The revised draft Code of Practice: basis of IPSEA's submission to the DfE

So that parents and others can see what we will be submitting to the DfE, we are publishing this in advance of Tuesday's submission deadline.

 

Thresholds: misleading guidance

Initial identification of SEN

6.12 “Making higher quality teaching normally available to the whole class is likely to mean that fewer pupils will require such support. Such improvements in whole-class provision tend to be more cost effective and sustainable.”

May be read to imply that if schools retain their existing numbers of pupils with SEN, their teachers and their leadership are poor. This is a perverse incentive to remove the label and support from needy pupils.

6.34 “High quality teaching, differentiated for individual pupils, is the first step in responding to pupils who have or may have SEN. Additional intervention and support cannot compensate for a lack of good quality teaching.” As above, but it is against the precautionary principle to make this always the first step (see next point). The precautionary principle would require immediate response to a newly encountered difficulty by immediately adopting appropriate strategies/resources, sometimes this will entail more than high quality teaching. This paragraph provides a perverse incentive to delay/avoid identification of SEN. It also conflicts with the anticipatory duty placed on schools by the Equality Act 2010.

The first sentence of 6.18, "Persistent disruptive or withdrawn behaviours do not necessarily mean that a child or young person has SEN", damages the impact of the rest of the paragraph, as it seems to require that problem behaviour is both persistent and disruptive before assessment for SEN. Any abrupt change in behaviour, including silence and withdrawal, may be a reason to immediately screen for SEN. This paragraph needs to allow for such situations.
Similarly 6.19: “Where there are persistent long lasting difficulties schools should consider whether the child will benefit from being assessed for SEN.” That difficulties must be “persistent [and] long lasting” is not the trigger in law even for statutory assessment, let alone initial identification of SEN. We see this as part of an unhelpful pattern of emphasising delay before basic identification of SEN, let alone moving to involving external specialists or statutory assessment. There is no advice in these two paragraphs on how schools or individual teachers should react to sudden changes in behaviour that may call for all three types of screening, SEN, health and social services. Compare and contrast the precautionary principle at 5.17: “where there are concerns, there should be an assessment to determine whether there are any causal factors such as an underlying learning or communication difficulty.” There are many potential causes of changes in behaviour which need prompt response to prevent difficulties becoming persistent and long-lasting (as well as bullying and bereavement which are mentioned), e.g. onset of hearing or sight impairment, brain damage, epilepsy, diabetes, domestic violence, family breakup, eviction, etc. A better approach would be to advise comprehensive screening at the point of concern.

Trigger for external help

The early years chapter is contradictory. 5.33 stresses the paramount importance of no delay in making SEP, but 5.43 requires “little or no progress over a sustained period” in spite of the setting’s “purposeful action“, before it can even consider involving specialists. This is especially counter-productive advice where very young children are concerned. A better approach would be proactive, for example, “Early years providers should seek external advice when …”

Statutory assessment for EHC Plan

5.44 requires the setting to have “taken relevant and purposeful action to identify, assess and meet the special educational needs of the child” and the child to then fail to make good progress before it can consider requesting an EHC assessment. Again, this conflicts with the precautionary principle and ability to take prompt action, see also settings’ duty to anticipate and act proactively under the Equality Act. A better, simpler approach would be, for example, “Early years providers should request a statutory assessment when …”

9.139 “A local authority should conduct EHC needs assessments for children under compulsory school age when it considers that the special educational provision required to meet the child’s needs cannot reasonably be provided from within the resources normally available to their early education provider or school ..."
Please delete “reasonably” and “normally”. These are likely to confuse and do not stem from the law.

“… or when it seems likely that the child will need an EHC plan in school.”

Where this condition applies, the LA must conduct an EHC needs assessment, s36(8).

9.144 …” Where a child’s educational needs appear to be sufficiently severe or complex as to require attention for much of the child’s school life, or the evidence points to the need for specialist early intervention, then the local authority is likely to conclude that an EHC plan is necessary.”
This is wrong (and is wrong in the current Code). Severity and longevity of need are not what is in play in law, just the nature and amount of SEP required and whether it is necessary for the LA to secure it.

