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Concern over changes to Special Education Needs provision

View profile for Mike Pemberton
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The Children and Families Act 2014 became law on the 22nd April 2014 and has been hailed as the greatest shake up to the Special Educational Needs system in 30 years.

A further Code of Practice for Special Education Needs was published on the 16th April 2014 with a short consultation period closing at 5 pm on the 6th May 2014 - Revision of the 'SEND code of practice: 0 to 25 years'.

On the 29th April 2014, the BBC Radio 5 Live Breakfast Show heard from Mark Lever of the National Autistic Society that there are concerns in respect of the failure of proposals to provide a joined up system of appeal.  He said “Too many families of children with Autism will continue to battle for support on multiple fronts”.

Autism is a recognised development disability that affects how a person communicates with and relates to other people. It can also affect the way in which the person perceives the world around them. People with Autism are described as being on the autistic spectrum as the way in which the condition will affect them is very individual and whilst certain difficulties may be shared by people who live with Autism, no two people are exactly alike.

Some people may also suffer from learning disabilities associated with Autism although there can also be highly intelligent people who suffer with social situations – hence the term spectrum.

Autism is known as an invisible disability as it is not easy to notice as forms of physical disability would be.

The charity Mencap which assists people with learning disabilities also voiced concerns about the way in which the changes would be brought in. In summary, the concerns relate to the shortness of time between the Code of Practice (which will regulate how the new system will work) is brought in. The final version of this is only due to be published in September 2014 and Dan Scorer Mencap’s head of policy said “the finer details of the changes are yet to be published which means the professionals who work with children and young people with SEN have just a few months notice of their new obligations before they are expected to meet them”.

The changes to the Special Educational Needs system are being hailed as a breakthrough but the current system does have a number of problems. For example there is no guarantee that the specific provision set out in statements is always provided. This is an area which lawyers can assist with and our specialist Education Team at Stephensons has experience in negotiating with schools and local authorities as to the provision set out in statements.

The proposals in the new system giving rights of appeal for educational provision are still unclear in respect of health and social care needs which may run alongside the educational ones. One of the key aspects of the Education & Health Care Plan (formally known as a statement of Special Educational Needs) is that all of the needs of the young person (up to 25 years of age) will be contained in one document and there will be correlation between the agencies in providing the provisions. Charities are however calling for a single basis of appeal if there are disputes in relation to provisions.

On the current basis, you may have the right to appeal to the first tier tribunal in respect of educational matters (Special Educational Needs Disability) however other provisions would have to be challenged separately (for example Judicial Review which is being severely curtailed by the coalition government by recent changes).

The objectives of the new system are to provide support to children and young people so that they can achieve their full potential, putting families at the heart of the system and giving parents greater control and choice over the services they receive so that needs are properly met.

It however remains how much of this ethos will be reflected in the final legislation and Code of Practice specifically in respect of a parents ability to get the provision that is needed for their child be it educational, health care or social welfare.

By Mike Pemberton, Partner and head of the education law team