Where we are with the new Children and Families Act 2014
The new law for special educational needs was introduced through the Children’s and Families Act 2014. This law was introduced after alarm was raised that the previous law threatened to reduce the rights of parents. The new law offered parents, carers and young people more opportunities to express their own views and make some choices about what happens to them or to the children under their care.
Previously, until September 2014, parents, carers and young people could choose whether they either wanted to be assessed for an Educational Health and Care (EHC) plan or a statement of special educational needs (SEN). The change in the law meant that children with significant special educational needs will be assessed for an EHC plan unless the parents, carers or the young person opt out of the new system. The assessment will lead to an EHC plan in place of a statement of SEN.
One of the effects of this provision has been the steady increase in the number of children and young people with statements and EHC plans, although that figure has been rising since 2010 for various reasons, one of which is the increased awareness amongst parents and carers of their rights when it comes to children with SEN.
There were 175,233 children and young people with statutory EHC plans and 112,057 children and young people with SEN maintained by local authorities as at January 2017. This gives a combined total of 287,290, an increase of 30,975 (12.1%) from 256,315 as at January 2016.
Children and young people who already have a SEN will not need to apply for an assessment for an EHC plan because the legal test for when a child or young person requires an EHC plan is still the same as that for a statement. Children and young people with special educational needs and with a Statement of SEN under the previous system will be expected to transfer to an EHC plan except in circumstances where their needs have changed and they no longer require a statement. To transfer to the new system, local authorities must conduct a ‘transfer review’ which involves an EHC needs assessment. If there is already an existing assessment in place, the local authority will not need to seek further assessments.
From 1 September 2014 to 1 April 2018, during the transition, local authorities are required to comply with Part IV of the Education Act 1996 in relation to children and young people with statements.
Both the EHC plan and the Statement are protected in law. Although statements had a standard format that was prescribed by law, the Government now allows each local authority to decide on their own formats for ECC plans. The Government however continues to retain control over its content.
If a child or young person is given SEN Support but has been identified as requiring additional support, the parents, carers, school or the young person can make a request to the local authority for an EHC needs assessment to be carried out if the child or young person fails to progress at the additional support stage,. This would be with a view to the child being placed on an EHC plan.
The purpose of an EHC plan is to make special educational arrangements to meet the SEN of the child or young person and to ensure that the best possible outcome is secured for them in education, health and social care and to prepare them for adulthood as they grow older.
An EHC plan has legal backing and the support detailed in the plan must be provided. These plans can be put in place for children or young people between the ages of 0-25. Young people aged 18-25 with an EHC plan will be expected to have their needs reviewed at least annually to ensure they are receiving the right level of support throughout the areas of education, health and social care.
From 1 September 2014, all local authorities are required to publish a detailed summary of the services available to support children and young people with SEN and disabilities named the Local Offer. This offer is expected to include services for education, health and social care and should also cover information about services available in surrounding boroughs.
If an EHC plan is made and the parents, carers or young person have concerns with regards to what is contained in the plan, they have the right to appeal to the First Tier Tribunal (Special Educational Needs and Disability). For Wales, information can be obtained in the Special Educational Tribunal for Wales.
An appeal can be made on the basis of the local authorities’:
• refusing to carry out an Education, Health and Care needs assessment or reassessment.
• refusing to issue a Education, Health and Care Plan.
• refusing to amend an Education, Health and Care Plan after a reassessment or annual review has been carried out.
• has issued an Education, Health and Care Plan but the parents or young person disagrees with the details contained in:
o Part B - a child's SEN
o Part F - a child's provision to meet their SEN
o Part I - The educational establishment named in the Plan.
• decision to cease to maintain a child's Education, Health and Care Plan.