 
Decision to issue a Plan

There is a serious legal error in the Code’s guidance on what the LA should take into account in making this decision, at 9.53:

“the local authority should take into account:

• whether the special educational provision required to meet the child or young person’s needs can reasonably be provided from within the resources normally available to mainstream early years providers, schools and post-16 institutions…”

The problem here is that the decision must be made on the facts of the individual child or young person’s case, not on blanket provision or policies. The only relevant facts are what is actually available for the child or young person in the setting they are in or the intended setting (if mainstream: the child/young person must have a Plan to be placed in special schools/colleges). We believe that a confusion has arisen between the definition of special educational provision (“provision that is additional to, or different from, that made generally for others of the same age in [mainstream]”, s21, which of course is provision for children/young people with SEN whether or not they have Plans), and the decision on whether a Plan is necessary. That necessity must be judged on the child/young person’s facts, not a national funding formula or local policy of resourcing.

Trigger for cease to maintain

9.148 “There is no entitlement to continued support or an expectation that those with an EHC plan at age 18 must be allowed to remain in education or training from age 19 to 25. However, a local authority should continue to maintain an EHC plan for a 19-25 year old where all of the following conditions apply”. 

The test in law for maintaining a Plan is its necessity as determined by LA. Paragraph 9.148’s opening sentence appears to conflict with the intentions of the policy initiative and the legislation on extending rights and entitlement to the age of 25. It renders doubtful the security of Plans and therefore education and training for over 18s. We regard it as a most serious problem and ask that it is amended.

Omissions

Exclusions and other emergencies

What is open to LAs and providers in an emergency is referred to obliquely in Chapter 1 on principles at 1.29 (not where we would expect to find detailed guidance) but does not appear elsewhere. The ability to place a child or young person in a special school for assessment or as an emergency placement is vital for e.g. avoiding permanent exclusion or their being withdrawn from school. It is essential that guidance on what settings do in such situations appears in the relevant chapters on early years, schools and FE: exclusions are of course a major problem for children/young people with SEN/disabilities. This guidance should include moving to immediate statutory assessment and making provision immediately available, and should link to exclusions guidance.

LAs’ s22 duty to identify

How to carry out this with regard to children and young people with SEN is still not explained, and only referred to at 1.14–18. Health bodies and early years settings are obliged and advised to inform the LA of their identification of a child with SEN, but there is no such advice that schools and FE do so. 10.30 states “Local authorities do not have a duty under section 22 of the Children and Families Act 2014 to assess every home educated child to see whether or not they have SEN”, so how do LAs identify such children?
However, what the LA then does with such information is also unclear in the Code. Given an onerous legal duty arises from this awareness at s36(3), that must be clear. There must be guidance that an LA goes from identification under s22, therefore becoming responsible for the child/young person under s24, to making the decision as to whether a Plan may be necessary under s36(3). The LA must consult the parent or young person in making the decision and must inform them of appeal rights if they refuse to assess for a Plan.
Local Offer: seems to omit arrangements for identifying children/young people with disabilities but no SEN, 4.30, 4.32.

Catering for young people over compulsory school age with the greatest needs

There is little about how the education system will cater for young people who need to learn self-help and independence skills over compulsory school age. These do get a mention, but the focus is very weighted towards attaining academic qualifications which will not be appropriate for all.
This, coupled with documents relating to the funding of FE (e.g. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/282549/HNS_Market_Entry_Process_V7.pdf in which courses are all aimed at qualifications or employment) raises fears that the commitment to young people over compulsory school age will not cater for those with the greatest needs.
Chapter 8 similarly is very qualification focused although para 8.32 of the draft does also allow for “independent living, being healthy adults and participating in society”. So there are mixed messages.
The work/qualifications ethos continues into Chapter 9:

9.63 – “the EHC plan should continue to be maintained where the young person wants to remain in education and clear evidence shows that special educational provision is needed to enable them to achieve the education and training outcomes required for a course or programme that moves them closer to employment. For example, by accessing a supported internship or apprenticeship.”

