page 1 understanding the send reforms polly sweeney, associate solicitor, irwin mitchell, 16 march...

UNDERSTANDING THE SEND REFORMSPolly Sweeney, Associate Solicitor, Irwin Mitchell, 16 March 2015

Programme

Time Session

10.00am Welcome and Introductions

10.15am Session 1: Understanding the SEND reforms and Key Changes

11.30am Break

11.45am Session 2: Transitional Arrangements and The Local Offer

12.30pm Lunch

1.00pm Session 3: Accessing Social Care and Transition to Adulthood

2.00pm Finish

SESSION 1

UNDERSTANDING THE SEND REFORMS:

PART 3 OF THE CHILDREN AND FAMILIES ACT 2014

Overview

• Legal Framework

• General Principles and Duties

• SEN Support

• The EHC Needs Assessment Process

• The EHC Plan

• Annual Reviews

• Appeals and Mediation

• Personal Budgets and Direct Payments

Legal Framework

• The Children and Families Act Part 3

• SEN and Disability Regulations

• SEN Personal Budget Regulations

• SEN Local Offer Regulations

• SEN Transitional Arrangements Regulations

• SEN and Disability Code of Practice: 0 to 25 years

• Transitional arrangements guidance

The Section 19 Principles

In carrying out all their functions under the Act LAs must have regard to:

• The views, wishes and feelings of the child, young person or parent

• The importance of their full participation in decisions

• The importance of their being provided with the necessary information and support to participate

• The need to support the child or young person to achieve the best educational or other outcomes

Working Together Duties

• Section 23 – duty of health bodies to bring certain children to local authority’s attention

• Section 25 - Promoting integration

• Section 26 – Joint commissioning arrangements

• Section 28 and 29 – Mutual co-operation duties

• Duties to consult

SEN Support

• School action and school action plus have been replaced with “SEN support” – a graduated approach to meeting SEN which will extend to YP in FE colleges / sixth forms

• Schools have a year to phase in support – all pupils moving to SEN support by September 2015

• All early years settings, schools and post 16 institutions should use an “assess, plan, do, review” cycle

• The principles of this cycle are broadly the same for all ages

• Class and subject teachers are still responsible even when the pupil is away from the main class for parts of their provision

• Should include planning and preparing for transition, before a child moves into another setting or school

EHC Needs Assessment Process

• May be requested by parent, young person or school / post 16 institution

• Anyone can bring a child to the attention of the LA if they think an assessment is necessary(Code Para 9.9)

• Criteria for assessment (section 36(8)); LA must assess if:

– Child or young person have SEN; and

– It may be necessary for SEN provision to be made for the child in accordance with an ECHP

• No duty to assess disabled children if no SEN

• The LA may develop criteria or guidelines to help them decide but must not apply a blanket policies

EHC Needs Assessment Process

• Must be consultation with child’s parent or young person

• LA must notify parents within 6 weeks of request whether an assessment is necessary

• As part of assessment, LA must obtain:

– Advice and information from CYP and parents

– Any person the CYP / parents request the LA seeks advice from

– Year 9 onwards – advice to assist with preparation for adulthood and independent living

– Education, medical / healthcare and social care information

The draft plan

• After EHC needs assessment, LA must confirm (within 16 weeks of request):

– Outcome of assessment

– Whether it proposes to make an EHC plan

– Reasons for the decision

• If the LA proposes to make an EHC plan it must send a draft plan to the parents or young person and give them 15 days to respond

Request for particular school

• Child’s parents or young person must then make representations including on particular school named

• Where particular school requested, the LA must consult governing body and relevant LA if out of area

• The LA must name the school in the ECH plan unless

– the school is unsuitable for the age, ability, aptitude or SEN of the child or young person concerned, or

Request for particular school

• the attendance of the child or young person at the requested school or other institution would be incompatible with—

– the provision of efficient education for others, or .

– the efficient use of resources.

