SEND Update newsletter: December Introduction: This is the second edition of this newsletter, after what has been a very busy time for everyone. We have analysed the autumn local authority implementation survey and the results are attached. It is clear that local authorities are working extremely hard to deliver the SEND reforms, and efforts are clearly beginning to pay off - for example every local authority has published a Local Offer. Challenges do, of course remain, particularly around delivering transition plans and continually improving the quality of local offers. We continue to be extremely grateful for your work, and that of all the delivery partners who are supporting implementation. The Department has recently invited expressions of interest for local authorities to develop peer led networks in 2015-16 to support implementation of the SEND reforms. Today we have published three things: The financial allocations for the second year of the SEND Implementation Grant. A summary report of the Ofsted and CQC study into how 30 LAs were preparing to implement the SEND reforms in Spring 2014. Minister Timpson has asked Ofsted to prepare an inspection framework on SEND, working with the CQC and LA representatives. We will keep you posted as that work develops. Two easy read guides to the SEND reforms for both parents and young people with learning disabilities. The links to all these new documents are given below. Attached are some questions and answers relating to the the post-16 offer under the SEND reforms. We have a new Deputy Director, Stuart Miller, who has joined the 0-25 SEN and Disability Unit, working alongside Caroline Bicknell. We do hope you have a very Merry Christmas and a Happy New Year. 0-25 SEND Unit
Communications update: A number of documents were issued over the last month: Resources and Letters Details of the SEND Implementation Grant Allocations Edward Timpson s letter to LA Chief Executives, including the high level funding: A summary report of the Ofsted and CQC study into how 30 LAs were preparing to implement the SEND reforms in spring 2014 Two easy read guides to the SEND reforms for both parents and young people with learning disabilities. The announcement of the Terms of Reference of the Review of Redress The Anti-Bullying Alliance launched a range of resources to help address bullying of children and young people with SEND. The SQW evaluation of personal budgets across Education, Health and Care, which contains a particularly useful checklist at chapter six. The Department has published a call for evidence to inform longer term changes to SEN and disability funding. It is open until 27 February 2015. Link https://www.gov.uk/government/publications/send-implementation-grant-allocations-b https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/373384 _Implementation_of_SEND_Reforms_-_11.11.14.pdf https://www.gov.uk/government/publications/send-reforms-study-of-local-areas-readin https://www.mencap.org.uk/easyreadguides https://www.gov.uk/government/news/send-disagreement-resolution-arrangements-re http://www.anti-bullyingalliance.org.uk/send-resources/ https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/368625 _and_disability_pathfinder_evaluation.pdf https://www.gov.uk/government/consultations/funding-for-children-and-young-people- In the New Year, you ll want to keep an eye out for a new edition of the Code of Practice and regulations on young offenders with special educational needs. We ll email you details of these as soon as we publish them.
Ask DfE This month, we are focusing on questions we ve had from local authorities and others on post-16 issues. If you have questions to raise with us please do so through our e-mail account: SEN.IMPLEMENTATION@education.gsi.gov.uk. Questions and Answers Q1) What are the rights of parents in relation to decisions about the SEN provision for young people (i.e. those aged 16-25)? At the end of compulsory school age (the end of the academic year in which a child turns 16) the right to make requests and decisions under the Children and Families Act 2014 automatically transfers from parents to the young person. That does not mean that parents are excluded from the process, but it does mean that it is ultimately the young person who makes the decision, not the parent. The 0-25 SEND Code of Practice makes it clear that local authorities, schools, colleges, health services and others should continue to involve parents in discussions about the young person s future, particularly when the young person is under 18. Parents can of course support young people in making their decisions and, where the young person is happy for them to do so, they can act on their behalf. It is important that where they need it and they have mental capacity to make decisions young people are helped to make decisions themselves. The right of young people to make a decision is subject to their being able to do so. The Mental Capacity Act 2005 is built on the principle that, where someone lacks capacity, they are supported so that they can make as many decisions for themselves as possible and any decision taken on their behalf is done in their best interests. Decisions about mental capacity are made on an individual basis, and may depend on what kind of decision it is. Where a young 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 lasting or enduring power of attorney for that young person (which may be the parent). In the case of a young person who does not have such a representative, then the decision will be taken by the young person s parent. People are presumed to have mental capacity unless they are deemed not to under the Mental Capacity Act 2005. A decision that someone lacks mental capacity is not a once-and-for-all decision, although a person does not have to be reassessed every time the question of mental capacity arises. Mental capacity must be considered in the context of every decision being made and consideration should be proportionate to the issue on which the decision is being made.
