The Children and Families Act

Major changes to the SEN system are taking effect; what might they mean for you?

Whether you are a school SENCO, a professional who works with children who have SEN or a parent of a child with additional needs, the new Children and Families Act is likely to have an impact on your role, responsibilities and working practice when it comes into force on 1 September 2014.

The Children and Families Act aims to improve services for vulnerable children and young people and covers many areas including:

• adoption systems
• virtual school heads for looked after children
• the family justice system
• childcare
• the role of the Office of the Children’s Commissioner
• shared parental leave and flexible working
• special educational needs (SEN).

The Bill extends the SEN system from birth to 25 years, giving children, young people and their parents greater control and choice in decisions and ensuring that needs are properly met. Those of us with an interest in the SEN area of the Bill will be particularly keen to know more about the new SEN Code of Practice and the Bill’s focus on replacing statements of SEN with education, health and care plans (EHCPs). In practice, the threshold for the drawing up of an EHCP will be similar to the educational threshold currently in place for statements. As such, SENCOs are likely to play a key role in completing the new paperwork for those of school age and overseeing the educational element of any plan generated, but other professionals will also be involved. EHCPs will have statutory status nationwide from September 2014 and each local authority is devising its own assessment procedures, paperwork and IT systems to support the new process.

Whilst an EHCP may look different to a statement, it will still be a legal document that identifies a child’s SEN needs and focusses on the support required to meet agreed outcomes. However, the key difference between current statements and EHCPs is that, as well as the educational elements covered in statements, EHCPs will also outline the child’s health and social care needs, outcomes and support. Initially, it was only the education provision of an EHCP that would have had statutory status but campaigning by, and consultation with, several national organisations has led to changes in this stance so that the duty to provide for health and care needs has now been strengthened.

Schools and other professionals may well find that many parents are not aware of these impending changes or that they have some anxieties about the implications of them. They may have been through statutory assessment with one of their children before and may not understand why the process is different for their next child and they will, no doubt, have many questions to ask. Below are answers to some of the most common concerns that parents are raising.

“I have heard that statements are disappearing and, with them, my son’s support”
If your child currently has a statement and still needs the support it identifies, this will not disappear but will at some point be replaced by an EHCP.

“My daughter already has a statement. Do I have to go through another assessment process now?”
There is to be a two to three year period from September 2014 during which existing statements will be transferred to EHCPs. It is likely that your child’s statement will be replaced by an EHCP as part of the annual review process at some point during this time. The content of your child’s existing statement will be honoured in this process, so long as it is still relevant to your child’s needs. This should not involve a new assessment, unless you and the professionals working with your child feel it is necessary to reassess her needs.

“EHCPs will come with personal budgets. What is the difference between these and direct payments?”
Under the new law, if you have a statutory EHCP then you may be able to request to see a personal budget for your child. This is a snapshot of how the money available for your child is planned to be spent. This would include money the school has to spend on your child as well as any additional money that has been allocated to your child, such as short breaks money and benefits you may receive for them. It may also include community provision that is “free” to you but that may be funded by somebody else.

You may already have control of some areas of this personal budget, such as your child’s Disability Living Allowance that is paid direct to you. However, there may be some other areas of the personal budget that you could request to take as a “direct payment”. This means that you would have more control over this money and how it is spent, although this would still need to fit in with the needs identified in your child’s plan and direct payments will not be allocated to fund a school place.

“How do I get to contribute to the EHC assessment process?”
The new law recognises the importance of the parent’s and the child’s contribution to the process. This has been built into the assessment system, meaning that you and your child will be asked to contribute. The Government also recognises the need for information, advice and support for parents and young people to be available on request and for this to be related to the needs of all children with SEN and disabilities, including those with an EHCP. Organisations such as your local Parent Partnership Service will be well-placed to support you to be fully involved and, in order to increase capacity further, the Government has announced funding for independent supporters to enhance existing services and help parents to navigate the new SEN process in England.