Other omissions

Chapters on joint commissioning and local offer should also advise on how all bodies involved perform their Public Sector Equality Duty within these new functions, with the requirement for progressive development by all partners prominent in them. In the local offer chapter it appears only with reference to early years at 4.37. It should be a purpose in 4.2.
The Local Offer is not clearly required to explain to parents/young people levels of provision in schools, and their relationship to national funding:

• normal = AWPU (= “core offer”?)
• SEN funding received by schools for all SEN pupils without Plans
• Funding for Plans + high needs block

The information the Local Offer is required to give on these levels is less clear than the current requirements in the SEN information regulations.
The legislation list at the start of Chapter 5 might usefully refer to Section 63 which holds out the possibility of top-up funding for SEN in private nurseries/EY settings which may otherwise not be able to cater for SEN/D.

Legal errors

Schools’ duties: special schools

Chapter 6 is entitled “Schools” but states it covers only mainstream schools. However, it seems to omit mainstream schools’ duties to pupils with EHC Plans (no reference to annual reviews for instance).
Chapter 6 lists duties within its legislation list that are also owed by special schools:

• to children with no plan (s34)
• on informing parents, SEN information report, duty to pupils with medical conditions (s68, s69, s100)
• and the duty to identify and respond to need via a graduated approach, with meetings with parents etc.

There is no guidance elsewhere on special schools’ duties to their pupils, or to the parents of those pupils.
Either this chapter should include special schools and be clear on the duties to pupils with EHC plans in both types of school, or the Code should include new material on these two aspects elsewhere.
1.30 (on children/young people without EHC Plans being admitted to special academies) does not explain the basis of their funding/support for SEN once there, nor does anything elsewhere in the Code do this. Are these pupils funded as mainstream pupils? In which case what is the advantage of such a placement to the pupil or the academy? Are there still duties to “assess, plan. do, review” for these pupils, and a duty to request assessment where needed?

Early years settings’ duties confused

5.11 – “All early years providers are required to have arrangements to identify and support children …”
This sentence follows para 3.67 of the EYFS, about SEN. But EYFS para.3.67 version does not include the words “identify and”. So it is not correct to suggest that there is a general requirement in the EYFS that settings have “arrangements to identify”, outside of the age two check and the EYFSP.
In the new version of the EYFS for September 2014, paragraph 3.67 (formerly called Equal Opportunities) no longer refers to equality of opportunity or requires providers to have a policy about equal opportunities. It refers instead to the Code – which is now referring back to the EYFS. This seems to be a drafting error.

NB the DfE’s response to the Consultation on the Primary Accountability Strategy has indicated that the EYFSP is to become non-statutory from 2016.
5.14 – When the health body gives parents the opportunity to discuss the opinion of the health body, it seems that this discussion will include educational advice and intervention and we are not sure how this or the specialist educational provision described in para 5.15 will be organised by the health body.
5.21 –“practitioners should develop a targeted plan to support the child, involving other professionals…”
This is not in the EYFS. The difficulty of this will be that EY settings do not have a delegated budget for SEN and the Free Entitlement funding is famously inadequate for core provision so additional needs are problematic for EY settings.
5.24 – is confusing in its reference to the EYFSP. It says it is “usually completed … in the final term …”.The correct position is that its completion, and the timing of this, are currently statutory. So it must be completed at present. It is proposed that it will cease to be statutory in 2016.
5.27 – refers to use of an early help assessment. We hear rumours that the CAF, which is currently used for early help assessments, may be withdrawn. If so, there may be a danger of the Code here becoming out of date quickly. Subject to that, it might be helpful to footnote a reference to Working Together, where early help assessments are explained.
5.28 – explains that where a child requires SEP, the setting should make that provision. Again we anticipate that this will be beyond the resources of many EY settings, .
5.30 – the need to plan for the four areas of need, and have specialist equipment or software, may likewise be problematic without a SEN budget.
5.54 – We note the comments concerning funding. It is not clear whether settings are expected to apply on an ad hoc basis for SEN top-up funding in relation to individual children or what is envisaged here.

