Question: Is IPSEA
now reassured by the Minister's letter about the draft SEN legislation?
IPSEA’S answer: We were really pleased that the
Minister for special educational needs (SEN), Edward Timpson, has responded publicly
to some of the issues raised by the SEN lobby around the draft provisions. His letter is here.
He repeated the reassurance
that the protections in the current system would be carried forward into the SEN
Bill, and that is really welcome. We hope to work very closely with the DfE to
ensure that this happens and will again closely scrutinise the SEN Bill when it
is published. This will include making sure that all the rights of parents and
children that are currently included in the Education Act 1996 remain on the
face of the new Bill and not pushed into Regulations (which do not receive the
same Parliamentary scrutiny as the Bill) or a Code of Practice (currently the
Government intends no Parliamentary scrutiny for this at all).
In relation to the
specific points addressed by the Minister:
1. Right to request
statutory assessment and duty of LA to respond within 6 weeks
It is good news
that the Minister has confirmed he will amend clauses to clarify the right of
parents to request assessment, but we seek further assurance that the LA’s duty
to respond is included. Again we would hope to work closely with the DfE to get
this right in the SEN Bill. We have already started to explore what these
amendments could be. They will also need to include a specific duty on LAs to
identify those children or young people who potentially need the level of
support provided by an EHC plan and a duty on a LA to respond to a request from
parents and school that they should be assessed to see if that is the case.
2. No timescales
We are
clear that the SEN Bill must contain the time limits the current Act
contains and require other time scales be detailed
in the Regulations. Currently the Education Act 1996 requires Regulations
to include time scales, e.g. for serving notices to do with assessment;
decision to assess following a request by a parent or school; and completion of
stages for assessment and preparing and
finalising the statement. Again we hope to work closely with the DfE on
this.
3. There is no duty
to make the provision in an EHC plan
The Minister is
right that draft provision 21(1) contains an express duty on a LA to secure the
special educational provision in a EHC plan. What he has not mentioned is
that there is no duty on health or social care to make the provisions
specified in the EHC plan. As currently, only the LA will have a duty to ensure
that provision is made – and if the provision is not educational then they will
not have to secure it. It is the failure of this provision to extend across all
three areas that make the EHC plan remain an education only plan.
4. Specify v set out
We applaud the
Minister for asking officials to ensure this remains as specify.
5. Mediation
As currently
drafted, parents must go through compulsory mediation before they can even
register an appeal at the SEND Tribunal. The Minister states that he means this
requirement not to delay appeals, but it must delay those parents who are
prepared and ready to appeal once they receive the decision letter from their
LA, who can currently appeal almost immediately. Mediation will
probably not take place for two or three weeks at the earliest, and therefore the
assertion that it will not cause delay is plainly wrong. In addition, the two-month time limit is a maximum, intended to allow parents to get advice and
prepare their arguments and evidence. The addition of the need to arrange and
attend mediation is a distraction from that necessary work. The requirement
will both delay and interfere with parents’ right to start a judicial
challenge to an LA’s decision. IPSEA strongly recommend that this provision is dropped,
or at the very least amended to require compulsory consideration of mediation
after a parent has successfully registered an appeal at the SEND Tribunal. This
is something already being piloted by the SEND Tribunal and would not delay
access to the appeal process. We have still not seen any evidence that
compulsory mediation is effective – and are aware of it being trialled and
dropped because of the administrative chaos it caused in another Tribunal’s
work.
Those five issues are the
ones the Minister addressed. We are glad that the Minister is giving parents
and professionals a "very clear" message that he is happy to go back
to consider drafting. If offered the opportunity, IPSEA are very willing to
work closely with him and the DfE to ensure that this happens. It is essential
that he talks to those who actually know and work daily with the law in this
area to get it right as early as possible.
The extension of
Pathfinders is also to be welcomed and is essential as the scant evidence we
have available so far shows that pilots are nowhere as far along as had been
predicted. At this moment very little detail about what aspects of the new
proposals the Pathfinders are testing, how or with who. This is very
concerning. It is time for clarity and transparency about what the Pathfinder
pilots are doing.
The Minister's
letter reflects steps in the right direction, but our key messages include
other omissions of current rights and protections:
- as well as time limits, the Bill must contain requirements for professional advice and content of notifications;
- the right to mainstream where special academies are concerned must be restored;
- protections over the decision to cease to maintain a Plan must be restored;
- the Code of Practice must be consulted upon and subjected to Parliamentary scrutiny before it is approved.
We hope to move forward on these issues as well, but the
answer to your question is, as you can see, that we are somewhat reassured but
not totally!
No comments:
Post a Comment
Thank you for your comment. As soon as we have checked that it will make a helpful addition to our blog, it will be published.
IPSEA