Children and Families Act: the legislation in practice Benedict Coffin, Department for Education Natspec conference, 26 March 2014

The current system of SEND support is complicated, expensive and delivers poor outcomes Parents struggle to find the services that should be helping them, have to battle to get the help their children need, and have to tell their stories time and again. Moving from children’s to adult services can be very difficult; English LAs spend over £5 billion a year on SEND provision, and yet those with special needs are far more likely to achieve poorly at GCSE, not be in Education, Employment or Training, or be unemployed. These issues affect a lot of people: 1 in 5 children are currently identified as having some form of SEND, with 2.8% having a more complex need. In 2012 at Key Stage 2, pupils with SEND achieved roughly half as well as those with no identified SEND at English and Maths (43% achieved level 4 in comparison with 91%). The percentage of pupils with SEND achieving 5 or more GCSEs at grade A* to C was 22% in comparison with 69% with no identified SEND at Key Stage 4/5. Around 30% of all young people with statements of SEND at 16 are not in education, employment or training at 18 compared to 13% of their peers Employment rates for those with learning difficulties are much lower still: some data indicates less than 10% (NHS Information Centre for Health and Social Care (2008). Within adult care, costs for supporting those with learning difficulties are second only to the costs of supporting the elderly The National Audit Office estimated that the cost to the public purse of supporting a person with a moderate learning disability through adult life (16–64) is £2–3 million. Equipping a young person with the skills to live in semi-independent rather than fully supported housing could, in addition to quality-of-life improvements, reduce these lifetime support costs by around £1 million. Adult care costs for those with learning difficulties and/or disabilities are second only to the costs of supporting the elderly (£5.19bn compared to £8.79bn, 2012-13, Provisional Release). In 2012, 46% of disabled people were in employment, compared to 76% of non-disabled people. If 76% of disabled people were employed, this would represent over 2 million more people in employment. In addition, employment rates for those with learning difficulties are much worse, with some evidence suggesting this to be as low as 7%.

What children and young people with SEN and disabilities want: Parents said: Young people said: Listen to the needs and aspirations of young people – then everything will be clearer and would enable a proper plan of action Young people should be allowed to meet without parents so they can talk without being influenced – no matter what their age Engage with us every step of the way Be honest, even with the difficult bits Be clear this isn’t an excuse for cutting services Ask for our help Help us understand the cultural change

What we want to achieve We want children and young people with special needs and disabilities too achieve well in their early years, at school and in college; find employment; lead happy and fulfilled lives; and have choice and control over their support.   The special needs reforms will implement a new approach which seeks to join up help across education, health and care, from birth to 25. Help will be offered at the earliest possible point, with children and young people with SEND and their parents or carers fully involved in decisions about their support and what they want to achieve. This will help lead to better outcomes and more efficient ways of working.

The SEND reforms: putting children and young people at the centre Where disagreements happen, they can be resolved early and amicably, with the option of a Tribunal for those that need it Children, young people and parents understand a joined up system, designed around their needs Enablers Joint commissioning Better disagreement resolution processes Local offer Outcomes Having friends Positive Wellbeing Employment prospects 0-25 Children and young people with SEND and families Information, advice and support Making their views heard Good qualifications LAs and CCGs will work together to commission services jointly to secure a better integrated system for 0-25 year olds, focused on outcomes, working with children, young people, parents and partners across education, health and social care. Together, they will produce a ‘local offer’ of services developed with parents and young people, so that they can understand what is available, and how to complain if they need to. They must consult publicly on this local offer, and publish the results. A streamlined assessment process, co-ordinated across education, health and care, and involving children and young people and their families throughout.   A new 0-25 Education, Health and Care Plan to replace the current system of Statements and Learning Difficulty Assessments, which reflect the child or young person’s aspirations for the future, as well as their current needs. New statutory protections for young people aged 16-25 in FE, including right to request particular institution named in their EHC plan and the right to appeal to the First-tier Tribunal. A new duty on health commissioners to deliver the agreed health elements of EHC plans. A new duty on schools to ensure those with long term health conditions get the support they need. The option of a personal budget for families and young people with a plan, extending choice and control over their support. Support to resolve disputes earlier through access to mediation, while retaining the option to go to Tribunal The SEND Code of Practice sets out our expectation of how every child with SEND will be helped in education (whether or not they have an EHC plan). Option of a Personal Budget Integrated assessment and planning Education Health and Care Plan is holistic, co-produced, focused on outcomes, and is delivered Extending choice and control over children and young people’s support.