Schools’ duties exaggerated or confused:

6.2 “Every school is required to meet the SEN of the children or young people that they support.”
Schools have only a “best endeavours” requirement. The absolute obligation to meet needs is that of an LA once a child/ young person has a Plan.
6.6’s reference to Local Offer requirements does not make clear that LAs are responsible in law for identifying pupils with SEN, not schools. Query does assessment here mean statutory assessment?

LA duties

1.1 does not paraphrase the law correctly. Section 19 contains no reference to SEN or disability and refers to singular children and young people and their parents, so the duty is owed to the individual, not the mass.
3.19: the diagram says an EHC Plan must include “any education, health or care provision reasonably required to meet a child/young person’s needs related to a disability or SEN”. There is no “reasonably” in law qualifying any required education provision, and part of social care provision, see Plan obligations in s37(2)(c) and (e).
What Plans must do is overstated: “EHC plans must specify how services will be delivered as part of a whole package and explain how together the services will deliver improved outcomes across education, health and social care for the child or young person.” This is not a duty that appears in the C&F Act or in draft Regulations. It is in any case a complex requirement which will be difficult to enforce. However, we support initiatives to encourage joining up.
9. 62 “EHC plans must be focused on education and training, health and care outcomes that will enable children and young people to progress in their learning and, as they get older, to be well prepared for adulthood.” Plans must by s37(2)(b) of the C&F Act contain a section on outcomes, but we cannot find any legal requirement that Plans must be focused on these outcomes, nor that they are restricted to “education and training, health and care outcomes”. The paragraph goes on to say that “plans can also include wider outcomes such as positive social relationships and emotional resilience and stability”, which is welcome, but we do not see the need for the mandatory restriction in the previous sentence to “education and training, health and care”. If Plans are to cater for the full range of likely outcomes for the full range of SEN and disability, then they must not privilege normative outcomes. Ambition is one thing, allowing for difference is another.
9.67 “In all cases, EHC plans must set out clearly the special educational provision that will enable the outcomes to be achieved.” This sentence is correct in law up until the relative clause. There is no requirement in the statute that the special educational provision must match outcomes. If long established case law on statements continues to apply here, provision must match needs, not outcomes.
Format of Plans: “as a statutory minimum, EHC plans must include the following sections, which must be separately labelled from each other using the letters below” (para. 9.60): These sections are not a “statutory” requirement. That requirement may be in the unseen Regulations. However, as we said above, we are supportive of this section of the Code.
9.75 "The local authority must send the draft EHC plan (including the appendices containing the advice and information gathered during the EHC needs assessment) to the child’s parents or young person and give them at least 15 calendar days to give views and make representations on the content."
Delete “at least”. Law is maximum not minimum 15 days.
9.211 “Transport costs may be provided as part of a Personal Budget where one is agreed and included in the EHC plan as part of the special educational provision.”
Transport is not SEP, cannot go into that section in Plan or be part of a special educational provision personal budget.

Inclusion

Confusion may arise from 1.27 which advises mainstream schools that they may not refuse admission of children and young people without Plans because schools do not feel able to meet needs, versus the same schools’ ‘offer’ of what support they can provide. 1.27 does not explain the case of children and young people with Plans: the operation of parent/young person’s right to mainstream regardless of need, with the expectation that LAs will supply any extra help via the Plan (case law). This section needs to link also to para 9.77 and possibly both should be located in the Schools chapter so that they can be clear about their duties to admit children with SEN, with and without plans.

Disclosure of EHC Plans

9.205: fifth bullet point: “disclosure to Ofsted inspection teams as part of their inspections of schools and local authorities”: does not mention Ofsted inspections of EY and FE providers, can these settings share Plans with Ofsted?

Confusion arising from terminology and jargon

“Assess” and “plan” in chapters on support for chidren and young people without EHC Plans. At e.g. 6.41, the school’s assessment should be distinguished from EHC assessment at 6.58.
If the “assess, plan, do, review” cycle applies to chidren and young people with EHC Plans, how often does the cycle happen within the 12 months max between Annual Reviews? As a minimum? Also surely for accountability of potentially large sums of public money notionally expended on resources owed by the LA to the individual child, better advice on record keeping is needed. Use of provision maps for such individuals is not appropriate.

