1. UNDERSTANDING THE SEND REFORMS
Polly Sweeney, Associate Solicitor, Irwin Mitchell, 16 March 2015

2. Programme Time Session 10.00am Welcome and Introductions 10.15am
Session 1: Understanding the SEND reforms and Key Changes
11.30am
Break
11.45am
Session 2: Transitional Arrangements and The Local Offer
12.30pm
Lunch
1.00pm
Session 3: Accessing Social Care and Transition to Adulthood
2.00pm
Finish

3. SESSION 1 UNDERSTANDING THE SEND REFORMS:
PART 3 OF THE CHILDREN AND FAMILIES ACT 2014

4. Overview Legal Framework General Principles and Duties SEN Support
The EHC Needs Assessment Process
The EHC Plan
Annual Reviews
Appeals and Mediation
Personal Budgets and Direct Payments

5. Legal Framework The Children and Families Act Part 3
SEN and Disability Regulations
SEN Personal Budget Regulations
SEN Local Offer Regulations
SEN Transitional Arrangements Regulations
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

6. 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

7. 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

8. 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

9. 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

10. EHC Needs Assessment Process
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
Any person the CYP / parents request the LA seeks advice from
Year 9 onwards – advice to assist with preparation for adulthood and independent living
Education, medical / healthcare and social care information

11. 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

12. 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

13. 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.

14. 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

15. 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;

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

17. Annual Review Process
EHC plans must be reviewed by the Local Authority:
In the first twelve months from when made
Every twelve months thereafter as a minimum
Local Authority duties:
Consult with and take account of views of child or young person and child’s parents
Consider progress towards achieving outcomes in EHC plan and if these outcomes are still appropriate
Consult school/any other institution child or young person attends
If the child/young person attends a school or institution, LA can require head teacher to convene

18. The Annual Review Meeting
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)

19. 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

20. Appeals and Mediation
Appeals against the SEN element of EHC plans 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

21. 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

22. 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

23. TRANSITIONAL ARRANGEMENTS
SESSION 2
THE LOCAL OFFER
AND
TRANSITIONAL ARRANGEMENTS

24. 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”

25. http://www.mywalsall.org/walsall-send-local- offer/
Walsall’s Local Offer
offer/

26. The Local Offer Requirements for Consultation with:
CY&P with SEN and disabilities
Parents of CY&P with SEN and disabilities
Governing Bodies
Youth Offending Teams
LA’s own officers
NHS Health Boards and Clinical Commissioning Groups

27. The Local Offer 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

28. The Local Offer 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

29. The Local Offer 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

30. Information, Advice and Support
Every LA has a duty to provide an Independent Advice and Support Service.
This must provide IAS to Parents, Young people and children
Must cover education, health and social care
Should be impartial, confidential, accessible and free
IAS Service have extensive legal training
Independent Supporters Programme

31. 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.

32. 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.
Statutory guidance for local authorities and organisations providing services to children and young people with SEN “0 to 25 special educational needs and disability system”
Published August 2014

33. 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

34. 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

35. Transitional arrangements
Local Transition Plan must include:
Information on consultation
The numbers of CYPs expected to transfer each year during transition
The order in which CYPs will be transferred
Details of transfer review process
Sources of independent information and advice;

36. ACCESSING SOCIAL CARE AND TRANSITION TO ADULT SERVICES
SESSION 3
ACCESSING SOCIAL CARE AND TRANSITION TO ADULT SERVICES

37. Overview Social care duties to disabled children
Transition to adulthood
Social care duties to disabled adults
How does social care fit into EHC assessments and plans?
Decision-making under SEND for young people

38. Social care duties to disabled children
Duty to assess a child’s need for ‘social care’ services and, where necessary, provide services to meet assessed needs – s17 assessment;
Duty to accommodate children whose parents are ‘prevented’ from providing them with suitable accommodation and care – s20 accommodation;
Duty to respect disabled children’s right to family and private life – Article 8 ECHR.
Working Together Guidance – assessments to be completed in 45 working days from referral

39. Preparing for Adulthood
Preparation for adulthood should begin at Year 9
Annual reviews from Year 9 must include a focus on
planning of transition to adult social and health services where necessary
options and choices for next phase of education, e.g. invite representatives of post 16 institutions to review meetings
views of child/young person must be sought and taken into account

40. Transition Assessments
Local authorities must carry out transition assessments where significant benefit for young person in doing so and likely to require care and support post 18.
Must consider:
Current needs for care and support
Whether the young person is likely to have care and support needs post 18
If so, what needs likely to be eligible

41. Continuity of Provision
Under the Care Act Support from children’s services must remain in place until an adult needs assessment has been completed and adult care and support is in place
LA may continue to provide section 17 services after 18 as long as child has EHC plan

42. Social care duties to disabled adults
The Care Act 2014 – 1 April 2015
Adult Needs Assessment
New Eligibility Criteria
Care and Support Plan
Rights of Carers
Charging Reforms

43. Social Care in EHC needs assessment
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 leading to an ECH plan (10.17 of Code)
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)
ECH plan reviews should be synchronised with social care plan reviews

44. Social Care in EHC plan
H1. in the case of a child or a young person aged under 18, any social care provision which must be made as a result of section 2 of the CSDPA 1970
H2. any other social care provision reasonably required – of the code says that s17 provision must be specified here.

45. 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.

46. 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)

47. 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.

48. 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.
Some young people, and possibly some parents, will not have the mental capacity to make certain decisions or express their views.
Provision is made in the Children and Families Act (Section 80) to deal with this and Annex 1 to the Code of Practice provides further details.

49. Decision-making for young people
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

50. Decision-making for young people
Even where the young person lacks capacity, the local authority must still take account of the views of the young person as well as the representative in the following situations:
They must have regard to the views and wishes of a young person (Section 19)
They must consult young people when carrying out its duty to keep education and care provision for disabled children and young people and those with SEN under review (Section 27)

51. Decision-making for young people
publishing the comments of young people about its Local Offer and involving these people in preparing and reviewing the Local Offer (Section 30)
arranging for information and advice to be provided to young people and taking steps to make information and advice services known to those people (Section 32)

52. polly.sweeney@irwinmitchell.com Further information:
rights/social-healthcare-law/the-children-and-families- act-2014/factsheets-and-template-letters