This approach works 31 Pathfinder authorities have been testing the reforms. They found: Families feel more in control, better informed and more satisfied with the services they receive; Professionals are finding genuine partnership working with families is rewarding and generates better results The reforms are bringing about a culture shift in assessment and planning, with a growing emphasis on personalisation, multi-agency working and outcomes-based approaches “It was really rather lovely to feel... heard on an equal footing!...Sometimes it used to feel as if being a parent was itself a disability. Now I feel that I am part of the team…Now it feels as though there is someone on my side. Before I felt like the enemy.” Parent from Surrey

The SEND Reform Journey March 2011 Green Paper: Support and aspiration: A new approach to special educational needs and disability May 2012 Support and aspiration: Progress and next steps Sept Draft provisions published for pre-legislative scrutiny by the Education Select Committee Feb 2013 Government response to pre-legislative scrutiny; and Children and Families Bill introduced to Parliament March Indicative draft regulations and a draft Code of Practice published for committee stage of the Bill, informed by pathfinder learning Spring 2014 Children and Families Act 2014 receives Royal Assent (13 March 2014) Issue final Code of Practice Legal changes commence in practice (meeting original Green Paper commitment for reforms in place by 2014) Autumn 2013 Public consultation on regulations and Code of Practice, informed by further pathfinder learning This slide sets out the key milestones in developing and implementing new legislation to reform the system for SEND and disability. On 4 February 2013, we introduced a 111 clause Bill to: “Make provision about children, families, and people with special needs; to make provision about the right to request flexible working; and for connected purposes” The Bill covers the following areas: Adoption (led by DfE) Looked after children (led by DfE) Family Justice (jointly led by DfE/MoJ) SEND (led by DfE) Childcare (led by DfE) Office of the Children’s Commissioner (led by DfE) Shared parental pay and leave (led by BIS); Right to request flexible working (led by BIS)

The legal framework – from September 2014 Children and Families Act 2014 – March 2014 Regulations – spring 2014 New 0-25 Code of Practice – spring 2014 The Children and Families Act received Royal Assent on 13 March 2014. While there have been debates on key issues like redress, definition of disability and having regard to age, the main policy components of the Bill have remained fairly constant, and are reflected in the SEND Code of Practice. This continues to be a good framework for SEND implementation.

What needs to be done by local authorities and CCGs Work with children and young people with SEN and Disability, their parents and carers; Establish partnerships across education, health and care, including early years, FE colleges, housing and Jobcentre plus; Develop plans for joint commissioning and the local offer; Develop processes for assessment, planning and EHC plans; Identify services which could be provided through personal budgets; Publish the ‘local offer’, in consultation with parents and young people. This will set out the support available for children and young people with SEN and disabilities from local schools and colleges, as well as specialist provision outside the LA; Review and develop local mediation and disagreement resolution arrangements.

Managing transition to the new system The Children and Families Act will come into force from September 2014. However, we do not propose to move wholesale to the new system on 1 September; rather this will be the beginning of a period of gradual and orderly transition to full implementation. From 1 September 2014: no new assessments for statements or Learning Difficulty Assessments (LDAs) will be offered by local authorities - new requests for an assessment of special educational needs after this point will be considered under the new legislation. children and young people with existing statements transfer to the new system within three years; and young people with existing LDAs transfer within two years. The legal force of statements and LDAs will not be withdrawn until all children and young people have completed the transition to EHC plans. transfer will happen through a ‘transition review’ and local authorities must have regard to the principles set out in the revised 0-25 SEND Code of Practice when writing new EHC plans. Young people with SEND and parents of children with SEND will be consulted to determine the best point within each year for them to transfer to the new system.

What does the Act mean – Preparing for Adulthood Preparing for Adulthood is a key part of the reforms Preparing for Adulthood should begin early on – employment and independent living and community participation should be considered important outcomes in the EHC Planning process; Young people have decision making powers under this Bill: young people can ask for an EHC Plan assessment; young people can ask for mediation and have recourse to a Tribunal; young people can request the educational institution of their choice. Young people should therefore be engaged at strategic level early on; Information, Advice and Support must meet young people’s needs as well as those of parents; FE and training providers also have new duties, and so need support to understand their role, and their new, equal relationship with LAs. Specific work is needed to ensure smooth transitions from children's to adult services. The new Code of Practice will include a specific Preparation for Adulthood chapter – not “post-16”, as it applies 0-25.