A summary of the position over mental capacity is set out at Annex 1 of the 0-25 SEND Code of Practice. You may also find this recently published factsheet helpful: http://www.preparingforadulthood.org.uk/resources/pfa-resources/pfa-factsheet-the-mentalcapacity-act-2005-and-supported-decision-making. Q2) How does the local authority decide which FE college a young person who has or is to have an EHC plan should attend? Where a young person has requested a particular college, the local authority must consult the college. It must name the college in the EHC plan unless: the college is unsuitable for the age, ability, aptitude or special educational need of the young person, or the attendance of the young person at the college would be incompatible with the provision of efficient education for others or the efficient use of resources. Where a young person has not requested a particular college (or does so, and their request is not met), the local authority must specify mainstream provision in the EHC plan unless it would be: Against the wishes of the young person, or, Incompatible with the efficient education of others. Where a local authority considers a particular mainstream college placement to be incompatible with the efficient education of others, it must demonstrate that there are no reasonable steps the college could take to prevent that incompatibility. This principle also applies to nursery and school settings. Q3) Do colleges have to admit someone with an EHC plan if they believe they cannot meet their needs? FE colleges, sixth form colleges, 16-19 academies and specialist post-16 colleges approved under section 41 of the Children and Families Act 2014 are all under a duty to admit a young person if they are named in a young person s EHC plan. Local authorities must consult a college before naming that college in the EHC plan and the college will have an opportunity to consider whether and
how they might meet the young person s needs. If they do not believe, even using their best endeavours and making reasonable adjustments as required in law, that they can meet that young person s needs, they will need to explain that in their response to the local authority. It will be for the local authority to decide whether or not to name the college in the plan, following that consultation. It must do so unless: the college is unsuitable for the age, ability, aptitude or special educational need of the young person, or the attendance of the young person at the college would be incompatible with the provision of efficient education for others or the efficient use of resources. Once a college has been named in an EHC plan it is under a duty, under the Children and Families Act 2014, to admit the young person. Q5) At the national level what is being done about making sure health services are continued beyond 18? The Children and Families Act 2014 is designed to support transition to adult services, including health services. The Act requires CCGs and LAs to establish joint commissioning arrangements, and introduces a co-ordinated EHC plan, which can run from birth to 25, if a young person s needs require it to. The local authority s Local Offer must set out clearly health provision available in an area. The 0-25 SEND Code of Practice gives a clear steer about the steps that must be taken to ensure that young people can make a successful transition to adult health services (paragraphs 8.56 8.58). The Designated Medical Officer could usefully put steps in place to support young people transferring to adult services. In addition to the legislative framework above, DfE continues to work closely with the Department of Health, NHS England and the Royal Colleges to support implementation of the SEND reforms, including transition. The Royal College of GPs has produced a guide on managing the adult health checks for people with learning disabilities: A Step by Step Guide for GP Practices: Annual Health Checks for People with a Learning Disability (http://www.rcgp.org.uk/learningdisabilities/ ). This information should feed into the EHC assessment and plan development process as appropriate. Q6) How does the Care Act 2014 affect the legislation on SEND? The Care Act 2014 and the Children and Families Act 2014 are designed to work together. Where a young person is over 18, the care element of the EHC plan will usually be provided by adult services. Under the Care Act 2014, local authorities must meet eligible needs set out in an adult care and support plan. Local authorities should explain how the adult care and support system
