1. The new legal framework for children and young people with SEN in youth custody

2. Department for Education Portsmouth City Council Department of Health
This material has been developed by the Council for Disabled Children working with:
Department for Education
Portsmouth City Council
Department of Health
G4S Care and Justice Services (UK)
Ministry of Justice
Targeted Support and Youth Justice Service, Nottinghamshire County Council
Youth Justice Board
National Offender Management Service, Young People’s Group
Clayfields House Secure Children’s Home
Information, Advice and Support Services Network
Local Government Association
Barnardos
Medway Educational Psychology Service
The Communications Trust

3. Key aspects of the wider SEND Reforms
The new SEND system started on September 1st The provisions applying to detained children and young people commence on 1st April 2015.
The key aspects of the new SEND system are:
0- 25 system (For detained CYP the new approach applies to age 18 and under)
Focus on outcomes and preparing for adulthood
Joint working between education, health and social care
Principles of engaging with young people, children and their parents with greater transparency/information about what is available in the local area
Education, health and care plans replace Statements of Special Educational Needs and Learning Difficulty Assessments.

4. The SEND Code of Practice 0-25 years
The Code of Practice is statutory guidance for organisations who work with and support children and young people with SEN and a range of institutions and bodies must have regard to it.
Specifically in relation to youth offending, Youth Offending Teams and persons in charge of relevant youth accommodation must have regard to the Code.
Chapter 10 of the Code relates to children and young people with SEN detained in custody. This should be read alongside the whole of the Code of Practice.

5. Youth custody: Principles of the new approach
The home LA continuing engagement and responsibility for arranging a CYP’s special educational provision while they are in custody
The child or young person receives appropriate special educational provision and health provision in custody
Identifying need and ensuring that provision continues on release will help a child or young person’s resettlement
Making a request and getting an assessment underway in custody will be a good use of time

6. Facts and Figures
December 2014: population (inc. 18s) in custody was 1,068.
The majority of this population are male, aged between
In 2012/13 the average length of time in custody was 85 days.
 A MoJ consultation document in 2013 set out:
Around 18% of sentenced young people in custody have a statement
Of year old males in YOIs 88% had been excluded from school at some point and 36% were aged under 14 when they last attended school
Over 60% of people in youth justice estate have difficulties with speech, language or communication.

7. Application of the legislation
These provisions under the Children and Families Act only apply to:
Children and young people aged 18 and under (i.e. up to their 19th Birthday)
Children and young people who have been sentenced or remanded by the Courts to a Young Offender Institution, a Secure Training Centre or a Secure Children’s Home (relevant youth accommodation) in England
In future, secure colleges
Children voluntarily detained in a Secure Children’s Home

8. Who’s who? The appropriate person:
The child’s parent or the young person if they are over compulsory school age
‘Parent’ includes any person who is not a parent of the child but has parental responsibility or who cares for him or her
Home local authority:
The LA which maintained the EHCP in the community.
A request for an assessment must be made to the LA where the child/young person is ‘ordinarily resident’.
Youth Offending Team:
Multi agency teams in every local authority area.
Key point of contact between the establishment and the local authority.

9. Who’s who? Person in charge of relevant youth accommodation
The Governor, Director or Principal
Education Providers
In YOIs are contracted and funded by the YJB
Carry out literacy and numeracy assessments. Contracted to meet the educational needs of all detained CYP
Provide the special educational provision which the Act requires the home LA to arrange
Health Providers
In YOIs are centrally contracted and funded by NHS England
Carry out comprehensive health assessments
Provide the health provision which the Act requires NHS England to arrange

10. CYP with SEN without EHC plans
The Code sets out that whether a CYP has an EHC plan or not:
The principles of the reforms support the timely identification and assessment of SEN and provision of high quality support at the earliest opportunity
The LA must promote the fulfilment of the detained CYP’s learning potential while they are in custody and on release
Providers should meet the educational needs of all detained persons, including those with SEN
Education providers should ensure SEN provision, identification and support follows the model for schools and colleges

11. Assessments for CYP in custody
A young person, a child’s parent or the person in charge of the custodial establishment has the right to request an EHC needs assessment from their home local authority.
Anyone can bring a child or young person to the home LA’s attention (e.g. the YOT).
The LA must determine within 6 weeks whether to conduct an assessment.
The overall timescale from request to a final EHC plan is 20 weeks (with exemptions apply as in the community).

