SEN Pre-Legislative Scrutiny report- a précis and my views

The Education Select Committee report on its pre-legislative scrutiny of the SEN draft bill has just been published. The scrutiny entailed two oral sessions in which parents, professionals, service users and charities aired their views on the draft legislation.

The committee also received more than 200 written submissions, and while the report deals with key themes, it states, in bold, "We recommend that the Department for Education examine with close attention the written evidence provided to our inquiry on issues not covered in our report and give careful consideration to the points raised by witnesses in drafting the Bill which is to be presented to Parliament."

So, lots of Christmas reading for Mr Timpson, the Minister responsible for the legislation and his draftbillofficials, along with a directive that just because it isn't in the final report, does not mean that it can be shuffled aside.

The report concludes that, "The general thrust of the draft clauses is sound, but the legislation lacks detail, without which a thorough evaluation of the likely success of the Government's proposals is impossible. The Government intends to provide this detail in regulations and a revised SEN Code of Practice. It is essential that these documents address the concerns raised in the detailed written submissions to our inquiry and that the revised Code of Practice remains a statutory document, subject to consultation and laid before Parliament."

The last part of this statement is important as, so far, it has not been planned to put the revised CoP through parliamentary scrutiny, something that most people involved in the pathfinders think is vital.

However, crucially and somewhat surprisingly, the report does not recommend a significant delay in finalising legislation by 2014 but sought, "assurances that the findings from the Pathfinders will be drawn upon in detail to inform the final make-up of regulations and the Code of Practice to accompany the legislation."

To me, these two do not go together. How can you inform the regulations from pathfinder pilots that are not due to end until September 2014 and yet still bring in legislation the same year? Unless of course you introduce the bill in autumn 2014 to be passed by the very end of the year or soon after, thus giving 9 months to put all the new structures, training and recruitment in place that will be needed to move to a new system. Not to mention writing reams of new literature explaining the changes to education, health and care providers and, of course, parents. And no, nine months is not too long, because we're talking significant cultural and organisational change carried out country-wide. Now there's an idea!

Edward Timpson giving evidence
Edward Timpson giving evidence

Although the extension to 25 was welcomed, the report, quite rightly, pointed to a lack of engagement with post-19 providers to make this happen. Indeed, it has been acknowledged that making these provisions work with universities who have their own structures, will be extremely difficult.

The committee recommended that the current protections that a statement provides should be preserved, which is the intention in any case. It also stated that, "The scope of entitlement to integrated Education Health and Care provision and assessments should be extended to disabled children, with or without SEN, and also to young people undertaking apprenticeships."

While the latter part of this statement has already been mentioned by Mr Timpson, the first part, dealing with disabled children without SEN is very welcome.

Parental involvement

Parents & young people giving evidence
Parents & young people giving evidence

For me as a parent, the key paragraph is as follows: "The involvement of parents and young people in the development of Local Offers is critical, and we recommend that the role of parents and young people be reinforced in primary legislation."

"We therefore recommend that Parent Carer Forums be listed as partners under draft clause 8 (Co-operating generally). (Point 153)

Enshrining a need for involvement from parents and young people in primary legislation means that co-production is here to stay so any professional who thinks we'll just slink away back into the woodwork, had better come to terms with the fact that that just isn't going to happen.

Certainly in Surrey, the fact that parents are involved from the start of the pathfinder process means we are increasingly being seen as a vital partner in consultation. For example, in Surrey we have a Disabilities Experts Group as part of a Public Value Review and I and other parents are involved. I hope this will be extended to many other areas as well.

This does, of course, bring with it responsibilities as well as opportunities, something I plan to write about in the future.

Local Offer

A national framework for the local offer is something that many people had wanted but when he spoke at the select committee, Mr Timpson seemed to think he could leave it up to parents to complain that what a neighbouring authority was doing was better than their own, thus putting them into direct conflict with the LA, something we are trying to get away from.

The committee recommended that, "the Pathfinders be used to inform what should constitute minimum standards for Local Offers, particularly to address the provision that will need to be made available in schools to support pupils with low to moderate SEN without EHCPs. We also recommend the establishment of a national framework for Local Offers to ensure consistency, together with accountability measures by which they can be evaluated. (Point 146)

Rights & Redress

This issue has been a major concern for parents and SEN lawyers. The committee felt that joint commissioning between Health and local authorities will not in itself be sufficient to secure improved engagement from Health in assessments of SEN and provision of Health services to children and young people with SEN and disabilities. Despite acknowledged difficulties with the NHS constitution, "duties can and should be imposed on the NHS which do not conflict with it. Regulations could, for instance, commit Health to adhere to timetables for assessments."