Use of jargon

• “Eligible child” not explained at 4.49.
• “Core offer” at 6.37.
• 6.64 “Meetings should, wherever possible, be aligned with the normal cycle of discussions with parents of all pupils”. What does “aligned with” mean?

Material in the wrong place

Detail on schools’ inclusion duties, especially admissions, in chapter on principles, 1.27, rather than in ‘Schools’.
Training duties on schools are in 4.32 and need repetition in the providers’ chapters.
9.139–145 Assessment judgements for children under 5 are not in the assessment section of Chapter 9, but follows the section on finalising and maintaining Plans. Should be earlier in Chapter 9 or in the early years chapter or both.
Chapter 9 is far too long, and could usefully be broken up into statutory assessment, drafting and finalising Plans, and maintenance of Plans.

Switch of rights at 16+

1.8 “LAs should normally engage directly with the young person rather than their parent … Most young people will continue to want, or need, the parents … to remain involved in discussions and decisions”
This is confused but very important: who do LAs engage with/write to? How do they determine this?

Preliminary thoughts on the draft Code of Practice

“Bound upon a wheel of fire[1]”- IPSEA questions the “Assess, plan, do, review” cycle

Preparation of IPSEA's full response to the consultation on a new SEN Code of Practice is underway. Meanwhile, here are our preliminary thoughts:

1.    Inadequate consultation: While we welcome the further public consultation, at 12 working days the consultation period is wholly inadequate and unreasonable for the length, complexity and importance of the Code. This is exacerbated by the brevity of the previous consultation (which was 9 weeks rather than the usual 12 weeks). It is also unreasonable, in our view, for this very brief second consultation to coincide largely with school holidays. It is difficult for parents to respond when they are providing full time care for their children. We are unable to confer with many education colleagues about how realistic these proposals are because they are not working. Coupled with the issue of timing, the draft regulations have not been re-released publicly for further consultation alongside the draft Code. Without a published response from the government to the previous consultation on the draft regulations, it is impossible to tell how far they address concerns raised by parents and young people and the organisations which represent them. In short this does not feel like a bona fide consultation - this is not “co-production.”

2.    The draft SEN Code remains unfit for purpose: Despite extensive re-writing of the draft, the Code does not accurately reflect the underlying law as set out in the Children and Families Act 2014 (C & F Act). Most notably, thresholds for accessing statutory assessments and EHC plans are hard to pinpoint. To the extent that they can be identified, they are set higher in the Code than in the law. This is misleading for both parents and providers – what are their respective legal entitlements and responsibilities? We hope that this is an accidental oversight.

3.    The majority of children with SEN but without a plan are still worse off: We support efforts to increase capacity of schools to cater for the needs of all pupils. We particularly support the focus on equipping staff with better training in relation to special educational needs (SEN) and the emphasis on high quality teaching for all pupils. We support regular reviews of school resources and provision for SEN. There are however some serious issues: 

•          A never-ending circle: The new so-called “graduated approach” essentially sets up an eternal cycle of trial and error. This is officially termed “assess, plan, do, review”. There is no clear sign-posting of an exit by which pupils and staff can escape the loop to access additional help (see 2 above in relation to exaggerated thresholds).

•          Accountability and transparency: The duties on schools/colleges to keep individual and separate records for those children being given “SEN Support” are not made clearly enough. The requirement to meet with parents at least termly to discuss and agree the provision to be put into place for their child has been watered down and translated into 3 times per year. These meetings could all be held in the same week! Last, the requirement in Chapter 6 only applies to those in mainstream school and not those in special school.

•          Unsustainable workloads for schools: These proposals to push greater responsibility down to schools come at a time when teaching unions are already planning strike action in response to unsustainable workloads, amongst other things. This draft Code fails to make clear where school/college duties to a child end and where the absolute legal duties on a Local Authority (LA) under the C & F Act take over. The Department for Education (DfE) “Teachers’ workload diary survey” published in February 2014 indicates that teachers are already working over 50 hours per week (and head teachers over 60 hours per week). We have concerns over their capacity to assume new onerous responsibilities for children with SEN and disability.

