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Sally44

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I've been to a seminar about this recently.

 

There are some changes that the charity SOSSEN are asking parents to write to their MP about.

 

Here is a link to their website http://www.sossen.org.uk/news_and_events.php#response

They are specifically referring to the right for parents/school to ask the LA to carry out a Statutory Assessment. Apparently the new SEN changes do not give either parents or schools the right to request a Statutory Assessment.

 

Also, under the new legislation there are no IEPs, School Action or School Action Plus. Again, these stages, or an equivalent needs to be included in the new SEN proposals. If there is no graduated approach, and no IEP, how can a school or parent demonstrate 'progress' or 'lack of progress'. And as 'lack of progress' is what currently triggers the next stage of SEN or a Statement etc, parents need to have this written back into SEN law.

 

Another item that needs including in the legislation is that after an Annual Review of the Statement, there should be a timescale within which the LA must issue their Decision letter to parents. Currently, although a parent can lodge an appeal about any changes made to a Statement, that right is being denied by LA's having AR's, but not issuing a Decision letter.

 

Changes have been made to the document, due to alot of lobbying by charities, and also by parents contacting their MPs. Remind your MP that this is not just about your child and your family. It is about the wider family too, and that most wider families have some child with an SEN, and that this new legislation will affect the way those whole families vote.

Edited by Sally44

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This is now called the Children and Families Bill.

 

There is a parental right to apply for an assessment for what is to be called an Education and Health Care Plan (which replaces a statement) but you are right SA and SA+ appear to have gone in the new draft SEN COP.

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IEPs have also gone apparently.

 

The lawyer that lead the seminar said that the right to request an assessment was not in the legislation [and they are in the process of negotiations with government about these issues and are also advising IPSEA and SOSSEN, and that is what SOSSEN website is also confirming at the moment - that both schools and parents cannot request a statutory assessment, although they can apparently appeal the outcome.

 

They also advised not to accept any offers of Direct Payments/personal budgets for EHCP's, because the financial payments do not have to meet the level of care needed. And so you can be left in a situation where you cannot get any of the Direct Payments because you cannot use the money for the purpose it was intended because you cannot purchase the provision with the money provided, and you cannot use the money for anything else. SO if they only provide money for a basic TA, you won't have the money for the qualified TA as per the Statement/EHCP, and therefore cannot use the money, so the child gets absolutely nothing!

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The loss of the right to request assessment is a big deal - it seems that they are removing the legal requirement on the LA to do anything at all (or at least any effective means of parental redress).

 

To be honest I think IEPs are pretty much useless and wouldn't really mind them going either.

 

I don't see the point of direct payments as it is hardly likely the LA will offer to pay enough to cover the real cost - the only possible benefit I do see is if it enables parents to top up the provision by paying more - or say to share the cost of independent schooling.

 

However I will be writing to my MP on these matters shortly anyway.

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But if IEPs do go, you need something to replace them. Although the current process is very slow, at least with SA, if there is no improvement you move to SA+ and IEPs, [and usually at that stage the LA EP and NHS SALT are called in to assess or advise] which then helps you to identify what the difficulties are that the child has via the targets set, and to measure if those targets are being met. And if they are not you can request the LA to carry out a statutory assessment when you have two IEPs. Remember that IEPs SHOULD identify needs/difficulties across all areas, not just academic ones. So without an IEP the only information you will be getting via the school is KS levels.

 

If there is no process to identify a child with an SEN other than severe disability [which is what the government seems to be aiming at with the new legislation], then who will identify the children falling behind in any of the areas currently identified via the Code of Practice, and via what process if there is no nationally recognised scheme.

 

There is nothing in the draft legislation about parents or schools being able to ask the LA for an assessment. It seems the LA is responsible for deciding if a child needs assessing, probably via the LA EP.

 

In all the years my son has been in school he has only been seen twice by an LA EP. And on both occasions it was due to my insisting the school did this as per the SA+ and IEP reviews showing he was falling further behind.

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From the seminar they were saying that the direct payments could not be used for paying for school placements.

