Jane McConnell’s webchat
We were delighted to have Jane McConnell from IPSEA online today to answer some of the questions families and practitioners have about the Children and Families Bill and the revised draft Code of Practice.
Here are some of the questions and Jane’s responses:
The new & revised Code of Practice places a lot of emphasis on outcomes. It seems that the achievement of education and training outcomes set out in an EHC plan will be key in determining whether to continue to maintain a plan, especially for 19-25 year olds (para 9.148). I can see outcomes becoming a bone of contention between parents and local authorities – with parents aiming high, and local authorities aiming for the “achievable” (ideally by age 16!). Parents will not be able to appeal to the Tribunal about the outcomes set out in their child’s EHC plan (para 11.40). Why do you think this is? Have you had any discussions with the DfE about this?
This is a really interesting point and one we have raised with DfE. Currently the objectives in a statement are part of Part 3 of the statement which covers special educational provision and are therefore appealable to the SEND Tribunal. The original intention was that outcomes now replace the role of objectives in the new system however as they will be in a separate section of the EHC plan from the special educational provision this will no longer be the case. I am sure this is something that DfE will want to address in Regulations.
You are right to be concerned – especially in relation to the post-16 world! We will keep pushing on this.
I believe teachers/sencos are expected to reduce the amount of pupils on the sen register. This is to be done by them looking at the schools sen profile,thinking about each individual pupil on the register and trying to define if child actually has sen or let’s say behaviour issues. Say a child is under achieving through behaviour over a prolonged period of time, at present that child would possibly be placed at SA. After September if SA is not there and behaviour is not necessarily an SEN therefore Child is not placed on the ‘register’ but the child requires extra support for a period of time. Who would fund the support for this child, LA or school budget?
Your question is one we have heard many times over the past few months and is completely unfounded in law – to be honest it ususally comes from LAs who are looking to cut budgets.
The definition of who has SEN (s. 20 C & F Act) is at least the same as it is currently – possibly wider. Therefore ALL children and young people who have SEN currently will – guess what – still have SEN on the 1 Septemeber 2014. Anyone who tells you differently does not know what they are talking about.
Please ask them to confirm in writing what they have said and then send it to us at IPSEA. Misinformation such as this will be the death of the smooth introduction of this system.
Our LEA intends not to replace low level statements with the new EHCP to reduce the administrative burden on their officers. Can we do anything about this?
From the public minutes
“Officers in START are being supported to challenge the need to continue to maintain Statements without Local Authority (LA) Top Up and those up to the equivalent of 12.5 TA hours (£6,357). Whilst this would not reduce costs initially it would ease the caseloads of officers”
This is totally without basis in law.
The legal threashold for getting an EHC plan is at least the same as it is currently for issuing a statement so – unless your individual child’s needs have changed substantially – they legally should be getting an EHC plan.
A LA cannot have a blanket policy which attempts to reflect a different test other than what is in the law. This would be an illegal blanket policy and open to judical challenge.
This will happen because no one knows any differently and so thererfore do not challenge it. Our experiance is that by saying that they have consulated with parents – potentially the Parent Carer Forum – many LAs are justifying similarly illegal SEN policies.
This type of behaviour by a LA needs to be “nipped in the bud”. It is just WRONG.
The Forum in Wakefield (TEAM) want to know will the changes to the code make health, social and education all work together and for the good of the child at the
centre if the plan. Will the code ensure that there is good
communication between all areas, as at present this can be a problem ?
It is the forum’s understanding that only the education part can be
taken to tribunal and is therefore enforceable in theory the act allows
health sections of the EHCP to be enforced but health authorities have
the right to veto? If this is not strengthened and enforceable then this
could cause lots of problems for some families.
The Forum is concerned for those children whose needs are subtler and as
such often fly under the radar, how will they be helped especially those
children who are quiet and don’t cause disruptions, if left to
individual schools via delegated budgets then this will be a lottery as
some are far better then others.
What are the duties around the transitional arrangements as it appears
that those in the 19 – 25 age group may be some of the last to get an
EHC Plan in local arrangements ? It is a concern as these are the ones
facing the most turmoil as there are no succession plans currently in
place. This age group also have to rely on Social Workers acting in
their ‘best interest’ however this relies on individuals knowledge and
ability to help / representing them in knowing what is currently
The Code can only reinforce what is already in the underlying law i.e. the C & F Act part 3 and the SEN Regulations – which have not been made public yet. They cannot strengthern something that is not already there. Will it, as currently drafted, strengthen communication? Well, as with so much of this new legislation (as with current legislation), it is down to the committment of the LA to have the child at the centre of the process. In my view, “good” LAs will remain so and the “bad” – well let’s just say it remains to be seen. It’s all about cultural change!
Yes only the education parts of the EHC plan can be appealed to the SEND Tribunal.The fact that health and social care are not challengeable at the same – or even alternative independent Tribunals or processes – means what we have is an E plan with a touch of H & C if the LA and/ or health providers agree to it. This is not what parents were promised or are expecting.
