SEN Solicitors host specialist seminar

“Very knowledgeable and clear answers”

“Very aware of change and this has been a good start to updating knowledge. Fabulous and a real treat”

“Really relevant and informative”

Boyes Turner SEN team hosted a Seminar yesterday, 22 October 2014, to discuss the impact of the Children and Families Act 2014 with case managers and experts working with children with special educational needs.

Over 40 professionals attended to share comments and discussion about the impact of the new legislation and to talk about the impact that it will have on their work.

During the discussion a number of interesting questions were raised. We include here a sample of the questions asked for reference (click on the question to see our response and thoughts):

• What will the new EHCPs look like?
• Would you recommend mediation when challenging a secondary transfer?
• What happens when the child moves local authority?
• What happens if the child goes to school out of county?
• How far into the future should the Outcomes be?
• What are the transition arrangements from a Statement to an EHCP?
• If the Tribunal can’t hear appeals about Health, Social Care, Personal Budgets or Direct Payments, where do we go?
• What happens if a child leaves school at 16 and takes up employment for a short while but then wants to get back into education? Can they get an EHCP again?
• If the Tribunal orders that the authority reconsiders its decision. What happens if the authority makes the same decision again?

Q. What will the new EHCPs look like?

A. There is no strict requirement within either the law, or guidance, about what the Plan actually has to look like. Guidance in the SEND Code of Practice has set out the ‘bare bones’ of the content of the EHCP. The document should be structure as follows:

A – Views, interests and aspirations of the child or Young Person
B – The Special Education Needs (old Part 2)
C – The Health Needs
D – Social Care Needs
E – Outcomes sought for the child
F – SEN Provision needed – (old Part 3)
G – Health Care Provision
H1 – Social Care Provision
H2 – Social Care Provision
I – Placement (old Part 4)
J – Personal Budget
K – List of Advice (old Appendices)

During the pilot scheme of the EHCP the Department of Education (DfE) commissioned a review of the assessment process and the EHCP generally. As an appendix to the resulting report, two example plans were offered. These can be found here.

These are for information use only and we do not necessarily advise that these should form the basis of any drafting that you may do.

Q. Would you recommend mediation when challenging a secondary transfer?

A. The decision about whether to go to mediation will depend heavily on the decision of the local authority, the evidence available, the strength of your case and time pressures.

In a situation of a secondary transfer, the decision about the school is likely to be communicated on 15 February (before the September when the move happens). If parents immediately contacted the mediation service, the mediation should be completed by 15 March. If an appeal was still necessary, in theory, the final hearing of the matter could be dealt with by June. However, this leaves no margin for delay on anyone’s part; Tribunal, Mediation Service, parents and local authority.

Q. What happens when the child moves local authority?

A.  The material on this has not really changed since the system under the Education Act 1996 and associated guidance. When a child or young person moves into a new local authority, that local authority must acknowledge responsibility for providing that young person with education and adopt the Statement / EHCP within 15 days.

The new local authority will consider the Statement /EHCP and decide whether or not they will carry out a full reassessment. Until the local authority issues an amended final EHCP, the current Statement / EHCP stands. This means that the new local authority must continue to provide the support in the educational provision part of the Statement / EHCP.  Any decision taken by the new local authority, whether to amend or cease to maintain the EHCP, will be appealable to the Tribunal.

Q. What happens if the child goes to school out of county?

A.  The local authority that has issued the Statement or EHCP will retain legal responsibility for maintaining it. This means that it will have to continue to fund the support detailed within the Statement / EHCP. It may also mean that the local authority will have to cover additional transport costs.

If the young person has an EHCP, and the school is residential in nature, the Plan should also deal with the issue of contact between parent and child during the school term, how it will be facilitated and associated transport costs. This would normally be within the Care element of the plan.

Q. How far into the future should the Outcomes be?

A. This can only be answered by understanding what the Outcomes need to be. The Outcomes have to be ‘SMART’ – i.e. Specific, Measurable, Achievable, Realistic and Time-bound. Outcomes for any child, therefore, will be subjective according to their disabilities and according to what degree it is possible to reliability predict what the child might be able to achieve over time.

In any event, given that the EHCP will lapse if the Outcomes are achieved, they should never be too short-term. The minimum length Outcome that would be sensible would be yearly, however, basing them around Key Stages would also be effective. It would also be sensible to seek to secure a long-term as possible Outcomes within the Plan, as long as they have a reliable evidence-base and satisfy SMART.

Q. What are the transition arrangements from a Statement to an EHCP?

A. The transition arrangements are fairly well specified within guidance. A member of the team wrote an article on this, providing a link to the guidance. That article can be found here.

Q. If the Tribunal can’t hear appeals about Health, Social Care, Personal Budgets or Direct Payments, where do we go?

A. There are three options really; a complaint to the local authority itself, a complaint to the Local Government Ombudsman (LGO) or an application for Judicial Review.

It is anticipated that complaints to the local authority itself will seldom bear fruit. This is because complaints to a local authority tend to only be successful if they relate to conduct of officers / handling of issues. Complaints rarely overturn decisions of this nature.

The LGO can only investigate where there is an allegation of “maladministration” by a local authority. That basically means the authority has got something wrong because, somewhere in the process towards the decision, there was an error. The LGO usually does not want to consider the law, or the application of the law. It certainly will not arbitrate on whether the local authority has discharged its legal duties sufficiently (although it will become involved if there is a complete failure to comply with the law).

Judicial Review, therefore, will likely be the only avenue that is available. This is becoming increasingly difficulty to access because of the implications of Legal Aid Sentencing and Punishment of Offenders Act and other legislation which restricts lawyers to payment only when the application is successful. The Criminal Justice and Courts Bill also threatens this procedure even more (see our article on this point)

To succeed with a Judicial Review application it would have to be shown that the Authority has either acted unlawfully, made a fundamental error in the procedure towards the decision or the decision is so irrational that no sensible professional would have made it.

Q. What happens if a child leaves school at 16 and takes up employment for a short while but then wants to get back into education. Can they get an EHCP again?

A. If a young person leaves schooling and enters into employment (with the exception of Apprenticeships) the EHCP will automatically lapse.

If the young person then decides they want to go back into education then they would be entitled to ask for an assessment of their EHC needs. That is as long as they are under 25 years old and are not going immediately into higher education.

The local authority will have to consider the request for an assessment from the young person (or their parent) as they would any other application. If the young person is over 18 the local authority must also consider whether they will require additional time to complete their education / training compared to their peers without special educational needs.

Q. If the Tribunal orders that the authority reconsiders its decision, what happens if the authority makes the same decision again?

A. This is difficult to give an absolute answer to because the Tribunal has a number of case management powers. The answer is that it is up to the Tribunal what it orders.

It is entirely possible that the Tribunal could order the local authority to consider their decision again but that the  local authority re-make that decision but on a slightly different basis Our advice is to ensure that the Tribunal makes specific plans to follow up the local authority’s decision and to ensure that the Tribunal does not close the appeal in the meantime.  As a general principle, the Tribunal would have the power to give the parents leave to restore their appeal as long as it is just to do so. That would mean that if the local authority returned with the same decision 2 weeks after the Tribunal’s Order, the parents could simply resume their appeal. It remains to be seen how happy the Tribunal will be to make such Orders but, in theory, there is no reason why it shouldn’t.