It was also concerned at the lack of a single means of redress/appeal. "The Government seems to be relying on the duty for joint commissioning to reduce the incidence of appeals from parents and young people later on. This is too optimistic and we believe that greater protections for parents and young people in securing the provision described in an EHCP will be needed along with more coherent routes for redress for all aspects of an Education Health and Care Plan. (Point 68)

"The lack of duties on Health creates a specific concern about securing services such as therapy services which may either be defined as supporting health or special educational needs. The legislation needs to make specific reference to such services to ensure that local authorities and Health cannot deny responsibility for their provision due to disagreements over which element of the EHCP they underpin. It also needs to be made clear how this provision will be funded, and by whom. (Point 72)"

Additionally,  the report recognised that improving processes for requesting, securing and carrying out assessments of SEN are top priorities for parents of children with SEN. It therefore recommended that, "current protections be reiterated in the new legislation, and that timescales for responding to a request for an assessment, and for conducting an assessment be set out in regulations. It is essential that there is an alignment of assessment timescales between local authorities and Health. Whatever the difficulties, they must be overcome. (Point 84)

There has been much complain about the apparent need for compulsory mediation before an appeal can be heard that was set out in the draft bill. The committee said that mediation should NOT be compulsory when things go wrong, but families must attend a meeting to consider mediation before an appeal is heard. I'm not a lawyer so I'd be interested to find out what they make of this change.

Other issues highlighted

While the report is too long to quote from in full, I'm listing some bullet points of causes for concern that it has picked up on and if you are interested, you can find them in the report yourself in much greater detail

  • The term 'special educational needs" is recommended to stay the same. (point 37)
  • A clear majority of the evidence concurs with the view of the SE7 Pathfinder—the largest Pathfinder—which is "concerned that in many ways the draft clauses do not go far enough and do not fully reflect the inspirational vision in the Green Paper". (Section 2 of the report)
  • Timescales: You cannot bring in legislation before the pilots have had sufficient time to run and be evaluated (section 2) SQW who are evaluating the process said in its own report in October that, "although pilots or policy trials may be costly in time and resources and may carry political risks, they should be balanced against greater risk of embedding preventable flaws into a new policy".
  • Regulations should allow flexibility in the frequency and timing of EHCP reviews. (Point 100)
  • The fact that this reform is taking place at the same time as Health and social care reforms presents a risk
  • The fact that at present, there is no duty on Health or social care to make stated provisions that are contained in an EHCP for children but there will be a duty for adult social care provision in the proposed Care & Support Bill, is a concern. This is because if an EHCP goes up to 25, there will be a crossover with children's and adult services and as a result a total mess could ensue. (point 19)
  • This is echoed by current changes in school funding arrangements and by delegated funding that has already taken place. The NUT believes any SEN bill should be delayed until September 2015 to allow the current changes to settle. Mr Timpson sent a written explanation to the committee after the second hearing which you can read at point 22.
  • The active involvement of the NHS—in commissioning, delivery and redress —is critical to the success of the legislation. Despite the acknowledged difficulties, in order for this to work, the Government must ensure that the NHS is obliged to participate fully. (Point 36).  This point is key, in my opinion, to making a success of the reforms
  • On Post 19 provision: It is vital that the responsibility, funding and, where appropriate, access to advocacy for these young people is clarified so that all those involved know what they can expect from the new provisions and who is accountable for providing it. If the purpose of the legislation is to extend education as a right to 25, then the Government needs to make that clear and fund that; if not, then that should also be made clear.
  • The report recommends that regulations make clear the necessary skills for individuals undertaking assessments and they should create a presumption that a key worker/lead professional will be appointed unless there are good reasons not to do so. (Point 60)
  • The committee was concerned by the lack of clarity as to how pupils currently receiving support under the School Action and School Action Plus categories will be supported under the new proposals. It said  the Government must make clear at this early stage what is expected of schools in delivering better outcomes for pupils with SEN who are not entitled to an EHCP. (Point 127)
  • The role of SENCos be strengthened and they must be teachers who are qualified to be SENCos
  •  Choice of school: We welcome the extension of the list of schools for which parents can express a preference in an EHCP to include academies and free schools. The case for also including independent special schools and colleges is well made. We recommend that the Government prioritise agreeing definitions so that these schools can be included in order for pupils with SEN to have access to appropriate educational provision. (Point 164)
  • Personal Budgets: The committee didn't have much to say about these but acknowledged the opposition from the NUT. It simply stated that lessons should be taken from the pathfinders. The SE7 pathfinder has already stated that the current regulations are significantly flawed and it will be essential for future regulations to better crafted based on an understanding of the Pathfinders' experiences.

The report's final conclusion was that the general direction of the Government's reforms of SEN provision was welcomed with some caveats. "Expectations have been raised and it is important that the goodwill expressed towards these proposals is not lost. There are points of detail in the draft legislation which must be addressed before the Bill is presented to Parliament and we believe it is important that lessons from the Pathfinders continue to inform the legislation as it goes through Parliament and the regulations and the Code of Practice thereafter."

This article is, of course, a précis, coupled with my own observations as a parent of children with special needs who is involved in the pathfinder process. My views are my own and do not necessarily reflect those of Family Voice Surrey, the parent-carer forum for which I am co-chair.

If you would like to read the whole thing yourself, and I recommend that you do if you are affected by the changes, you can find them at http://www.publications.parliament.uk/pa/cm201213/cmselect/cmeduc/631/63103.htm

Tania Tirraoro
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Tania Tirraoro

Founder, CEO at Special Needs Jungle
Founder of Special Needs Jungle. Parent of two sons with Asperger Syndrome.
Journalist & author of two novels and a guide to SEN statementing. PR & social media expert. Rare Disease & chronic pain patient advocate.
Tania Tirraoro
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