What does the Act mean – Young people aged 19-25 Local authorities should have high expectations for children and young people with special educational needs, and provide the right support and opportunities to help many more of them make a successful transition to adulthood at age 18, along with their peers. Young people with SEN aged 19-25 should be supported to remain in formal education or training with an EHC plan where this will enable them to complete or consolidate their learning, achieve their outcomes and make a successful transition to adulthood. The legislation does not create an entitlement or expectation that all young people with special educational needs will remain in education with an EHC plan until age 25. Where a young person is aged 19-25, the legislation requires local authorities to consider: when determining whether to make an EHC plan: whether a young person aged over 18 needs more time – in comparison to the majority of others of the same age, without SEN - to complete their education or training;  When reviewing an EHC plan, or determining a plan should end: whether the educational or training outcomes specified in their plan have been achieved. Local authorities must make this judgement in close consultation with young people, who will have access to mediation and can appeal to the SEN Tribunal if they are unhappy with decisions.

What does the Act mean – Young people aged 19-25 Additional rights and protections in the Children & Families Act: 19-25 year olds have the right to ask for an assessment for an EHC plan; Mainstream post-16 provision (sixth forms, FE colleges and sixth form colleges) are under a new duty to use their ‘best endeavours’ for all young people (up to the age of 25) with SEN, regardless of whether or not they have an EHC plan; 19-25 year olds with an EHC plan will have the right to request that an FE college or approved specialist post-16 institution is named in their EHC plan. Those institutions will then have a duty to admit them (unless it is unsuitable for their age, ability, aptitude or special educational need; or incompatible with efficient use of resources or education of others); 19-25 year olds have the right to appeal to the SEN First Tier Tribunal on local authority decisions.

What does the Act mean for post-16 settings? Further Education colleges, Sixth Form colleges and approved specialist post-16 institutions will be under important new legal duties from September 2014. These give young people aged 16-25 in further education equivalent rights and protections to those found for children/their parents in schools. The key new duties are: for mainstream post-16 provision (sixth forms, FE colleges and sixth form colleges) to use ‘best endeavours’ for all young people with SEND (up to the age of 25), regardless of whether or not they have an EHC plan; to admit a young person, where the college is named in their EHC plan (unless it is unsuitable for their age, ability, aptitude or special educational need; or incompatible with efficient use of resources or education of others); to co-operate with the local authority, and for them to co-operate in return; to have regard to the new 0-25 SEND Code of Practice.

What do post-16 settings need to do? Key actions for all FE providers: Engage with local authorities in their review of local provision and the development of a local offer, in the EHC assessment and planning process. Assess the implications for your staff of implementing the new system – government funding for specialist SEND initial teacher training and continuing professional development are available to support you in developing your workforce. Use the flexibility of study programmes to develop personalised learning for young people including Supported Internships, traineeships and Apprenticeships. For independent specialist colleges: Consider applying to join the “approved” list under Section 41 of the Act.

Section 41 and specialist post-16 institutions Section 41 of the Children & Families Act allows the Secretary of State to publish a list of approved independent special schools and special post-16 institutions. The approved list allows independent institutions to make themselves voluntarily subject to duties in Children and Families Act. It will cover: independent special schools in England and Wales; specialist post-16 institutions which are not 16-19 Academies or in the further education sector (i.e. independent specialist colleges). Some independent institutions already have a legal definition and are already subject to the duties in the Children and Families Act. These institutions are not covered by the approved list: non-maintained special schools; special Academies and special free schools. The approved list effectively places independent specialist colleges on a statutory footing for the first time.

Section 41 and specialist post-16 institutions The Children and Families Act places specific duties upon providers on the approved list: LAs’ published local offer must refer to the providers on the approved list; providers on the approved list must “have regard” to the SEN Code of Practice; providers on the approved list have a reciprocal duty to co-operate with the local authority on arrangements for children and young people with SEN; duties and rights relating to admissions: a child or young person has a right to request that they are named in their EHC Plan; if the institution is named in an EHC Plan, the LA is under a qualified duty to secure a place; if the institution is named in an EHC Plan, the institution must accept the pupil or young person Providers on the approved list are not required to use ‘best endeavours’ to provide special educational provision for young people – this only applies to mainstream settings (sixth forms, FE colleges and sixth form colleges), and not specialist provision.

The Section 41 “approved” list in practice The Education Funding Agency will oversee applications to join the list. No provider can be forced to join the list. EFA will publish guidance on how to apply in April. There are three criteria: specialism and background – is it specialist and educational? quality of education, training and care provision – is it satisfactory or better? What inspection information is available? financial health – is it satisfactory or better? For new or prospective providers, EFA will consider other information, including education plans and costed business plans and information from commissioning local authorities. This is distinct from EFA’s Market Entry Process (to receive an EFA funding agreement). providers may be on one or other list, both or neither – they are independent; where a provider has recently submitted information for one process, it will be re-used when applying for the other. We intend to publish the approved list in September 2014 when the Children & Families Act comes into force.

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