• The LA must then name the school or type of school the LA thinks would be appropriate

• Note: Section 43 – duty on schools and other institutions to admit child or young person named in plan

The Final EHC Plan

• Final plan must be issued by a maximum of 20 weeks from the date of request for assessment

• A copy of the final plan must then be sent to parents and the school named in the plan

• Where the LA maintains an EHC plan:

– The LA must secure the specified special educational provision

– The responsible CCG must arrange any specified healthcare provision

Education, Health and Care Plans

Format of EHC Plans:

A. The views, interests and aspirations of CYP and parents

B. The CYPs special educational needs;

C. The CYPs health needs which relate to their SEN;

D. The CYP’s social care needs which relate to their SEN;

E. The outcomes sought for the CYP

F. the special educational provision required by him or her;

G. any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs;

Education, Health and Care Plans

H. Social care provision

I. Educational Placement

J. Personal Budget (including arrangements for direct payments)

K. Advice and Information

Annual Review Process

• EHC plans must be reviewed by the Local Authority:– In the first twelve months from when made– Every twelve months thereafter as a minimum

• Local Authority duties:– Consult with and take account of views of child or young person

and child’s parents– Consider progress towards achieving outcomes in EHC plan and

if these outcomes are still appropriate– Consult school/any other institution child or young person

attends

• If the child/young person attends a school or institution, LA can require head teacher to convene

The Annual Review Meeting

The following people must be invited to the meeting:

• Child’s parents or young person themselves

• Head of early years provider/school/institution (if relevant)

• LA officer with responsibility for LA’s education functions for children/young people with SEN

• LA officer with responsibility for LA’s social care functions for children/young people with SEN

• Health care professional identified by “responsible commissioning body”

• Any other person the LA considers relevant (if the child or young person doesn’t attend school or an institution)

After the meeting

After the meeting:

• Within 2 weeks school or LA must prepare written report with recommendations

• Within 4 weeks Local Authority must decide if it is going to continue, amend or cease to maintain EHC plan and inform child’s parents, young person and head of any institution

• If LA decides to amend:

– it must send to child’s parents or young person, informing of changes and give them 15 days to make representations

– If plan amended following representations, the finalised version must be sent to parents/governing body/responsible commissioning body within 8 weeks of draft plan being sent

Appeals and Mediation

• Appeals against the SEN element of EHC plans remain with the Tribunal

• LA must send out information on appeal rights with the decision notice

• Mandatory requirement to contact a mediation adviser by telephone before you can lodge an appeal

• Time is limit is 2 months from decision notice or 1 month from date of mediation certificate

• LA attendance is mandatory if family request

• Mediation also available for health and social care parts

Personal Budgets

• A local authority that maintains an EHC plan, or is securing the preparation of an EHC plan, for a child or young person must prepare a personal budget for him or her if asked to do so by the child’s parent or the young person

• Where a request for direct payments has been made, a local authority must consider that request

• LA must make arrangements for provision of information, advice and support including organisations that can provide assistance on direct payments

• Direct payment must be agreed by the school

Direct Payments

When will direct payments be made?

• recipient will use them to secure the agreed provision in an appropriate way

• parent or a nominee will act in the best interests of the child or the young person when securing the proposed agreed provision

• the direct payments will not have an adverse impact on other services

• securing the proposed agreed provision by direct payments is an efficient use of the authority’s resources

SESSION 2

THE LOCAL OFFER

AND

TRANSITIONAL ARRANGEMENTS

The Local Offer

“Local authorities must publish a Local Offer, setting out in one place information about provision they expect to be available across education, health and social care for children and young people in their area who have SEN or are disabled, including those who do not have Education, Health and Care (EHC) plans”

Walsall’s Local Offer

http://www.mywalsall.org/walsall-send-local-offer/



The Local Offer

• Requirements for Consultation with:

– CY&P with SEN and disabilities

– Parents of CY&P with SEN and disabilities

– Governing Bodies

– Youth Offending Teams

– LA’s own officers

– NHS Health Boards and Clinical Commissioning Groups

The Local Offer

Information to be included:

• special educational, health and social care provision for children and young people with SEN or disabilities

• details of how parents and young people can request an assessment for an EHC plan

• arrangements for identifying and assessing children and young people’s SEN – this should include arrangements for EHC needs assessments