•         Perverse incentives NOT to identify children with SEN: The potential benefit of the positive focus on “high quality teaching” is undermined by the threat of “performance management”.This risks incentivising teachers not to identify pupils with SEN  - to do so may equate to identifying themselves as poor teachers (with negative employment consequences). This approach risks engendering a culture of fear in schools, with staff reluctant to seek the support needed at the initial level. This will leave the needs of children unidentified and poorly supported.

4.    Children with SEN will also lose protections against being placed inappropriately in special schools:  This concern (which we expressed in relation to the previous draft) has not been remedied. It will still be legal for a child to be placed permanently in a special school without having their needs assessed by a LA or having the right educational provision to support them identified, and without adequate safeguards. In addition, much of the current guidance on the right to inclusive schooling is still not in this draft Code. We remain concerned that the DfE may be in breach of international treaty obligations and UK equalities legislation by failing to advance an inclusive education system.

5.    The issue of mental capacity has not been adequately resolved. As drafted, legal rights to engage and challenge LAs will automatically transfer from parents to the young person at 16 years old. The draft Code is inconsistent about the effect of this. It states in the opening chapter that the views of the child aged over 16 will prevail over those of their parents, while a new Annex at the back is more accommodating of parental rights.  The potential for parents to be barred from continuing to act as advocates for their child remains a live problem. The Code fails to address the very real issues which will face parents, young people, schools/colleges and LAs, about who will be responsible for assessing mental capacity and how such a decision can be challenged. It is not good enough to say it is all in the Mental Capacity Act 2005. Practical guidance is needed.

Once IPSEA has finalised our full response to this revised draft Code, we will make it available on our website (www.ipsea.org.uk). Given the very tight deadline to respond and the fact that the consultation period has included school holidays and bank holidays, we suspect that we will not finish until very close to (or even on) the closing date of May 6th.

---

[1] A tribute to the 450^th birthday this week of greatest dyslexic of them all - Shakespeare!

The draft SEN & Disability Code of Practice

For parents and young people this Code is the most important document of the three formal layers of the new system. It should lay out the whole of the new process in one easy to read and understandable document. A public consultation on some of the draft Regulations and version of the Code of Practice was held at the end of 2013. However this was before the was finalised. The legislation changed quite radically during the Parliamentary process.

Now that a revised draft of the Code has (finally) been published, what should we all be looking for? IPSEA have identified a number of 'red lights' - issues which, if not addressed, would mean that the Code is unworkable and not fit for purpose. If any one of these 'red lights' are triggered then the whole process should be stopped until successfully resolved.

Red light 1: Legal duties must be made clear and must be correctly quoted

The draft Code contained many inconsistencies and errors in its interpretation of vital sections of the law. Examples include:

• The legal thresholds – tests – an LA needs to apply when making decisions must be correct. For example when considering whether a child or young person should have a Statutory Assessment of their needs carried out, or when an LA should issue an EHC Plan for a child or young person.
• The duty on an LA to provide support to families and young people in the SEN system was described inconsistently in many different sections – “advice and information” in some places then “advice, information and support” in others. This leaves questions as to whether an LA must provide support in, say, making appeals to the SEND Tribunal.
• The draft Code wrongly stated that you can make a claim of disability discrimination against an LA to the SEND Tribunal. You can’t. Such a claim has to be made to the county court. 

Such fundamental errors do not instill confidence that the guidance being given is correct.

What needs to happen:

The draft Code needs careful legal checking so that those who will have to abide by it can help the Government to identify areas that are still unclear or wrong.

Parents and young people also need to be encouraged to give their view as to whether the new system that the Code outlines makes sense - can they are able to see how the pieces fit together to provide good, consistent support?

Red light 2: Mental capacity

The Children and Families Act 2014 transfers parental rights to young people at the age of 16 years old. Parents will no longer have an automatic right to be involved in decision-making about their child or be able to challenge decisions made by an LA through the SEND tribunal. However the age up to which parents are responsible for their child remains 18 years old.

The potential for conflict created between LAs, schools/ post 16 institutions, parents and young people between the age of 16 to 18 years old is very high. The Code needs to provide clear guidance on what should happen to avoid this for children and their families during these two years. The public draft of the Code skirted over the issue and advised LAs to resolve any conflict by prioritising the views of the young people. This guidance does not address the issue of parental responsibility.

