Tuesday, 20 November 2012

Worried by loss of detail

Question: Timpson worried me because he seems to think putting all the details into guidance without any scrutiny will suffice.

IPSEA’s answer: This worries IPSEA too for two reasons.
First, we seem to be in danger of losing protective detail from the Act itself and from consequent Regulations. The current Act, as you can see from our analysis, not only specifies time scales in the Act, but also has a schedule which requires Regulations to specify timescales for LAs to:

  • serve notices to do with assessment and re-assessment,
  • issue a decision after a notice to the parent of intention to assess/re-assess
  • issue a decision to assess/not to assess following request by parent
  • and that ‘where a [local authority] are under a duty to make an assessment, the duty must be performed within the prescribed period’.

This requirement does not appear in the draft legislation. In addition, the current Act requires statements to be ‘in such form and contain such information as may be prescribed’. The current Regulations are very detailed and comprehensive, with a model statement demonstrating the form and the content to be ‘specified’. The draft legislation allows for (but does not require) regulations about ‘preparation, content and maintenance’ of Plan: we have no idea what those may be.

Secondly, to rely on any future Secretary of State to draft statutory guidance without Parliamentary scrutiny would mean that it could be initially drafted and then changed as and when the DfE wanted. Whether this is acceptable or not depends on your trust in the DfE to represent the best interests of disabled children as against implementing the policies of the political party in power. It is also a significant erosion of the current legal situation. We are told that this is needed to bring "flexibility" and that the current SEN Code of Practice is out of date. Certainly there are things that need to be changed in the current SEN Code of Practice since it was last revised over 10 years ago but there is very little in there which is no longer legally sound. Most changes reflect different policy directions, such as the role of Connexions, but the duty in law is still there and stays with the LA.

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