SEN reforms - what's changed?

A few weeks ago Edward Duff shared a blog with us which explored what special educational needs (SEN) are and what support is available. You can read that blog here. Within that blog he also explained what an Education, Health and Care Plan (EHCP) was. Following on from his first blog, he is now going to explore some of the new features of SEN law which have been introduced.  You can find out more about the SEN reforms by following Edward on twitter @EdwardDuff.
Girl in school

Mental Capacity

The Children and Families Act 2014 sets out that when a person reaches 16 they will be seen as a ‘Young Person’ rather than a ‘child’. If the Young Person has Mental Capacity, they will have the following ‘new’ rights:
  • The right to request an assessment for an EHCP
  • The right to make representations about the content of their EHCP
  • The right to request that a particular institution is named in their EHCP
  • The right to request a Personal Budget for elements of an EHCP
  • The right to appeal to the Special Educational Needs and Disability Tribunal.
This means that at 16, as long as a person has Mental Capacity, their wishes and feelings will take primacy. Local authorities, therefore, will no longer look to parents for the ‘leading’ expression of wishes. It is expected that parents will continue to advise and support their young people, as long as they want that support but a local authority cannot take parents’ wishes as a replacement for those of the young person. If a young person does not have Mental Capacity, someone will have to express their wishes and feelings on their behalf. This will normally be parents.
Parent support
Mental Capacity is explained within the Mental Capacity Act 2005. A person does not have Mental Capacity if they cannot do one or more of the following:
  • Understand information relevant to the decision they are taking
  • Retain the information for long enough to be able to make a decision
  • Use or weigh up the information as part of the process of making the decision
  • Communicate the decision by any possible method, such as talking, using sign language, squeezing someone’s hand etc.
The Mental Capacity Act is supported by a Code of Practice which stresses that no presumptions about Mental Capacity can be made on the basis of:
  • Age
  • Appearance
  • Mental health diagnosis
  • Other disability or medical condition.
The fact that someone is making a bad decision does not mean that they lack capacity. Parents who are concerned that their young person does not have capacity can ask the involved medical professionals to assess Mental Capacity. Parents may also consider independent assessment. If the local authority concludes that the young person does have capacity, that decision can be challenged by an application to the Court of Protection. Until the Court finds that the young people does not have capacity, they will continue to be treated as having Mental Capacity.  

Personal Budgets and Direct Payments

Extra support
The Personal Budget is, in essence, the amount of money that the local authority believes should be enough to ‘buy’ all the therapies, support and care detailed within the EHCP. Direct Payments are one form of managing the Personal Budget. Direct Payments mean that young people and/or parents can take over control of the funding that is made available for the services within the ECHP. If Direct Payments are made, they must be used to obtain the support for which they are provided. For example, the Direct Payments must not be redistributed to pay independent school fees. Local authorities must prepare a Personal Budget if asked, unless they can establish it is impossible to do so. However, Direct Payments are very tightly controlled. The regulations set out that before a local authority is able to make any Direct Payments it must be satisfied that:
  • The person receiving the Direct Payments will make proper use of it
  • If Direct Payments are to be sent to a third party, that third party will act in the best interests of the child
  • Making the Direct Payment will not negatively impact other children
  • Direct Payments will be in line with the ‘efficient use of [the local authority’s] resources'.
The only routes of challenge on a decision about the Personal Budget and/or Direct Payment are a complaint to the local authority, Local Government Ombudsman or Judicial Review.  

Local Offer

The Children and Families Act 2014 requires all local authorities to publish a Local Offer. The deadline for this was 1 September 2014. It should be published online and should be available in hard-copy. The Local Offer details what support and services are available for young people with SEN within the local authority’s area, and neighbouring regions. The guidance sets out that the Local Offer must be:
  • Collaborative - children and parents must be involved in preparing and reviewing the Offer
  • Accessible -  it should be easy to understand, structured in a useful way and well publicised
  • Comprehensive - It should detail all support available in education, health and social care from 0-25 years. It should also detail how to access that support and any applicable eligibility criteria and where to obtain advice about appeals etc.
  • Up to date
  • Transparent - the Offer should be clear about who makes decisions and who is accountable for those decisions.

 

Mediation

The Children and Families Act 2014 requires that in order to start an appeal, in most cases, you will need to send a Mediation Certificate which can only be obtained from a mediation service. As such, you are required to at least consider mediation before starting an appeal. When a local authority sends a decision letter it will confirm which mediation service it has chosen to make use of. In all cases, aside from disputes about placement only, you will have to at least speak with the mediation service. If you do want to go through mediation, the local authority must ensure that the mediation process is completed within 30 days. A Mediation Certificate will be issued three days after completion. You will then have one month to send an appeal to the Tribunal, if you still want to appeal, along with a copy of the Mediation Certificate. During the mediation sessions you will be led through the disagreement by the mediator and talk through issues point by point so that there is a structure to the conversation. It is not the same as Tribunal or Court and you will not present a case. However, you will need to have an understanding of the applicable law and it is sometimes useful to at least speak with a lawyer before going to mediation. The people who can attend a mediation session are:
  • The parties to the mediation
  • Any advocate or other supporter that you wish to have
  • Any other person, with the consent of all of the parties to the mediation, or where there is no such agreement, with the consent of the mediator.
The mediation process cannot require that either party do anything in particular. The process relies on an agreement being reached both sides. If no agreement is reached then an appeal would still be necessary. The following are the applicable time limits when the local authority (LA) changes its mind:
  • LA agrees to make an assessment / reassessment - two weeks to start process
  • LA agrees to issue of an EHCP – five weeks to issue
  • LA agrees to amend ECHP – five weeks to issue amended version
  • LA agrees to continue EHCP – immediate effect
  • LA agrees to continue & amend – continue immediately, issue amended version within five weeks
  • Any other amendment or provision which is agreed in writing during mediation should be made within two weeks.
If you do not want to go through mediation, you will be issued with a Mediation Certificate three days after confirming this with the mediation service. You will then have one month to send the appeal form to the Tribunal along with a copy of the Mediation Certificate.

 

Appeals

The Special Educational Needs and Disability Tribunal hears appeals about SEN issues. The matters the Tribunal can look into are:
  • A refusal to conduct an assessment of your child’s / young person’s needs
  • A refusal to issue a EHCP
  • A refusal to conduct a reassessment of your child’s / young person’s needs
  • The description of your child’s / young person’s SEN within the EHCP
  • The support detailed to cater for your child’s / young person’s SEN within the EHCP
  • The placement named within the EHCP
  • A decision to cease to maintain your child’s / young person’s EHCP.
In order to be able to make an appeal to the Tribunal you will need to send the Mediation Certificate that you have received. The only case which does not need a Mediation Certificate is an appeal against school-placement only. The whole process, from the point you tell the Tribunal you want to appeal to final hearing, normally takes around 20 weeks (or 12 weeks for phase transfer appeals – e.g. when your child moves from primary to secondary school).   The appeal process itself is rather complex and has not been amended by the Children and Families Act 2014. I will not, therefore, go into further detail about the process in this Blog. 
Classroom
You can find out more about Boyes Turner education solicitors on their website here.
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