Five reasons why the new SEN system improves on the present

by stevebroach

My first non #LBBill post is on the equally pressing issue of the major system reforms to SEN and disability provision for children and young people in England. These have been introduced through the Children and Families Act 2014 and the majority of them come into force on 1 September.

I am no cheerleader for the fact we have a new system. I strongly supported the conclusion of the Lamb Inquiry set up by the last Labour government that although ‘radical reform’ was needed to the approach to meeting children’s special educational needs this did not require wholesale legislative system change. I am particularly concerned about system change in a time of austerity; it is obvious that new wheels need to be greased with sufficient cash to make them turn and I do not think that the government has properly addressed the need for additional funding.

However – I also believe that the new legal framework, after vast amounts of work by charities, parents, disabled people, peers and MPs on amendments to the Bill, is a significant improvement on the current framework. It is, as I said on twitter recently, a million miles from perfect. It falls a long way short of requiring a genuinely seamless approach to the health, education and social care needs of every disabled child – and I fail to understand why this should not be achievable in law. But I don’t see many ways in which the new system is worse than the old, and I see a number of ways in which it is significantly and obviously better.

Law reform always provides an opportunity for improved practice. A new Act of Parliament gets people’s attention, brings some new resources (if far too little here) and provides a focus for those who want to make things better. So in the spirit of assisting that effort, here are the top five ways (roughly in order) that I think the Children and Families Act 2014 improves on the SEN system:

  1. The genuine 0-25 approach. Learning Difficulty Assessments (LDAs) for young people at college were nowhere near as useless as many people (including worryingly the Department for Education) appear to have thought – the statutory guidance and case law gives them a force which doesn’t fall far short of a statement for school age children. However in my experience, practice in relation to LDAs varied from adequate through poor to absolutely atrocious. So to have an entitlement to educational support through EHC Plans which does not vary very significantly pre- and post-18 is for me a big win. I also think the extension of ‘SEN Support’ to 25 could help improve accessibility of FE generally to young people with additional needs – although time will tell whether this latter point is overly optimistic.
  2. The new duty to provide health services. Section 42 of the CFA imposes the same duty on Clinical Commissioning Groups to provide health services specified in an EHC Plan as is imposed on Local Authorities in relation to special educational provision (I don’t see any legal difference between the terms ‘secure’ and ‘arrange’ which are used in the respective LA / CCG duties). As such from 1 September some disabled children and young people will, for the first time, have a clear enforceable right to some health provision. There are a number of sticking points here – will health provision get in the plan in the first place and what on earth does the requirement for health provision to be linked to SEN actually mean are two of the most obvious. However the principle that the NHS does not ‘do’ specifically enforceable duties has now been breached and for me this alone makes the CFA worth having.
  3. The attempt to deal with social care. This is one of the places where the lobby fought hardest, and the main prize for this effort is that EHC Plans must now contain social care provision which is required by section 2 of the Chronically Sick and Disabled Persons Act (CSDPA) 1970 – see section 37(2). This is good – except the CFA doesn’t tell anyone what this provision is and sadly the Code of Practice isn’t much better. The CSDPA is complicated and poorly understood but it is and will remain (bizarrely) the key statute giving social care rights to disabled children. I wouldn’t have done it this way, but at least the CFA does require local authorities to include certain provision to meet the social care needs of disabled children whose SEN is sufficiently complex to merit an EHC Plan – and that’s a gain worth having.
  4. The general principles. Section 19 of the CFA sets out general principles that a Local Authority must have regard to when exercising a function under the SEN part of the Act. They are all important, but my favourite is the final one – the need to ‘support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes’. So in everything they do Local Authorities must keep in mind the need to support children and young people not only adequately or sufficiently, but so that they can achieve the ‘best possible outcomes’. This is a ‘have regard’ duty, not a duty to achieve results – but then so is the Public Sector Equality Duty, and that has founded dozens of successful legal challenges. Watch this space…
  5. The Local Offer. I thought hard about number 5 – a good candidate was the duty on academies to admit children where named in EHC Plans – but despite my initial scepticism I’ve come to view the Local Offer as a potential force for real change. Firstly, it is obviously helpful for families for there to be very detailed requirements on Local Authorities to publish information on services which are expected to be available – a duty which I think goes far higher than if the wording was ‘may be available’. This should allow families an easy route to the information they need about what is on offer locally – which might just be more than they were expecting to find. Secondly and perhaps more importantly, the Local Offer should provide essential information for local lobbying. Local Offers will be comparable not just between neighbouring authorities but also between ‘statistical neighbours’ – ie areas with similar demographic profiles where all things being equal services should look roughly the same. I am actutely aware of the unfair burden which falls on families to drive up standards but it was ever thus – I helped write this nine years ago and nothing has or will change in this regard. However at least now families should get the information they need to challenge any assertion by a Local Authority that “it’s all very difficult and we are doing our best” – by reference to a similar authority which may be doing quite a lot better. This should help shine a spotlight on the local political choices which often see disabled children and young people pushed to the back of the queue when resources are allocated.

As the Lamb Inquiry found, ‘the education system is living with a legacy of a time when children with SEN were seen as uneducable’. The distance we need to travel is vast and the CFA takes us only a relatively small step along the way. Terrible decisions will still get made and the needs of some (sadly with austerity I fear many) children, young people and families will continue to go unmet. But the CFA still undoubtedly represents some progress – and the amount of progress it represents will be largely down to how well we all take the numerous opportunities it gives us to make things better, wherever we find ourselves in the SEN system.

Comments on the above and other candidates for positive changes from the new statutory scheme most welcome!