• other educational provision, for example sports or arts provision, paired reading schemes

• post-16 education and training provision, apprenticeships, traineeships and supported internships

The Local Offer Information to be included:

• information about provision to assist in preparing children and young people for adulthood

• arrangements for travel to and from schools, post-16 institutions

• support to help children and young people move between phases

• sources of information, advice and support in the local authority’s area

• childcare, including suitable provision for disabled children and those with SEN

• leisure activities

• support available to young people in higher education

The Local Offer

Information to be included:

• arrangements for resolving disagreements and for mediation, and details about making complaints

• parents’ and young people’s rights to appeal a decision of the local authority to the First-tier Tribunal

• the local authority’s accessibility strategy

• Should cover universal, targeted and specialist services

Information, Advice and Support

• Every LA has a duty to provide an Independent Advice and Support Service.

• This must provide IAS to Parents, Young people and children

• Must cover education, health and social care

• Should be impartial, confidential, accessible and free

• IAS Service have extensive legal training

• Independent Supporters Programme

Implementation: Key Dates

• On 1st September 2014 – All new entrants will be dealt with under new system

• September 2014 – April 2018: children and young people with statements of SEN transfer to the new system via the “transfer review” process

• September 2014 – September 2016: young people with Learning Difficulty Assessments (pursuant to S139a LSA) transfer to the new system. Young people with LDAs will not go through the ‘transfer review’ process but will need to make a new request for an EHC needs assessment under the new legal framework from 1 September.

Transitional arrangements

Timescales for Transition:

• Between 1 September 2014 and 1 September 2015, local authorities must transfer children and young people with statements to the new arrangements prior to them transferring from school (including school sixth forms) to a post-16 institution or an apprenticeship. This must be done by 31 May 2015.

• Statutory guidance for local authorities and organisations providing services to children and young people with SEN “0 to 25 special educational needs and disability system”

Published August 2014


C&YP with existing Statements of SEN

• “To ensure that EHC plans are person-centred and focused on outcomes, an EHC plan must only be issued following a ‘transfer review’ – an EHC needs assessment.”

• Requirements for transfer review:

• An EHC Needs Assessment

• Must include a meeting with the parents or young person

• Transfer cannot take place if there is a pending Tribunal appeal

• Parents and school must have 2 weeks notice of the date of the meeting

• LA must maintain statement until review is completed

• Completed in 16 weeks


C&YP with Learning Difficulty Assessments

• Requests for assessment must be dealt with as if the C&YP is a new entrant into the system

• LA’s have 6 weeks to respond to request for assessment

• Where necessary, a full assessment must be carried out and EHC plan prepared

• There is a right of appeal if LA decide not to issue a EHC plan

• Where no EHC, should continue to receive provision as set out in the S139a (LDA) assessment


Local Transition Plan must include:

• Information on consultation

• The numbers of CYPs expected to transfer each year during transition

• The order in which CYPs will be transferred

• Details of transfer review process

• Sources of independent information and advice;

SESSION 3

ACCESSING SOCIAL CARE AND TRANSITION TO ADULT SERVICES

Overview

• Social care duties to disabled children

• Transition to adulthood

• Social care duties to disabled adults

• How does social care fit into EHC assessments and plans?

• Decision-making under SEND for young people

Social care duties to disabled children

• Duty to assess a child’s need for ‘social care’ services and, where necessary, provide services to meet assessed needs – s17 assessment;

• Duty to accommodate children whose parents are ‘prevented’ from providing them with suitable accommodation and care – s20 accommodation;

• Duty to respect disabled children’s right to family and private life – Article 8 ECHR.

• Working Together Guidance – assessments to be completed in 45 working days from referral

Preparing for Adulthood

• Preparation for adulthood should begin at Year 9

• Annual reviews from Year 9 must include a focus on– planning of transition to adult social and health

services where necessary– options and choices for next phase of education, e.g.

invite representatives of post 16 institutions to review meetings

– views of child/young person must be sought and taken into account

Transition Assessments

• Local authorities must carry out transition assessments where significant benefit for young person in doing so and likely to require care and support post 18.

