The new framework to support children and young people with special educational needs (SEN) and disabilities came into force on 1 September 2014. The new legal framework is set out in part 3 of the Children & Families Act 2014 (‘the Act’) and the SEN Regulations 2014. The Government has provided a great deal of guidance on the reforms in August 2014 including a new SEN Code of Practice which provides statutory guidance on the new framework and to which all local authorities will need to have regard, i.e. follow unless there is a good reason for departing from it.
Part 3 of the Act is based on the proposals set out in, and subsequent consultations arising from, the green paper: ‘Support and aspiration: a new approach to special educational needs and disability’ published by the Department for Education on 18 March 2011 and then followed up by ‘Progress and next steps’ published 15 May 2012. The aim of the reforms was to give children and young people with SEN and/or disabilities and their parents or carers an enhanced role in decision making and provision for children and young people to ensure their needs were met. That enhanced role for parents, children and young people is given statutory force by section 19 of the Act and is reflected in a number of key changes to the framework compared with the old framework under the Education Act 1996.
Whilst it is ‘early days’ for the legislation and all institutions will be implementing changes in practice and procedure to meet the new statutory duties, a number of areas have been highlighted as areas where local authorities may be challenged. I have set out a number of these areas below:
The Act sets out an obligation on local authorities to publish any information about their ‘local offer’ by 1 September 2014. The local offer is the services a local authority expects to be available for children and young people with special educational needs. The local offer must be developed following consultation with children and young people with SEN and their families as well as other relevant institutions within the local area. In addition, local authorities will keep their local offer under review and revise it regularly – including publishing comments on the local offer and the local authority responses to those comments.
Whilst it is currently unlikely that the local authority will be legally challenged on any failure to provide provision which is set out in the local offer as it is not legally enforceable (it being expressed as an expectation on what provision is available) a number of commentators have highlighted that a failure to produce a compliant local offer and publish it by 1 September 2014 would be grounds for legal challenge. Clearly, local authorities will want to avoid such challenge and therefore will need, as a minimum, to put a draft version of the local offer on the authority’s website which meets the requirements set out in the SEN Regulations 2014.
Section 19 of the Act sets out the general principles which underpin the approach of the new framework. The section establishes a duty to have regard to particular factors when a local authority exercises functions under the Act – including the views of children, young people and families and putting in place provision to achieve the best possible outcomes for the child or young person. The idea of best possible outcomes does appear to fly in the face of the previous legal position under the Education Act 1996 which was concerned with provision being appropriate to needs rather than being part of a process to the achieve the best possible outcomes. It gives rise to a concern that the position of local authorities being under no duty to put in place ‘Rolls-Royce’ provision may well be open to challenge.
Another key element of the framework is a renewed focus on co-operation between agencies involved in education. Whilst this is nothing new given the concept of “Children’s Services” set out in the Children Act 2004, the focus is much wider now with a greater focus being set out in the SEN Code of Practice around joint governance and funding arrangements.
The requirement for co-operation applies on strategic issues such as the local offer as well as in respect of individual children. The holistic approach of the framework and the assessment and production of EHC plans means that all relevant agencies have duties to engage and support the process within the relevant timescales as well as education, health and social care bodies having duties under the Act (and other legislation) to meet the needs of the child or young person when an Education Health and Care (“EHC”) plan is in place. The assessment and EHC plan build on the statutory scheme set out in the Education Act 1996 which includes duties to co-operate (subject to meeting the agency’s own statutory functions). However, the possibility of dispute is highlighted by paragraph 9.73 of the SEN Code of Practice which states that health or social care provision which educates or trains a child/young person must be treated as special educational provision. This has the consequence of placing the duty to secure that provision onto the local authority rather than the social care or health body. Given the restrictions on all areas of public funding, it is easy to see how a health body may want to pass on the financial burden of provision required under an EHC plan and deem it to be “educational”. Therefore, it will be necessary for the courts to become involved and make determinations on what therapies are usually educational and others which are not. Sadly, such determinations arise from legal action.
Greater choice for families was a key theme in the reform and this applies to choice of placement as well as the option of a personal budget. The extension of the statutory scheme and decision making process to include academies and free schools, as well as some independent schools may cause some conflict but the likelihood of legal action is remote given the availability of formal complaint procedures for both parties to the Secretary of State. Indeed, the extension of the statutory scheme may make the situation easier to navigate for local authorities as only one decision making process will be required under the Act whereas under the existing framework, decisions on placements in maintained schools have to take place under Schedule 27 whereas decisions on independent schools, including academies, must take place under section 9 Education Act 1996.
Personal budgets are likely to be the other source of potential dispute for local authorities. Where an EHC plan is prepared or is in place, the local authority must provide information on the availability of a personal budget where requested by the parent. In addition, the local authority must carefully consider any request for a direct payment or other arrangement for a personal budget. Health and social care bodies will be under similar duties in respect of the provision contained in the EHC plan. A broad framework around personal budgets is set out in the Act and associated regulations but the actual process of decision making and rights of appeal will be of concern to local authorities. In addition, decisions around attaching conditions and monitoring compliance will also be part of the local authority’s wider tasks which may also cause concern.
Any refusal will require a fully reasoned decision letter which includes a parental right to request a review. It is worth recalling the numerous challenges on SEN issues which have been based on the reasons given in letters or tribunal decisions. With those in mind, it is important that where a personal budget is refused, fully reasoned decisions are provided to the parent which explains all the factors considered with reference, where necessary, to the statutory framework.
Clearly, it is early days for the new SEN framework and the next 12-18 months will be an interesting time for all those involved in SEN. Everyone is going through a learning process and testing the limits of the new system. I hope the points raised provide a useful summary of some potential areas of concern.
Richard Freeth is an associate in our Birmingham Education Team with over 14 years’ experience of advising local authorities and schools on all aspects of education law, including SEN and Equality Act issues. He can be contacted on 0121 237 3961 or richard.freeth@brownejacobson.com