach is based on the following principles and objectives.
consideration of availability of resources, where appropriate).
appropriate and reasonable to do so
parties, as appropriate.
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person, their families and/or carers, it does not have a legal duty to fund the specialist provision of their choice; nor does it have a legal duty to fund their programme duration of choice…
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to understand the young person’s educational and training needs and the provision required to meet them. The Welsh Government will generally commission an assessment to be undertaken, and have arranged for Careers Wales to conduct these assessments
compulsory schooling for the young person. In making decisions about securing and funding a placement, the Welsh Government will take the report (LSP) of the assessment into account, together with all other relevant matters, including any information or evidence collated by Careers Wales throughout the assessment process. This is a duty that the Welsh Government are obliged to do under the LSA 2000 – it is not discretionary
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be actively involved in review meetings as it would be difficult to maintain impartiality when discussing appropriate and available options for the young person. Compare with
person’s needs is an important part of the assessment process. It is therefore essential that mainstream FE establishments engage early in the transition planning process and the subsequent section 140 assessment process. However, a visit by the young person to the FE setting is not always necessary for the local mainstream FE establishment to make a determination on whether they are able to meet a young person’s needs.
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the LA, the school or other relevant agencies for copies of available relevant and up-to- date information/evidence relating to the young person’s holistic needs. This includes the young person’s latest statement of SEN, where appropriate… This demonstrates the importance of the annual review. Parents will need to ensure that the Statement has been properly reviewed as it will form the basis of the s140 assessment. See also
may, in these exceptional circumstances, arrange for an educational psychologist to undertake the section 140 assessment. The Welsh Government will act upon the
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not what is ideal or what would be good in theory. Careers Wales must be satisfied that the stipulated provision is reasonable, realistic and, based on the young person’s capability, can actually be met by the individual. Careers Wales must reach that judgement at the time of making its assessment and in reporting. The LSP needs to make a recommendation about the placement, including the necessary course/programme of study and duration. The content and level of detail in the report will depend on the circumstances of the individual, but the report must reasonably reflect in sufficiently clear and intelligible form the principal important conclusions of the assessment based on the careers adviser’s professional judgement.
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It is questionable how the LSP will be up to date following the final year of compulsory schooling if there is no duty to conduct further assessments beyond this date.
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to meet the young person’s identified needs is the provision specified in the LSP; and that the young person’s identified educational and training needs are those specified in the LSP (and this is what those terms mean when used in this document). It is unlikely that the Welsh Government will prefer the findings of an assessment carried out by a person other than Careers Wales in the absence of cogent and compelling reasons to do so.
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should recognise their respective funding responsibilities as early into the transition planning stage as possible. Joint planning arrangements should identify elements of planned provision and the agencies responsible for funding each of those elements, particularly where there is a recommendation for post-16 provision in a residential establishment.’ Early involvement by funding agencies in the SEN transition process and early recognition of any respective funding responsibilities by LAs and LHBs facilitates an informed and timely response to applications for funding at a specialist FE establishment. This collaborative approach applies equally in cases where the young person’s first contact with agencies arises after leaving compulsory schooling. Consider whether social services have done an up to date assessment?
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and subject to review. The Welsh Government has procedures in place to monitor a young person’s funded placement which will inform decisions regarding funding for subsequent years. Should a young person be making exceptional progress against their agreed programme of study, consideration will be given to adjusting/reducing the duration for which funding is provided to reflect the reality of the speed at which the young person is achieving in their agreed programme of study.
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Welsh Government will generally fund placements within specialist FE establishments lasting up to a maximum of two academic years, based on a realistic programme of study agreed in advance.
than two academic years unless exceptional reasons relating to the individual young person’s capability to learn are demonstrated. Even in these cases, funding is unlikely to be offered for more than two years in the absence of objective evidence demonstrating that the provision identified as necessary to meet the young person’s established needs cannot realistically be provided by a study programme of two years14. The duration of a programme of study must be identified by Careers Wales prior to the submission of an application. Despite at paragraph 52: …It is unlikely that the Welsh Government will prefer the findings of an assessment carried out by a person other than Careers Wales in the absence of cogent and compelling reasons to do so.
