Friday, 30 November 2012

Why not just amend existing legislation?

Question: Do we actually need a new SEN Bill? If the draft legislation does not give us a combined assessment across education, health and social care and just give us another education only system why doesn’t the Government just amend existing legislation to include the things that are an improvement? Surely it would be easier than re-writing the current system and losing or confusing bits unintentionally!

IPSEA’s answer: This is an option we have been considering here at IPSEA – a lot. 
As currently drafted the SEN draft provisions are not fit for the purpose of putting into practices the ideas and aspirations of the original SEN Green Paper, including the combined assessment and single plan. We hope the actual Bill (to be published early next year) is a major improvement on the draft provisions. Even if all the existing rights of parents on behalf of children have all been restored, the question remains of whether the potentail benefits are worth a whole new bill and a complete overhaul of the system or if amending the current legislation would be the most sensible idea. 
The problem is that, once a Bill is published, the only options opponents have are either to attempt to have amendments made through lobbying members of both Houses of Parliament or to "kill" the Bill – and lose any improvements it did contain. There is no option at this point to bring up a third way such as amending current legislation. 
This is why the report from the Education Select Committee as part of the pre-legislative scrutiny process is so important. Once this is issued then serious consideration needs to be given to the direction things need to take.

At the moment the benefits of the proposals are the extension of the system to age 25 years for those who need a Plan, the bringing of academies into the legislative framework, the piloting of a child's right of appeal to the SEND Tribunal and the bringing of non-maintained schools under the same legal test for admissions for those with a Plan as maintained schools.
What we clearly do not yet have is a proposed system which:

  1. Ensures that existing rights are protected including not adding new barriers to existing rights, such as compulsory mediation, and allowing special academies to admit children without a Plan, whose needs have not been assessed and for whom the LA has no legal duty to arrange/secure provision. 
  2. Duties on health and social care to make this a combined assessment across all areas which identifies provision needed to meet a child's needs and to give a legally enforceable right to that provision. It is still an education-only plan as currently proposed.
  3. Clearly defined support for those children who have SEN but do not require a EHC plan – potentially through the Local Offer – but which again is enforceable if not delivered.

If the SEN part of the Children and Families Bill addresses these issues satisfactorily and real improvements are made to the current system then a new system – with all the upheaval, cost and uncertainty that will result – will be worth it. We wait in anticipation.

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