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 Assessments (“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 contain 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 in connection with a SEN statement, i.e. a person will be deemed as having a learning difficulty if, (a) s/he has a significantly greater difficulty in learning than the majority of persons of her/his age, or (b) s/he has a disability which either prevents or hinders her/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

Further changes 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 – providing 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.

Academies

Chapter six of the Code relates mostly to mainstream schools, which for the purpose of the Code includes academies. Such schools must use their best endeavours to make sure that a child with SEN gets the support they need. In addition to this academies must:

  • Prepare an SEN information report;
  • Designate a teacher to be responsible for co-ordinating SEN provision – this does not apply to 16 to 19 academies;
  • Inform parents when they are making special educational provision for a child;
  • Ensure that children and young people with SEN engage in the activities of the school alongside pupils who do not have SEN.

There is also a duty on academies to publish on their websites an SEN information report which sets out the governing body’s or the proprietor’s policy for pupils with SEN. The information to be contained in the report is set out in the Special Educational Needs and Disability Regulations 2014 (click here to access).

The Code states that the quality of teaching for pupils with SEN, and the progress made by pupils, should be a core part of the school’s performance management arrangements and its approach to professional development for all teaching and support staff. An academy should publish its arrangements relating to the quality of teaching as part of the SEN information report.

In deciding whether to make special educational provision, the teacher and SENCO should consider all of the information gathered from within the school about the pupil’s progress, alongside national data and expectations of progress.

Broad areas of Need

When reviewing and managing special educational provision, broad areas of need and support are outlined within the Code and academies are required to review how well-equipped they are to provide support across these areas.

The four broad areas are described as, Communication and interaction; Cognition and learning; Social, emotional and mental health difficulties and Sensory and/or physical needs. These four broad areas give an overview of the range of needs that should be planned for. The purpose of reviewing these areas is allow academies to identify what action the school needs to take, rather than simply fitting a pupil into a category. Often pupils may have needs across all these areas, so a detailed assessment should ensure that the full range of an individual’s needs is identified. Whilst schools have a more active role in reviewing and managing areas of need, Local Authorities retain the power to direct a school to provide the support required under the EHC plan, to ensure a child’s needs are being met.

Support 

Where a pupil is identified as having SEN, academies are required to take action to remove barriers to learning and put effective special educational provision in place. This SEN support takes the form of a four-part cycle: Assess; Plan; Do; and, Review. It draws on more detailed approaches, more frequent reviews and more specialist expertise in successive cycles in order to match interventions to the SEN of children.