The Code should also give clear guidance on the role of parents for young people over the age of 18 years old up to the age of 25 years old where they may not have mental capacity to make decisions for themselves.

Nothing was included in the public draft of the Code as to the test for establishing whether a young person has mental capacity or who should apply it and how.

Guidance in the Code should make very clear that parents should automatically be presumed to be the advocate for their child if it is established that they do not have mental capacity to make decisions for themselves. In any event, it should be made clear that parents should always be central to decision-making, be kept informed by LAs and their views given due regard. Only in exceptional circumstances should they not be involved in the process and their views not take precedence over professional views.

It needs to be clear that LAs need to be transparent in such decision making. How will they be held accountable? At the time of the first consultation on the Code, the draft regulations on mental capacity had not been issued. Consultation responses relating to mental capacity as an issue in the Code were very limited as many parents’ groups were just not aware it was a potential issue. This meant that mental capacity issues were not been adequately addressed. There still has not been any public consultation at all on the Mental Capacity Regulations or the new wording proposed for the Code. This is an important and complex legal area, which is therefore complex in practice. It affects our most vulnerable young people. It is therefore important that all those living, working with or advising in relation to these issues have the opportunity to contribute to these discussions and draft wording can only be considered fully when it is seen in the context of the whole draft Code.

What needs to happen:

Mental Capacity is a burning issue for individual parents and should be of major concern to those groups representing the views of children and young people. This issue is so fundamental that it needs careful addressing.

Is the wording right now?

Red light 3: School accountability

The duties on schools to identify a child’s SEN and put into place support to meet those needs are still unclear. According to the Department for Education (DfE) statistics released in October 2013, 1.3 million children will have their needs met only from within schools’ or colleges’ resources - without having a formal Statutory Assessment of needs and an EHC plan issued for them.

The first draft of the Code laid out a single category to replace the existing two stages of school support – currently called school action and school action plus – to be called “SEN Support”. However it was confused and inadequate with regard to how "SEN Support" should be put into practice.

The Minister, Ed Timpson, recently used the phrase “Freedom within a framework” to describe the Government’s approach to issuing Guidance to schools. However the framework is not sufficiently clear in relation to what parents can expect from class teachers, SENcos, school based provision and LA intervention. The result is in fact “freedom to fail”. Schools and parents need to know:

• When does differentiation of the curriculum tip into SEN provision?
• What will the new cycle of planning (Assess, Plan, Do, Review) look like in practice for a child? Is it a formal cycle or an informal process of trial and error? How will it be documented, if at all?
• What interaction can parents expect by way of meetings, verbal or written information about the interventions that have been put in place to support their child, outcomes expected and progress being made? As drafted, this is limited to an initial “note” on a school record of a school and parent meeting to discuss a child being put on the SEN register.
• When should a school request and then an LA intervene with an EHC Plan needs assessment? What or who triggers it on the basis of what criteria? Where will they access this information?

There needs to be a clear process, based on the legislation, that everyone understands - right from initial teacher training on identifying and supporting SEN to the duty on an LA to intervene.

 

What needs to happen:

The Code needs to be transparent as to the support children and young people should expect to receive if they do not have an EHC Plan in place.

The Code should also give clear guidance on how schools record an individual’s needs, the support put into place, expected outcomes and progress towards them.

There needs to be structure around how schools are accountable to parents and young people.

Does this draft of the Code describe a system that works for everyone that will have to put it into action and those who should benefit from it?

 

Red light 4: The requirement for specification

Although the first draft of the Code stated the legal requirement that provision written into an EHC Plan is ‘normally quantified’, it did not explain the full extent of the legal requirement for LAs to specify provision in an EHC Plan. This omission alone caused a breakdown in the previous Code’s progress through Parliament back in 2001.

Guidance must make clear that the duty on LAs to specify, means that provision is quantified and qualified. It must be clear to LAs, schools, parents and young people who needs to do what, when, how often and when it should be reviewed.

This is an existing requirement that parents have relied on in dealings with LAs and at Tribunal in order to change vague descriptions of provision into enforceable, specified provision.

