EDUCATION AND SOCIAL CARE CHILDREN’S RIGHTS: EDUCATION AND SOCIAL CARE Caroline Barrett – Solicitor – Irwin Mitchell LLP Pinpoint – 17.07.2015

Overview Legal Framework Special Educational Needs and EHC Plans SEN Support EHC Needs Assessment Process and EHC Plans Annual Reviews Appeals and Mediation Personal Budgets and Direct Payments Local offer Social care support

Legal Framework Children Act 1989 Working Together to Safeguard Children NHS Act and associated regulations/guidance Part 3 of The Children and Families Act SEN and Disability Regulations New SEN and Disability Code of Practice: 0 to 25 years Transitional arrangements guidance This framework replaces the previous SEN scheme in Part 4 of the Education Act 1996 and a host of old regulations and guidance. The new framework is made up of Part 3 of the Children and Families Act 2014 (the other parts deal with unrelated issues, e.g. adoption), a series of regulations and the Code of Practice. The main regulations are the SEN and Disability Regulations; the other regulations deal with specific issues, for example how Personal Budgets will work or the requirements of the Local Offer. However this framework does not replace all the relevant legal powers and duties affecting disabled children and young people and children and young people with SEN. Perhaps the most important duties outside this framework are section 17 of the Children Act 1989 (CA 1989) and section 2 of the Chronically Sick and Disabled Persons Act 1970 (CSDPA 1970). There are also other laws which will apply such as: Equality Act 2010 Mental Capacity Act 2005

SPECIAL EDUCATIONAL NEEDS AND EHC PLANS This framework replaces the previous SEN scheme in Part 4 of the Education Act 1996 and a host of old regulations and guidance. The new framework is made up of Part 3 of the Children and Families Act 2014 (the other parts deal with unrelated issues, e.g. adoption), a series of regulations and the Code of Practice. The main regulations are the SEN and Disability Regulations; the other regulations deal with specific issues, for example how Personal Budgets will work or the requirements of the Local Offer. However this framework does not replace all the relevant legal powers and duties affecting disabled children and young people and children and young people with SEN. Perhaps the most important duties outside this framework are section 17 of the Children Act 1989 (CA 1989) and section 2 of the Chronically Sick and Disabled Persons Act 1970 (CSDPA 1970). There are also other laws which will apply such as: Equality Act 2010 Mental Capacity Act 2005

Children and Families Act 2014 – key changes School action and school action plus abolished and replaced with SEN Support Academies, independent schools and colleges to be caught under the new scheme EHCP to contain social care (as well as health) for access to education and training Must consider mediation before making an appeal Personal budgets to provide SEN education provision Local Authority can provide Children Act 1989 services beyond the age of 18 Local Authority to provide a local offer – statement of services in its area

Definition of SEN – s.20 A learning difficulty which calls for special educational provision to be made. “Learning difficulty” The child has a significantly greater difficulty in learning than the majority of children of the same age; The child has a disability which either prevents or hinders them from making use of educational facilities of a kind generally provided for children of the same age in schools within the area of the LEA; or The child is under the age of five years and is, or would be if special educational provision was not made, likely to fall within the above categories when over that age

Definition of SEP – s.21 For a child aged two or more or a young person, means educational or training provision that is additional to, or different from, that made generally for others of the same age in— (a)mainstream schools in England, (b)maintained nursery schools in England, (c)mainstream post-16 institutions in England, or (d)places in England at which relevant early years education is provided

Other definitions – s.21 Definition of “health care provision” provision of health care services as part of the comprehensive health service in England continued under section 1(1) of the National Health Service Act 2006. “Social care provision” means the provision made by a local authority in the exercise of its social services functions. Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision).