works, and support young people in making the transition to adult services. Local authorities do have the power to continue to provide children s services for young people over the age of 18 where it will be benefit a young person with an EHC plan, for as long as is deemed necessary. The Care Act 2014 places a duty on local authorities to ensure there is no gap in support while an individual makes the transition from children s to adult services on or after their 18 th birthday. Children s services must be maintained until a decision on adult care is reached. Where it is agreed that adult care will be provided, children s services must continue until adult care begins. Young people will be able to request an assessment for adult care in advance of their 18 th birthday so they can plan ahead knowing what support they will receive. Chapters 3 and 8 of the SEND Code of Practice contain further information. Q7) What happens about transport where a young person chooses a college that is further away from their home than another that could also meet their SEN needs? As stated in paragraph 9.214 of the 0-25 SEND Code of Practice, the parents or young person s preferred school or college might be further away from their home than the nearest school or college that can meet the child or young person s SEN. In such a case, the local authority can name the nearer school or college if it considers it to be suitable for meeting the child or young person s SEN. If the parents prefer the school or college that is further away, the local authority may agree to this but is able to ask the parents to provide some or all of the transport funding. Q8) If a college and a course is named on an EHC plan and then due to numbers being too low the college decides to withdraw the course, what happens would the college still have to provide that course if it is referred to in section F of the EHC plan? The college does not have to provide a specific course if it is not viable. The EHC plan will have named the FE college and the special educational provision that a young person must receive there and the FE college is under a duty to admit them. However that duty does not mean it has to admit to a specific course. There may be circumstances (such as a course no longer being available) where the local authority is required to review the EHC plan, to ensure that the specified FE college is still appropriate for the needs of the young person. Q9) What is the legal position about 5 day a week provision for students in colleges?
The 0-25 SEND Code of Practice (paragraphs 8.41 8.44) says that where a young person has an EHC plan, the local authority should consider the need to provide a full package of provision and support across education, health and care. This will normally cover five days a week where that is appropriate to meet the young person s needs. However, the amount of provision required will vary depending on each individual s needs. Local authorities do not have to secure education and training provision across five days, but they should consider it. Five-day packages of provision and support do not have to be at one provider and can involve different settings, including non-educational settings or activities, such as accessing facilities in the local community or health and care activities. When commissioning provision, local authorities should have regard to how young people learn and the additional time and support they will need. For example, courses normally offered over three days may need to be spread over four or five days where that is likely to lead to better outcomes. In making decisions about packages of support, local authorities should take into account the impact on the family and the effect this is likely to have on the young person s progress. Q10) ) Under what sort of circumstances might it be appropriate to initiate an EHC needs assessment on a young person aged 19 and above who has never had a statement or LDA? The number of young people reaching 19-25 without being identified as having a special educational need or disability is likely to be very small. The Code of Practice (paragraphs 9.8 and 9.9) sets out that anyone, including the young person or a person acting on behalf of a school or post-16 institution (ideally with the knowledge and agreement of the young person where possible), can request an assessment. Specific circumstances for requesting an assessment will vary but could include: a young person with an existing disability who has moved to England from elsewhere a young person who has developed or has recently been assessed as having a special educational need (e.g. developed due to a serious mental health condition, or a head injury) or where a young person s disabilities are becoming more apparent as they face the challenge of becoming more independent, or where needs were previously fully met in a school without a plan, but a post-19 provider would find it difficult to meet those same needs
In these cases the local authority may wish to consider offering support through an EHC plan. It is important, however, that where a young person is aged over 18, the local authority must consider whether the young person requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete their education or training. Q11) How do you write apprenticeships into EHC Plans? The EHC plan should name the Apprenticeship provider in Section I of the EHCP (with the provider s prior agreement) and set out the support in Sections F (special educational provision), G (health provision) and H (social care provision) that will be provided to the individual while they are accessing both the training and the employment elements and what outcomes will be achieved. The EHC plan therefore operates in the same way as it would for a young person accessing any type of education or training. SEND Implementation survey November 2014 - summary In October 2014 we asked local authorities to complete a survey on their progress in implementing the SEND reforms, 6 weeks after the key provisions of the Children and Families Act 2014 came into force. 