• Must consider:

– Current needs for care and support

– Whether the young person is likely to have care and support needs post 18

– If so, what needs likely to be eligible

Continuity of Provision

• Under the Care Act 2014 - Support from children’s services must remain in place until an adult needs assessment has been completed and adult care and support is in place

• LA may continue to provide section 17 services after 18 as long as child has EHC plan

Social care duties to disabled adults

• The Care Act 2014 – 1 April 2015

• Adult Needs Assessment

• New Eligibility Criteria

• Care and Support Plan

• Rights of Carers

• Charging Reforms

Social Care in EHC needs assessment

– LAs should develop and publish local protocols for assessment which should set out how the needs of disabled children will be address in the assessment process and clarify how statutory social care assessments will be informed by and inform EHC needs assessments leading to an ECH plan (10.17 of Code)

– Where there is an EHC needs assessment, it should be a holistic assessment of the CYP’s education, health and social care needs. EHC needs assessments should be combined with statutory assessments under section 17 where appropriate (10.18 of Code)

– ECH plan reviews should be synchronised with social care plan reviews

Social Care in EHC plan

• H1. in the case of a child or a young person aged under 18, any social care provision which must be made as a result of section 2 of the CSDPA 1970

• H2. any other social care provision reasonably required – 10.13 of the code says that s17 provision must be specified here.

Decision-making for young people

• The Children and Families Act 2014 gives significant new rights directly to young people.

• Definition of “Young person”: A person over compulsory school age (the end of the academic year in which they turn 16) and under 25.

• Code of Practice says that local authorities and other agencies should normally engage directly with the young person rather than their parent.


• The following decision-making rights are transferred from parents to young people:

– the right to request an assessment for an EHC plan (any time up to their 25th birthday)

– the right to make representations about the content of their EHC plan

– the right to request that a particular institution is named in their EHC plan

– the right to request a Personal Budget

– the right to appeal to the First-tier Tribunal (SEN and Disability)


• Parents, or other family members, can continue to support young people in making decisions, or act on their behalf, provided that the young person is happy for them to do so, and it is likely that parents will remain closely involved in the great majority of cases.

• A young person can ask a family member or friend to support them in any way they wish, including, for example, receiving correspondence on their behalf, filling in forms, attending meetings, making telephone calls and helping them to make decisions.

• However, the final decision rests with the young person.


• The right of young people to make a decision is subject to their capacity to do so as set out in the Mental Capacity Act 2005.

• Some young people, and possibly some parents, will not have the mental capacity to make certain decisions or express their views.

• Provision is made in the Children and Families Act (Section 80) to deal with this and Annex 1 to the Code of Practice provides further details.


• In cases where a person lacks mental capacity to make a particular decision, that decision will be taken by a representative on their behalf.

• The representative will be a deputy appointed by the Court of Protection, or a person who has a lasting or enduring power of attorney.

• In the case of a young person who does not have such a representative, the decision will be taken by the young person’s parent. This is likely to be the case the majority of the time.


• Even where the young person lacks capacity, the local authority must still take account of the views of the young person as well as the representative in the following situations:

– They must have regard to the views and wishes of a young person (Section 19)

– They must consult young people when carrying out its duty to keep education and care provision for disabled children and young people and those with SEN under review (Section 27)


– publishing the comments of young people about its Local Offer and involving these people in preparing and reviewing the Local Offer (Section 30)

– arranging for information and advice to be provided to young people and taking steps to make information and advice services known to those people (Section 32)

[email protected]

Further information:http://www.irwinmitchell.com/personal/protecting-your-rights/social-healthcare-law/the-children-and-families-act-2014/factsheets-and-template-letters

mailto:[email protected]

http://www.irwinmitchell.com/personal/protecting-your-rights/social-healthcare-law/the-children-and-families-act-2014/factsheets-and-template-letters



page 1 understanding the send reforms polly sweeney, associate solicitor, irwin mitchell, 16 march...

Documents

duties sen

sen provision

meeting sen

school slide

assessment section

sen support school action

pmfinish slide

duties section