Specification is essential if schools and colleges are to be able to determine the correct level of SEN funding that they should be receiving in order to put this provision into place. The need to quantify derives from a clear line of case law and must be included. The Government accepted that the requirement on LAs to specify should remain in the Act - they abandoned the original wording they proposed which sought to change this requirement to one of “setting-out” provision.

The Code needs to reflect this very clearly.

What needs to happen:

The wording of the Code needs to be made very clear. Does it clarify who needs to do what, when, how often and when it should be reviewed?

Red light 5: Right to an inclusive education in a mainstream school or college

The Code needs to contain a full description of the right of children with SEN/D to attend mainstream school. The legal test is that it is an absolute right unless it is incompatible with the wishes of their parents or the provision of efficient education for others.

The latter exception can only be relied on when there are no reasonable steps which could be taken by the LA to prevent this incompatibility.

These exceptions need to be explained clearly in the Code -  just as they are in the current guidance (Inclusive Schooling). Assurances that this would be done were given to Lord Low among others pressing this issue as the C & F Act progressed through Parliament. 

What needs to happen:

The wording in the Code needs to reflect the wider duty on LAs to ensure mainstream school and college places are available to children and young people when they want it except in the most extreme of exceptions.

Current statutory guidance “Inclusive schooling” does this clearly and needs to be used in wording for the Code as it will be withdrawn when the new system is implemented.

Red light 6: Equality

The new Code is no longer just for children and young people with SEN - it  also now includes, in some sections, duties towards those with a disability. The vast majority of children and young people with SEN will also fall under the separate legal definition of being disabled.

However, there will always be a small group who will be identified as being disabled but with no SEN or have SEN but no disability. The interface between equality duties and SEN duties has changed within the new legal framework. Guidance is needed as to how these two parallel areas of law need to be put into practice.

A very current example would be how does the duty on schools to make reasonable adjustments for a disabled child by providing auxiliary aids and services – maybe computer equipment – work practically alongside the duty on an LA to make special educational provision for a child with SEN specified in an EHC Plan?

The first is a duty to provide what is reasonable for that child – potentially restrained by financial considerations – whilst the second is an absolute duty to provide what is specified in the EHC Plan.

The Code needs to make clear the similarities and important legal differences between special educational provision and reasonable adjustments. Failing to address this cross-over of legislation or glossing over these issues will lead to confusion between LAs and schools as to who must do what, when and how. The right support for children and young people will be “lost” during the debate.

These duties towards disabled children and young people were only added after the draft Code was put out for public consultation.

 

What needs to happen:

The additional duties towards disabled children and young people need to drafted into the Code. All interested groups can then consider and comment on them.

 

So where does this leave the SEN reforms?

Under the Children & Families Act 2014, the Secretary of State must issue a Code of Practice – it is the final leg of the three legged stool of the new SEN legal framework. Nothing can be implemented without it. Also under the Act he has a clear duty to consult on this Code. Once that has happened then both Houses of Parliament have to approve the Code.

If the Secretary of State has failed to consult on the Code (or the consultation has been inadequate) he risks being judicially challenged. If he consults and then fails to address the issues raised, he risks political challenge.

Either would be a disaster for the current implementation plan of September 2014 - which is already failing to give schools the one clear term promised to them to prepare for new duties. Failing to adequately publicly consult on a Code is far more dangerous for our children and young people with SEN and disabilities.

We are in danger of ending up with a rushed and inadequate Code. Suggestions have been made that the “whole thing” should just be put into place and then a new consultation be held in a year’s time. We would gain the evidence as to where the holes are and new case law could be developed which could then be reflected in a revised Code. Is that not what the £12.4 million given to Pathfinder LAs so far was supposed to have done – gather evidence? The final report on the Pathfinder pilots is not due until September 2014.

This option is just not acceptable. First, this Government cannot bind a potential new Government into such a commitment. Second, why would you even potentially let vulnerable children and young people knowingly fail for at least a year and bad practice be established in LAs, schools and other professionals. Parents would much rather get this right for their children and young people than rush to meet the September 2014 deadline.