The Child Brain Injury Trust invites guest bloggers to write about their personal experiences. The charity is not responsible for the content of the blog, but respects the authors’ perspective. This blog was written by Jackie Linehan, a Legal Director at Foot Anstey Solicitors specialising in medical negligence claims and particularly those involving serious brain injury.
By way of reminder, Part 3 of the Children and Families Act 2014 addresses children and young people with special educational needs or disabilities. This part of the Act is an overhaul of how children with special education needs and disabilities should be assessed for state support with the aims of bringing together education, health and social care. The rules also extend special needs provision to age 25 rather than previous cut off age 18.
The guiding principles behind the Act are:
- Inform, participation and involvement – the intention is very much that views, wishes and feelings of child, parents or young person should be taken into account when a local authority reviews its service provision and when assessing and providing for disability or special educational needs. The emphasis is very much more on consultation and involvement with those concerned.
- The changes also require the provision of full information to enable those people to participate in decision making with the aim of support to help the child or young person achieve their underlying best possible education and other outcomes. I see this as a welcome change. The intention is not that provision should be acceptable or adequate but the aim to achieve a gold standard. This will be refreshing if it in fact materialises.
Sadly experience to date does not reflect these lofty aims. Only a small percentage of those whom this affects were consulted by their local authority prior to the changes coming into force in September 2014. Experience of this consultation seems to be limited to those areas where the local authorities piloted the changes. Similarly experience since the Act has come into force is not reassuring.
Part 3 of the Act requires that the local authority will set out in one place its “local offer”. This should set out provisions the Local Authority expect to be available across education and social care for children and young people in their area who have a special educational need or who are disabled. In September 2014 very few local authorities had their local offer finalised and in one place. I am pleased to say that in the year since the Act came into force this is one area where improvement has been seen and many, if not most, authorities now have a web page providing this information. It may not be all encompassing as intended but I am optimistic that this will continue to develop.
Another core element of Part 3 of the Act is the transition from statements of special educational needs to EHC plans (Educational Health and Care). The intention is that those with an educational need should have their health care and social care plan associated with that educational need assessed at one time and set out in one document. Again the intention is that an EHC plan will be much more detailed than a statement of special educational needs and there are transitional provisions for those moving from a statement onto an EHC plan and new applicants. As at January 2015, four months into the “new regime”, there are 4,205 EHC plans in place compared to 235,980 statements of special education need. The majority of those EHC plans were in those areas which had been pathfinder (pilot) authorities. It should be noted that these statistics produced by the Department for Education are incomplete because only 50% of local authorities responded, a sad indictment in itself.
There is a very defined process for EHC plan assessment and a key change from the statementing process is that the child or young person and their parents choose the school which they deem to be most appropriate although there are exceptions which the local authority can rely upon. Sadly it seems that local authorities are still very much learning the process, reports from families being that they have been given the wrong information or told that it is merely a process of transferring information from a statement to an EHC plan. The process has been taking significantly longer than the 20 week time limit and schools report not receiving any guidance. Anecdotally less than 50% of those who have been through the EHC plan process have a plan which states the school of their choosing.
I remain optimistic that for local authorities the issue is one of change and a change in culture and approach is required but that this will be achieved. You can help speed up this process by knowing your rights and insisting that the local authority get it right. Remember that the guiding principles behind Part 3 of the Act are that there should be
- informed participation and involvement by the child or young person and their parents,
- provision of full information by the local authority; and
- support to enable full participation in decision making and provision to allow the child or young person to achieve their best possible education and other outcomes.
You may wish to remind your local authority of these obligations (Section 19 of Part 3 of the Children and Families Act 2014).
If you would like to know more please listen to my webinar addressing these issues here.