 

And that the Direct Payments do not need [under draft legislation] to be at a realistic level to actually pay for the HCP to be fullfilled. Also currently there is no way of appealing the amount of a direct payment budget. So they want that including. For many parents, tired of fighting with school/LA/NHS, the idea of a budget that they control sounds like freedom. But if the budget is not high enough to pay for the provision you are in an even worse situation.

 

And although it is good that the new HCP will go up to 25, the problem parents could have if they agree a budget, is having that budget, but there being no services to use it on! And because you cannot use it on anything else, you would not be able to use the budget.

 

They gave an example of a young person whose family had agreed a budget. This child was very aggressive and needed expert professional input. However the budget only paid for a basic TA. This child attacked the TA and injured them. So the school won't allow the child back as they say they cannot manage him with the current staff they have. The budget is not enough for the parents to pay for the level of provision the Statement details. So he is currently out of school and the budget is not being used.

Edited by Sally44

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But no one can be forced to take the direct payments - without a statutory way of assessing the level they are pretty much useless. I can't imagine why I would choose to take the budget rather than requiring the LA to implement the provision themselves. Given that the LA can already buy in external provision from the same sort of therapists we would approach ourselves.

 

I think your experience of IEPs must be very different to ours - they may work for children who are not achieving the expected levels but for cognitively able children who need support in other areas they are useless. In fact it is very difficult for teachers even to set SMART targets in those areas

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The right to request an assessment has not gone. I have just submitted a paper on the Bill to the Public Bills Committee. it is in clause 23. The LA has always been responsible for deciding if a child is to be assessed but parents could request this. As you know, this does not mean the LA will do it. This right to bring a child to the attention of the LA for assessment remains,

 

Who was the lawyer? A certain well-known lawyer mouthed off about this when it was a draft Bill last year but she is wrong and IPSEAs paper does not suggest this either if you look at the responses on their site.

 

There are many things wrong with this legislation - the main thing being it does not alter the power imbalance between LAs and parents at all and does not promote children's rights - and it is best to concentrate on what is actually in the substance of the text.

 

There is also a need to distinguish between the detail of the Act and what will be in accompanying Regulations The Education Act never contained detail such as School action and SA+ or IEPs, they were always set out in the SEN COP and not the Act. There is now a new draft SEN COP - an indicative draft . This can be found here http://www.cambridgeshire.gov.uk/NR/rdonlyres/A46D5569-8506-4DC0-A38D-E4429C7DCBE0/0/sencodeofpracticeindicativedraftforcommittee.pdf

 

This time SA and SA+ are no longer in the SEN COP - as it stands. Theybare called 'additional needs' . Equally IEPs which were in the SEN COP and not the Act and no longer in the in the SEN COP.

 

I fear that direct payments are going nowhere. LAs simply don't want them. Recent research by MHP Health Mandate confirmed that by Feb 2013 over half the pathfinders have not got systems up and running and so are simply not trialling them. A get out clause will probably be imposed by way of Regulations reflecting the current SEN Direct Pyments Pilot Order which allows LAs to refuse if it is an inefficient use of resources. In practice this means if they have a block contract they will refuse DPs. LAs do not want to lose control by the back door.

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It is the Barrister John Friel from SEN Legal.

 

Regarding direct payments and pathfinders, the legislation is going to be finalised before these pathfinder trials are in. And I think the offer of budgets/Direct payments is going to remain.

 

I know that SA/SA+ and IEPs are in the code of practice. But that has now gone and the new COP does not contain these things.

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Okay, some clarification.

 

Checked my notes and spoke with SEN Legal. The original draft new legislation did not give parents or schools the right to ask the LA to assess for a EHCP. But after lobbying by charities and parents this has now been amended. Proving that writing to your MP does get results.

 

My other points, as originally posted remain.

 

So SEN Legal are asking for parents to write to their MP about those things itemised in my OP. You can also look on the SOSSEN website for sample letters.

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Below is a draft letter from SEN Legal which you can use to write your own letter to your MP.

 

Try to amend it to be relevent to your situation and your child.

 

 

 

LETTER NO: 3 – For parents to send on to their MPs

 

 

INSERT NAME OF MP HERE

House of Commons

London

SW1A 0AA

 

 

 

Dear INSERT NAME OF MP HERE

RE: EHC Plans – Proposed Changes

I am writing to you following the publication of a huge number of documents during the school Easter break including the draft Code of Practice, draft Regulations and Briefing Notes.