Key duties: The Section 19 Principles In carrying out all their functions under the Act LAs must have regard to: The views, wishes and feelings of the child, young person or parent The importance of their full participation in decisions The importance of their being provided with the necessary information and support to participate The need to support the child or young person to achieve the best educational or other outcomes

Working Together Duties Section 23 – duty of health bodies to bring certain children to local authority’s attention Section 25 - Promoting integration Section 26 – Joint commissioning arrangements Section 28 and 29 – Mutual co-operation duties Duties to consult

SEN Support School action and school action plus have been replaced with “SEN support” – a graduated approach to meeting SEN which will extend to YP in FE colleges / sixth forms Schools have a year to phase in support – all pupils moving to SEN support by September 2015 All early years settings, schools and post 16 institutions should use an “assess, plan, do, review” cycle The principles of this cycle are broadly the same for all ages Class and subject teachers are still responsible even when the pupil is away from the main class for parts of their provision Should include planning and preparing for transition, before a child moves into another setting or school Schools also have a general duty to use their best endeavours to secure provision and support for children with SEN.

EHC Needs Assessment Process May be requested by parent, young person or school / post 16 institution Anyone can bring a child to the attention of the LA if they think an assessment is necessary(Code Para 9.9) Criteria for assessment (section 36(8)); LA must assess if: Child or young person have SEN; and It may be necessary for SEN provision to be made for the child in accordance with an ECHP No duty to assess disabled children if no SEN The LA may develop criteria or guidelines to help them decide but must not apply a blanket policies

EHC Needs Assessment Process – s.36 Must be consultation with child’s parent or young person LA must notify parents within 6 weeks of request whether an assessment is necessary As part of assessment, LA must obtain: Advice and information from CYP and parents Year 9 onwards – advice to assist with preparation for adulthood and independent living Education, medical / healthcare and social care information Any person the CYP / parents request the LA seeks advice from

The draft plan After EHC needs assessment, LA must confirm (within 16 weeks of request): Outcome of assessment Whether it proposes to make an EHC plan Reasons for the decision If the LA proposes to make an EHC plan it must send a draft plan to the parents or young person and give them 15 days to respond

Request for particular school Child’s parents or young person must then make representations including on particular school named Where particular school requested, the LA must consult governing body and relevant LA if out of area The LA must name the school in the ECH plan unless the school is unsuitable for the age, ability, aptitude or SEN of the child or young person concerned, or

Request for particular school the attendance of the child or young person at the requested school or other institution would be incompatible with— the provision of efficient education for others, or . the efficient use of resources. The LA must then name the school or type of school the LA thinks would be appropriate Note: Section 43 – duty on schools and other institutions to admit child or young person named in plan Duty to admit applies if one of the following is named in an EHC plan— (a) a maintained school; (b) a maintained nursery school; (c) an Academy; (d) an institution within the further education sector in England; (e) a non-maintained special school; (f) an institution approved by the Secretary of State under section 41.

Health in EHC plan NHS has a duty under s.3 NHS Act 2006 to arrange health care provision to meet somebody’s reasonable health needs S.42 CFA 2014 – also puts a duty upon CCG to ensure that health provision in an EHC plan is made available to the CYP. Each CCG now has a nominated person – a Designated Medical Officer – to liaise with parents and the LA regarding the health assessments Should identify health needs related to SEN. Examples – management of epilepsy, management of PEG feed/NG tube etc

Children with medical conditions Section 100 (Part 5) – duty upon schools to make arrangements to support children with medical conditions. Individual healthcare plans – to be reviewed annually to manage the person’s medical condition on a day to day basis within the school, risk assessments etc All schools must have a readily accessible policy as to how children can be supported with medical conditions Equality Act – reasonable adjustments and no discrimination Designated Medical Officer at CCG to offer support to schools.

Social care All social care needs relating to SEN to be identified in EHC plan LAs should develop and publish local protocols for assessment which should set out how the needs of disabled children will be address in the assessment process and clarify how statutory social care assessments will be informed by and inform EHC needs assessments Where there is an EHC needs assessment, it should be a holistic assessment of the CYP’s education, health and social care needs. EHC needs assessments should be combined with statutory assessments under section 17 where appropriate (10.18 of Code)

The Final EHC Plan Final plan must be issued by a maximum of 20 weeks from the date of request for assessment A copy of the final plan must then be sent to parents and the school named in the plan Where the LA maintains an EHC plan: The LA must secure the specified special educational provision The responsible CCG must arrange any specified healthcare provision