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within the young person’s programme of study. Young people with learning difficulties often find it challenging to adjust to a new setting or environment in which they will undertake their proposed
new provision to minimise the risk of stress and/or anxiety on the individual. It is equally important that transition out of the specialist FE establishment has been planned and implemented effectively, in conjunction with relevant support agencies such as social services or LHBs, in a timely way and in advance of the young person completing their programme. It is considered good practice for relevant support agencies to be engaged with the specialist FE establishment throughout the young person’s provision; this ensures that the young person is supported appropriately upon leaving.
transition arrangements that the specialist FE establishment failed to put in place for the young
to have received minimal time for transition upon entry into the specialist FE establishment.
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the agreed programme of study may need to be modified once the young person has commenced the provision. It is the responsibility of the specialist FE establishment to identify any changes that may be required…Specialist FE establishments are specifically set up to cater for the complex needs of those young people their provision is specifically aimed at, i.e. young people with severe autism or young people with profound and multiple learning difficulties, etc. The Welsh Government therefore generally expects specialist FE establishments to design bespoke programmes of study that are comparable in duration to that provided by a mainstream FE establishment. These programmes should be specifically targeted at the realistic level of education achievable in that duration for the general cohort of young people who attend these establishments.
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is received after the young person’s first academic term. It is expected that the first academic term will provide sufficient time for the specialist FE establishment to assess if the young person is on an appropriate programme. In addition the Welsh Government will not usually consider any changes to provision if it impacts upon the agreed duration.
in costs, if they are satisfied that the changes are desirable in the interests of meeting the young person’s identified educational or training needs…
specifically agreed to…
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82…. The specialist FE establishment is responsible for submitting a request for an extension to the Welsh Government. In this context ‘extension’ means an extension of time to complete the original programme…
young person to complete their original agreed programme of study. A request to extend a young person’s placement in order for the individual to undertake additional provision or accredited programmes over and above what was originally agreed is not a request for an extension, and different considerations apply to decisions about funding in those cases Consider what happens if a young persons neds evolve or he/she gains new needs?
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date will only be agreed in exceptional circumstances. The Welsh Government will need to be satisfied that the circumstances giving rise to the need for the extension were unavoidable and that the extension is objectively necessary to ensure that the young person’s identified educational and training needs are met.
at a specialist FE establishment for the reason of transition planning, e.g. where effective transition arrangements have not taken place. An example of where an extension request might be considered necessary includes cases where a young person has been unable to complete their agreed programme of study due to absence as a result of unexpected illness, which has ultimately impacted
programme of study. In the most exceptional of cases where a request for a second extension is in fact considered, funding is unlikely to be provided if the second request stems from the same exceptional circumstances as the first.
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request for an extension where they have only been informed of concerns or problems associated with the young person’s ability to complete the agreed programme of study at the time a request for an extension is received.
specialist FE establishment, clearly identifying what aspects of the agreed programme of study have been achieved to date and what remains to be completed. The request must:
complete the original agreed programme of study
discussion with Careers Wales and other interested parties such as social services/health boards where they have a direct interest.
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specialist provision over and above, and following completion of, the young person’s original agreed programme of study. It is not the Welsh Government’s policy to routinely fund continuous education and training up until the age of 25. The Welsh Government will not, therefore, usually fund a second/additional programme of study at any specialist FE establishment unless the previous funded programme of study cannot fairly be said to have afforded the young person effective access to further education, or unless very exceptional circumstances have resulted in the young person being objectively deprived of the educational value of the previous funded programme.
Government will usually need to arrange for a new section 140 assessment to be carried out in
and training needs of the young person. Careers Wales will undertake this assessment.
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