SEN and specific circumstances

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The legal requirements for looked-after children and young people and those in alternative provision

We too often forget about children or young people who have SEN in more specific circumstances. They may require additional consideration in order for them to receive more joined-up provision. Space here does not permit discussion of everyone in all specific circumstances, so I am going to concentrate on looked-after children and those in alternative provision.

What are “specific circumstances”?

The SEN Code of Practice (CoP) highlights particular groups of children and young people with SEN whose specific circumstances require additional consideration by those who work with them. A dedicated chapter states that these groups include:

  • looked after children
  • care leavers
  • those with social care needs, including children in need
  • those people educated out of area
  • those educated at home
  • those in alternative provision
  • those who are in hospital
  • those in youth custody
  • children of service personnel.

The CoP then sets out information about managing their circumstances, in order for effective joined-up service provision to achieve good outcomes for them.

What about looked-after children?

These are children who are “accommodated”, or who have been taken into care by a local authority (LA), who must then promote their educational attainments, regardless of where they are placed. Around 70 per cent of these children have some form of SEN and a significant proportion may also have an education health and care (EHC) plan. LAs have particular responsibilities for these children and must act as a “corporate parent” to safeguard and promote their welfare.

There must be a “designated teacher” in all maintained schools and LAs must appoint a “virtual school head (VSH) to lead a virtual school team, which tracks the progress of looked-after children. Educational professionals must work closely with other relevant professionals as well, such as social workers, designated doctors or nurses and an independent reviewing officer (IRO). There should be effective and joined-up processes between care, health and education needs; for example, through a care plan, setting out a child’s developmental needs, including: health and education, emotional and behavioural development, identity, family and social relationships, and social presentation and self-care skills.

The care plan is vital and specifically includes a personal education plan (PEP) and a health plan. Plans must be reviewed regularly and the annual review of an EHC plan should coincide with one of these reviews.

What are the rules for children living out of area?

Many looked-after children live with foster carers or in a children’s home and attend schools in a different LA to the one that looks after them. The CoP says it is the looked-after child’s social worker (in close consultation with the VSH in the LA that looks after the child) that will ultimately make any educational decision. But any assessment for an EHC plan must be carried out by the LA where the child lives, which may not be the same as the LA that looks after the child. The day-to-day responsibility for taking decisions should be delegated to the carer who can best advocate for the looked-after child.

Are children and young people leaving the care system considered?

The CoP states that some children cease to be looked after at 16 or 17, whilst others continue to be looked after until their eighteenth birthday. It says that LAs still have responsibilities to provide a “personal adviser” and prepare a “pathway plan”, to ensure that care leavers are provided with the right kind of personal support – for example, by signposting them to services and/or providing advice or planning transition from care to adulthood, for care leavers up to the age of 25. This is where they remain in education and/or training, or are not in employment, education or training now, but plan to return to education and/or training in the future.

What if they have other care needs?

The CoP points out that there is a statutory duty for LAs to safeguard and promote the welfare of “children in need”, including disabled children. This is by providing appropriate services to them, such as short breaks for parent carers, equipment or adaptations to the home. This can include support for parents from social workers.

Are there rules about vulnerable children who may suffer harm?

A good social care assessment understands whether a child has needs relating to care or disability and/or is suffering or likely to suffer significant harm. Assessments should be child-centred, focused on outcomes, transparent, timely and proportionate. Where there are specific child protection concerns resulting in action, careful consideration should be given to how closely assessment processes across education, health and care can be integrated, to ensure the needs of vulnerable children are put first.

What about EHC assessments and plans?

Where there is an EHC needs assessment, it should be an holistic assessment of the child or young person’s education, health and social care needs. For those with social care plans, their social worker should coordinate any outward facing plan. The CoP states that where a young person has an EHC plan in place, LAs can also use their discretion to provide these services to the age of 25 (so long as an EHC plan remains in place). Where the young person no longer has an EHC plan, the LA no longer has the power to extend the provision of these services to young people over 18. EHCP reviews should be synchronised with social care plan reviews, and must always meet the needs of the individual child.

Is “alternative provision” included?

Where education is provided other than at a school, it is called “alternative provision” and includes pupil referral units (PRUs), alternative provision academies and free schools, and providers of online learning. The CoP states: “LAs must make arrangements where a child of compulsory school age would not otherwise receive suitable education.” This must be full-time, “unless the LA determines that, for reasons relating to the physical or mental health of the child, a reduced level of education would be in the child’s best interests.”

Statutory guidance specifies that education provided should be on a par with mainstream schools. Online learning can provide real-time teaching support, a broader curriculum and let students interact with each other. Particular consideration should be given to support for children or young people’s SEN, as well as their social, emotional and physical development. LAs, schools and post-16 education providers can commission alternative provision for those who face other barriers to mainstream education or training.

What about those with health needs?

Alternative provision also covers the education of children unable to attend school because of health needs and includes those in hospital or somewhere else because of their health (including mental health) needs. The education they receive should be good quality and prevent them from slipping behind their peers and enable them to successfully reintegrate back into school as soon as possible. It also includes needs set out in an EHC plan or individual healthcare plan.

Further information

Douglas Silas is the Principal of Douglas Silas Solicitors and runs the website: www.SpecialEducationalNeeds.co.uk. He is also the author of A Guide To The SEND Code of Practice [updated for 2016/17], which is available for all eBook readers:
www.AGuideToTheSENDCodeOfPractice.co.uk

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.

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SEN law
Douglas Silas Solicitos

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