Last reviewed 31 December 2012

John Fowler writes about the draft legislation on reform of provision for children and young people with special educational needs.

Although other government departments regularly publish draft legislation, it is rare for the Department for Education (DfE). When it has happened, it has only been a few clauses — as with recent examples of draft legislation on apprenticeships and provision for children in care. The draft legislation on special educational needs (SEN) provision, sets out the Government’s thinking on how it wants to meet the needs of children with SEN and disability in future.

Children and Families Bill

The Queen’s Speech in May 2012 announced the Government’s intention to introduce a Children and Families Bill during this session of Parliament. The draft SEN clauses will form part of this Bill, which will focus on the wider responsibilities for children of the DfE, local authorities and schools. Other issues expected to be covered include reforms to the law on adoption, family courts and the Children’s Commissioner.

Unlike with other recent schools legislation, the Government has set a leisurely pace for this Bill. It is expected that it will be published in early 2013, and its consideration will continue into the next session of Parliament with debate going on until late 2013.

The draft legislation builds on the existing SEN legislation (which will no longer apply to England) to include the objectives in the Green Paper, Support and Aspiration: A New Approach to Special Educational Needs and Disability, of bringing together the separate arrangements for children in schools and young people in post-16 institutions, and replacing the statement of SEN with an integrated education, health and care (EHC) plan. The draft legislation also removes the separate treatment of maintained schools and academies.

Special educational provision

While the current definition is retained for children for whom special educational provision must be made, it is extended to include young persons under the age of 25 attending college.

Role of local authority

A local authority must use its powers to identify all children and young people in its area who have, or may have, SEN and is “responsible” for them when they have been identified or brought to the authority’s attention.

A local authority must work with health and social care services to ensure the integration of special educational provision where this promotes the well-being of children with SEN and improves the quality of provision for them. In particular, the local authority must work with its local clinical commissioning groups to secure integrated provision for children and young people with SEN. This is known as “EHC provision”: education, health and care provision for children and young people requiring special educational provision.

A local authority must keep under review the local special educational provision and consider the extent that it is meeting the needs of the children and young people for whom it is responsible. The local authority must work with schools and other education providers to keep this provision under review.

In carrying out these and other functions, the local authority must co-operate with a range of local partners including maintained schools and academies, and they must co-operate with the local authority.

A local authority must publish a “local offer” of services it expects to be available for children and young people with SEN. The offer must include EHC provision, other education and training, and travel support. As at present, the local authority can secure provision outside a school or college, outside England and Wales.

EHC plans

The draft clauses on the EHC plan are based on the current legislation for statements of SEN. Where the local authority believes that a young person’s needs are such that provision may need to be set out in a plan, then the local authority must secure an EHC needs assessment and, if required by the assessment, specify the provision needed by the child or young person in an EHC plan.

The current rights of parents to be informed about the process and be involved in the assessment are retained, although the draft legislation removes the current parental right to ask for an assessment to which the local authority must respond. Plans only have to “specify” and not “set out” provision.

The local authority, as at present, must secure provision in a mainstream institution unless this is incompatible with the wishes of the parents or the provision of efficient education for others. Also, the local authority remains responsible for securing the educational provision, but there is no equivalent duty on social care and health providers to comply with requirements in the plan. Maintained schools and academies named in EHC plans have a duty to admit.

Personal budgets

There is currently a pilot being undertaken, but the draft legislation will extend personal budgets to all who have an EHC plan. When asked by the parent or young person, the local authority must make available a personal budget to allow the parent or young person to be involved in securing provision.


Parents wanting to appeal against a plan will first have to take part in mediation before appealing to the First-tier Tribunal. There are new voluntary arrangements for resolving disputes between local authorities, schools and colleges, and parents. Provision is made for children themselves to make appeals to the tribunal.

Duties on schools and colleges

Institutions must use their “best endeavours” to secure special educational provision for children who have SEN. Schools, but not further education (FE) colleges, must appoint a SEN co-ordinator. Parents must be informed if special educational provision is being made for their child. Schools must prepare a SEN information report.

Code of practice

The Secretary of State must continue to issue a Code of Practice which will be extended to cover FE institutions. Parliamentary scrutiny of the code is removed.