On 3 September 2012, the Department published the long-awaited draft SEN bill.
Here is the Ministerial Statement which announced the draft.
And here is the draft itself, being published now for pre-legislative scrutiny (i.e. comment before it is even formally a bill, the new way).
It is potentially the biggest shake up in SEN since the 1981 Act introduced statements of SEN and the framework around them. That said, many of the obligations within it (eg in relation to assessment, admission, inclusion, etc) are in very similar (if not materially identical) terms to what we have now.
Overall, the proposal is for a new ‘duty to co-operate’ as between relevant bodies; and a new ‘EHC Plan’, namely “a plan setting out:
(a) the child’s or young person’s special educational needs;
(b) the outcomes sought for him or her;
(c) the special educational provision required by him or her;
(d) any health and social care provision of a prescribed description
required by him or her.”
The blurb says this:
“This document now sets out the draft legislation to put those proposals into practice, providing significant improvements to the support provided to
children and young people, and to their parents. A single system would ensure children and young people received the support they need regardless
of age or where they are taught, providing for them from birth until, where appropriate, their 25th birthday, with comparable statutory rights and
Local authorities in England would be required to work with local health services, to plan and commission support across education, health and social
care. They would also be required to set out a local offer of the services available to children, young people and their families.
The current SEN statements and learning difficulties assessments would be replaced by a single assessment process. The resulting Education, Health
and Care Plans would provide a commitment from all services to support educational and other outcomes. All young people and parents of children
with an Education, Health and Care Plan would have the option of holding a personal budget, giving them greater control over how their support is
The reforms would also strengthen the redress process. Young people outside of the school system would be able to appeal to the First Tier Tribunal
for the first time. Where parents or young people wished to make an appeal to the First Tier Tribunal (Special Educational Needs and Disability), they would
first be required to go to mediation.
Together, these reforms build a system to work in the best interests of the children and young people it should serve and provide them with the greatest
opportunity to succeed. The detail of the draft regulations and the guidance will be developed as we learn from the current pathfinders. It is intended that
they would form part of the package of children and families legislation announced in the Queen’s speech.”
On that basis, the following are the main points of note:
- The contemplated new duty to ‘co-operate’ (clause 8) would fall on all schools including academies (see clause 9).
- The right to request that a particular institution is named as the placement in the EHC would apply also also to requests for academies (clause 18)
- Such a request (including thus for an academy) would have to be complied with unless the placement would be unsuitable, or would be incompatible with the efficient use of resources or the education of others (clause 19)
- The duty to admit where named in that way would also apply to an academy (clause 22)
- The newly proposed ‘resolution of disagreements’ provision (clause 30) also applies to academies.
- The proposed ‘best endeavours to secure special educational provision’ obligation (clause 39) applies equally to academies.
- The proposed requirement to appoint a SENCO (clause 40) applies equally to academies.
- The proposed obligation (clause 41) to notify parents where a child is receiving special educational provision but has not got an EHC plan (i.e as if on current school action, or school action plus) applies equally to academies as does the proposed obligation (clause 42) to provide an ‘SEN information report’.
- A new SEN Code of Practice would apply also to academies (clause 44).
On a quick read, I have not yet spotted anything where academies are treated materially differently from their maintained equivalents.Let me know if you spot anything.
That, of course, has always been the political claim before, but it was never truly the case, even with those academies containing the ‘SEN obligations’ (i.e. post September 2010 creations).
Assuming the proposals become a bill and then law, it would also be another (I think the second) example of existing academy funding agreements being overridden by statute. So, while making things simpler in one regard (i.e. all academies and maintained schools treated alike) it would also make it more complex for the non-expert to work out what obligations apply (funding agreement? statute?). Still then a can of worms.