Education, Health and Care Plans Format of EHC Plans: The views, interests and aspirations of CYP and parents The CYPs special educational needs; The CYPs health needs which relate to their SEN; The CYP’s social care needs which relate to their SEN; The outcomes sought for the CYP the special educational provision required by him or her; any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs;

Education, Health and Care Plans H. Social care provision Educational Placement Personal Budget (including arrangements for direct payments) Advice and Information

Annual Reviews The following people must be invited to the meeting: Child’s parents or young person themselves Head of early years provider/school/institution (if relevant) LA officer with responsibility for LA’s education functions for children/young people with SEN LA officer with responsibility for LA’s social care functions for children/young people with SEN Health care professional identified by “responsible commissioning body” Any other person the LA considers relevant (if the child or young person doesn’t attend school or an institution)

After the meeting After the meeting: Within 2 weeks school or LA must prepare written report with recommendations Within 4 weeks Local Authority must decide if it is going to continue, amend or cease to maintain EHC plan and inform child’s parents, young person and head of any institution If LA decides to amend: it must send to child’s parents or young person, informing of changes and give them 15 days to make representations If plan amended following representations, the finalised version must be sent to parents/governing body/responsible commissioning body within 8 weeks of draft plan being sent

Appeals and Mediation Appeals against the SEN elements of EHC plan remain with the Tribunal LA must send out information on appeal rights with the decision notice Mandatory requirement to contact a mediation adviser by telephone before you can lodge an appeal Time is limit is 2 months from decision notice or 1 month from date of mediation certificate LA attendance is mandatory if family request Mediation also available for health and social care parts

Personal Budgets A local authority that maintains an EHC plan, or is securing the preparation of an EHC plan, for a child or young person must prepare a personal budget for him or her if asked to do so by the child’s parent or the young person Where a request for direct payments has been made, a local authority must consider that request LA must make arrangements for provision of information, advice and support including organisations that can provide assistance on direct payments Direct payment must be agreed by the school

Direct Payments When will direct payments be made? recipient will use them to secure the agreed provision in an appropriate way parent or a nominee will act in the best interests of the child or the young person when securing the proposed agreed provision the direct payments will not have an adverse impact on other services securing the proposed agreed provision by direct payments is an efficient use of the authority’s resources

Implementation: Key Dates On 1st September 2014 – All new entrants will be dealt with under new system September 2014 – April 2018: children and young people with statements of SEN transfer to the new system via the “transfer review” process September 2014 – September 2016: young people with Learning Difficulty Assessments (pursuant to S139a LSA) transfer to the new system. Young people with LDAs will not go through the ‘transfer review’ process but will need to make a new request for an EHC needs assessment under the new legal framework from 1 September.

Transitional arrangements Timescales for Transition: Between 1 September 2014 and 1 September 2015, local authorities must transfer children and young people with statements to the new arrangements prior to them transferring from school (including school sixth forms) to a post-16 institution or an apprenticeship. This must be done by 31 May 2015. Otherwise – in accordance with each local authority’s Local Transition Plan – published as part of Local Offer

Transitional arrangements C&YP with existing Statements of SEN “To ensure that EHC plans are person-centred and focused on outcomes, an EHC plan must only be issued following a ‘transfer review’ – an EHC needs assessment.” Requirements for transfer review: An EHC Needs Assessment Must include a meeting with the parents or young person Transfer cannot take place if there is a pending Tribunal appeal Parents and school must have 2 weeks notice of the date of the meeting LA must maintain statement until review is completed Completed in 16 weeks

Transitional arrangements C&YP with Learning Difficulty Assessments Requests for assessment must be dealt with as if the C&YP is a new entrant into the system LA’s have 6 weeks to respond to request for assessment Where necessary, a full assessment must be carried out and EHC plan prepared There is a right of appeal if LA decide not to issue a EHC plan Where no EHC, should continue to receive provision as set out in the S139a (LDA) assessment

Decision-making for young people The Children and Families Act 2014 gives significant new rights directly to young people. Definition of “Young person”: A person over compulsory school age (the end of the academic year in which they turn 16) and under 25. Code of Practice says that local authorities and other agencies should normally engage directly with the young person rather than their parent. Compulsory school age ends on the last Friday of June in the academic year in which they become 16.

