The Government has recently published the Special Educational Needs and Disability Code of Practice: 0 to 25 years ("the Code"), which sets out statutory guidance on duties, policies and procedures that councils, schools and other organisations that support children and young people with Special Educational Needs and Disabled children ("SEN") must follow. The Code applies from 1 September 2014 when the majority of Part 3 of the Children and Families Act 2014 came into force.

What’s New

In addition to the reforms, councils are to receive £45 million from central government, to support them in giving young people and parents greater say over their personalised care and assistance. It will also put in place a new birth-to-25 system for children and young people with special educational needs and disabilities.

Pilot Scheme

Prior to the new code being published, the proposed system was piloted  and studies have found that the majority of parents piloting the new system feel more empowered and are happier with the services they are receiving. Speaking on the new proposals, Children and Families Minister, Edward Timpson stated: “Over 2,000 families have been testing our reforms, with many saying that the new rules are already giving them a greater say and more control over how and where they access support.”

No more SEN Statements

It will no longer be possible to request a new SEN assessment for a child or young person who does not already have a statement, and  no new Learning Difficulty Assessment’s (“LDAs”) (in accordance with section 139A of the Learning and Skills Act 2000, Local Authorities are responsible for ensuring that high quality and timely LDAs take place) will be initiated. From 1 September 2014 local authorities must consider under the new legislation all requests for an assessment of SEN for children and young people who do not have an existing statement. Therefore Local Authorities, if asked to assess whether a child or young person has special educational needs will need to determine whether they require an Education Health and Care (“EHC”) plan which sets out the type of provision required to meet the child’s needs. These include but are not limited to, the health and social care needs of the child, the provisions to be put in place to meet those needs, and the views, aspirations and outcomes sought for the child.  Further detail about what an EHC should consist of is set out at Section 37 of the Children and Families Act 2014.

It is important to note that the legal test of whether a child or young person requires an EHC plan remains the same as before, i.e. a person will be deemed as having a learning difficulty if, (a) he has a significantly greater difficulty in learning than the majority of persons of his age, or (b) he has a disability which either prevents or hinders him from making use of facilities of a kind generally provided by institutions providing post-16 education or training. Therefore, it is expected that all children and young people who have an SEN statement will be transferred to an EHC plan.It is intended that no child or young person will lose any provision for their needs by virtue of moving to an EHC plan.

Further changes

These include:

  • A requirement for better co-operation between councils and health services to make sure services for children and young people with SEND are jointly planned and commissioned;
  • Giving parents and young people with EHC plans, the offer of a personal budget – which provides an idea of how much their care and support will cost;
  • Requiring local authorities to publish a ‘local offer’ showing the support available to all disabled children and young people and their families in the area - and those with special educational needs;
  • Introduction of mediation for disputes over provision and trial giving children and young people the right to appeal if they are unhappy with their support;
  • Introduction of a new legal right for children and young people with an EHC plan to express a preference for state academies, free schools and further education colleges.

Obligations on Further Education providers

Chapter seven of the guidance relates to “young people”, which for the purposes of the guidance are those over the compulsory age for school (ie 16) but younger than 25. Guidance is provided on the statutory duties on further education colleges, sixth form colleges, 16-19 academies and some independent specialist colleges approved under Section 41 of the Children and Families Act 2014 to provide specialist SEN provision for its students.

There are a number of statutory duties that “post 16” institutions must adhere to, such as the duties to:

  • Co-operate with the local authority on arrangements for children and young people with SEN. This is a reciprocal duty; 
  • Admit a young person if the institution is named in an EHC plan;
  • Have regard to the Code;
  • Use their best endeavours to secure the special educational provision that the young person needs.

The DfE has issued  a short guide to the Code to help colleges comply with their duties. This is accessible at:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/348883/Further_education__guide_to_the_0_to_25_SEND_code_of_practice.pdf

The duty to secure the relevant special educational provision is to ensure that providers provide the right support to their students with SEN. It does not apply to independent specialist colleges or special schools, as their principal purpose is to provide services for young people with SEN. Providers must fulfil this duty for students with SEN whether or not the students have EHC plans. This duty applies in respect of students with SEN up to age 25 in further education.

In addition to the above obligations, FE colleges and sixth form colleges in England are also required, through their funding agreements, to secure access to independent careers guidance for all students up to and including those aged 18 and for 19- to 25-year-olds with EHC plans.

The Guidance also makes clear that FE providers should be involved in transition planning with the relevant student’s school so that they can prepare to meet the student’s needs and ensure a successful transition into college life. Appropriate support must then be put in place and developed, with the student’s involvement, and a date for reviewing the support provided should be agreed.

Support for all students with SEN should be kept under review, whether or not a student has an EHC plan. Where students have EHC plans, local authorities are obliged to review those plans at least every twelve months. Colleges must co-operate with local authorities in the review process.

Comment

The new regime for students will special educational needs increases the obligations on post-16 providers and institutions will need to ensure that they are fully familiar with those additional requirements.