Douglas Silas, of Douglas Silas Solicitors, casts an expert’s eye over the latest developments in the SEND sector...
So that’s it then? We have now completed the transitional phase from the old SEN framework to the new SEN framework brought in by the Children and Families Act 2014 (which began on 1st September 2014 and was meant to be completed by 31st March 2018). But some would say that actually the real work starts now, as we now need to move forward.
As people say that you tend to predict the future by looking at the past, let me look at things that seem to have happened (or not happened) during the past year in the world of SEND (Special Educational Needs and Disability).
It is important for me to reiterate from the outset the now well-known and often used phrase: ‘Law Trumps Policy’ and point out the still lack of enough joined-up working (not only the Children and Families Act, but also the Children Act 1989 and the Care Act 2014).
There have again been continuing difficulties with a lack of specificity in Education, Health and Care (EHC) Plans and I would also criticise the formats of some EHC Plans. For example, some are still not linking provisions to outcomes or following the correct order of sections (i.e. A-K). Others are still grouping sections together and using tabulated/landscape formatting, which is quite cumbersome to follow or work with.
And do not even get me started on how long EHC plans seem to have become generally, compared to Statements of SEN – what happened to the new requirement for them to now be clear, concise, accessible and easy to understand!?
From the parents’ perspective, there have been some arguably unlawful transfers, due to some Local Authorities (LAs) not giving sufficient notice of the commencement of the transfer process (i.e. sometimes not calling a Transfer Review meeting or telling parents after the event that an Annual Review meeting was a Transfer Review meeting). Or some LAs not undertaking a lawful EHC needs assessment, by not seeking updated advice and information (i.e. making unilateral decisions to use existing evidence to draw up an EHC plan, even when it’s very out of date);
From the LA’s perspective, we seem to have become over-reliant on EHC plans, which they argue are expensive, bureaucratic and often add little value. They say that perhaps we should start thinking about using models where resources can be guaranteed to more schools.
From the perspective of the SEND Tribunal, they submit that they are still often finding unclear reasons for LA decisions, or a lack of evidence from EHC needs assessments. They have also stressed the importance of getting up to date and correct evidence. They have also highlighted (again) difficulties with the format of EHC Plans.
From the Department for Education’s (DfE) perspective, there seems to be improvement in attainment for children and young people with SEND in the past year, compared to the year before; but they say that the quality of EHC Plans still seems to vary too widely between LAs and the outcomes on them are still often too general (according to Ofsted and CQC). They acknowledge that some health and care advice/provision is still not being sought properly in assessments, with the result that some EHC Plans produced have not been good. Additionally, they also say that there are now more young people with SEND going on to post-16 education, training and employment.
The DfE have also said that co-production of EHC plans have been working more now for many young people and parents, but that there are still challenges for a few LAs and there are some LAs who are doing things more successfully than others which we all need to learn from them.
So what does the next year hold?
The SEND Tribunal are bringing in a few procedural changes, such as revised bundle guidance, which will cap the number of pages of evidence each party can submit in an appeal (in addition to a ‘core’ bundle, which will include the EHC plan itself, with its accompanying documents). The SEND Tribunal will also be revising their guidance for professional witnesses, so that expert reports are clearer about issues and recommending the provision that a child or young person with SEND needs.
Importantly for us all, the SEND Tribunal are introducing a National Trial (which has now already started for decisions about children/young people with SEN from 3 April 2018), which gives them additional powers to allow them to make recommendations relating to social care and health, as well as educational decisions.
The type of issues they now expect in these cases (following a pilot) are:
- Where there is a lack of social care evidence and therefore a lack of specification in social care evidence re identified need or specification of support (i.e. no social care assessment or the response from Social Care being ‘not known to this service’);
- The need for residential care based on social care evidence;
- The lack of identification/evidence from CAMHS (the Children and Adolescent Mental Health Service) – for example, the need for CBT (Cognitive Behavioural Therapy).
They argue that this should allow for more positive working between SEN and social care teams within LAs and therefore for a more holistic view of the child or young person. They also say (again, from the pilot’s findings) that health issues raised have not been significant or clinical, but have been particularly relevant for post-school or residential placements, where there may seem at first to be no educational need.
Finally, from my perspective, although it is argued that parental confidence has now been improved in the whole SEND system, I still think that it is important for us to recognise that we still need to continually move forward and build on good practices.
I also think that we need to remember that we need to look more holistically at a child or young person’s overall SEND needs.
For more information about Douglas Silas Solicitors, visit www.specialeducationalneeds.co.uk