 

The Code of Practice and Regulations have the combined effect of seriously reducing parental rights, which I am setting out here:

 

1. Effective (i.e. practical) abolition of the Right of Appeal following an Annual Review

 

There is no legal requirement for Local Authorities to make a decision on whether to amend an EHC Plan or not following an Annual Review. Further, there is no time scale for doing so. It is the decision made by the Local Authority which triggers the Right of Appeal following an Annual Review, to the SEND Tribunal. If there is no obligation on the part of the Local Authority to make a written decision, at all or to do so within a particular timescale. Effectively, this brings to an end the ability of parent’s to appeal a Statement following an Annual Review, because without a written decision on the Annual Review parents cannot Appeal.

 

The Right of Appeal after an Annual Review needs to be made effective with a requirement that the Local Authority make a written decision following the Annual Review within a specified timescale and communicate this to the parents within a specified timescale.

 

 

 

 

2. Form and content of EHC Plan

 

• Currently, all Statements have a prescribed form set out in Regulations. That is why they look the same everywhere. The proposals omit any requirement that Regulations prescribe a form and content for an EHC Plan, leaving each Local Authority to make up their own. Both Regulations and the draft Code of Practice make it quite clear that each Local Authority, unlike at the present moment, can have its own system.

 

• This will create a postcode lottery for SEN parents, if life were not difficult enough already.

 

• It is likely that many assessment systems and final EHC Plans will not comply with the legal requirements.

 

• It will also make it almost impossible for charities to advice parents, because of the extent of the local variation.

 

• IPSEA, on their website state the sample EHC Plans from parents in Pathfinder Local Authorities that they have seen display:

 

• Confusion over boundaries between educational needs/health care/social care provision.

 

• Confusion over what is legally enforceable and what is not.

 

EHC Plans should have a prescribed form so that they are the same for all children and young adults without local variation.

 

 

3. Mediation Advisor Certificate

 

A parent cannot appeal, as they can now, to the SEND Tribunal. They are first required to obtain a Mediation Advisors Certificate. This is a bureaucratic job creation scheme.

 

The Mediation Certificate should be abolished

 

4. Personal Budgets

 

• There is currently no Right of Appeal if there is a legitimate disagreement as to the amount of the personal budget. There are clearly going to be legitimate disagreements, potentially over a number of issues, such as where on the salary scale, should a Teaching Assistant (if required) be pitched? Should it be at the top of the scale? Should it be at the bottom of the scale? What is the skill mix and experience required? Because that will be reflected in salary. Further, there is the issue of “on-costs” (employers national insurance, pensions etc). Should they be included or not? There is clearly scope for legitimate disagreement, not only over the skill mix required and therefore, pay, for the Learning Support Assistant, the same will apply to other professionals such as Dyslexia teachers, ASD Advisory teachers, Therapists etc.

 

There is currently no avenue for legitimate disagreement. A Right of Appeal is required, to the SEND Tribunal to provide for legitimate disagreement about the amount of the budget.

 

 

 

5. No Right of Appeal against Social Services and Health

 

• A Right of Appeal should be provided against the Social Services and Health element of the EHC Plan. At the moment there is only a Right of Appeal against Educational Provision. It is therefore completely unenforceable against Health and Social Services.

 

• In Scotland and Wales, the Tribunal does have jurisdiction over both education and Social Services. It is not clear why parents in England should be worse off, in terms of Right of Appeal, than parents in Scotland or Wales. Further, it is illogical. Education and Social Services are, by Statute, a joint Children’s Services Department. At the moment there is only a Right of Appeal against half of a Department, not the whole.

 

• Further discussion with SEND Tribunal judges, particularly the Judicial Head, is that they are surprised not to be more involved in these proposals and there has not been consideration of extending jurisdiction.

 

At the very least, the Right of Appeal should be extended to cover Social Services. Parents in England should not have lesser rights than those in Scotland and Wales.