“What happens if I disagree with what is in the EHC plan?”
The new statutory education, health and care (EHC) process follows the same route as the current statutory assessment process in that you will first get a proposed EHCP for you to comment on, before the final EHCP is produced. If you still disagree with your child’s final EHCP, there will be a right to appeal to the SEND tribunal, as is currently the case.

At present, the SEND Tribunal only deals with disagreements about educational provision but there are some discussions about a possible single point of redress to include health and care as well; the Government has recently proposed a pilot scheme to look at this. Mediation will also be possible in relation to all parts of the plan.

The new SEN Code of Practice

The Government is issuing a revised SEN Code of Practice, which will also come into force in September 2014. The final version of this Code had yet to be published at the time of writing but the draft sets out the Government’s expected statutory guidance for organisations who work with and support children and young people with SEN. As well as making it clear that there should be close cooperation between education, health and social care services, the new Code of Practice is likely to place significantly more emphasis on the importance of the views of children, young people and their parents in any decision-making.

Participation
Under the new Code, local authorities must have regard to the views of children, young people and parents, and understand the significance of them being given the opportunity to fully participate in decisions about their SEN journey.

In practice, this means that parents and young people have a statutory right to contribute to the decision-making process regarding assessments, provision, support, planning and reviews. At school level, parents should be invited to termly detailed meetings to talk about their child’s SEN support, any concerns they may have and their aspirations for the future.

There is one key element of the proposed Code of Practice, concerning the participation of young people over the age of 16, which might provide a challenge for some families and which might require sensitive handling by the professionals involved. The Code states that, once a young person reaches 16 years, the local authority and other agencies should normally engage directly with the young person (rather than the parent). The Code recognises the unique knowledge that a young person with SEN has about themselves but it is also mindful of the fact that parents may have a different view about, for example, the next educational placement for their young person. In such cases, positive dialogue between all parties will be essential if effective outcomes are to be agreed. Where conflict remains, and the young person is over compulsory school age, it is the view of the young person (perhaps supported by an advocate) that will prevail, and this could be very difficult for parents to absorb and accept.

In addition, and in line with the United Nations Convention on the Rights of the Child, younger children will also now have the right to express their views and exercise choice and it is expected that due weight will be given to such opinions.

Personalisation
The new Code of Practice also makes it clear that the SEN system should be “family centred” – so, not only should children, young people and parents be given the opportunity to participate at all stages, but any planning “should start with the individual”. In this way, the focus is not on the child or young person’s SEN label but is more personalised towards him/her as an individual, including his/her wishes and aspirations, the outcomes s/he wants to achieve and the support needed to secure these outcomes.

In addition, the Code is clear that effective planning will also highlight a child or young person’s strengths and capacities, allow him/her to state what s/he has achieved so far, express what interests him/her, ensure that assessments minimise demands on families and ensure that any support agreed is then tailored to the individual’s needs. The Code suggests that a one-page profile could be drawn up about the child/young person so that all those (including the family) who are involved with him/her have an accessible summary about his/her needs, aspirations and agreed outcomes. Professionals who already have a detailed knowledge of the child in school, such as SENCOs, could be well-placed to work with a family to set out such a profile.

It is hoped that using this more personalised approach should ensure that parents, children and young people are genuinely involved in all aspects of the SEN process.

Information, advice and support services
The Code of Practice is unequivocal in its direction to local authorities to provide accurate information, advice and support to both parents and young people. This must be free, impartial and confidential and it must cover health and social care, as well as SEN. Young people should be offered the same quality and level of support as parents, but it is recognised that this will require different skills and, possibly, a separate service.

Each local authority will decide how to provide its information, advice and support service (IASS), with many likely to build upon the local current Parent Partnership Service model, and each must publish details of how the service can be accessed within its local offer. The Code of Practice also advises that IASSs will be most useful if they are available to parents and young people through a single point of access, so that they know exactly where to go if they need advice or support.

Further information

Debbie Wheeler is from Devon Parent Partnership Service, part of a national network of local services providing information, support and training for parents and carers of children and young people with SEN:
www.parentpartnershipdevon.org.uk

Author: Debbie Wheeler

Children's and Families Bill Devon Parent Partnership Service

Debbie Wheeler

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