136 local authorities responded (a response rate of 84%), which provides a highly representative profile of progress across the country. It is clear that progress is being made in delivering the SEND reforms. The vast majority of LAs are working hard with their stakeholders to implement the key features of the Children and Families Act 2014 and the 0-25 SEND Code of Practice. It is also clear that some LAs have further to go, particularly on areas which LAs have consistently reported as being difficult, such as transition arrangements, joint commissioning and personal budgets. Our SEND advisers are working closely with those LAs which have self-reported that there are areas which need support and challenge to fully deliver the SEND reforms. Positive progress Parental engagement: 92% of respondents were extremely or very confident that their Parent Carer Forum is well engaged in implementing the reforms. Health and social care engagement:
71% of respondents reported that their Clinical Commissioning Groups are extremely or very well engaged with the SEND reforms, and 74% reported that children s therapists are extremely or very well engaged with the reforms. 73% of respondents reported that social care partners are extremely or very well engaged with the SEND reforms. Education, health and care plans: 93% of respondents were extremely or very confident that their EHC pathways they have developed are compliant with the Code of Practice. 71% of respondents were extremely or very confident that EHC plans will meet the 20 week deadline. 73% of respondents stated they were extremely or very confident a transfer review will be completed by 31 May 2015 for year 11 students with an existing statement of SEN moving from school to further education and training. New assessment requests: 34% of respondents stated they have had the same number of new requests for assessment in the first 6 weeks of the new system compared to a year ago; 23% of respondents had had more new assessment requests; 44% of respondents had had fewer new assessment requests. Impartial information, advice and support: 91% of respondents stated impartial advice and support was well developed or fully in line with the Code of Practice. For 98% of respondents this covered parents/ carers; for 91% this covered young people and for 85% this impartial advice and support covered children. Pre-tribunal appeal/ mediation arrangements: 95% of respondents reported that 0-25 pre-tribunal appeal education health and care plan mediation arrangements are in place. Implementation in different education settings: 95% of respondents reported that maintained schools are extremely or very well engaged with the reforms, and 84% report similar engagement with Academies and free schools; 87% of respondents reported that most or all schools have a clear system in place for identifying and responding to SEN; 69% of respondents reported that early years settings are extremely or very well engaged with the reforms;
61% of respondents reported that further education and sixth form colleges are extremely or very well engaged with the reforms; Areas for development Transition of existing statements and LDAs: 52% of respondents were extremely or very confident that the groups of pupils with existing statements and LDAs required to be transferred to EHC plan by 31 August 2015 would do so within the required timescale. 46% of respondents were extremely or very confident that parents and young people with an existing statement are aware of their likely review date. Joint commissioning arrangements: 65% of respondents said their joint commissioning arrangements between education, health and social care partners were fully or well developed, though most recognised that significant further work would be required to meet the requirements of the Code of Practice. Engaging children and young people: 23% of respondents reported that children and young people were extremely or very well engaged in the reforms; 53% felt they were only moderately well engaged. Young Offenders: 38% of respondents reported they were making good progress in planning to implement the new duty to support children and young people with SEN aged 10-18 who spend time in custody. However, 16% of respondents had not yet begun planning these arrangements. The young offenders duty comes into effect in April 2015; the Department s consultation on draft Regulations finished in November. Personal Budgets: 67% of respondents reported that their offer of personal budgets was well developed, but acknowledged that significant further work is still needed; only 7% felt the offer was fully in line with the requirements in the Code of Practice. The range of services where personal budgets can be offered will develop over time:
98% of respondents reported that children s social care was covered; 91% of respondents reported that adult social care was covered; 82% of respondents reported that children s health was covered; 74% of respondents reported that education services were covered; 72% of respondents reported that adult health was covered;