13. Considering an EHC needs assessment
When considering whether to assess the LA must (in addition to wider list in the community):
consult the young person or the child’s parent
consult the person in charge of the secure establishment
notify the YOT and NHS England that this is happening.
The LA must secure an assessment if the child or young person has or may have SEN and it may be necessary for special educational provision to be made in accordance with an EHC plan on their release.
LAs may develop criteria to guide them but each case must be considered individually and be prepared to depart from those criteria, e.g. if there is a lack of evidence because the CYP has been out of school.

14. EHC needs assessment and plan in custody
Assessment and development of plans to start in custody.
Focusing on the CYP’s needs and provision when they are back in the community.
Advice and information must be sought from:
Person in charge of the establishment, inc. education provider
Health care professionals with a role in the CYP’s health
Youth offending team
The content of the plan must be agreed by the home CCG.
Those who are asked for advice must respond within 6 weeks.

15. Moving in/out or transferring establishment
If a child or young person is released or detained part way through the EHC needs assessment or planning process, the process must continue.
The statutory timescales still apply
The LA may use any of the steps already taken in custody or in the community as part of the continuing process.
Transfers from one secure establishment to another:
If the CYP has an EHC plan the LA must send it to the new establishment
If the CYP is part way through the assessment/plan process the LA must continue.

16. Appeals and mediation
The child’s parent or the young person can appeal to the SEND Tribunal if they do not agree with the LA decision:
not to carry out an EHC needs assessment;
not to prepare an EHC plan following an assessment; or
Section I of the EHC plan (educational institution named)
Before registering an appeal the child’s parent or young person must consider mediation.
If they wish to pursue mediation the LA must arrange for it to take place. Most mediation sessions should take place in the establishment.
The person in charge of the establishment must support this process by providing access to the CYP for mediation sessions.

17. CYP with EHC plans
A CYP may have an EHC plan when they enter custody or may have been assessed and remain in custody when their final plan is issued.
The YOT must notify the team with responsibility for SEN in the CYP’s home LA that they have gone into custody.
The home LA must send the EHC plan to the YOT, the person in charge of the establishment and NHS England within 5 working days.
The LA must keep the EHC plan – it must not be ceased.

18. CYP with EHC plans (2)
The LA must keep the EHC plan and must arrange appropriate special educational provision for the CYP as set out in the plan.
NHS England must arrange appropriate health provision for the CYP as set out in the EHC plan.
In practice the education and health providers in the custodial establishment will be delivering these duties under their contracts.
When the CYP is released their EHC plan must be considered as any other EHC plan in the community and the home LA must review the plan.

19. Arranging provision in custody
The home LA and NHS England must arrange SEN and health provision in the CYP’s plan.
If this is not practicable, provision as closely as possible to the plan must be arranged.
What might not be ‘practicable’? E.g.
Section F sets out use of computer software which is prohibited
Section F specifies a catering course but rules of the establishment do not allow the CYP to access this type of course
If provision is not currently available it does not necessarily mean that it is impracticable to provide it.
In practice these decisions will be informed by and taken with the education and health providers and the person in charge of the establishment.

20. Arranging provision in custody (2)
If the LA or NHS England decide that the EHCP provision is not appropriate, they must arrange appropriate provision.
Not appropriate = does not meet the CYP’s needs.
The LA should seek the advice of a professional and then arrange appropriate provision.
In practice these decisions will be informed by and taken with the education and health providers in the establishment.
The law does not permit the LA to formally reassess or to formally amend the EHC plan in custody. Other ways of recording these decisions may be necessary and this should trigger a re-assessment on release.

21. Monitoring progress & reviewing the EHCP
While in custody the EHC plan should continue to be used to actively monitor a CYP’s progress towards their outcomes.
The LA should conduct a monitoring meeting and continue to do so every 12 months.
Taking a similar approach to that used for an annual review in the community would be appropriate.
On the CYP’s release the LA must review their plan as soon as possible on release. Reviewing the EHCP as soon as possible on release to ensure it still reflects the CYP’s needs and has an appropriate education placement is important.

22. Information, Advice and Support
If the LA considers that information, advice or support is necessary for the child, their parent or the young person to enable them to take part effectively in an EHC needs assessment, they must provide it.
Information, advice and support is provided by Information Advice and Support Services as set out in Chapter 2 of the Code of Practice.
Information, advice and support is specific to SEN and disability. It is not the same as any requirements to provide information, advice and guidance (IAG) to detained CYP.
The LA must make parents and young people aware of their rights to appeal to the SEND Tribunal.