 

 

6. Tribunal Powers Statutory Regulation not Legislation

 

The Tribunal’s powers have been taken out of the Education Act and put into Statutory Regulation. We are strongly of the view that the Tribunal powers should put back in the Education Act 1996 and not removed. Bearing in mind that the DFE officials have made an attempt to severely reduce parental rights, putting Tribunal powers in Regulations which can easily be amended by DFE officials, without scrutiny by members of Parliament is a mistake. It is perfectly possible for officials to achieve, by the back door, what they fail to achieve by the front door, using this method.

 

The Tribunal Appeal powers should be put back in the Education Act 1996.

 

7. EHC Plans do not cover Higher Education and Apprenticeships

 

Children with EHC Plans needs will not cease if they go into an Apprenticeship or to University. Higher ability disabled SEN persons do not suddenly find themselves without needs, if they transfer to a University or an Apprenticeship.

 

Neither Universities nor Apprenticeships are geared up to SEN.

 

The proposals avoid responsibility for this group, leaving the matter to Disability Discrimination legislation, which if, after the event, when it has gone wrong, this is wholly inadequate.

 

Further, Student Finance England, which receives applications for Disabled Students Allowances, does not accept what is in the Statement and will not accept what is in the new EHC Plans. Student Finance England require fresh post 16 reports confirming conditions which have existed, in some cases, since pre-school Statements. This should stop.

 

EHC Plans should cover Universities and Apprenticeships and Student Finance England should accept EHC Plans.

 

 

 

8. Information Black Hole

 

Parent’s rights to information are disappearing. This will affect their ability to challenge the provision their children receive. IEPs are going, and nothing replaces them. There are no rights to any written reports before the Annual Review. There is no right to the Head Teacher’s report following the Annual Review. It will be very difficult for parents to know what is going on, and for charities to advise, because they simply will not know what is happening.

 

Parents should also have the right to attend with support if they wish, such as a charity representative or a lawyer.

 

IEPs and written reports should be supplied 10 days before the Annual Review, together with a copy of the Headteacher’s report following the Annual Review should be reinstated together with the right to attend with a representative/supporter.

 

 

9. Adequate Progress

 

a. The definition of Adequate Progress has disappeared from the Code of Practice. Likewise that there should be additional, different provision, if adequate progress is not being made.

 

b. This will make it difficult for parents and charities supporting parents to argue for alternative provision. This combined with the absence of IEPs, and reports for the Annual Review, together with the Annual Review report, will make the situation extremely difficult.

 

c. The definition of Adequate Progress and requirement for Additional and Different provision if adequate progress is not made (which reflects Case Law) should be reinstated.

 

The definition of adequate progress and requirement for additional and different provision if adequate progress is not made should be reinstated.

 

10. Misleading Terminology

 

The terminology in the draft Code of Practice is legally misleading, where the words “must” and “should” are used. Both are judicially defined as mandatory, i.e. compulsory legal obligations. The draft Code of Practice suggests that this is not the case in relation to the word and that the word “should” means non statutory, i.e. optional. This is wrong “should” is not judicially defined as optional. If the terminology in the Code of Practice is not inline with judicial interpretations, it will be hopelessly confusing to parents, Local Authority officers who are not Lawyers, and charities advising parents.

 

The use of the words “must” and “should” should comply with case law and should not mislead parents, charities and Local Authority officers.

 

11. The Absence of “Enabling Consent”

 

There are some children who simply cannot cope in large mainstream schools, and Local Authorities need to place in very small, independent schools, simply due to class size, school size and the consequent acoustic issues. It will not be possible for the Local Authorities to place children in such settings. There is also the issue of children already in such settings, particularly the hearing impaired. There should be an “Enabling Consent” provision, which enables the Secretary of State to grant a specific consent for a pupil to be educated in an independent mainstream school, if their Special Educational Needs require that. Historically the legislation did permit the issue of “Enabling Consents” by the DFE if necessary.

 

An Enabling Consent provision is required so that the Secretary of State can give consent to place a pupil with an EHC Plan in an independent school and so that a consent is not needed individually in every case, a category (list) of independent schools approved as suitable for the admission of children for whom EHC Plans are maintained should be created. This will have the effect of reinstating the original Section 347 of the Education Act 1996.

 

I am seeking your support in resisting these proposals and retaining parental rights and the ability of charities to effectively help parents.

 

Yours sincerely

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