Douglas Silas, Principal of Douglas Silas Solicitors, gives an overview of developments in the SEN sector and looks ahead to future developments...
As we are now well over halfway through the transitional phase from the old SEN framework to the new SEN framework (which began on 1st September 2014 and is meant to be completed by 1st April 2018), I thought it would be a good time to take stock of where we seem to have got to so far.
Do you remember the long lead up and big fanfare before the introduction of the new SEN framework? There was the Children and Families Act and the new SEND Code of Practice, which both came into effect from 1 September 2014. There were promises of how it was going to be ‘the biggest shake-up to SEN for 30 years’. It seems a long time ago now, doesn’t it?
The hope was that we could bring in change to allow for a more joined-up approach in terms of providing for children and young people with SEND. Although we now have new names and concepts, such as ‘Local Offers’, ‘Personal Budgets’ and, of course, ‘Education, Health & Care (or EHC) Plans’ and we were told how great the changes would be, it does not necessarily look that way now sometimes.
I think that, generally, most people were pleased to learn that the system would now cater for both children and young people from birth up to 25 years and that Statements of SEN (which only focused on education), would be replaced by EHC plans (which would look also at health and care needs, as well as educational ones). There was also the promise of there being more integration and joint commissioning of education, health and care provision.
Most importantly, we were told that there would now be a greater call for children and young people (and their families) to be put at the heart of the process and that there would be this new concept of ‘working together’ between parents and professionals tasked with the responsibility and providing for children and young people’s needs.
But isn’t the idea of ‘working together’ already what was supposed to be happening anyway?
Has it all really worked out? It seemed from early on that we may be biting off more than we could chew, or trying to do things too quickly and with less, not more (i.e. at a time of funding cuts). Unfortunately, some Local Authorities (LAs) have been unable to comply with the legal timescales for transferring Statements to EHC plans and one of the most immediate problems was nearly every LA having their own versions of the assessment process, or format for EHC plans.
The writing of EHC plans was also criticised individually very early on (particularly by SEND Tribunals) for being often increasingly unworkable documents; for example, often mixing up things like needs, outcomes and provision, or being set out in tabulated or landscape formats, which were very hard to work with. Some of these problems still seem to be with us.
Remember, this change was meant to make everyone’s lives easier, but sometimes we seem to have ended up making people’s lives harder, no matter which perspective you have or which side of the fence you sit on (i.e. parents, school or LA).
I have heard some LA representatives admitting publicly in the past couple of years that they have been in chaos and things seem to be getting worse, not better. It was supposed to be a ‘win-win’ situation, but it now sometimes feels as though it has turned into a ‘lose-lose’ situation.
Take one example, the huge project of transferring some 230,000-odd Statements to EHC plans within prescribed timescales, including those outlined in statutory transfer guidance. At first, these transfers were being attempted properly, but many people found that to do them properly required more time than was being prescribed.
This has led to bizarre situations, where one LA was criticised for not complying with the legal timescales, but was doing the transfers as well as possible and in a way that everyone was happy with the final EHC plan. Whereas another LA was doing it quickly and within the legal timescales, but then not doing a very good job, which would often as not lead to appeals.
This reminds me of the phrase: ‘Less haste, more speed’.
As time has gone on, there has been increasing concern that transfers are now at risk of becoming just tick-box exercises, or they stand accused of just being used as a chance to reduce or remove provision, or to make that provision less specific than it was before. There just seem to be too many targets to meet these days and so much focus being put on making people jump through hoops.
Perhaps it would be better if we focus all of our resources on making things shorter, rather than trying to put everything in. For example, remember that EHC plans were supposed to be more accessible and more concise than Statements? I was ticked off many times in Tribunal hearing for producing working documents of Statements that were 10-12 pages, but I now routinely come across EHC plans which are 30, 40, or even 50 pages long, before an appeal!
One of the advantages that we have now that we didn’t have a couple of years ago is that we have the benefit of hindsight. They say that hindsight is a wonderful thing and I only wish I had it before!
We can now point to objective evidence with reports such as the Scott report from November 2016, which talks about people’s experiences of the new system, or inspections carried out by Ofsted and CQC (the Care Quality Commission), who have jointly been inspecting some local areas to see how well they are discharging their responsibilities to children and young people with SEND.
So, although I have entitled this article ‘All That Glitters Is Not Gold’ I am definitely not trying to make negative comments about the new SEN framework. I do understand and appreciate how hard everybody has been working and that people working in this area (on all ‘sides’) can often feel that it is a bit of a thankless task sometimes.
But if you work for a school or LA, you may have already formed a negative or frustrated view of parents or their representatives that you come across, or if you are a parent or representative, you may have already formed a negative or frustrated view of those working for schools or LAs. I know it is never easy but please always try your hardest to give other people the benefit of the doubt if you can.
Go ahead, try it – I bet you will see the difference.
Douglas Silas Solicitors specialise exclusively in SEN, whose website is www.SpecialEducationalNeeds.co.uk
Douglas is also the author of ‘A Guide To The SEND Code of Practice (What You Need To Know)’ which is available for all eBook readers.
For further information visit: www.AGuideToTheSENDCodeOfPractice.co.uk