23. Transitional arrangements
All statements must be transferred to EHCPs by April 2018
All LDAs must be transferred to EHCPs by September 2016
Statements of SEN
From April 2015 for CYP entering or in custody with a statement of SEN the LA must treat provision as if an EHCP.
The right to request an EHC assessment whilst in custody commences in April 2015 – including those with a statement.
LAs must conduct a ‘Transfer review’ on release and may do so in custody.
From 1 April 2018 provision in a statement must be deemed as if an EHCP. LA must conduct assessment as soon as possible.

24. Transitional arrangements
Learning Difficulty Assessments
The right to request an EHC needs assessment whilst in custody commences in April 2015 – including those who have a LDA.
As in the community those with LDAs will not get a transfer review but LAs should take reasonable steps to inform those with LDAs of their right to request an EHC needs assessment.
From September 2016, if a young person has an LDA the LA must carry out an EHC needs assessment as soon as possible where it believes the young person will return to education on release.

25. More information
Regulations on detained persons with SEN and a redrafted section of the Code of Practice were published in January These documents can be found here:
CDC has produced a set of implementation support materials including a general a factsheet setting out the new legal framework and targeted information sheets for establishments and YOTs.

26. Workshop Activities
If this presentation is being used as part of a workshop, the following the scenario planning exercises might be helpful to apply this to your local area.
Scenario 1: A child or young person with an EHC plan is detained in custody
Scenario 2: A child or young person detained in custody requests an EHC needs assessment / is brought to the LAs attention
Consider the different stages of what might happen in this scenario
Discuss ‘the points to consider’ – what do we know? What do we need to find out?

27. Scenario 1: A child or young person with an EHC plan is detained in custody
Stage 1: Making contact and sharing information
The YOT must inform the LA that the CYP is in custody. The EHC plan must be shared with the establishment.
Points to consider:
Do you have the contacts you need to enable this process to begin?
How will the YOT inform the LA that the child/young person is in custody?
What information will need to be shared between the YOT and the LA? And how will the EHC plan be shared?
Stage 2: Arranging EHC provision in custody
The home LA has a duty to arrange appropriate special educational provision in the EHC plan. NHS England has a duty to arrange appropriate healthcare provision in the EHC plan.
Who needs to be involved in discussing and agreeing provision for a CYP with an EHC plan? Practically how would this happen?
How will the discussion be recorded and shared?

28. Scenario 1: A child or young person with an EHC plan is detained in custody
Stage 3: keeping provision under review
Depending on the length of the child/young person’s sentence, the LA should use the EHC plan to monitor the CYP’s progress towards their outcomes.
Points to consider:
How should this be organised / convened?
Will the education and health provider in the establishment monitor progress? Can the LA use this information to support any of their monitoring while the child or young person is in custody?
Stage 4: Reviewing the EHC plan on release
The LA must review the child/ young person’s EHC plan on release. The LA may wish to review the EHC plan in preparation for the CYP’s release.
What needs to be in place so that LAs are prepared to review a CYP’s EHC plan as soon as possible on their release and who would need to be involved?

29. Scenario 2: A child or young person detained in custody requests an EHC needs assessment / is brought to the LAs attention
Stage 1: Requesting an assessment
If a request is made for an EHC needs assessment or a CYP is brought to the LA’s attention, the LA must consider an assessment. The decision to assess or not must be taken within 6 weeks.
Points to consider:
What evidence does the LA need to have to inform their decisions about an assessment? If the LA has a panel to advise on your decision, would it need to be used differently?
How might the YOT be involved in this process?
Stage 2: Carrying out an EHC needs assessment
What are the practical considerations for carrying out an EHC assessment in custody? E.g. access / minimal disruption. How might the YOT and establishment SENCO be able to help?
How will the home CCG contribute? (keeping in mind that they are not involved in health in custody)

30. Scenario 2: A child or young person detained in custody requests an EHC needs assessment / is brought to the LAs attention
Stage 3: Drawing up an EHC plan
The plan must focus on post detention needs and in preparing the plan the LA and those contributing should follow the same principles and requirements for an EHC plan in the community.
Points to consider:
How will the plan be drawn up with the child, parent or young person’s involvement?
How will the home CCG be involved (bearing in mind that they are not involved in health care in custody) and how will the EHC plan be agreed with the home CCG?
Stage 4: Issuing a final EHC plan
The LA must send the finalised EHC plan to the child’s parent or the young person, the person in charge of the establishment, the YOT, the education institution named in the plan, the relevant CCG and NHS England.
If the statutory process is completed and the CYP remains in custody the EHC plan has the effect of a CYP entering custody with a plan (return to scenario 1)