Decision-making for young people The following decision-making rights are transferred from parents to young people: the right to request an assessment for an EHC plan (any time up to their 25th birthday) the right to make representations about the content of their EHC plan the right to request that a particular institution is named in their EHC plan the right to request a Personal Budget the right to appeal to the First-tier Tribunal (SEN and Disability)

Decision-making for young people Parents, or other family members, can continue to support young people in making decisions, or act on their behalf, provided that the young person is happy for them to do so, and it is likely that parents will remain closely involved in the great majority of cases. A young person can ask a family member or friend to support them in any way they wish, including, for example, receiving correspondence on their behalf, filling in forms, attending meetings, making telephone calls and helping them to make decisions. However, the final decision rests with the young person.

Decision-making for young people The right of young people to make a decision is subject to their capacity to do so as set out in the Mental Capacity Act 2005. In cases where a person lacks mental capacity to make a particular decision, that decision will be taken by a representative on their behalf. The representative will be a deputy appointed by the Court of Protection, or a person who has a lasting or enduring power of attorney. In the case of a young person who does not have such a representative, the decision will be taken by the young person’s parent. This is likely to be the case the majority of the time. Note: this is a departure from the usual decision-making process under the Mental Capacity Act 2005 as the parent will take the decision for the young person rather than it be taken in their best interests like a decision for residence, care and contact

Challenging decisions: Tribunal Can appeal: • A refusal to carry out an EHC needs assessment • A refusal to make an EHC plan following an assessment • If you disagree with sections B, F or I of the EHC plan • The local authority refuse to make requested amendments to an EHC plan following an annual review • The local authority refuse to carry out a re-assessment • The local authority cease to maintain an EHC plan Legal aid based on parents finances and doesn’t cover hearing itself Time limit is 2 months

Challenging decisions: judicial review The types of decision which can be challenged by judicial review include: Failure to provide provision which is set out in the Plan The contents of the social care and health sections of the Plan – as there is no right of appeal to the Tribunal in relation to these sections; Failure to comply with duties under the Local Offer – for example regarding its contents or failing to consult; Refusal to provide a personal budget or award direct payments; The use of a policy or eligibility criteria limiting access to assessment or provision which is arguably unlawful. 3 months time limit Legal aid eligibility based on child or young person’s finances

THE LOCAL OFFER

The Local Offer “Local authorities must publish a Local Offer, setting out in one place information about provision they expect to be available across education, health and social care for children and young people in their area who have SEN or are disabled, including those who do not have Education, Health and Care (EHC) plans” Must include any eligibility criteria which applies before provision can be accessed Comments must be published and responded to by the LA

The Local Offer – cont. Information to be included: special educational, health and social care provision for children and young people with SEN or disabilities details of how parents and young people can request an assessment for an EHC plan arrangements for identifying and assessing children and young people’s SEN – this should include arrangements for EHC needs assessments other educational provision, for example sports or arts provision, paired reading schemes post-16 education and training provision, apprenticeships, traineeships and supported internships

The Local Offer – cont. Information to be included: information about provision to assist in preparing children and young people for adulthood arrangements for travel to and from schools, post-16 institutions support to help children and young people move between phases sources of information, advice and support in the local authority’s area childcare, including suitable provision for disabled children and those with SEN leisure activities support available to young people in higher education

The Local Offer – cont. Information to be included: arrangements for resolving disagreements and for mediation, and details about making complaints parents’ and young people’s rights to appeal a decision of the local authority to the First-tier Tribunal the local authority’s accessibility strategy Should cover universal, targeted and specialist services

