EDUCATION, HEALTH AND CARE PLANS-ASSESSING AND PREPARING FOR THE IMPLICATIONS OF LEGAL CHANGES

EDUCATION, HEALTH AND CARE PLANS-ASSESSING AND PREPARING FOR THE IMPLICATIONS OF LEGAL CHANGES Mark Blois, Partner and Head of Education 15 November 2012

Agenda Reform Education, Health and Care Plans Children and Families Bill What won t change? How Plans will work Key challenges

Need for reform Current system is outdated and not fit for purpose, needs single, simpler assessments. Families face long battles to get specialist care. Delays and bureaucracy. Unclear who is responsible for delivering on the statement e.g. speech and language therapy. Ofsted reported in 2010 that many children were being wrongly identified as having SEN-tighter guidance required. Complicated School Action and School Action Plus.

Highlights of Proposed Changes Legal definition of SEN to remain the same as in EA 1996. LA s and clinical commissioning groups must make arrangements for jointly commissioning services. LA s must produce their local offer of available education, health and care services. Education, Health and Care Plans to replace Statements of SEN. Learning and Difficulty Assessments to be replaced by an Annual Review of the EHC plans.

Highlights continued LA s must prepare a personal budget in relation to an EHC plan where a request has been made by the parent or young person. Compulsory use of mediation before they can appeal to the Tribunal. Revised Code of Practice.

Education, Health and Care Plans LA duty to identify all children in area with SEN is wider than in EA 1996. The threshold for an EHC plan is the same as for a statement. To obtain a Statement a child must require additional support that is not normally or reasonably available in school. The duty on the local authority to secure the educational provision set out in an EHC plan remains the same. Health and social care needs must be explicitly recorded in the EHC plan.

Education, Health and Care Plans No new duties on health and social care in relation to delivering what is in a EHC plan, though there is a duty to co-operate with the local authority. EHC plans extend all the statutory rights currently in a statement into the further education and training sector for the first time. Changes plan to end the cliff edge faced by young people when they leave school at 16 or 18 and facing re-assessment and less protection.

Education, Health and Care Plans The section 139A assessment (Learning Difficulty Assessments) ceases to apply and is replaced with a reassessment/annual review of the EHC plan. Named partners will be required to cooperate in relation to meeting the education, health and care needs of children and young people with SEN. The EHC process will be subject to Regulations.

Children and Families Bill The Bill will take forward the following key aspects: Replacing SEN Statements and Learning Disability Assessments with a single, simpler 0-25 assessment process and Education, Health and Care Plan from 2014 Providing statutory protections comparable to those currently associated with a Statement of SEN to up to 25 in further education- instead of being cut off a 16

Children and Families Bill Requiring that local authorities and health services jointly plan and commission services that children, young people and their families need

Timetable Draft legislation launched on 3 September reflecting the changes proposed by SEN Green Paper. Pre-legislative scrutiny of the draft clauses by Education Select Committee. It is hoped they will consult widely on the draft. Ongoing work by the Pathfinders, voluntary and community sector should support and inform the legislation through Parliament.

What isn t changing? (1) All of the provision of the Bill will apply to academies and free schools in full. Schools will still be required to have an SEN coordinators. Schools will still be required to inform parents and young people if they believe their child has SEN. Still required to use best endeavours to meet SEN. Schools must publish information on how they meet the needs of disabled children and children with SEN.

What isn t changing? (2) There will be a revised Code of Practice developed for use. Tribunal will only be able to consider issues relating to the educational provision contained within the EHC plan.

What isn t changing (3) Presumption for mainstream education still exists but will extend to 25 years. Mainstream will be the default position unless it is incompatible with: wishes of the child s parents and young person, or the provision of effective education for others.

EHC Plans-How it works (1) 1. LA identifies child or young person has SEN, and informs parents or young person of its intention to undertake an assessment of educational, health and social care needs. The parents or young person can express their views about this and send evidence 2. Where the LA decides to go ahead with an assessment, it does so and must inform the parents or young person of the outcome, including any decision to produce an EHC Plan

EHC Plans-How it works (2) 3. The LA produces an EHC Plan setting out the needs, desired outcomes and the special education, health and social care provision required. 4. A draft plan, which does not name a provider, is sent to the parents or young person. They can choose to name a preferred provider within a set timescale. 5. The LA must consult with any named provider before finalising the plan and sending the final version to the parents and/or young person.

EHC Plans-How it works (3) 6. The LA must secure the provision and the named provider then has a duty to admit the child or young person and use its best endeavours to secure that the special educational provision called for by the pupil s or student s special educational needs is made. 7. The EHC plan must be reviewed every 12 months, if requested by the learner or provider and at key transition stages.

EHC Plans-How it works (4) 8. The plan ceases to be maintained once the education programme is completed.

Key challenges 1. Reformed assessment process and Plan content 2. Independence of Assessment Process 3. Accountability/Appeals

Plan Process / Content The Plan will provide the same statutory protections for parents as current Statement of SEN - current legal principles will apply Will still be issues about specificity and quantification of provision contained in the "Plan" Plan will be clear about who is responsible for provision across education, health and social care Structural changes will be needed to force conversations and overcome collaboration issues

Independence of Assessment Process it should have been glaringly obvious, and it was extraordinarily short-sighted of us not to realise, that if a local authority had to assess a child and its needs for a statement, and the same body had to fund those needs, it would in the end look not to what the child needed but to what it thought it could get away with: what it thought it could possibly afford. That was not obvious to the committee that reported in 1978. - Baroness Warnock 21 October 2010

Independence of Assessment Process Most parental concerns are not with Statement process, but about Local Authority decision making and the transparency of the process Essex and Manchester have confirmed plans to run EPS at arms length Pathfinders are exploring whether voluntary and community sector could co-ordinate single assessments across education, health and social care and bring greater independence to the process

Independence of Assessment Process What incentives will be given to volunteers and independent organisations? Does the voluntary/charitable sector have the resources to ensure that reports are prepared within the proposed 20 week deadline? Seems to significantly underestimate the administrative burden which the present system places on Local Authorities. Is there a risk that the Big Society is being used as a veil for vague policy?

Accountability Not clear where responsibility will lie for monitoring and to ensure joined up package is delivered or how statutory services will be held to account if they do not deliver If schools, how will they insist on delivery of provision from other agencies? What happens when one element does not deliver?

Integration Local authorities will be required to promote integration in the exercise of their functions. Particularly between education, health, and social care services. Local authorities and clinical commissioning groups must make arrangements for joint commissioning. includes arrangements for considering and agreeing reasonable provision to meet the needs of all children with SEN in the area specifically for children with EHC plans.

Appeals The draft legislation covers a new mediation service and appeals to the First Tier Tribunal. Will allow for both the process and the content of the EHC plan to be challenged. Mediation must precede an appeal (unless it relates to the naming of a provider). Regulations will outline the provision to be made for mediation.

Accountability Appeals New provisions do not extend SENDIST to cover Social Care and Health Tribunal system will remain and will be no simpler for parents to present their case. No evidence that the proposals will create a more transparent and fair process. How will Plans interact with current social services framework?

What needs to be ensured? That the new legislation does not erode the rights contained in SEN system already in place. That it will improve the provision of support across education, social care and health. Create a transparent system so that misunderstanding and conflict are reduced within the system.