You are very right to be concerned about our children “under the radar”. Section 6 of the new Code is very weak in providing accountability and transparency of the new SEN support to be offered in schools. This is very, very worring and perhaps our main concern here at IPSEA. This could affect 1.3 million children. Gulp. A total lottery.
As for transition – who knows? We don’t yet. The draft transition arrangements that were consulted upon in Dec 2013 looked at a number of scenarios but the responses to this consultation have not been published by the DfE yet (they should have appeared within 12 weeks of the close of the consultation). Certainly if your young person is in FE and has an LDA at the moment there does not seem to us any reason why on the 1 Septemeber 2014 you should not request that they are assessed under the new system.
Why do you think the revised Code of Practice is less person-centred than the previous version?
Well we seem to have lost reference to the adoption of a person centred approach and a dilution of accountability and “working togther” with parents in schools/colleges. No longer do we have the requirement for a separate, individual document to be kept and shared between parties. In fact some groups – children with EHC plans in Mainstream schools, those children in special schools and also those children with no EHC plan but in special Academies – are not covered by the draft code as far as individual accountability is concerned.
Code of Practice – Consultation
As you know the COP is out for consultation again. Having looked through it, are there any specific areas of concern that you think parents need to be looking at and responding to?
So here is our initial view:
1. SEN support – accountability, need for parents/young pepole to be consulted and a clear record kept
2. Mental capacity – whilst much improved (it was not even there before!) it does not answer fundamental questions about who will be responsible for assessing if a child or young person has capacity and it should be stronger about the role of parents
3. Inclusion in mainstream – again improved but “could do better”
4. The need to consder mediation before being able to register an appeal at thE SEND Tribunal – who on earth are “mediation Advisors” – how can you become one? What happens when a parent or yopung person does not want to use the mediator that the LA have a contract with – you cannot be compelled to use the one particular mediator
We will say more next week …
Hi Jane, could you tell me about the funding structure of the EHC plans? Is it still the responsibility of the Local Authority (Education Budget) or is there a division with NHS? if so what difficulties can you see in gaining agreement to fund therapies.
Anything in the education part of the EHC plan – including therapies – must be funded by the LA. This can never be delegated to individual schools if the schools can show that the money delegated to them is not enough to make the provsion specified in the EHC plan.
The health provision must be funded by health and as for the social care provision – well it should be the LA again (remembering that children’s services are one big happy team of education and social care with one budget!)
There seems to be nothing in writing on what can we spend a personal budget on. Can you clarify this and also explain the understanding on what is an “outcome” and how is it agreed? thanks.
Firstly, you can never actually spend a personal budget. Only if you have a direct payment will you be abloe to spend anything. What on? Well “defined goods and services.” What are they? We are waiting – with bated breath – for the latest from thE Pathfinder pilots. Last time they reported, the vast majority being trialLed were payments in lieu of home to school transport. This is not new – LAs have always been able to do this. Our underStanding IS that “spending” on other services has been very limited as ultimateLy the LA or the individual school/collge can say no to a request for direct payments very easily.
It will be interesting.
What an outcome is, is one of the biggest mysteries of the new systhem. The draft Code at 9.64 defines outcomes for purposes of an EHC plan as “benefit or difference made to an individual as a result of an intervention”. What this actually means in proactice will be different things to different people in relation to different children. What is clear is that it is differEnt from a provsion. How it diffeRs from an objective, I am not sure.
Hi Jane, thanks for giving your time up to answer these questions! We have an EHCP and like the principle but practice all a bit vague still. I wrote ours, but not sure who still has final say/authority in what is agreed in it?! Also, what do you think my reply should be to our Director of Education at HCC who stated ‘ the vast majority of children and young people with autism complete their education and thrive whilst attending mainstream schools. ‘?!
If you already have an EHC plan then it was obviously issued under a Pathfinder pilot. It does not have legal force currently and you child will need to be reassessed under the new system once it comes into force – planned to be 1 September 2014.
Your LA are responsible for the making of an EHC plan and for finalising it. I cannot see how you wrote it yourself as the LA must draft it based on the evidence they have gathered as part of the statutory assessment process that MUST be gone through before an EHC plan is issued. I think you need to get some individual advice ASAP.
It is fine for your Director of Education to say this but where on earth is the evidence which he is basing such a sweeping statement on? The whole point is it is about individual children and young people; their individual needs and then where they – as individuals – need or want to go to school.
Jane’s final comment:
Great questions. Some worry me about the level of misinformation out there. I will try and answer any remaining questions later – please see our IPSEA Facebook page or follow us on twitter (both accessible via our website http://www.ipsea.org.uk) for more information about what we are up to!
Remember it is all about our kids!
So what, other questions do you have now about the Children and Families Bill, the revised Code of Practice and the unseen revised SEN Regulations? Are you still concerned?