SEN legal Q&A: the new SEN system

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The new SEN system

What has the SEN system been like until now?

Although the modern SEN system started in the early 1980s, the current framework emerged in the 1990s with the Education Act 1993/1996 and the issue of an SEN Code of Practice (as revised in 2001). The Code of Practice has now become the “bible” of SEN for anyone involved with children with SEN.

Why do we need a new SEN system?

In recent years, there have been many criticisms of the SEN system. Parliament’s own Education and Skills Committee said in 2006 that the system was “not fit for purpose”. Five separate inquiries conducted about SEN/disability issues between 2006 and 2010 made other criticisms. After a change of Government in 2010, a call for views led to an SEN Green Paper in 2011, promising “the biggest reforms to SEN in 30 years”. A subsequent SEN Green Paper has become the Children and Families Act 2014 and a completely new SEN Code of Practice has now been issued, coming into law from 1 September 2014.

What were the main concerns about the previous SEN system?

Many people felt that getting children and young people with SEN the provision that they required had become a “fight” between parents and local authorities (LAs), with schools often caught in the middle. Getting a statement of SEN was often an adversarial process. Parents also perceived that LAs had a conflict of interest, as they both assessed need and made provision. There was criticism of the SEN system and particularly of statements in an Ofsted report in 2010 entitled A Statement Is Not Enough. Whilst the media sought to argue that it was about the over-identification of children with SEN, or poor quality teaching, the report also pointed out that there were low expectations of children with SEN and that the majority of these children needed more than a statement.

So what are the main changes?

Whilst previously there were two school-based stages in mainstream schools for the majority of children without a statement (known as School Action and School Action Plus), there is now only one, called SEN Support. Statements were only for children and young people between the ages of two and 19 years who were in school, and they were focused on education. However, statements are now being replaced by education, health and care plans (EHCPs) which run from birth to 25 years. Whilst the test for getting an assessment is still the same as before, instead of conducting one for a statement, or a learning difficulty assessment (LDA) if the young person had already left school, LAs will now assess children/young people for EHCPs.

What is the difference between a statement and an EHCP?

Although there was a standard format for statements prescribed by law, the Government has now left it to each LA to decide their own format for EHCPs (whilst maintaining control over its content). The fear is that this may lead to 152 different EHCPs and that, although they are called education, health and care plans, EHCPs are still only legally focused on education. EHCPs are not just meant to be statements by another name which now run from birth to 25.

So have statements now been replaced by EHCPs?

Yes and no! Although no new statements will be issued after 1 September 2014, there are so many already in place that it is not practically possible for everyone to change to the new system immediately. Instead, the plan is to “transition” those children/young people currently with a statement to an EHCP by April 2018 (and those with an LDA by September 2016). The current guidance states that, where possible, LAs should transfer children at points in their education at which a significant review of the statement would have taken place – for example, early years to primary, primary to secondary, secondary to post-16, mainstream to special school or vice-versa. LAs should publish a transition plan by 1 September 2014 setting out details of how and when statements/LDAs will be transferred to the new system.

Will everyone with a current statement get an EHCP and how will they transfer?

The legal test of when a child/young person requires an EHCP still remains the same as that for a statement. It is therefore expected that all children/young people with a statement will be transferred to an EHCP. The Government has stated that no child/young person should lose their statement and not have it replaced with an EHCP simply because the system is changing. To transfer to the new system, LAs must initiate a “transfer review” which includes an EHC needs assessment. There is no need for the LA to seek further assessment reports if there are existing ones. A transfer review should replace the annual review in the academic year that the child/young person transfers to the new SEN system.

Are there any concerns?

There is an understandable fear amongst many parents that the new system may be an excuse for LAs to reduce the number of children/young people who will get an EHCP. There are also fears that there may be less children now considered to have SEN. Following major financial cuts that LAs and others have experienced in recent years, many people also feel that now is an inappropriate time for such a big change. There is also concern that, although those working in education, such as schools and LAs, are familiar with the current system, those working in health and care, or in colleges and further education (who are now also covered by the new law) may not be ready.

Is it true that young people with SEN will now have greater rights themselves?

Yes, young people over 16 will now be able to request assessments and challenge decisions about themselves in their own right, provided they are deemed to have “mental capacity”. This is positive, especially as EHCPs now continue to 25. However, it is of some concern that when young people turn 16, their parents (typically their main advocates) may be unable to directly advocate on their child’s behalf.

Will parents still have a right to appeal if they disagree with the LA?

Parents still have the right to appeal to the Special Educational Needs and Disability (SEND) Tribunal against LA decisions. Young people over 16 now also have a right of appeal, in contrast to previous complicated legal proceedings if they wanted to challenge an LDA. Transitional arrangements state that when an LA is conducting an assessment for a statement/LDA before 1 September 2014, it can still treat it as an EHC assessment if everyone agrees. The transitional arrangements also state that existing appeals against decisions not to assess/reassess/make a statement can still be dealt with under the old system.

Further information

The advice provided here is of a general nature and Douglas Silas Solicitors cannot be held responsible for any loss caused by reliance placed upon it:
www.SpecialEducationalNeeds.co.uk

Douglas is the author of A Guide to the SEN Code of Practice, which is available for all e-book readers: www.AGuideToTheSENCodeOfPractice.co.uk

Unfortunately, Douglas cannot respond to questions sent to him directly but if you have a question you would like answered in a future issue of SEN Magazine, please email: editor@senmagazine.co.uk

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SEN law
Douglas Silas Solicitos

1 COMMENT

  1. Very imformative my son is statemented he was permently excluded from school for something he did do his statement was never taken into account and never discussed with his sen I need legal advice my soon was offered a place at a pru which he refused to go to the unit is called grove nor house in hernebay it kent on arrival the outside look like something from hammer house of horrors on entering the building it seem the house needs total renovation I’m am totally disapointed with the education system I’m kent my son has been treated in a biias an discrimative way an I would go as far to say racist manner

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