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.
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!