Promoting Outcomes for SEN and Disability Students – Understanding the new legal landscape KNIGHT ROOM.

Promoting Outcomes for SEN

and Disability Students

– Understanding the new legal landscape

KNIGHT ROOM

Mark BloisPartner, Browne Jacobson LLP

Promoting Outcomes for SEN and Disability Students – Understanding the new legal landscape

Promoting outcomes for SEN and Disability students – understanding the new legal landscape

North of England Education Conference

Mark Blois, Partner, Browne Jacobson LLP15 January 2014

Setting the scene

• Current SEN system out of date and not fit for purpose

• Desire for a single, more efficient multi-agency approach

• Biggest reforms in 30 years• One element of personalisation of public services

Timetable

• March 2011 - Green Paper • Children & Families Bill – most recently at Report

Stage in House of Lords (17 December 2013)• March 2013 - Indicative Draft Code of Practice –

just an outline of thinking – 86 pages• 4th October 2013 - Draft Code – weightier and

more detailed – 173 pages • Consultation closed 9 December 2013

Agenda

1. Assessments and Education Health and Care

Plans

2. Personal Budgets

3. New SEN Code of Practice

Assessments

• “An “EHC needs assessment” is an assessment of the educational, health care and social care needs of a child or young person” (S36(2))

• Statutory assessments of education, health and care needs will take place for those few children and young people with complex SEN

• Most (but not all) will then have an Education, Health & Care Plan (EHC)

• After September 2014, no further Statements will be issued. Within three years, existing Statements will be changed to EHC Plans.

What about disabilities?

• Only trigger is still education rather than health and care: LA “must secure an EHC needs assessment… if…[it]… is of the opinion that… the child has or may have” SEN and it may be necessary for SEP to be made (S36(8))

• Late amends (12 December 2013) have brought those with disabilities (as defined by Equality Act 2010) into remit of Bill in relation to:

(i) joint commissioning arrangements (ii) local offer

• No such amends to clauses 36-50 regarding Education Health Care Plans

• Children, parents & YP should experience a straightforward and joined-up process which leads to timely, well-informed decisions – Children, YP & families should be at the centre of

the process– Assessment should be as streamlined as possible– “tell us once” approach to information sharing– Information shared across agencies – Multiple appointments co-ordinated

• Timescales – maximum of 20 weeks (previously 26 weeks)

Conducting a Co-ordinated Assessment

• Principles to apply– Decisions should be transparent and involve child,

YP and family– Plans should be clear, concise, readable and

accessible to parents, children YP and providers/practitioners

– Plans should be person-centered, evidence-based and focussed on outcomes

– Outcomes should be short-term and aspirational for the YP

Preparing an EHC Plan (1)

– Outcomes need to be specific, measurable, achievable and time bound

– Plans should be specific about interventions that will make a difference

– Plans must relate to the teaching and learning context in which the child may be educated

– Resources should be quantified (level of support and who provides it)

– EHC plans should be generic and applicable in any local area.

Preparing an EHC Plan (2)

• Standard contents are as follows (section 37(2))– views ,interests & aspirations of the child, YP and

their family– the Child or YPs SEN– the outcomes sought for him/her– the Special Educational Provision required by

him/her – any Health & Social Care provision required– any additional provision e.g. support to find

employment, housing or participation in society– the name of the school, nursery, post-16

establishment or other institution to be attended by the child or YP

EHC Plans – content (1)

• Choice of school, college other provider– Maintained school (mainstream or special),

Academy or Free School– Special Academy or Special Free School– Non-maintained Special School – FE or Sixth Form College– Independent School or Independent Specialist

College (approved by Sec of State)• NMSS and S41 registered independent institutions

can now be proposed by parents and named

EHC Plans content (2)

• LAs must arrange the special educational provision specified in the Plan

• Headteacher of a provider named in an EHC Plan should ensure that those teaching or working with the child or young person are aware of their needs and have arrangements in place to meet them

• CCGs must provide the health support identified by

clinicians and included in the Plan

Maintaining EHC Plans

“Local governance arrangements must be established which ensure clear ownership and accountability across SEN commissioning. They must be robust enough to ensure that all parents are clear about who is responsible for delivering what, who the decision makers are in education, health and social care and how partners will hold each other to account in the event of a dispute”

Transition to Adulthood

Once a young person is aged 18 or over the LA should continue to maintain their EHC Plan where all these conditions apply:• Young person wants to remain in education or training so

they can “complete or consolidate” their learning• Special educational provision is still needed• Outcomes in their EHC Plans have not yet been achieved • Remaining in education or training would enable the young

person to progress and achieve these outcomes• NB Raises question of where bar will be set in terms of

outcomes

• Once the LA has completed assessment and confirmed that it will prepare an EHC Plan

• When they already have an EHC Plan• During statutory review of existing EHC Plan

When can a personal budget be requested?

Sources of Funding

• EHC Plans will include SEN provision plus “any health or social care provision reasonably required by the learning difficulties and disabilities which result in the child having SEN”

• Personal budget can include funding from:– education (SEN)– health– social care

• Education funding methodology is based on three element SEN funding reform introduced April 2013

Education Funding of Personal Budgets

• Age Weighted Pupil Unit and Additional Support Funding “would not normally lend itself to inclusion in a personal budget”.

• Education element of funding for a personal budget should be drawn from LA’s High Needs Block.