Social Care

Children’s care assessments - overview REQUEST ASSESSMENT FROM LOCAL AUTHORITY LOCAL AUTHORITY CONFIRMS WHETHER IT WILL CARRY OUT AN ASSESSMENT ASSESSMENT MUST BE COMPLETED WITHIN A MAXIMUM OF 45 DAYS ASSESSMENT SHOULD INCLUDE A PLAN OF ACTION SETTING OUT HOW CHILD’S NEEDS SHOULD BE MET. LOCAL AUTHORITY REQUIRED TO WORK WITH OTHER AGENCIES WHERE REQUIRED CARE DELIVERED EITHER DIRECTLY BY A CARE AGENCY, OR VIA THE RECEIPT OF DIRECT PAYMENTS

What does the law say? S.17 Children Act 1989 - local authorities must safeguard and promote the welfare of children in their area who are ‘in need’. S.2 Chronically Sick and Disabled Person’s Act – duty to provide services to meet those needs Human rights – “Article 8” Children are ‘in need’ if: They are unlikely to achieve or maintain a reasonable standard of health or development without services; or Their health or development is likely to be significantly impaired, or further impaired, without the provision of services; or They are disabled.

Care assessments To meet duties – LA will produce care assessment and care plan Statutory guidance – Working Together to Safeguard Children Maximum time frame for completing an assessment is 45 days. In certain circumstances local authorities should consider providing interim services prior to completion of assessment. Care assessment should include a ‘plan of action’ – make sure that there is a lawful care plan which shows what services are going to be provided, and who is going to provide them. s.10 Children Act 1989 and s.82 NHS Act 2006 – local authority and health care bodies/other agencies must work together

Direct payments vs LA commissioning At the end of the care plan = “personal budget” You can choose to receive this yourself and pay for carers directly. Or the local authority can commission services itself. More flexibility? More administration? Important to understand how the personal budget is calculated – ask for clarification from LA if unclear.

Carers’ Rights Carers are entitled to their own care assessment, but their needs are often assessed within the child’s assessment itself. “Parent carers assessments” under s.97 CFA 2014 (s.17ZD – S.17ZF Children Act 1989): Carried out on the appearance of need Must consider carer’s wellbeing and ability to provide support disabled child Consider what needs for support they have Services for carers can be provided under s.17 and included in the EHC plan Short breaks or ”respite” care is available and should also be considered by LA. This should form part of child’s care package and be set out in the care plan - either directly commissioned or via direct payments S.17 (6) and now schedule 2 para 6(c) of CA 1989 – authorities must assist individuals who provide care to children to continue to do so, by giving them breaks from caring. Regulations - “Breaks for Carers of Disabled Children Regulations” SI 2011/707. Regulation 4 “Types of services which must be provided” provides: “A local authority must provide, so far as is reasonably practicable, a range of services which is sufficient to assist carers to continue to provide care or to do so more effectively”

NHS care – “continuing care” Some children will receive part of their care package from NHS as well as the LA. The National Framework for Children and Young People’s Continuing Care’ 2010 – applies when more specialist healthcare provision is required e.g. Regular physiotherapy/occupational therapy needs Night time care/nursing needs PEG feeds and/or complex medication For children, ‘joint’ NHS and LA care plans. This changes under adult services. S.10 Children Act 1989 – NHS and LA must work together

NHS care – “continuing care” Some children will receive part of their care package from NHS as well as the LA. The National Framework for Children and Young People’s Continuing Care’ 2010 – applies when more specialist healthcare provision is required e.g. Regular physiotherapy/occupational therapy needs Night time care/nursing needs PEG feeds and/or complex medication For children, ‘joint’ NHS and LA care plans. This changes under adult services. S.10 Children Act 1989 – NHS and LA must work together

What to do if it all goes wrong Speak to your child’s social worker and ask for changes/additional support Consider formal complaint and progressing to ombudsman Consider legal advice, particularly important where matters : Are urgent and you can’t wait for a complaint Involve a decision that was made on a particular date, as judicial review has a 3 month time limit. Legal aid is still available in the majority of judicial review cases involving children.

Caroline.Barrett@irwinmitchell.com Further information: http://www.irwinmitchell.com/personal/protecting-your- rights/social-healthcare-law/the-children-and-families- act-2014/factsheets-and-template-letters