Personal budgets v Local Offers (1)

• Each LA must publish a highly detailed set of categories of information regarding:– SEP in educational institutions– provision to assist in preparing for adulthood

and independent living– healthcare and social care for students with

SEN– transport to SEN institutions

Personal budgets v Local Offers (2)

• Main impact for schools likely to be the prescription through the Local Offer of what schools are expected to deliver as their “standard offer” through SEN funding rather than top up

• Will LAs be tactical in defining the Local Offer to protect high needs budget?

• No national standards creates environment for local conflicts.

Personal budgets v Local Offers (3)

• Funding available for education element of a personal budget will vary depending on local decisions about:– how services are commissioned– what schools will normally provide as part of the

Local Offer– how schools are funded to deliver that provision

Health services within personal budgets

• COP encourages the development of a single integrated fund from which a single personal budget covering education, health and social care can be made available.

“Joint commissioning arrangements must set out local arrangements for agreeing personal budgets and LAs will need to work with their local health commissioner where the parent requests a personal budget that includes health provision”

Mechanism for control of personal budgets

• Direct payments (individuals receive cash themselves to manage)

• Organised arrangement (LA retains funds)• Third party arrangements / nominees• Combination of the above

Direct Payments

• Must be set at level that will deliver the provision specified in an EHC Plan

• Education element has additional regulations over and above social care, including:– LA must consider whether adverse impact on other

service users and efficient use of resources– seek agreement from education providers where a

service funded by a direct payment is delivered on their premises

• Direct payments for NHS care are more limited eg exclude GP and emergency services

• Working with a wider group of schools and colleges. The schools and colleges who have tested the approach have tended to be those that are more receptive to SEN personal budgets.

• Many have found that moving towards personal budgets is a major culture change not only for the families, but also for the local authority and providers.

• Investment in workforce development across multiple agencies/providers.

• A significant amount of work is needed to develop the market.

• Building a robust resource allocation system.

What are the main challenges ahead?

• Research by SEND Consortium found majority of families unaware about personal budgets.

• DFE/DOH to fund pilot project in 10 LA’s• SEN Direct to be launched March 2015• Aims to test brokerage services to help

parents/carers use their allocated personal budgets.

SENDirect

New SEN Code of Practice

• LAs• Early Year Providers• Schools, Academies, Free Schools• Sixth Form Colleges• Further Education Colleges• PRUs• Independent Special Schools/Specialist Providers

Additionally:• Clinical Commissioning Groups• NHS Trusts and NHS Foundation Trusts• Local Health Boards• NHS England

Following sector education organisers have statutory duty to have regard to CoP:

Types of SEN

Four new broad categories:• Communication & interaction• Cognition & learning• Social, mental or emotional health• Sensory and/or physical

Important changes

• Moderate Learning Difficulties removed from the categories

• Reference to “behaviour” also removed, putting greater empathy on underlying needs

“Behavioural difficulties do not necessarily mean that a child or young person has a SEN and should not automatically lead to a pupil being registered as having SEN”.

School based category of support (1)

• Single category - School Action and School Action Plus are no more

• The majority of children & young people with SEN will have their needs met through mainstream education providers and will not need a EHC Plan

• A whole chapter providing information on how mainstream providers and specialists can ensure that they improve attainment for children and secure good outcomes (without Plan)

• CoP requires that schools must use their “best endeavours” to secure the special educational provision called for by a child or young person (NB this is the same as the current Code of Practice)

School based category of support (2)

What does this mean in practice in terms of support?

IEPs are not mentioned – instead:• Early identification of SEN, which should be built into overall

approach to monitoring progress and development of all pupils

• Followed by appropriate evidence-based interventions • Interventions should be part of a graduated approach:

Assess, Plan, Do, Review• Guided by a clear set of expected outcomes • Regular review of progress towards outcomes, including

meeting with parents at least termly

School based category of support (3)

High quality class room teaching

• Embedded in the CoP is a key message that every teacher is a teacher of every pupil and therefore have responsibility for identifying and supporting pupils with SEN – SENCOs only have a supporting role

• Majority of SEN pupils can make progress through high quality teaching

• Schools should “regularly and carefully” review the quality of teaching including teachers’ knowledge of the SEN most frequently encountered

• Quality of teaching for pupils with SEN and pupils progress should be a “core part” of a school’s performance management arrangements

• Wide implications for schools who will have to offer high quality CPD to ensure whole workforce has the knowledge, skills and expertise

• PRP implications?

School based category of support (4)

Support from specialists

• Where pupils make inadequate progress despite high quality targeted teaching then schools should consider involving specialists, including outside agencies

• SENCO, class teacher and appropriate specialists should consider a range of well-founded and effective teaching approaches, strategies and interventions to support pupil’s progress towards agreed outcomes

Dispute resolution (1)

• LAs must make available Disagreement Resolution Services – to be used for disputes around performance of education, health and care duties and/or the special educational provision made

• Appeals to First Tier Tribunal about EHC assessments and EHC Plan, specifically: A decision by an LA not to carry out an EHC assessment or

reassessment A decision by an LA that not necessary to issue a Plan The description of the SEN, SEN provision or provider named in

the Plan Any amendment to the above elements A decision by an LA not to amend a Plan after a review or

reassessment A decision by an LA to cease to maintain a Plan

Dispute resolution (2)

“Health or social care provision made wholly or mainly for the purposes of education or training must be treated as special educational provision.”

• Follows that will be a right to appeal to First Tier Tribunal about such provision

• Mediation – can only appeal to FFT after they have contacted an independent mediation advisor and explored whether mediation is an appropriate way to resolve the dispute

Questions?

Mark Blois | 0115 976 6087 | [email protected] www.education-advisors.com | @MarkBlois

Promoting Outcomes for SEN

and Disability Students

– Understanding the new legal landscape